     Case: 17-41235      Document: 00514739121         Page: 1    Date Filed: 11/28/2018




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

                                                                         FILED
                                                                   November 28, 2018
                                      No. 17-41235
                                                                      Lyle W. Cayce
                                                                           Clerk
CARMEN TREVINO, Individually, as Representative of the Estate of Jose
Roman Rodriguez, Deceased and on Behalf of all those Entitled to Recover
Under the Texas Wrongful Death Act for the death of Jose Roman Rodriguez;
NOEMI LONGORIA, As Next Friend of Minor Children G.R.R. and G.N.R,

              Plaintiffs - Appellees

v.

ROLAND TRUJILLO, JR.,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:16-CV-262


Before KING, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       On July 17, 2015, Defendant-Appellant Rolando Trujillo, Jr. fatally shot
Jose Roman Rodriguez during a traffic stop. Plaintiffs Carmen Trevino and
Noemi Longoria sued Trujillo under 42 U.S.C. § 1983 for excessive use of force.
Trujillo moved for summary judgment on qualified immunity grounds. The
district court denied Trujillo’s motion as to qualified immunity, holding that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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genuine disputes of material fact over what happened at the traffic stop
precluded summary judgment.         Trujillo now appeals the district court’s
decision. For the reasons set forth below, we DISMISS Trujillo’s appeal.
                                I. Background
      Early in the morning on July 17, 2015, Trujillo, a Brownsville Police
Officer, responded to a reported shoplifting at a 7-Eleven store in Brownsville.
The store clerk informed Trujillo that a man had taken three cases of beer
without paying for them. Trujillo never asked the clerk if the suspect was
armed. The clerk explained that the thief had absconded with another person
in a gray-brown SUV. Trujillo then set off to catch the SUV.
      Trujillo eventually caught up to the SUV at a red light. When the light
turned green, Trujillo turned on his patrol car’s siren and lights. The SUV
turned left and continued at a moderate speed for several hundred yards before
stopping. Trujillo then approached the SUV. As he approached the car, a
passenger matching the description of the 7-Eleven thief bolted from the
passenger side of the car into an adjacent field. Trujillo reported the deserter
on his radio and continued to the driver, pulling open the driver’s side door.
According to Trujillo, Rodriguez, the driver, denied any knowledge of the 7-
Eleven theft.
      The district court determined that genuine factual disputes existed over
what happened next. Although the dash camera in Trujillo’s car captured the
events, the district court concluded that the video could potentially support
either party’s version of the events.
      Trujillo, for his part, asserts that Rodriguez shut the door and reached
into the center console to retrieve a “dull gray object.”      He claims that
Rodriguez’s apparent attempt to grab a weapon prompted him to draw his gun




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and fire four times into the car. Trujillo states that as he fired the second or
third shot, Rodriguez put the car in drive and began to drive away.
      Plaintiffs disagree. They argue that, under Trujillo’s version of the facts,
Rodriguez would have had to close the door, shift the car into neutral, rev the
engine, use his free hand to open the console, reach for an unknown object,
brandish that object, shift into drive, and again step on the accelerator—all in
about one second.     Plaintiffs claim that Rodriguez reached only for the
gearshift, that the dash camera video confirms that the car had begun moving
when Trujillo first fired, and that forensic analysis showed that the fatal shots
hit Rodriguez from behind.      The district court found that Trujillo never
mentioned seeing a weapon at the time of the events in question. Trujillo only
mentioned the dull gray object six days later, after he met with counsel.
Trujillo also gave inconsistent testimony about touching a screwdriver that
was found in the car, claiming both that he did not recall whether he had
touched it and that he pulled it out of the center console and put it back.
      The district court reviewed the dash camera video, but determined that
“a jury could view the video and reasonably arrive at either conclusion.” It
therefore concluded that a genuine issue of material fact existed regarding
what prompted Trujillo to shoot Rodriguez. The court thus denied Trujillo’s
motion for summary judgment based on qualified immunity.
                           II. Standard of Review
      The denial of a motion for summary judgment is ordinarily not an
appealable final decision. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004)
(en banc).   But when a party moves for summary judgment on qualified
immunity grounds, that party may immediately appeal the district court’s
denial of summary judgment under the collateral order doctrine. Mitchell v.




