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

                                No. 14-10228                            FILED
                                                                September 25, 2018
                                                                   Lyle W. Cayce
RANDY COLE; KAREN COLE; RYAN COLE,                                      Clerk

                                         Plaintiffs-Appellees
v.

CARL CARSON,

                                         Defendant-Appellant

                         ****************


                                No. 15-10045


RANDY COLE; KAREN COLE; RYAN COLE,

                                         Plaintiffs-Appellees
v.

MICHAEL HUNTER; MARTIN CASSIDY,

                                         Defendants-Appellants


                Appeals from the United States District Court
                     for the Northern District of Texas
                          _______________________

     ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:
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      Qualified immunity is a judicially created doctrine calculated to protect
an officer from trial before a jury of his or her peers. At bottom lies a perception
that the jury brings a risk and cost that law-enforcement officers should not
face, that judges are preferred for the task—a judgment made by appellate
judges.
      We return to the October 25, 2010 shooting of Ryan Cole, at the time a
seventeen-year-old high-school student in Sachse, Texas. Cole’s parents, Karen
and Randy, individually and as next friends of their son (collectively “the
Coles”) brought suit against Officer Carl Carson, Lieutenant Martin Cassidy,
and Officer Michael Hunter of the Sachse Police Department under 42 U.S.C.
§ 1983. The Coles allege that the officers violated Cole’s Fourth and Fourteenth
Amendment rights during the shooting incident and by a subsequent
fabrication of evidence. The officers filed dispositive pretrial motions in the
district court, asserting the defense of qualified immunity. The district court
denied these motions. In an earlier opinion, we affirmed the district court’s
denial of the officers’ motions, with the exception of its denial of Carson’s
motion to dismiss the Fourth Amendment claim arising from fabrication of
evidence. 1 Our previous judgment has now been vacated by the Supreme
Court, 2 and we consider the case on remand in light of the Court’s decision in
Mullenix v. Luna. 3 We affirm the denial of Cassidy and Hunter’s motion for
summary judgment, otherwise reinstate our previous opinion in this case, and
remand for further proceedings consistent with this opinion.



      1  Cole v. Carson, 802 F.3d 752 (5th Cir. 2015), vacated sub nom. Hunter v. Cole, 137
S. Ct. 497 (2016).
      2   Hunter v. Cole, 137 S. Ct. 497 (2016).
      3 Id. (granting certiorari, vacating, and remanding for consideration in light of
Mullenix v. Luna, 136 S. Ct. 205 (2015) (per curiam)).


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                                            I
      On October 25, 2010, at around 10:30 a.m., the Sachse Police
Department called available units to the neighboring town of Garland, Texas.
Police there were searching for Ryan Cole, a seventeen-year-old white male,
last seen around Norfolk Drive armed with up to three weapons, including a
nine-millimeter handgun.
      Officer Michael Hunter responded by proceeding immediately to Norfolk
Drive. In a statement given the day of the incident, Hunter described there
encountering a young man who explained that Cole had given one of his guns
to him, and that he had unsuccessfully tried to persuade Cole to surrender a
handgun. In testimony given almost four years later in connection with this
litigation, Hunter could recall in further detail that the young man was Eric
Reed Jr., and that Reed described an altercation with Cole, which culminated
in Cole threatening Reed with harm. Beyond the physical description relayed
over the police radio, Hunter otherwise learned nothing “that would cause
[him] to believe Cole was violent or wanted to hurt anyone.” 4 Hunter searched
the area, but heard over the radio that the suspect had been located in a nearby
alleyway. Hunter went to the location. There he saw two officers following Cole,
who was walking away from the officers holding his gun to his head,
approaching railroad tracks in a wooded area along Highway 78. Hunter
testified to his understanding that Cole was suicidal, and four years after the
incident he also raised the possibility for the first time that Cole was using
suicide as a pretext to evade the police. Hunter also testified four years later
that he had heard police-radio transmissions indicating that officers were
protecting nearby schools because of “Cole’s dangerous conduct which posed a


      4 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order to
surrender his weapon. Hunter did not testify that he knew this fact at the time.


