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

                                                                               FILED
                                                                              April 30, 2008
                                         No. 07-50547
                                                                         Charles R. Fulbruge III
                                                                                 Clerk


RICHARD WAYNE GRAVES,

                                                     Plaintiff-Appellee,
v.

DEPUTY DON ZACHARY,

                                                     Defendant-Appellant.



                      Appeal from the United States District Court
                           for the Western District of Texas
                                   No. 1:06-CV-577




Before SMITH and PRADO, Circuit Judges, and YEAKEL, District Judge.*
JERRY E. SMITH, Circuit Judge:**


       Deputy Sheriff Don Zachary shot Richard Graves, a criminal suspect,
twice. Graves sued Zachary for using excessive force. Zachary unsuccessfully
moved for summary judgment, claiming qualified immunity. Zachary filed this

       *
           District Judge of the Western District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                      No. 07-50547

interlocutory appeal. Because there are genuine issues of material fact, we dis-
miss the appeal for want of appellate jurisdiction.


                                             I.
       A little after three o’clock one morning in 2004, Graves phoned his ex-girl-
friend, Tania Besek, and told her he was coming to her second-floor apartment.
Earlier, Besek had attended a party, possibly with her new boyfriend; Graves
phoned repeatedly about that party. Approximately fifteen minutes later,
Graves arrived. Besek reported that she opened her door slightly and found that
Graves smelled of alcohol and had a gun and a box of bullets.
       Graves wanted Besek to take him to see her boyfriend. Graves put the
gun to his head, threatened to shoot himself, put the gun in Besek’s face, and
threatened to shoot her in the leg. Besek locked the door and called 911, saying
that Graves was threatening to shoot himself with what looked “like a small ma-
chine gun” and was banging on her door. She told the 911 dispatcher that the
police are “going to have to do it a certain way, because he’s got a gun, okay.”
       Zachary soon arrived with other officers (Deputies Ryan Lloyd, Robert
Newell, and Kenneth Wilson). Zachary unholstered his weapon and approached
the stairs leading to the apartment, with Lloyd and Newell behind him. Wilson
was farther away.
       As he was climbing the set of stairs, Zachary saw Graves kneeling in front
of the door. Calling “Sheriff’s Department” and displaying his badge, Zachary
either ordered Graves to “raise his hands”SSwhat Zachary reported sayingSSor
“let me see your hands”SSwhat Graves remembered hearing. Graves showed his
hands while pressing the gun against his own temple.1 Graves says he then told
Zachary that he “just want[ed] to die.” In his voluntary statement after the


       1
        Lloyd, contrary to all other accounts, recorded that Graves “waived [the gun] around
up in the air [and] then put the barrel to his head.”

                                             2
                                      No. 07-50547

shooting, Zachary did not report hearing anything, but Newell reported that he
heard Graves say “something” to Zachary.
       What happened next is uncertain. In his statement, Zachary said that he
told Graves two or three times to lower the gun. In his pleadings in the district
court, Graves denied hearing that order. Neither Besek nor Lloyd reported, in
their voluntary statements, that they heard it, and Newell, in his statement,
said that all the officers were “screaming at the guy [and that Newell] screamed
‘Sheriff’s Office. Drop the weapon,’ numerous times,” but Newell did not record
that Zachary also ordered Graves to lower the gun. WilsonSSwho was farthest
awaySSreported that he heard Zachary’s order. Graves did not lower the gun.
       Zachary, in his statement, reported that he realized Graves might turn the
weapon on him. Allegedly fearing for his life and Besek’s, Zachary contends in
his brief that he “instinctively” shot Graves.
       The first shot hit Graves in the groin; the impact of that shot on Graves
is disputed. Zachary, corroborated by Lloyd, said that Graves did not “slump
down” or drop his weapon after the first shot. Graves, however, though acknowl-
edging that he still was holding his gun, says that after the first shot he “was
downed or incapacitated.” After a short delaySSwhich is reflected in the 911
transcript of the incident2SSZachary shot him again, this time in the chest.
Zachary then picked up Graves’s gun.
       It is not disputed that Graves never verbally threatened Zachary or the
other officers, never pointed his gun at the officers, and did not even move ag-
gressively. Instead, Graves was sitting still with his eyes closed, his hands up,
and the gun to his head when Zachary started firing.
       In the ambulance, when asked why the police shot him, Graves answered
that it was “because I wanted them to,” and he did “whatever I had to” to get