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Forsyth, 472 U.S. 511, 524–25, 530 (1985). Such an appeal is limited to purely
legal issues. See id. at 528 n.9, 530.
       In this context, we cannot evaluate the district court’s finding that
genuine factual disputes exist. See Kinney, 367 F.3d at 348. Rather, we
“consider only whether the district court erred in assessing the legal
significance of the conduct that the district court deemed sufficiently
supported.” Id. (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996), and
Johnson v. Jones, 515 U.S. 304, 313 (1995)). Put differently, “we can review
the materiality of any factual disputes, but not their genuineness.” Kinney, 367
F.3d at 347 (quoting Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000)). 1
       We also “are required to view the facts and draw reasonable inferences
in the light most favorable to the party opposing the summary judgment
motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks
and alteration omitted). As a result, “on interlocutory appeal the public official
must be prepared to concede the best view of the facts to the plaintiff and
discuss only the legal issues raised by the appeal.” Gonzales v. Dall. Cty., 249
F.3d 406, 411 (5th Cir. 2001). “Once we have narrowed the interlocutory
appeal solely to issues of law, we review the district court’s resolution of these
issues de novo.” Lytle v. Bexar Cty., Tex., 560 F.3d 404, 409 (5th Cir. 2009).
                                     III. Discussion
       A public official is entitled to qualified immunity unless a plaintiff shows
“(1) that the official violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged conduct.”


       1 Trujillo’s appeal primarily concerns the sufficiency of Plaintiffs’ evidence, which
speaks to the genuineness, not the materiality, of the factual disputes. His main contention
is that Plaintiffs lack evidence that it was unreasonable for him to believe Rodriguez was
reaching for a weapon. We do not have jurisdiction at this stage of the proceedings to address
the genuineness of the parties’ factual disputes. See Kinney, 367 F.3d at 348. To the extent
that Trujillo’s arguments are materiality challenges, we address them here.
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Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).
       Plaintiffs claim that Trujillo used excessive force against Rodriguez.
Excessive force claims implicate the Fourth Amendment’s prohibition on
unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394 (1989); see U.S.
Const. amend. IV. The core question is whether the officer’s use of force was
“objectively reasonable,” that is, reasonable “in light of the facts and
circumstances confronting [the officer], without regard to [his] underlying
intent or motivation.” Graham, 490 U.S. at 397. The reasonableness inquiry
is a “factbound morass.” Harris, 550 U.S. at 383.
       The factual disputes over what happened in the moments leading to
Rodriguez’s death are material to the question of whether Trujillo’s actions
violated a constitutional right that was clearly established at the time of the
events in question. See id.; see also Ashcroft, 563 U.S. at 735. Given the
constraints on our review at this interlocutory stage, and viewing the facts in
the light most favorable to Plaintiffs, Rodriguez was a suspect in a minor theft,
had not tried to harm Trujillo, and was reaching only for the gearshift; nothing
indicated he was armed or reaching for a weapon. A jury could thus find that
Trujillo could not reasonably perceive an immediate threat. 2                  “[O]fficers are

       2  The dissenting opinion relies on three cases to conclude that qualified immunity is
appropriate here. However, two of the decisions involved different procedural postures. They
also involve facts suggesting an immediate threat that are not present in this case. In
Ontiveros v. City of Rosenberg, which was an appeal of a final judgment, not an interlocutory
appeal, police executed a “high risk” felony arrest warrant against an individual who was
reportedly armed and potentially inebriated. 564 F.3d 379, 381 (5th Cir. 2009). After the
defendant officer broke down the door to the dimly lit room where the suspect was hiding and
repeatedly ordered the suspect to show his hands, the officer thought he saw the suspect
reach into a boot for what the officer believed could be a weapon. Id. Only then did the officer
fire. Id. Reese v. Anderson was an interlocutory appeal of a summary judgment denial where
the plaintiffs offered essentially no evidence to support their position. Additionally, there the
officer pursued a suspect in a high-speed car chase. 926 F.2d 494, 495–96 (5th Cir. 1991).
After he was stopped, the suspect repeatedly disregarded instructions to raise his hands. Id.
at 496. The officer used lethal force only after the decedent began to sit up after reaching
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prohibited from using deadly force against a suspect where the officers
reasonably perceive no immediate threat.” Cole v. Carson, 905 F.3d 334, 344
(5th Cir. 2018). That is the precise factual issue found to be in genuine dispute
here: did the officer reasonably perceive an immediate threat? Because the
disputed facts are material, we lack jurisdiction over Trujillo’s appeal. See
Lytle, 560 F.3d at 408.
       Appeal DISMISSED.




down into the car below the officer’s line of sight, leading the officer to believe that he was
reaching for a weapon. Id. The third case, Manis v. Lawson, involved much different facts.
585 F.3d 839, 842 (5th Cir. 2009). Manis was impaired, behaved erratically, and repeatedly
disregarded the officers’ instructions to raise his hands. Officer Trujillo points to no such
facts. Unlike those cases, viewing the facts in the light most favorable to Plaintiffs here, a
jury could find that Trujillo could not reasonably have perceived an immediate threat.



