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

                                                                              FILED
                                                                           August 8, 2017
                                      No. 15-51252
                                                                           Lyle W. Cayce
                                                                                Clerk
JOE ANTHONY GUERRA, Individually, and on behalf of the Estate of Jose
Alberto Guerra, Deceased; LINDA CARRANZA, Individually and on behalf of
the Estate of Jose Alberto Guerra, Deceased,

               Plaintiffs - Appellees

v.

SERGEANT FRANK BELLINO, Bexar County Sheriff’s Office,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-652


                  ON PETITION FOR REHEARING EN BANC
Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       No judge in active service on this court requested the court be polled in
response to the petition for rehearing en banc. The petition is denied. The
prior opinion is withdrawn, and this opinion is substituted.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51252
      Joe Anthony Guerra and Linda Carranza, for themselves and for their
son’s estate, sued former deputy sheriff Frank Bellino under 42 U.S.C. § 1983.
Bellino moved for summary judgment on the basis of qualified immunity, but
the district court denied the motion. We REVERSE.


              FACTUAL AND PROCEDURAL BACKGROUND
      At approximately 1:30 a.m. on October 14, 2012, law enforcement
received reports from multiple individuals about a young man, later identified
as 19-year-old Jose Anthony Guerra, “causing a traffic disruption along
Culebra Road” in Bexar County, Texas. Witnesses reported that Guerra, who
stood slightly less than six feet tall and weighed 198 pounds, was stumbling,
walking through traffic, and wearing pants but no shirt.         Based on his
behavior, witnesses assumed Guerra was intoxicated.        At the time of the
incident, Culebra Road was dimly lit, and there was light traffic.
      Sergeant Frank Bellino responded to the reports. As he approached the
scene, he noticed the motorists in front of him “applying their brakes and
moving over to the center turn lane.” He soon spotted Guerra walking toward
the east in the westbound lane. Bellino activated his emergency lights “so that
traffic would be less likely to strike” Guerra. He then parked his patrol car
approximately 25 feet away.
      Bellino claims that after he exited his patrol vehicle, Guerra’s conduct
became menacing. He described Guerra as “sweating and breathing very
heavily,” “flexing his muscles,” and “swinging his arms back and forth
aggressively.” Like other witnesses, Bellino believed Guerra was intoxicated.
Bellino ordered Guerra to stop walking. Bellino claims he only drew his gun
and activated his emergency toner when Guerra refused to comply.
      The plaintiffs dispute Bellino’s narrative about the initial encounter.
They claim Guerra would not have been threatening; he was smaller than
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                                  No. 15-51252
Bellino, who was taller than six feet and weighed 220 pounds. Further, they
claim that audio evidence proves Bellino never tried to deescalate the situation
but instead exited his vehicle and threatened to shoot almost immediately.
      Guerra stopped at the front of the patrol car.        Bellino thought Guerra
snarled after hearing the officer’s threat to shoot. At that time, Bellino was
standing near the rear of the patrol car.       Guerra complied with Bellino’s
command to place his hands on the hood of the car. Bellino was unable to
determine, though, whether “Guerra was holding anything clenched in his fists
or whether he had anything dangerous in the pockets of his pants.” Bellino
claims that, while he was on the shoulder of the road, he attempted to talk to
Guerra. The plaintiffs dispute this claim, arguing that Bellino immediately
threatened physical force without any attempt to deescalate.
      Bellino continued to point his gun at Guerra while waiting for backup.
When Bellino asked his name, Guerra began performing push-ups on the hood
of the car and said something like “Call me Union” in what Bellino
characterizes as a “demonic voice.” The plaintiffs suggest that he was likely
asking Bellino to call his “unit,” referring to his military reserve unit.
      By that point, Lewis Meline had started filming the encounter on his cell
phone from approximately 15–20 yards away. Meline and other eyewitnesses
contest Bellino’s account of the altercation. Meline, for example, claims that
Guerra was “pretty far on the car with his fingers spread” and “had his legs
spread quite a bit.” A couple that drove past the scene claims that Guerra “had
his hands surrendered on the car.” Meline believed that Guerra was either too
exhausted or intoxicated to comply with Bellino’s commands. Meline also
heard Bellino threaten Guerra by saying, “Don’t make me do it,” or “You’re
going to make me do it.”
      Both parties concede, and the eyewitness video shows, that Guerra
moved rapidly in Bellino’s direction approximately one minute after Meline
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                                  No. 15-51252
began filming. As Guerra approached him, Bellino claims he ordered Guerra
to stop and took a few steps back. Guerra ignored the command and lowered
his head while still moving towards Bellino. One eyewitness testified that
Guerra may have been running at an angle slightly away from Bellino while
“trying to run past him.” In any event, Bellino began shooting less than a
second after Guerra began moving and stopped shooting less than two seconds
later. Bellino fired three shots in total, fatally wounding Guerra. No weapons
were found on Guerra or in his vicinity. Photographs show blood from Guerra’s
wounds directly behind Bellino’s patrol car.
      An autopsy was performed the next day. It confirmed that Guerra had
been shot once in his head, once in the right side of his chest, and once in his
left anterior thigh. Two of the bullets entered his body at a steeply downward
angle; the bullet that struck Guerra’s left thigh traveled at an upward angle.
The medical examiner’s report found “[n]o evidence of close range firing.” The
autopsy’s toxicology report determined Guerra’s blood-alcohol level was .284 at
the time of his death.
      Joe Anthony Guerra and Linda Carranza sued individually and on
behalf of their son’s estate, alleging Fourth Amendment violations under
Section 1983. Specifically, they claim that Bellino violated Guerra’s right to
be free from an unreasonable search and seizure and from the use of excessive
force. Bellino moved for summary judgment on grounds that no constitutional
violation had been alleged and that he was entitled to qualified immunity. The
district court denied the motion in part, finding that Bellino was not entitled
to qualified immunity. The district court identified three genuine issues of
material fact in denying Bellino’s motion: (1) whether Guerra attempted to
rush Bellino or attempted to flee; (2) whether Guerra was cooperative or posed
a threat of serious physical harm to Bellino prior to the shooting; and (3)