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risk of serious harm to a great many innocent in the vicinity.” Hunter
suggested to Officer Carl Carson, who had joined him on the scene, that they
circle behind the wooded area to intercept Cole.
      Meanwhile, Lieutenant Martin Cassidy had also heard the original
dispatcher’s summons. Cassidy called the Sachse Police Department for more
information. On the day of the incident, Cassidy testified that he learned from
the conversation that “this subject had shown up at [a] residence with a
handgun and had just recently been seen walking away.” Four years later,
Cassidy testified that he had also learned much more: Cole was distraught
from a recent separation from his girlfriend, also a student at Sachse High
School; Cole had been involved in a domestic disturbance the previous night,
and had brought a number of firearms to a friend’s house, retaining possession
of at least one and as many as three firearms. Cassidy had also learned that
Cole “had threatened to shoot anyone who tried to take his gun,” and had
refused an order to drop his weapon. Sachse High School was about two miles
from the search area, and Cassidy became concerned about the possibility that
Cole intended to target the school. Following the search from his car, Cassidy
also decided to intercept Cole on Highway 78.
      The three officers arrived at the side of Highway 78 around the same
time. Hunter drew his duty weapon; Cassidy also drew his firearm, and advised
Carson to be ready to use his taser. The officers started walking along the tree
line. A steep embankment rose from the railroad tracks to the area along
Highway 78. Cole would have to climb this embankment to approach the tree
line. Cassidy and Hunter used both the edge of the embankment and the
vegetation to conceal themselves as they walked. Hunter also removed his
white motorcycle helmet in order to be less conspicuous. Cassidy soon heard a




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message over the police radio: Cole was ascending to the tree line. Hunter
heard movement in the brush, and signaled to his colleagues.
       The Coles’ narrative of the roughly five seconds that followed relies on
medical reports, ballistics analysis, and evidence collected on the scene and
retrieved from Cole’s body. 5 Moments after Hunter signaled to his colleagues,
Cole backed out of the brush. He was facing away from the officers, his right
arm raised, holding the barrel of the handgun to his right temple. For three to
five seconds the officers had an opportunity to yell out to Cole to freeze or drop
his gun. But the officers perceived that Cole was unaware of their presence,
and remained silent so as not to alert him. 6 Cole began to turn
counterclockwise. Around this time either Carson or Cassidy began to issue a
command to Cole. 7 Before the officer could warn Cole, however, Hunter fired,
followed by Cassidy. Still holding the handgun to his temple, Cole pulled the
trigger, firing into his head.
       The officers offer alternative accounts. They agree with each other that
moments after Hunter signaled to Carson and Cassidy, Cole backed out from
the brush about 10 to 20 feet in front of Hunter. On the day of the incident,
Hunter did not specify the position of Cole’s hands as he emerged from the
brush. Four years later, however, Hunter recalled that Cole’s hands were



       These sources are interpreted by two experts retained by the Coles, a forensic expert
       5

and a former police officer; their affidavits were submitted to the district court as
attachments to the Coles’ First Amended Complaint.
       6The Coles’ expert witnesses reviewed the recording from Hunter’s body microphone
and reported no warning before the shots commenced.
       7  The two experts also reviewed a second recording from another officer’s body
microphone (they hypothesized it was Cassidy’s or Carson’s) and reported the beginning of
the word “drop” was spoken either after the initial volley of shots were taken or immediately
preceding the gunfire—this word was not spoken by Hunter. The Coles’ expert witness
listened to an audio recording of the incident captured on Hunter’s motorcycle unit and heard
no verbal warning.


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lowered, with the handgun in his right hand held no higher than waist-level.
Cassidy, on the other hand, testified that Cole emerged with the handgun held
to his head. Carson stated only that he saw Cole emerge from the tree line in
front of Hunter, and that he “could not see what the suspect was doing before
the shots were fired.”
      According to Carson, Hunter then gave Cole a command “about showing
his hands or dropping his gun.” Cassidy also testified that Hunter issued a
command. In his initial statement Cassidy testified that high winds prevented
him from hearing Hunter’s words. Four years later, however, Cassidy could
recollect that Hunter had shouted “[D]rop it!” Hunter himself equivocated on
whether he shouted to Cole. Initially, Hunter stated that he had no chance to
issue a command. Three days later, Hunter could no longer recollect whether
he had or had not yelled to Cole. In a deposition four years after the incident,
Hunter did not disagree with his fellow officers’ recollection that he had issued
a command.
      Hunter and Cassidy testified that Cole turned and pointed his handgun
at Hunter. 8 Hunter fired four rounds at Cole. Cassidy fired three. None of the
officers recalled Cole discharging his own gun.
      Eyewitnesses offer additional accounts. One witness, William Mackey,
standing in a parking lot across the highway, heard one of the officers yell for
Cole “to come out.” Mackey recalled that when Cole emerged from the trees
“roughly five officers” were on the scene, and more than one yelled for Cole to
“drop his gun” before the shooting commenced. Mackey also remembered—in
a second affidavit, sworn three years later—that Cole had “raise[d] his hand
and point[ed] [an] object towards the officers.” Another witness, Trent