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                                     No. 17-41235

JENNIFER WALKER ELROD, Circuit Judge, dissenting:

      While the majority opinion correctly sets out the relevant facts, I do not
agree that the fact dispute identified by the district court is material. I would
reverse the district court’s denial of summary judgment.
      As the majority opinion observes, we must accept the district court’s
finding that genuine factual disputes exist. Kinney v. Weaver, 367 F.3d 337,
347–48 (5th Cir. 2004) (en banc). Our review on appeal is limited to assessing
the materiality of those fact issues. Id. Here, the district court found that a
genuine fact dispute exists as to what occurred in the few seconds before
Trujillo shot Rodriguez: Trujillo contends that Rodriguez reached for an object
in the center console, while Plaintiffs insist that Rodriguez reached only for the
gearshift. 1 Thus, the parties do not dispute that Rodriguez was reaching for
something—the heart of their disagreement is what he was reaching for. The
district court determined that this fact issue was material to the qualified
immunity inquiry and therefore precluded summary judgment, and the
majority agrees. It is at this point that I depart from the majority’s analysis.
      The question on appeal is whether a reasonable officer under the totality
of the circumstances could have believed that Rodriguez was reaching for a
weapon and therefore reasonably perceived an immediate threat. In several
prior cases, this court has found no material fact issue to preclude a finding of
qualified immunity when the shooting officer could not see the suspect’s hands
and the suspect moved his hands while they were out of the officer’s line of
sight. See, e.g., Manis v. Lawson, 585 F.3d 839, 842, 844–45 (5th Cir. 2009)
(suspect ignored officers’ instructions and reached under seat of vehicle);
Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 381, 384 (5th Cir. 2009)


      1  Neither the district court nor the majority believes that the dash camera video
provides a clear view of what Rodriguez was reaching for or the surrounding circumstances.
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(suspect reached into boot in dimly lit mobile home); Reese v. Anderson, 926
F.2d 494, 496, 500–01 (5th Cir. 1991) (suspect in vehicle repeatedly lowered
his hand behind car door and reached down).              Manis also involved an
interlocutory appeal from a denial of summary judgment, and the court there
observed that while other factual disputes existed, whether the suspect had
reached under the seat of his vehicle was the “only fact material to whether
[the officer] was justified in using deadly force.” 585 F.3d at 843–45. Because
the parties did not dispute that the suspect reached for something, and because
the suspect’s reaching under the seat after disobeying officers’ orders “led [the
officer] to discharge his weapon,” there were no disputed facts material to the
plaintiffs’ excessive force claim. Id. at 844–45.
      Even viewing the facts of this case in the light most favorable to
Plaintiffs, Manis dictates the outcome. Here, the district court found that
while Trujillo was standing next to Rodriguez’s vehicle and attempting to
question him, Rodriguez “quickly grabbed and pulled the driver’s side door
closed.” Even if, as Plaintiffs contend, Rodriguez was attempting to flee, this
was an act of noncompliance with Trujillo’s authority. Next, under Plaintiffs’
version of the facts, Rodriguez reached down to shift the vehicle into drive.
Thus, as in Manis, the parties do not dispute that Rodriguez reached for
something after disregarding Trujillo’s orders, and these facts led Trujillo to
discharge his weapon. Accordingly, under Manis and our other prior decisions,
the fact dispute regarding what Rodriguez was reaching for is not material to
the summary judgment inquiry.




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      Trujillo could have reasonably believed Rodriguez was reaching for a
weapon 2 and therefore reasonably perceived an immediate threat. Because I
believe precedent compels that conclusion here, I must dissent.




      2 Trujillo also presented evidence that he was aware that a brown SUV similar to the
one Rodriguez was driving had been involved in several previous aggravated robberies where
the suspects had used a handgun. This fact further supports the conclusion that Trujillo
could have reasonably believed Rodriguez was reaching for a weapon.
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