       2
       A 911 transcript exists because Besek was still on the phone with the dispatcher when
Zachary shot Graves.

                                             3
                                   No. 07-50547

them to shoot. When asked if this was a “suicide by cop,” Graves responded
“yeah.” He made similar comments in the emergency room.
      Graves pleaded guilty of aggravated assault with a deadly weapon. Pursu-
ant to 42 U.S.C. § 1983, he then sued Zachary for using excessive force.


                                         II.
      “This court reviews de novo the district court’s resolution of legal issues on
a motion for summary judgment on the basis of qualified immunity.” Freeman
v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). There has not been a final judgment
here, thus limiting our jurisdiction to address Zachary’s interlocutory appeal.
“A defendant in a section 1983 action can immediately appeal a district court’s
denial of a motion for summary judgment based on qualified immunity under the
collateral order doctrine to the extent that the appeal turns on a question of
law.” Id. But “[w]here the district court has denied summary judgment on the
ground that material issues of fact exist as to the plaintiff's claims, this court
lacks jurisdiction to review the court’s determination that a genuine fact issue
exists.” Id.
      Nonetheless, we “review whether any factual dispute found by the district
court is material for summary judgment purposes; that is, [we] can consider the
legal sufficiency of the facts that the district court found to be supported by the
summary judgment record.” Id. “Thus, a defendant challenging the denial of a
motion for summary judgment on the basis of qualified immunity must be pre-
pared to concede the best view of the facts . . . and discuss only the legal issues
raised by the appeal.” Id. (internal citations and quotations omitted).
      We “appl[y] a two-step analysis to determine whether a defendant is enti-
tled to summary judgment on the basis of qualified immunity. First, we deter-
mine whether, viewing the summary judgment evidence in the light most favor-
able to the plaintiff, the defendant violated the plaintiff's constitutional rights,”

                                         4
                                    No. 07-50547

and, “[i]f so, we next consider whether the defendant’s actions were objectively
unreasonable in light of clearly established law at the time of the conduct in
question.” Id. at 410-11 (internal citations omitted). We “appl[y] an objective
standard based on the viewpoint of a reasonable official in light of the informa-
tion then available . . . and the law that was clearly established at the time . . . .”
Id. at 411.
      Relative to the first inquiry, “the use of excessive force to apprehend a sub-
ject implicates the Fourth Amendment’s guarantee against unreasonable seiz-
ures.” Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). “To prevail on an ex-
cessive force claim, a plaintiff must establish: (1) injury (2) which resulted dir-
ectly and only from a use of force that was clearly excessive, and (3) the exces-
siveness of which was clearly unreasonable.” Freeman, 483 F.3d at 416 (internal
citations and quotations omitted). “[T]he question [is] whether the totality of the
circumstances justified” that use of force. Tennessee v. Garner, 471 U.S. 1, 8-9
(1985).
      The test is objective, Fontenot v. Cormier, 56 F.3d 669, 675 (5th Cir. 1995),
but it “must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight,” Graham v. Connor, 490 U.S. 386,
396 (1989). After all, “police officers are often forced to make split second judg-
ments in circumstances that are tense, uncertain, and rapidly evolving about the
amount of force that is necessary in a particular situation.” Id. at 397. “The in-
tent or motivation of the officer is irrelevant; the question is whether a reason-
able officer in the same circumstances would have concluded that a threat exist-
ed justifying the particular use of force.” Elliot v. Leavitt, 99 F.3d 640, 642 (4th
Cir. 1996) (citing Graham, 490 U.S. at 396-97).
      The “[u]se of deadly force is not unreasonable when an officer would have
reason to believe that the suspect poses a threat of serious harm to the officer or
others.” Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003). On the

