     Case: 18-60480      Document: 00515069331         Page: 1    Date Filed: 08/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                             August 8, 2019
                                      No. 18-60480
                                                                             Lyle W. Cayce
                                                                                  Clerk
ROBBIE KEETON GEIGER, as Administratrix of the Estate of Ricky Keith
Keeton, Deceased; DELISHA KEETON MOONEY; MEGAN ARCHER,

               Plaintiffs–Appellees,

v.

DEPUTY ERIC SLOAN,

               Defendant–Appellant.


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:16-CV-95


Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*
       This qualified-immunity appeal stems from a drug-bust SWAT raid gone
wrong. An attempted “no knock” entry led to a firefight in which the suspect
died. The suspect’s daughters sued the lead deputy officer, and the district
court denied qualified immunity. We AFFIRM that denial.
                                             I
       Deputy Eric Sloan set up a SWAT raid of suspected drug dealer Ricky
Keeton. Sloan had been surveilling Keeton for about a year. One night, Sloan


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-60480

and his colleague saw one of their informants leave Keeton’s trailer home. They
radioed patrol units to stop the informant, and the responding officers found a
glass pipe and methamphetamine in the informant’s car. The informant told
Sloan and his colleague, who arrived on the scene shortly after, that Keeton
had a large amount of meth in his trailer as well as $20,000 in cash.
      Sloan’s colleague prepared an affidavit and search warrant, and Judge
Fowlkes signed off on it. Right after, Sloan assembled a SWAT team and
briefed them on Keeton’s property layout, his camera locations, and his several
dogs. After arriving at the trailer, the SWAT team went around back; their
plan—to crease the porch door in with a battering ram and pry it open with a
crowbar.
      As the team was getting ready, Keeton woke up. Telling his girlfriend
that he’d heard something outside, Keeton grabbed his pellet gun. The SWAT
team then supposedly rammed the door and pried it open. But Keeton’s
girlfriend says that the deputies never announced who they were and that
Keeton opened the door himself.
      Deputy Sloan offered two competing reports of what he saw inside the
trailer once the door was open: First, in his official statement, he said that a
shirtless Keeton fired a black handgun and yelled “you son-of-bitches”; second,
in his deposition, Sloan said that he would not have been able to see Keeton
unless he’d stepped out onto the porch.
      A firefight ensued. It’s unclear who shot first. Keeton’s girlfriend says
that Keeton closed the door and the officers started shooting. In any event,
Keeton wound up with 6 bullet wounds and 50 bullet holes in his trailer.
Despite first-aid attempts, Keeton died on the scene. The officers recovered
nine ounces of meth, but the $20,000 was never found.




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                                            II
       Keeton’s daughters sued Deputy Sloan as well as the county. They allege
that Sloan violated Keeton’s Fourth Amendment rights by organizing a no-
knock raid and by causing his death.
       The district court found that Sloan lacked a reasonable suspicion that
knocking and announcing his presence would be dangerous or futile. The
district court also found two genuine issues of material fact—the disparity
between Sloan’s story and Keeton’s girlfriend’s story; and Sloan’s own
conflicting stories. The court held that these disputes of material fact bear on
whether Sloan violated Keeton’s Fourth Amendment rights. So it denied him
qualified immunity.
                                            III
       The district court had jurisdiction under 28 U.S.C. § 1331. Sloan timely
appealed. And this court has jurisdiction to review the denial of qualified
immunity to the extent that it’s based on legal conclusions. 1 In other words, we
review only whether certain conduct would be objectively unreasonable as a
matter of law. 2 This court reviews the denial of summary judgment de novo,
viewing the facts in the light most favorable to the nonmovant. 3
                                            IV
       Under Supreme Court precedent, government officials have a right to
qualified immunity when carrying out their duties. 4 But under the familiar
framework, plaintiffs can overcome it by showing that the officer violated their
clearly established right. 5 Essentially, it’s a two-prong test—(1) whether the


       1  Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997).
       2  Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008).
        3 Plumhoff v. Rickard, 572 U.S. 765, 768 (2014).
        4 Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982).
        5 Id.; see also Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013); Ontiveros v.