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                                  No. 15-51252
whether Bellino’s statement following the incident was credible. Bellino timely
noticed this interlocutory appeal.


                                 DISCUSSION
      Generally, the denial of a motion for summary judgment is not
appealable, but a denial “based upon qualified immunity is a collateral order
capable of immediate review.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004) (en banc). These orders are only immediately appealable, though, “to the
extent that the district court’s order turns on an issue of law.” Brown v. Strain,
663 F.3d 245, 248 (5th Cir. 2011).
      The plaintiffs argue we have no jurisdiction because the district court’s
order and Bellino’s brief focus exclusively on issues of fact. We are not stripped
of jurisdiction simply because the district court determined that genuine issues
of fact exist. See Evett v. DETNTFF, 330 F.3d 681, 686 (5th Cir. 2003). We
may review the district court’s determination “that those disputed issues are
material to the issue of qualified immunity.” Id. The materiality of factual
disputes is a question of law and is reviewable. See id. at 686–87.
      We apply de novo review to determine whether these factual disputes are
material. Lytle v. Bexar Cnty., 560 F.3d 404, 409 (5th Cir. 2009). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A fact is material if its resolution could affect the
outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
We “view the facts and draw reasonable inferences in the light most favorable
to the” non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). “In
qualified immunity cases, this usually means adopting . . . the plaintiff’s
version of the facts.” Id. When a videotape of the incident exists, though, we
view “the facts in the light depicted by the videotape.” Id. at 380–81.
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                                  No. 15-51252
      Bellino moved for summary judgment based on qualified immunity.
Qualified immunity protects “government officials performing discretionary
functions . . . 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.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). We thus engage in a two-part qualified-immunity analysis. Flores
v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004). First, we determine
whether the defendant’s actions violated the plaintiff’s statutory or
constitutional rights. Id. We then determine whether the right claimed was
“clearly established,” meaning one “of which a reasonable person would have
known.” Id.
      Using deadly force to apprehend someone suspected of a criminal offense
“is a seizure subject to the reasonableness requirement of the Fourth
Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). To succeed on their
excessive-force claim, the plaintiffs must show “(1) an injury, (2) which resulted
directly and only from the use of force that was clearly excessive, and (3) the
excessiveness of which was clearly unreasonable.” See Manis v. Lawson, 585
F.3d 839, 843 (5th Cir. 2009). If the officer reasonably believes the suspect
poses a threat of serious harm, the use of deadly force is not excessive. Id.
Accordingly, we judge the officer’s conduct based on “the circumstances
confronting him, without the benefit of hindsight.” Manis, 585 F.3d at 843.
      Video evidence can be dispositive on a motion for summary judgment; it
is in this case. See Scott, 550 U.S. at 380–81. We are to rely on clear video
evidence when such evidence is available. Id. At times, video evidence is not
clear enough to contradict the plaintiff’s version of events. See Ramirez v.
Martinez, 716 F.3d 369, 375 (5th Cir. 2013). For example, we do not credit
video evidence when it does not display the entire altercation. Id. at 374. The
video in Ramirez also included “about five people,” and none of their faces were
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                                       No. 15-51252
visible for much of the altercation, making it difficult to tell which individuals
performed which acts.           Id.    In another case, we found video evidence
inconclusive when it failed to show the plaintiff and the defendant at the same
time during the altercation. Curran v. Aleshire, 800 F.3d 656, 664 (5th Cir.
2015). The eyewitness video here suffers none of those defects. Meline’s video
captured the entire altercation; Bellino and Guerra are identifiable, based
largely on the parties’ stipulations, and both are within the frame during the
entirety of the video.
       The plaintiffs assert that the video here is not determinative because it
does not show Guerra “attacking” Bellino. This assertion misapprehends the
qualified-immunity standard. Qualified immunity requires that an objectively
reasonable officer in Bellino’s position believe Guerra posed a threat of serious
harm. See Flores, 381 F.3d at 395, 402. We have viewed the video. Though
grainy, the video shows that Bellino’s detainee suddenly turned and charged
toward him in the dark from less than a car’s length away. The plaintiffs even
concede that the video shows Guerra “moving quickly” toward Bellino. Also,
toward the end of the video, Meline states, “The guy just charged the cop, and
he shot him.” In light of these filmed facts, which are undisputed, the factual
issues identified by the district court are immaterial. 1
       The district court identified three factual disputes that it held precluded
the entry of summary judgment in Bellino’s favor. First, the plaintiffs claim
Guerra was attempting to flee the scene, while Bellino stated that Guerra