      8  Carson testified he could not see Cole’s movement because Cassidy and Hunter
obstructed his line of sight.


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Kornegay, saw Hunter drop to a knee looking into the trees; as Cole emerged,
someone said “drop the gun,” then shots were fired. A third witness, Steve
Ellis, also across the highway, saw Cole emerge, then heard officers yell
“repeatedly” for Cole “to drop the weapon and stop” before the shooting
commenced. A fourth eyewitness standing in the same parking lot, Jim Owens,
testified that Cole’s hands remained motionless by his sides during the whole
incident, and that no words were spoken or shouted before shots were fired.
      Of the officers’ shots, two hit Cole. One round fired by Hunter passed
through Cole’s left arm, into his torso, fracturing a rib, bruising his lung, and
lodging in his back. A second round, also fired by Hunter, grazed his left arm.
None of Cassidy’s shots struck Cole. A third round entered three inches above
Cole’s ear from Cole’s right, with fragments of the bullet exiting the top of his
skull. The entry wound exhibited stippling, that is, discoloration of the skin
caused by hot gases and residue released immediately around a discharging
firearm. Ballistics analysis indicated that the trajectory of the third round was
characteristic of a self-inflicted wound. When copper fragments were recovered
from Cole’s head, ballistics experts determined they had originated from Cole’s
handgun.
      The Coles allege that while Cole was unconscious, bleeding “profusely”
and “presumably . . . to death,” the officers did nothing to help him. When
paramedics arrived, Cole experienced cardiac arrest, but was resuscitated. He
was then immediately taken to Baylor Hospital in Garland, where he was
stabilized. Cole remained hospitalized, recovering from his injuries for months.
He survived the shooting, but continues to suffer from serious mental and
physical disabilities arising from his injuries.
      Following the shooting, the three officers remained together at the scene,
but never offered Cole assistance. The Coles allege that during this time the


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officers conferred, and agreed to fabricate a story that would insulate Cassidy
and Hunter from liability. Eventually, members of the Garland Police
Department arrived and took control of the scene, but did not follow the
standard       procedure      of    separating       witnesses   to   ensure   independent
recollections. Instead, members of the Sachse Police Department were allowed
to escort Cassidy and Hunter back to their police station. The officers later
provided statements to Garland Police Department investigators at the
Garland police station. Based on the officers’ statements, Cole was charged
with the misdemeanor of unlawful carrying of a firearm 9 and the felony of
aggravated assault of a public servant. 10 As a result of the assault charge, Cole,
incapacitated in intensive care, was placed under house arrest. The Coles
incurred substantial legal fees in connection with the charge. Around two years
later, Cole received deferred adjudication on the unlawful carrying
misdemeanor charge and the District Attorney dismissed the assault charge.
       The Coles brought suit against Carson, Cassidy, and Hunter in the
Eastern District of Texas. 11 The officers successfully transferred the case to the
Northern District of Texas. The Coles’ amended complaint brings three claims
relevant here. First, the Coles bring a Section 1983 claim against Cassidy and
Hunter, alleging a violation of Cole’s Fourth Amendment right against the use
of excessive force. Second, they bring a Section 1983 claim against all three



       9 Under Texas Penal Code Chapter 46, it is a Class A misdemeanor to “intentionally,
knowingly, or recklessly carr[y] on or about [one’s] person a handgun” unless on one’s
premises or inside or en route to one’s motor vehicle or watercraft. TEX. PENAL CODE § 46.02.
It is lawful for a handgun permit holder to carry a concealed handgun, and, as of January
2016, for a permit holder to openly carry a handgun that is holstered. Id. at § 46.035.
       10Under Texas Penal Code Chapter 22, it is a first-degree felony offense to commit an
assault on a public servant while the public servant is discharging an official duty. Id. §
22.02(b)(2)(B).
       11   The Coles also named the City of Sachse as a defendant.