City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).

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officer violated a right; and (2) whether that right was clearly established. And
as the Supreme Court explained in Wesby, “clearly established” means that
either “controlling authority” explicitly adopts a rule or else there is a robust
consensus of persuasive authority. 6
      The plaintiffs here have asserted two Fourth Amendment claims: one
based on the no-knock entry and one based on the use of deadly force. We take
them in that order.
                                             A
      The plaintiffs successfully alleged a no-knock violation. The Supreme
Court established the standard for no-knock entries in its 1997 decision
Richards. 7 The officers “must have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective investigation of the
crime by, for example, allowing the destruction of evidence.” 8 And drug
investigations don’t automatically meet this requirement. 9 Rather, the court
must consider the actual circumstances of each particular case. 10 Because
controlling authority dictates that officers must have reasonable suspicion, the
alleged violation is clearly established.
      Moving to the supposed violation, there are three reasons why it isn’t
clear that Deputy Sloan had reasonable suspicion; and thus why plaintiffs have
alleged a constitutional violation.
      First, the warrant doesn’t reveal a reasonable suspicion. There is only
one reference in the warrant to “no knock”—a mention that the officer who



      6 District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).
      7 Richards v. Wisconsin, 520 U.S. 385, 394–95 (1997).
      8 Id. at 394.
      9 Id. at 396.
      10 See id.



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prepared the affidavit “requests a no-knock search due to officer safety and the
protection of further evidence.” But the warrant does not go so far as to say
that it grants a no-knock entry; nor does it or the accompanying affidavit
explain how the officers announcing their presence would create any danger,
futility, or risk of inhibiting the investigation.
      Second, the plaintiffs allege that knocking would not have been
problematic for the officers. Although Sloan in his deposition said that the
informant told his colleague that Keeton had guns, that issue is not properly
before us. The district court found it to be undisputed that no one ever
questioned the informant about weapons. And thus, under Supreme Court
caselaw, we must accept that finding for this interlocutory appeal. 11
      Even if we did have jurisdiction to review this finding, it would not
matter. There does appear to be sufficient evidence to create a genuine dispute
on this issue. Sloan says that the informant told one officer, who in turn told
another officer, who then told Sloan that Keeton had weapons. But in his
deposition, the informant said that no one ever asked him about weapons. Nor
was this weapon information included in the affidavit or warrant. The
plaintiffs also allege that the back-door cameras were disabled. And the
plaintiffs allege that officers cut off the sewage line before conducting the raid,
mitigating the possibility for evidence destruction. Besides, Sloan in his
deposition explained that it was customary for his office to conduct night-time,
no-knock raids for drug busts. Thus there are genuine disputes of material fact
which bear on whether conducting a no-knock raid violated Keeton’s rights.
This is not to say that Sloan will not prevail at trial. Instead, the plaintiffs
have merely alleged a violation. They still have the burden of refuting the




      11   See Behrens v. Pelletier, 516 U.S. 299, 312–13 (1996).

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officers’ story. In this appeal, the genuineness of factual disputes is not within
our jurisdiction.
       Third and finally, the independent intermediary doctrine does not apply
here. Under that doctrine, “if facts supporting an arrest are placed before an
independent intermediary such as a magistrate or grand jury, the
intermediary’s decision breaks the chain of causation for false arrest,
insulating the initiating party.” 12 But here, the plaintiffs don’t challenge the
warrant; only the no-knock entry. It’s disputed whether the warrant authorizes
a no-knock entry.
       Thus, the district court was correct to deny qualified immunity on this
claim.
                                              B
       The plaintiffs have also successfully alleged an excessive-force claim. As
the Supreme Court recently explained in Plumhoff, by using excessive force,
an officer violates the victim’s right. 13 Deadly force is excessive unless the
officer reasonably believes that a suspect poses a threat of serious harm. 14 So
often the question is whether perceiving a threat was reasonable. But that
inquiry must be made with close attention to the particular facts of the case. 15
       The Supreme Court has explained several times that reasonableness is
based on the perspective of an officer on the scene; not clinical hindsight. 16 The
officer must “believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.” 17 That threat must be