       1 The plaintiffs argue that Bellino waived any argument concerning the materiality of
the district court’s recognized fact issues. A party that fails to make adequate briefing of an
issue on appeal waives it. United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010).
Adequate briefing requires that a party “press” an issue, which requires raising the argument
and citing relevant legal principles. Id. at 446–47. Bellino adequately raised the materiality
issue by calling the district court’s findings irrelevant and inconsequential. He also cited
some of the same cases we rely on in our analysis. His materiality argument was not waived.
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                                  No. 15-51252
charged directly toward him. The plaintiffs, though, stipulated that Guerra
moved rapidly in Bellino’s direction, and the video confirms this. Meline’s
testimony provides the only basis for the theory that Guerra may have
attempted to flee: “[F]rom where I was standing, I couldn’t tell if [Guerra ran]
directly at [Bellino] or if he was angled a bit and he was trying to run past him.
From my angle, . . . I couldn’t tell that rate of detail.” Even these statements
show that Guerra, if running at an angle, was doing so only slightly and ran
very close to the place in which Bellino originally stood. The eyewitness video
shows that Bellino had mere seconds to determine how to respond to this
visibly agitated detainee charging almost directly toward him in the dark from
less than a car’s length away. Further, Guerra landed immediately behind
Bellino’s patrol car after being shot, confirming Bellino’s assertion that Guerra
ran toward him and not away from him. Bellino was forced to make a split-
second decision based on Guerra’s conduct without knowledge of his subjective
intent. See Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997). A reasonable
officer in Bellino’s position could have concluded that Guerra posed a threat of
serious harm. See id. Whether Guerra was running at an angle, it was too
slight to be a material fact.
      Second, the plaintiffs claim, and Bellino concedes, that Guerra was
cooperative at the beginning of the incident. Bellino’s actions, though, are to
be judged at the time of the shooting. See Rockwell v. Brown, 664 F.3d 985,
993 (5th Cir. 2011). The eyewitness video shows Guerra charging toward
Bellino immediately before the shooting. We may determine in hindsight that
Guerra posed no threat, but such a determination is of no consequence to the
analysis. See Reese v. Anderson, 926 F.2d 494, 500 (5th Cir. 1991). Guerra’s
cooperation prior to the point at which he charged Bellino is immaterial.
      Third, the district court noted that Bellino consulted with an attorney
before giving a statement, so it concluded “credibility determinations must be
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                                  No. 15-51252
made as to whether some facts were omitted from his statement and whether
other items were added to justify the shooting.”        We disagree.     Bellino’s
credibility is immaterial because the video offers irrefutable proof that he was
justified in believing Guerra presented a threat at the time of the shooting. A
determination about Bellino’s credibility does not alter the video evidence:
Guerra ran toward Bellino from a car’s length away, and a reasonable officer
could have perceived a threat of serious harm.             Bellino’s actions were
reasonable under the circumstances, so no constitutional violation occurred.
      Even had a constitutional violation occurred, the plaintiffs carry the
burden of demonstrating Bellino violated clearly established law. See King v.
Handorf, 821 F.3d 650, 653 (5th Cir. 2016). Generalized legal principles do not
satisfy this second element of the qualified-immunity analysis, which “must be
undertaken in light of the specific context of the case[.]” Mullenix v. Luna, 136
S. Ct. 305, 308 (2015). The need for factually similar precedent is “especially
important in the Fourth Amendment context” because “[i]t is sometimes
difficult for an officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer confronts.” Id.
Depending on the facts of the case, an officer may be entitled to qualified
immunity even when unable to determine whether a suspect “intended to flee
or inflict further injury or death on the officers.” Colston, 130 F.3d at 100.
      The plaintiffs seek to identify a violation of clearly established law on
the basis of the proposition that “shooting an unarmed suspect who did not
pose a threat of serious physical harm is a violation of that suspect’s rights.”
In considering the availability of qualified immunity in an excessive-force case,
the Supreme Court has rejected almost that exact articulation. Mullenix, 136
S. Ct. at 308–09. Such a standard is inconsistent with a standard of objective
reasonableness, which does not ask what was in Guerra’s mind but what could
have been in the mind of an objectively reasonable officer.
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                                 No. 15-51252
      Our perspective on review is that of “a reasonable officer on the
      scene,” and we “allow[ ] for the fact that police officers are often
      forced to make split-second judgments — in circumstances that are
      tense, uncertain, and rapidly evolving — about the amount of force
      that is necessary in a particular situation.”
Flores, 381 F.3d at 399 (quoting Graham v. Connor, 490 U.S. 386, 396–97
(1989)).
      Further, the proposed standard is insufficiently specific to satisfy the
second part of qualified-immunity analysis, as “clearly established law” must
not be defined “at a high level of generality.”    Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011). Similarly, we consider the same defect to exist in the dissent’s
use of Ham v. Brice, 203 F. App’x 631 (5th Cir. 2006). The dissent’s analogy is
based in large part on the fact that the suspect in Ham was fleeing. However,
the film conclusively shows that Guerra ran towards Bellino. Liability for the
officer does not turn on where Guerra might have planned to run after reaching
Bellino. It turns on objective reasonableness based on what the officer saw.
      REVERSED.