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officers alleging a violation of Cole’s Fourth Amendment right against
unreasonable seizures arising from the fabrication of evidence. Third, they
bring a Section 1983 claim against all three officers alleging a violation of
Cole’s Fourteenth Amendment due process rights arising from the same
fabrication of evidence.
      The officers moved to dismiss these claims, asserting absolute and
qualified immunity defenses. In a January 24, 2014 Memorandum Opinion
and Order, the district court denied the officers’ motion. Carson alone appealed
the denial of the motion in connection with the Coles’ Fourth and Fourteenth
Amendment claims. The district court stayed the fabrication of evidence claim
as to Cassidy and Hunter pending Carson’s appeal. The district court allowed
limited discovery focused on Cassidy and Hunter’s qualified immunity
defenses to the Fourth Amendment excessive force claim. Those two officers
moved for summary judgment on the Fourth Amendment excessive force claim,
again asserting qualified immunity. The district court denied the motion and
Cassidy and Hunter appealed.
      We consolidated Cassidy and Hunter’s appeal of the denial of summary
judgment with Carson’s appeal of the denial of the motion to dismiss. On
September 25, 2015, we affirmed the district court’s denial of summary
judgment based on qualified immunity with respect to the Coles’ Fourth
Amendment excessive force claim against Cassidy and Hunter, and affirmed
the district court’s denial of the motion to dismiss with respect to the Coles’
Fourteenth Amendment due process claim against Carson. With respect to the
denial of Carson’s motion to dismiss the Fourth Amendment fabrication of
evidence claim, we reversed.
      The officers filed a motion for rehearing and en banc review in this court,
which we denied. They then petitioned the Supreme Court for a writ of


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certiorari. On November 28, 2016, the Supreme Court granted certiorari,
vacated this court’s judgment, and remanded the case for further consideration
in light of Mullenix v. Luna, 12 decided in the intervening time. On remand, we
called for supplemental briefing and oral argument. The parties’ supplemental
briefing is complete. We have heard oral argument.
                                              II
      The doctrine of qualified immunity protects government officials “from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” 13 “Qualified immunity balances two important interests—
the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” 14 Qualified immunity
involves not only immunity from liability, but also immunity from suit. 15 The
qualified immunity inquiry includes two parts. In the first we ask whether the
officer’s conduct has violated a federal right; in the second we ask whether the
right in question was “clearly established” at the time of the violation, such
that the officer was on notice of the unlawfulness of his or her conduct. 16 The
officer is entitled to qualified immunity if there is no violation, or if the conduct
did not violate law clearly established at the time. 17



      12   136 S. Ct. 305 (2015).
      13   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
      14   Pearson v. Callahan, 555 U.S. 223, 231 (2009).
      15   Id.
      16   Tolan v. Cotton, 134 S. Ct. 1861, 1865–66 (2014).
      17   Id.



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      In the first part of our review we turned to the claim of a constitutional
violation for each assertion of the qualified immunity defense. We first held
that a reasonable jury could find Hunter and Cassidy violated Cole’s Fourth
Amendment right against the use of excessive force, and held that this conduct
violated clearly established law. 18 Regarding Carson’s motion to dismiss, we
held that the Coles failed to allege facts sufficient to make out a Fourth
Amendment violation in connection with fabrication of evidence, 19 but that
their allegations were sufficient to sustain the Fourteenth Amendment due
process claim. 20 In connection with the latter claim, we also held that the
alleged violation violated clearly established law. 21
      We will not revisit the first part of the qualified immunity inquiry in
connection with any of the Coles’ claims, nor the question of clearly established
law as regards the Coles’ Fourteenth Amendment claim against Carson. We
hear this case on remand from the Court for further consideration in light of
Mullenix. 22 In Mullenix, the Court reversed a decision of this court in which we
had found that a police officer violated clearly established law by shooting a
fugitive during a car chase. In its decision the Mullenix Court addressed only
the second part of the qualified-immunity inquiry: whether the officer’s alleged
conduct violated clearly established law. 23 The Court’s mandate here reaches
only this second part of the qualified immunity inquiry in connection with the



      18   Cole, 802 F.3d at 757–62.
      19   Id. at 764–65.
      20   Id. at 765–74.
      21   Id. at 773–74.
      22   Mullenix v. Luna, 136 S. Ct. 305 (2015).
      23   Id. at 308–12; see also Aldaba v. Pickens, 844 F.3d 870, 872 (10th Cir. 2016).