                                          5
                                        No. 07-50547

other hand, “[i]t is objectively unreasonable to use deadly force unless it is neces-
sary to prevent [a suspect’s] escape and the officer has probable cause to believe
that the suspect poses a significant threat of death or serious physical injury to
the officer or others.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004)
(internal citations and quotations omitted). Thus, “[t]o gauge the objective rea-
sonableness of the force used by a law enforcement officer, we must balance the
amount of force used against the need for force,” paying “careful attention to the
facts and circumstances of each particular case.” Id. (internal citations and quo-
tations omitted).3
       After determining whether the Constitution was violated, we assess
whether the right was clearly established. It must be “clearly established in a
. . . particularized . . . sense: The contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that
right,” Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (internal citations and
quotations omitted), and the conduct at issue must not fall “in the hazy border
between excessive and acceptable force,” id. at 201 (internal citations and quota-
tions omitted).4 “Of course, in an obvious case, [general] standards can ‘clearly

       3
          Though “[t]he test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application, . . . its proper application requires careful atten-
tion to the facts and circumstances of each particular case, including the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396 (internal citations and quotations omitted).
       4
         Caselaw from this circuit (and, of course, from the Supreme Court) is the best way to
determine whether a right was clearly established. See McClendon v. City of Columbia, 305
F.3d 314, 329 (5th Cir. 2002) (en banc) (“[I]n the absence of directly controlling authority, a
consensus of cases of persuasive authority might, under some circumstances, be sufficient to
compel the conclusion that no reasonable officer could have believed that his or her actions
were lawful.”) (internal citations and quotations omitted). Caselaw need not be directly on
point, though it should be close, and if the conduct is particularly outrageous, the caselaw put-
ting the officer on notice can be more general in character. See Pierce v. Smith, 117 F.3d 866,
882 (5th Cir. 1997) (“We recognize that in order to preclude qualified immunity it is not nec-
essary that the very action in question has previously been held unlawful, or that the plaintiff
                                                                                    (continued...)

                                                6
                                        No. 07-50547

establish’ the answer, even without a body of relevant case law.” Id. at 199.
       It is not disputed that Graves was injured by the use of deadly force. The
question is whether that force was unnecessary and, if so, whether Zachary
should have been on notice that his conduct violated the Fourth Amendment.


                                              III.
       There are factual disputes as to whether Graves was incapacitated by the
first shot such that the second shot was unnecessary and whether Zachary told
Graves to drop the gun. As to the first, Graves claims that after the first bullet
he “was downed or incapacitated” but that, after waiting at least long enough for
the 911 dispatcher to mention hearing the shot, Zachary fired again. Zachary,
however, says that Graves did not “slump down” until after the second shot.
This factual dispute is material. If Graves obviously was “down[],” then Zachary
would not have had a “reason to believe that the suspect pose[d] a threat of seri-
ous harm to the officer or others.” Mace, 333 F.3d at 624.5
       Zachary tries to cloud this straightforward issue of material fact by point-
ing out that Graves still had his gun, going so far as to say “[a]s long as Graves
possessed the gun, Zachary had probable cause to believe that Graves posed a
threat to Zachary and others.” This is unsatisfactory. Though police have good
reason to be wary of a suspect who has just been shot, this argument cuts far too
broadly. Merely having a gun in one’s hand does not mean per se that one is
dangerous.


       4
         (...continued)
point to a previous case that differs only trivially from his case. However, the facts of the pre-
vious case do need to be materially similar. We also recognize that the egregiousness and out-
rageousness of certain conduct may suffice to obviously locate it within the area proscribed by
a more general constitutional rule . . . .”) (internal citations and quotations omitted).
       5
        Cf. Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir. 1996) (finding genuine issue
of material fact where there were questions “regarding the sequence of events immediately
preceding the shooting”).