       12 Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010) (quoting Taylor
v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994)).
       13 Plumhoff, 572 U.S. at 774.
       14 See id. at 774–75.
       15 Mullenix v. Luna, 136 S. Ct. 305, 309 (2015).
       16 Plumhoff, 572 U.S. at 775; Los Angeles County v. Rettele, 550 U.S. 609, 614 (2007);

Graham v. Connor, 490 U.S. 386, 396–97 (1989).
       17 Tennessee v. Garner, 471 U.S. 1, 3 (1985).



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imminent. It cannot be a past threat. As this court explained in Manis, the
focus is on what made the officer shoot. 18 Thus, it’s clearly established that
when an officer uses deadly force unreasonably, without perceiving an
imminent threat, that violates a plaintiff’s rights.
      But here there are disputes of material fact that bear on whether the
officers reasonably perceived a threat of imminent harm. Namely, the district
court found that there was a dispute of fact over whether Sloan saw a gun. We
cannot question the genuineness of that dispute. 19 First, Keeton’s girlfriend’s
story completely diverges from Sloan’s. She says that Keeton opened the door
to see the officers on his patio and, out of fear, closed it. Only after then was
there any shooting. But Sloan says that the officers battered the door in and
only shot when they saw Keeton with a gun. Yet the girlfriend’s story
contravenes Sloan’s story that Keeton came out of the house guns blazing. In
fact, Sloan himself told two conflicting stories: one in which he looked into the
trailer and saw Keeton shooting; and one in which he didn’t see Keeton. In any
event, the girlfriend’s story directly refutes the idea that the officers shot
because they had a gun pointed at them. And if the girlfriend’s story is
believed, then Sloan (by his admission) could not have seen a gun. If Sloan did
not see a gun, then he could not have reasonably perceived a threat of
imminent harm and should not have used deadly force.
      Consider, for contrast, the Supreme Court’s 2015 decision in Mullenix. 20
There, the earlier Fifth Circuit holding denied qualified immunity for an officer
who shot a fleeing fugitive. 21 The Supreme Court admonished this court
against defining constitutional violations too generally. In other words, courts


      18 Manis v. Lawson, 585 F.3d 839, 845 (5th Cir. 2009).
      19 See Behrens, 519 U.S. at 312–13.
      20 Mullenix, 136 S. Ct. at 308–12.
      21 Id. at 307.



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ought not improperly treat the perception of a threat as a fact question instead
of a legal question. Yet in that case, although many facts were in dispute,
certain facts the Court found critical were not: that the fugitive claimed to have
a gun and was speeding down a highway. 22
       Here, that’s not the case. With a disputed story, it’s hard to assess
whether—as a matter of law—Sloan reasonably thought that Keeton posed a
threat of imminent harm. The district court was thus right to deny qualified
immunity on this basis as well. Because the disputed facts are material to the
question of whether a reasonable officer would conclude that Keeton posed a
threat of imminent harm, we conclude that summary judgment is
inappropriate at this stage.
                                      *      *      *
       The district court correctly denied qualified immunity. AFFIRMED.




       22See id. at 310 (“By the time Mullenix fired, Leija had led police on a 25-mile chase
at extremely high speeds, was reportedly intoxicated, had twice threatened to shoot officers,
and was racing towards an officer’s location. . . . Given Leija’s conduct, we cannot say that
only someone ‘plainly incompetent’ or who ‘knowingly violate[s] the law’ would have
perceived a sufficient threat and acted as Mullenix did.”).

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