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Coles’ Fourth Amendment claim against Cassidy and Hunter, and, as we need
not, we do not reach issues unaddressed by the mandate on remand. 24 We
reinstate our prior decision as concerns all other parts of the appeal and
address only the existence of clearly established law as it informs the denial of
Cassidy and Hunter’s motion for summary judgment.
       Turning to that denial, we note that the district court did not weigh the
evidence and resolve the factual disputes over the shooting of October 25, 2010,
properly so. 25 Rather it asked only whether a jury should “resolve the parties’
differing versions of the truth at trial.” 26 The district court determined that
genuine disputes of fact remained, that these disputes were material, 27 and
should be resolved by a jury.
       Our inquiry is more circumscribed. “An order denying a motion for
summary judgment is generally not a final decision within the meaning of
§ 1291 and is thus generally not immediately appealable.” 28 However, a denial
of summary judgment on the basis of qualified immunity is immediately
appealable under the collateral order doctrine. 29 With such an appeal our
review is confined to the materiality of factual disputes identified by the



       24 United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (finding that, absent
exceptional circumstances, the court generally addresses only issues within the scope of a
mandate on remand). But see Hill v. Black, 920 F.2d 249, 250 (5th Cir. 1990), modified on
other grounds on denial of reh'g, 932 F.2d 369 (5th Cir. 1991) (holding that the court has
jurisdiction to reach issues unaddressed by the Supreme Court’s mandate on remand).
       25   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
       26   Id. (internal quotation marks omitted).
       27   See Fed R. Civ. P. 56(a).
       28   Plumhoff v. Rickard, 134 S. Ct. 2012, 2018 (2014).
       29 Id. at 2019 (“[P]retrial orders denying qualified immunity generally fall within the
collateral order doctrine.”); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).



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district court. 30 We ask whether, if all factual disputes are resolved in the
plaintiffs’ favor, Cassidy and Hunter are entitled to qualified immunity as a
matter of law. If so, the officers are due summary judgment; if not, we affirm
the district court. 31 We take facts in a light most favorable to the non-movants,
the Coles, and draw all justifiable inferences in their favor. 32 We consider the
circumstances leading up to the officers’ conduct, 33 but confine our inquiry to
those facts knowable to the officers at the time. 34 Within the limited scope of
our inquiry, review is de novo. 35
       The facts as we take them establish that Cole posed no threat to the
officers or anyone else at the time Cassidy and Hunter shot him. The officers’
limited knowledge of Cole created no reasonable expectation of an immediate
violent confrontation: Cole was a high school student distraught over a recent
breakup; he had carried his guns to a friend’s house; the friend was unable to
persuade Cole to part with the handgun, and Cole warned him not to try to
take it. Both officers knew that Cole had walked away from two police officers
without violent confrontation. At no point did Cassidy or Hunter hear orders
to establish a perimeter around Cole, to conceal themselves, or to take cover,
nor were there calls for backup from SWAT teams or tactical units to handle
the situation. While Cole possessed a handgun, he did nothing to threaten the
officers. The officers understood that Cole was unaware of their presence, and



       30   See Good v. Curtis, 601 F.3d 393, 397–98 (5th Cir. 2010).
       31   Id.; Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).
       32   Tolan, 134 S. Ct. at 1866.
       33   Mendez v. Poitevent, 823 F.3d 326, 333 (5th Cir. 2016).
       34 White v. Pauly, 137 S. Ct. 548, 549–50 (2017) (per curiam) (“[T]he Court considers
only the facts that were knowable to the defendant officers.”).
       35   Good, 601 F.3d at 398.


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Cassidy and Hunter took cover and remained silent so that Cole would remain
unaware. When Cole backed out from the brush, he was facing away from the
officers. Moreover, they could see that the handgun was pointed at Cole’s head.
The weapon was in this position as Cole turned counterclockwise, and
remained trained there until he was shot. Hunter and Cassidy opened fire
before Cole had turned to face them, and before he registered their presence.
At no time did Cole pose, or reasonably appear to pose, an immediate threat to
the officers or anyone other than himself.
       The only question we answer is whether, given these facts, Cassidy and
Hunter violated clearly established law. Here, we have the guidance the Court
provided in Mullenix. In that case, the Court reviewed a denial of qualified
immunity to an officer who had shot and killed a fugitive in a car chase. This
court had decided that the officer violated the clearly established rule that
deadly force was prohibited “against a fleeing felon who does not pose a
sufficient threat of harm to the officer or others.” 36 The officer in Mullenix
reasonably perceived some threat of harm, but we had held the threat was not
“sufficient.” The Supreme Court reversed our decision. It found that the rule
we articulated lacked a referent to define the “sufficiency” of threats. 37
Precedents provided a “hazy legal backdrop,” at best. 38 Given these deficient
sources, an officer could not reasonably derive an applicable rule to govern his
or her conduct in the situation. 39 Finding that we had defined the applicable


       36   Mullenix, 136 S. Ct. at 308–09 (emphasis added and internal quotation marks
omitted).
       37Id. at 309 (“The general principle that deadly force requires a sufficient threat
hardly settles th[e] matter.”).
       38   Id. at 309–10.
       39   Id.