                                                7
                                      No. 07-50547

       The question is this: Viewing the facts objectively, after being shot, did
Graves appear to be in any condition to fire his weapon? Zachary says yes, but
Graves says no. Reading the facts in the light most favorable to Graves, there
is a genuine material issue whether Zachary violated Graves’s constitutional
rights by shooting him after he was already “incapacitated.”6
       There is also a factual dispute as to whether Zachary told Graves to put
the gun down before shooting him. Zachary says he gave the order, but Graves
claims there was only generalized yelling, not a specific command. Graves’s ac-
count is supported by Besek, who reported hearing only yelling. Lloyd also did
not record hearing that statement, reporting only that he heard Zachary’s in-
struction for Graves to raise his hands.
       Newell reported that heSSfarther away from Graves than was ZacharySS
ordered Graves to drop the gun, but his statement does not mention Zachary, the
officer directly engaged with Graves, as also giving such an order. The only offi-
cer who reported hearing Zachary tell Graves to drop the gun was Wilson, whoSS
it is uncontestedSSwas farthest away. The evidence, thus, when viewed in the
light most favorable to Graves, indicates that he was complying with Zachary’s
instructions when Zachary shot him.7


       6
         Though we are mindful of the danger of armchair quarterbacking law enforcement,
there are too many unanswered questions here. For instance, after Graves was shot, did it
appear to Zachary that Graves was still able to fire his gun, and which way was Graves’s gun
pointing? The record is silent on these issues. Moreover, what did Graves do immediately af-
ter being shot? Did he yell or convulse? We do not know from the record. Consequently, when
the record is viewed in the light most favorable to Graves, we must assume that, objectively,
he was no longer a threat, but Zachary fired again.
       7
        Graves does not argue that Zachary did not order him to drop his gun, but only that
Graves did not hear the specific command. There is a strong argument that if an officer makes
an order in a crisis situation, we ought not second-guess whether that order was given based
on speculation that if it was not heard, it was not said.

       Here, however, there is more. The three people closest to Zachary and GravesSSBesek,
Lloyd, and NewellSSfailed to report that they heard Zachary order Graves to drop the gun.
                                                                               (continued...)

                                             8
                                        No. 07-50547

       The next question is whether Zachary’s violation was objectively unreason-
able in light of clearly established law. Accepting Graves’s accountSSas we must
SSthe violation of his constitutional rights would have been “obvious . . . even
without a body of relevant case law.” Brosseau, 543 U.S. at 199. Under general
precedents such as Garner, Zachary should have known that his use of force was
excessive. It does not take a specific case for an officer to know that he cannot
shoot a compliant suspect and that he cannot fire again at someone who is objec-
tively “downed or incapacitated.”8
       Because there are genuine issues of material fact, we have no appellate
jurisdiction, so the appeal is DISMISSED. We express no view on the ultimate
merits of the claim.




       7
         (...continued)
Lloyd’s failure to hear that specific order, even though he was the closest officer to Zachary at
the time, and even though he acknowledged hearing Zachary’s other statement, is particularly
important. When we view the facts in the light most favorable to Graves, there is a genuine
issue as to whether Zachary actually ordered Graves to drop his weapon.

       On appeal, Zachary argues that “Graves’ argument that he was not given adequate or
fair warning that he was about to be shot is ludicrous at best. It is doubtful that peace officers
confronted with an armed suspect are going to be yelling for the New Orleans Saints to score
a touchdown.” If Zachary never ordered Graves to drop the gun, however, it was reasonable
for Graves to continue to hold the gun until he was ordered to put it down.
       8
         The district court found that whether Graves said “I just want to die” when Zachary
arrived was also a genuine issue of material fact. Though we are skeptical as to the material-
ity of that fact issue, cf. Mace, 333 F.3d at 624-25, we need not reach the question.

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