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                                   No. 15-51252
JAMES E. GRAVES Jr., Circuit Judge, dissenting:
                                         I.
      The majority disregards two well-established principles in the doctrine
of qualified immunity. First, when reviewing a denial of a motion for summary
judgment based on qualified immunity, our jurisdiction is limited; it extends
only to “the materiality of any factual disputes, but not their genuineness.”
Brothers v. Zoss, 837 F.3d 513, 517 (5th Cir. 2016). Second, “we must view the
facts in the light most favorable to the plaintiff.” Martinez-Aguero v. Gonzalez,
459 F.3d 618, 621 (5th Cir. 2006). Overreaching our jurisdictional mandate,
the majority resolves factual disputes to hold that Sergeant Bellino’s fatal
shooting of Guerra was objectively reasonable. To do so, the majority concludes
that “Bellino’s credibility is immaterial” because of “irrefutable proof” in the
form of a dark, grainy eyewitness video. 1 I respectfully dissent.
      The majority concludes that, because the eyewitness video shows one
indistinct figure (Guerra) “move rapidly in [the] direction” of another indistinct
figure (Bellino), a reasonable officer, with “mere seconds to determine how to
respond to this visibly agitated detainee,” would have been justified in using
deadly force. The eyewitness video is only dispositive if it “utterly discredit[s]”
Guerra’s “version of events” so that “no reasonable jury could have believed
him.” See Scott v. Harris, 550 U.S. 372, 380 (2007). It does not. At most, the
video is inconclusive regarding whether Guerra was rushing at Bellino or
instead was fleeing from him, albeit at an angle, and posed no reasonable
threat. Id. The district court correctly deemed the video inconclusive. Its