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rule with too much “generality,” 40 the Court reversed our holding that the
officer had violated clearly established law. 41
       It is significant that the Court’s focus in Mullenix was upon generality.
In some conceptual sense, a legal rule is necessarily general: it applies not only
to the case in which it is articulated, but to all like cases. The Mullenix Court
does not repudiate generality in this sense. Rather it repudiates a second
variety of generality, one that does not reach all legal rules: generality as
indeterminacy. 42 A rule that is general in that it is indeterminate cannot be
“clearly established,” because a reasonable officer attempting to interpret and
apply that rule in particularized circumstances will face legal uncertainty. The
officer cannot be on notice of the proper course of action. In this scenario,
Mullenix tells us that the qualified immunity doctrine insulates the officer
from liability. 43 On the other hand, a reasonable officer is capable of reasoning
analogically from a determinate and categorical rule to conclude that given
conduct is prohibited. 44 Such rules, once articulated, are clearly established
law.


       40Id. at 311 (describing “the Fifth Circuit's error” in “defin[ing] the qualified immunity
inquiry at a high level of generality”).
       41   Id. at 312.
       42 The duality of the concept of generality is reflected in the multiple connotations of
that term in common usage. See, e.g., General, OXFORD ENGLISH DICTIONARY (online ed.
2018) (defining “general” both as “[i]ncluding . . . the parts of a specified whole, or the . . .
things to which there is an implied reference; completely or approximately universal within
implied limits; opposed to partial or particular,” and as “[n]ot specifically limited or
determined in application; relating or applicable to a whole class of objects, cases, or
occasions” (emphasis omitted)).
       43See Mullenix, 136 S. Ct. at 308 (requiring that the rule be applicable such that “the
statutory or constitutional question [is] beyond debate” and that the rule clarify “the violative
nature of particular conduct” “(internal quotation marks and emphasis omitted)).
       44   See id.



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      Here, a determinate and categorical rule applied to the facts facing
Cassidy and Hunter: officers are prohibited from using deadly force against a
suspect where the officers reasonably perceive no immediate threat. This no-
threat rule was clearly established as early as 1985, when the Court
articulated it in Tennessee v. Garner. In that case an officer shot a suspect in
the absence of a reasonable perception of threat. 45 Analyzing the case, the
Garner Court began by describing a widely applicable standard governing the
constitutionality of seizures, balancing the intrusiveness of a seizure against
government interests. 46 But it did not stop there. The Court also articulated a
bright-line rule to govern the limit condition in which governmental officers
face no threat from a suspect: “Where the suspect poses no immediate threat to
the officer and no threat to others, the harm resulting from failing to apprehend
him does not justify the use of deadly force to do so.” 47 The rule is categorical
and determinate. It is general in the first sense of the term, but not in the
second sense of indeterminacy.
      By October 25, 2010 the no-threat rule had been clearly established for
twenty-five years, and had been applied many times in this circuit. For
example, in an unpublished 2008 decision, Graves v. Zachary, this court denied
an officer qualified immunity for shooting a suspect who posed no threat to the
officers or others. 48 We stated that where a suspect posed no threat, “the
violation of his constitutional rights would have been obvious even without a
body of relevant case law . . . . Under general precedents such as Garner, [the


      45   471 U.S. 1, 2 (1985).
      46   Id. at 8.
      47   Id. at 11.
      48   277 F. App’x. 344, 349 (5th Cir. 2008) (unpublished).



