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

                                                 FILED
                                                                         November 6, 2009

                                     No. 09-30080                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ANTHONY OUGEL; EMILY DELOVIO OUGEL

                                                   Plaintiffs-Appellees
v.

AMITE CITY POLICE DEPARTMENT; PARKER C. GABRIEL JR., Former
Amite Police Chief; REGINALD E. GOLDSBY, in his capacity and in his
official capacity as Mayor of Amite City; WYLIE FOSTER, Officer, Amite City
Police Department; JERRY TRABONA, Chief

                                                   Defendants-Appellants




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-1525


Before SMITH, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       This case arises out of a standoff between Joshua Ougel (“Ougel”) and
members of the Amite City Police Department, during which Ougel was fatally
shot by Deputy Wiley Foster (“Foster”).              Defendants moved for summary




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30080

judgment on the basis of qualified immunity, which the district court denied. We
now DISMISS their appeal.
                              I. BACKGROUND
      On February 26, 2007 Ougel stole a car from a Porsche dealership and led
various law enforcement officials on a high-speed chase through Mississippi and
Louisiana. The Louisiana State Police requested assistance, and Deputy Foster
and several of his colleagues joined the chase in nearby Amite, Louisiana.
Eventually Foster and his colleagues and several officers from the Tangipahoa
Parish Sheriff’s Office surrounded and stopped the vehicle. One of the deputies
from Tangipahoa broke Ougel’s window, put Ougel’s left arm in a wrist lock, and
began trying to remove him from the vehicle. Two other officers positioned
themselves at the front of the car and at the passenger side of the car with their
weapons drawn. Deputy Foster moved to the passenger side window of the car.
The officers ordered Ougel to show his hands and to surrender. The parties
dispute what happened next, as will be addressed in more detail below, but the
end result was that Foster fired a single shot from his service revolver which
struck Ougel’s right rear shoulder and penetrated his lungs; Ougel was removed
from the car and transported to the hospital, where he died. Ougel’s adoptive
parents sued in federal district court, and Defendants moved for summary
judgment on the basis of qualified immunity. The district court denied the
motion, and Defendants timely appealed.
                        II. STANDARD OF REVIEW
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). A party is entitled to summary
judgment only if “the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(c). On a motion for summary judgment, the court must view the facts in the
light most favorable to the non-moving party and draw all reasonable inferences
in its favor. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th
Cir. 2004).
                                 III. DISCUSSION
      The doctrine of qualified immunity provides protection against suit to
government officials unless their conduct violates a clearly established
constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We apply a
two-step test, now discretionary, to determine whether government officials are
entitled to qualified immunity. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009).
First, the plaintiff must show that he suffered a constitutional violation, and
then we must determine whether the action causing the violation was objectively
unreasonable in light of clearly established law at the time of the conduct.
Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). In an appeal from a denial
of summary judgment based on qualified immunity, “[i]f the determination of
qualified immunity would require the resolution of a genuinely disputed fact,
then . . . we lack jurisdiction over the appeal.” Lytle v. Bexar County, Tex., 560
F.3d 404, 408 (5th Cir. 2009).
      In this case, Plaintiffs argue that Deputy Foster used excessive force
against Ougel in violation of his Fourth Amendment rights. To prevail on this
claim, Plaintiffs must show that the excessive force was objectively unreasonable
under the totality of the circumstances. Tennessee v. Garner, 471 U.S. 1, 11
(1985). Contrary to Defendants’ arguments, there are disputed genuine issues
of material fact present in this case that affect the qualified immunity analysis.
Deputy Foster gave differing accounts of what happened in the moments before
the shooting. In his initial statement after the incident Foster said he shot Ougel
to “stop the threat.” In his second statement to police a short time later, Foster
said he did not intentionally shoot Ougel and that it was “more than likely

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accidental discharge.” In a deposition given in preparation for the lawsuit, Foster
first claimed both statements were true and then eventually affirmed that he
had shot Ougel intentionally. Foster testified that Ougel had been reaching
underneath the seat of the vehicle with his right hand and that he feared Ougel
was reaching for a weapon, and that he had shot him from outside the passenger
side window. Ballistic evidence and forensic evidence prepared by the Louisiana
State Police crime lab and the Jefferson Parish Coroner’s Office, however,
indicated that Ougel was shot from 3 to 6 inches away, suggesting that Foster
may have reached into the car and shot Ougel from a closer range than he
claimed, and, more importantly, suggesting that Ougel’s right arm was in a
raised position when he was shot. Firing a shot at an unarmed suspect whose
left arm was restrained by a wrist lock and whose right arm was in the air would
constitute an objectively unreasonable exercise of excessive force because the
suspect would at that point not present a danger to the officers present. See
Garner, 471 U.S. at 11; see also Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d
756, 762 (2d Cir. 2003). Plaintiffs have therefore raised a genuine issue of
material fact as to whether Foster’s conduct was objectively reasonable under
the totality of the circumstances, and thus whether qualified immunity is
appropriate in this case, which leaves us without jurisdiction to consider this
appeal. See, e.g., Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001).
                              IV. CONCLUSION
      For the foregoing reasons we DISMISS the appeal.




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