      1  The eyewitness video may be accessed via the following internet link:
http://www.ca5.uscourts.gov/opinions/pub/15/15-51252.mp4. An enhanced version of the
video    may     also     be    accessed     via    the   following  internet   link:
http://www.ca5.uscourts.gov/opinions/pub/15/15-51252_enhanced.mp4.
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finding is consistent with eyewitness testimony by Meline, who filmed the
encounter and who stated: “[F]rom where I was standing, I couldn’t tell if
[Guerra ran] directly at [Bellino] or if he was angled a bit and he was trying to
run past him.”
      But relying solely on the grainy video, the majority posits that any
factual issues identified by the district court are entirely immaterial, including
whether Guerra’s flight path was at an angle from Bellino. This conclusion
contradicts Supreme Court precedent. As the Court explained, “[w]here 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.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). Here, the nonmoving
parties have proffered evidence that Guerra was unarmed, nonthreatening,
and was shot dead while attempting to flee the scene. The medical examiner’s
report, which found “[n]o evidence of close range firing,” supports their version
of the facts. The video evidence here does not utterly discredit the nonmovants’
version of the facts. See Scott, 550 U.S. U.S. at 380. On these disputed issues
of material fact, we lack jurisdiction to review.


                                       II.
       I would also hold that Bellino’s alleged use of excessive force violates
“clearly established statutory or constitutional rights of which a reasonable
person would have known.” See Flores v. City of Palacios, 381 F.3d 391, 395
(5th Cir. 2004). In Garner, the Supreme Court held that “it was unreasonable
to kill a ‘young, slight, and unarmed’ burglary suspect, by shooting him ‘in the
back of the head’ while he was running away on foot, and when the officer
‘could not reasonably have believed that [the suspect] . . . posed any threat,’
and ‘never attempted to justify his actions on any basis other than the need to
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prevent an escape.’” See Scott, 550 U.S. at 383-84 (quoting Garner, 471 U.S. at
21, 4). Properly crediting Guerra’s version of events, it is thus clearly
established that Bellino’s use of lethal force against an unarmed,
nonthreatening and fleeing suspect was unreasonable. Id.
      On similar facts, we have previously so held. In Ham v. Brice, 203 F.
App’x 631, 635 (5th Cir. 2006), we specifically found that Garner precluded
granting summary judgment to an officer on qualified immunity grounds
regarding the shooting of an unarmed suspect who was attempting to flee
towards a wooded area. In that case, the officer also attempted to justify his
actions, contending that he shot Ham out of “concern that Ham was running
towards the officers’ vehicles, parked in the wooded area and inside of which
were loaded weapons.” Id. Nevertheless, we reasoned that “the harm resulting
from Tucker’s shooting of Ham [was] the type that Garner intended to prevent”
based largely on the facts that (1) Ham was unarmed; (2) he was fleeing on
foot; (3) he was fleeing down a deserted path; (4) he did not physically resist
the officer; and (5) the officer immediately began firing. Id. We also noted that
investigators could not verify key elements of the officer’s story. Id.
      As in Ham, the harm resulting from Bellino’s force is “the type that
Garner intended to prevent.” Id. Similar to Ham, (1) Bellino shot Guerra even
though he was unarmed; (2) Guerra was fleeing on foot; (3) Guerra was fleeing
through a sparsely populated area; (4) Guerra did not physically resist Bellino;
and (5) Bellino immediately began firing. And just as in Ham, the court below
questioned the veracity of statements made by Bellino. Accordingly, I would
hold that Bellino’s alleged use of excessive force violates “clearly established
statutory or constitutional rights of which a reasonable person would have
known.” See Flores, 381 F.3d at 395.


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