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                                 No. 14-10228 c/w 15-10045

officer] should have known that his use of force was excessive.” 49 Similarly, in
an unpublished 2010 decision, Reyes v. Bridgewater, this court denied qualified
immunity to an officer who shot a suspect who was armed with a knife but
made no threatening gestures or motions towards the officer. 50 We invoked the
“core, established rule” from Garner that “deadly force may not be used where
the suspect poses no immediate threat to the officer and no threat to others . .
. . It violates the Fourth Amendment to use deadly force absent such a
threat.” 51
       Cassidy and Hunter paint with too broad a brush when they argue that
the Supreme Court’s holdings preclude finding clearly established law in
Garner. The officers fail to distinguish between the application of Garner’s
“sufficiency of threat” balancing inquiry and the bright-line no-threat rule also
articulated in that case. Unquestionably, where facts establish that officers
reasonably perceived some threat, Garner requires a balancing analysis to
gauge the “sufficiency” of the threat relative to the use of force. Mullenix, and
several other decisions of the Court, conclude that this balancing exercise
standing alone is too indeterminate to present as clearly established law. 52
Rather, in these situations, “[p]recedent involving similar facts can help move
a case beyond the otherwise hazy border between excessive and acceptable



       49   Id. (internal quotation marks and citation omitted).
       50   Reyes v. Bridgewater, 362 F. App’x 403, 407–08 (5th Cir. 2010) (unpublished).
       51   Id. at 407 (internal quotation marks and citation omitted).
       52 Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (addressing application of Garner’s
objective reasonableness standard); Plumhoff, 134 S. Ct. at 2023-24 (2014) (addressing
application of Garner’s standard where suspect “indisputably posed a danger both to officers
involved and to any civilians who happened to be nearby”); Kisela v. Hughes, 138 S. Ct. 1148,
1153 (2018) (addressing application of Garner’s reasonableness standard where police
reasonably perceived a threat).



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force and thereby provide an officer notice that a specific use of force is
unlawful.” 53
       There is, however, a threshold inquiry as to whether the facts sustain
finding any reasonably perceived threat at all. In situations where they do not,
the Court has not repudiated application of Garner. On the contrary, it has
repeatedly explained that, in what it calls “obvious case[s],” Garner provides
clearly established law. 54 This court has held similarly. In Mason v. Lafayette
City-Parish Consolidated Government, a police officer fired upon a suspect
while responding to a purported armed robbery. 55 The officer fired seven shots,
the final two of which hit the suspect in the back while he lay incapacitated by
previous shots. 56 When the officer invoked qualified immunity in response to a
Section 1983 excessive force claim, we reversed the district court’s grant of
summary judgment on the basis of the defense. 57 Addressing clearly
established law, we held that Garner provided the relevant “command that
deadly force is unconstitutional when ‘a suspect poses no immediate threat to
the officer and no threat to others.’” 58 Similarly, we applied the no-threat rule




       53Kisela, 138 S. Ct. at 1153 (internal quotation marks omitted); see also Pauly, 137 S.
Ct. at 552; Brosseau, 543 U.S. at 201.
       54 Brosseau, 543 U.S. at 199 (observing that “in an obvious case” Garner “can ‘clearly
establish’ the answer, even without a body of relevant case law”); Pauly, 137 S. Ct. at 552;
Kisela, 138 S. Ct. at 1153.
       55806 F.3d 268 (2015). The police understood the situation to be an armed robbery
based on a 911 call. Id. at 272.
       56   Id. at 273-74.
       57   Id. at 278.
       58   Id. (quoting Garner, 471 U.S. at 11).



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in the unpublished Giardina v. Lawrence decision. 59 There, the facts taken in
a light most favorable to the non-movant established that a national
guardsman had shot a man who had been speaking with a 911 dispatcher on
his cellphone. 60 We held that the defendant had violated the Garner no-threat
rule: “[i]t is clearly established that it is unconstitutional for an officer to use
deadly force where there is no threat of serious physical harm.” 61
       We note in passing that, in dictum to an unpublished opinion last year,
Hatcher v. Bement, this court characterized the Garner no-threat rule as a
“general test,” 62 and reasoned that, under Mullenix, we “could not rely on th[e]
general test detached from factual application.” 63 Rather, we wrote, “this
general test must be tethered to precedent containing facts analogous or near-
analogous to the facts in the case under consideration . . . .” 64 Hatcher’s
characterization of the no-threat rule as a “general” test is ambiguous given
the term’s multiple senses, as we explained. To the extent this dictum 65 from
Hatcher suggests that we must identify a precedent mediating the application



       59354 F. App’x 914, 916 (5th Cir. 2009) (per curiam) (unpublished) (citing Garner, 471
U.S. at 10–12).
       60   Id.
       61   Id.
       62   676 F. App’x 238, 243 (5th Cir. 2017) (per curiam) (unpublished).
       63   Id. (internal quotation marks omitted).
       64   Id. (internal quotation marks omitted).
       65 The characterization of Garner’s no-threat rule is dictum because the Hatcher court
found that more recent circuit precedents provided the clearly established law governing its
decision. See Hatcher, 676 F. App’x at 243-44; see also Int'l Truck & Engine Corp. v. Bray,
372 F.3d 717, 721 (5th Cir. 2004) (“A statement is dictum if it could have been deleted without
seriously impairing the analytical foundations of the holding and being peripheral, may not
have received the full and careful consideration of the court that uttered it.” (internal
quotation marks omitted)).



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of Garner’s no-threat rule to a case’s no-threat facts, we disagree. The Supreme
Court has stated precisely otherwise, 66 and no other binding authority requires
such mediation by precedent where an existing legal rule is determinate and
applicable, that is, where the rule is clearly established.
       Cassidy and Hunter argue that, as of October 25, 2010, the precedential
waters were muddied by several decisions of this court. These decisions were
premised on findings that officers reasonably perceived a threat in situations
similar to Cassidy and Hunter’s encounter with Cole. Under Mullenix, a rule
of clearly established law must be specifically applicable to the facts before the
court, 67 and applicable law can arise from precedents. 68 The Court cautions,
however, against reasoning analogically from cases meaningfully distinct on
the facts. 69 We heed that warning. Whether Cassidy and Hunter reasonably
perceived a threat when they fired upon Cole is a factual question. It is one
that the district court found genuinely disputed. Our inquiry takes the facts in
a light most favorable to the Coles, and in that light a factual premise of our
analysis is that there was no reasonably perceived threat. The cases to which
Cassidy and Hunter direct us are inapposite, because they are all premised on
factual findings of a threat. 70 We cannot and will not revise the district court’s
identification of genuine fact disputes.



       66   See supra note 54.
       67   Mullenix, 136 S. Ct. at 308 (2015).
       68   Id. at 309.
       69   Id. at 312.
       70 Reese v. Anderson, 926 F.2d 494, 500–01 (5th Cir. 1991) (holding that Garner did
not prohibit conduct where facts indicated that an officer reasonably perceived a threat from
a non-compliant suspect after a car chase); Young v. City of Killeen, 775 F.2d 1349, 1352–53
(5th Cir. 1985) (holding that there was no constitutional deprivation where “all witnesses
agreed” that the officer had reasonably perceived a threat at the time of the shooting);


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       Cassidy and Hunter are not entitled to qualified immunity at this point
in the case.
                                             III
       Immunity from trial is an important component of qualified immunity,
but denial at this stage does not necessarily deprive the officers of the
immunity defense as to liability. We decide only that it will be for a jury to
resolve what happened on October 25, 2010, and whether Cassidy and Hunter
are or are not entitled to the defense. For our purposes, the district court
determined there was a genuine factual dispute. We hold this dispute is
material. We AFFIRM the denial of Cassidy and Hunter’s motion for summary
judgment, otherwise REINSTATE our previous opinion in this case, and
REMAND for further proceedings consistent with this opinion.




Ontiveros v. City of Rosenberg, 564 F.3d 379, 385 (5th Cir. 2009) (affirming summary
judgment on the basis of qualified immunity where facts indicated that a SWAT team officer
reasonably perceived a threat from a non-compliant suspect barricaded behind a door); Manis
v. Lawson, 585 F.3d 839, 845–46 (5th Cir. 2009) (holding that an officer was entitled to
qualified immunity where facts established that he reasonably perceived a threat from a non-
compliant suspect refusing to show his hands and appearing to retrieve a gun); Ballard v.
Burton, 444 F.3d 391, 402–03 (5th Cir. 2006) (holding that an officer was entitled to summary
judgment on an excessive force claim where facts indicated the officer reasonably perceived
a threat from a non-compliant suspect); Ramirez v. Knoulton, 542 F.3d 124, 129–31 (5th Cir.
2008) (holding that an officer was entitled to qualified immunity where facts indicated that
a suspect was “defiant and threatening”). See also Salazar-Limon v. City of Houston, 826 F.3d
272, 279 (5th Cir. 2016) (holding that an officer was entitled to qualified immunity where the
officer reasonably perceived a threat from a non-compliant suspect who physically struggled
with the officer before suddenly reaching towards his waistband).


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