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

                                                                             FILED
                                                                         December 7, 2009
                                     No. 09-30437                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


ANGELO GIARDINA,

                                                   Plaintiff - Appellee
v.

ROBERT LAWRENCE,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No: 2:07-cv-06578


                          ON PETITION FOR REHEARING

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The Defendant Robert Lawrence petitioned for rehearing by the panel of
the court’s decision of November 3, 2009. Rehearing is DENIED. However, we
withdraw our prior opinion and substitute the following.
       Angelo Giardina brought suit against several defendants for violating his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30437

Fourth and Fourteenth Amendment right to be free from excessive force.
Defendant Robert Lawrence moved for judgment on the pleadings or, in the
alternative, summary judgment. He asserted that qualified immunity applied
to his actions. The district court denied the motion. We AFFIRM.
      Giardina alleged that on October 9, 2006, he was attacked by another
driver on the roadway in New Orleans. His attacker fled on foot; Giardina
pursued and dialed 911 to report the incident. Later, as Giardina stood by his
vehicle still on the line with the 911 operator, he was shot by a National
Guardsman, Robert Lawrence. Giardina was then arrested for the crime of
aggravated assault upon a peace officer with a firearm, even though no firearm
was ever recovered from him.
      Giardina filed suit under Section 1983, claiming battery under Louisiana
law and excessive force and false arrest in violation of the Fourth and
Fourteenth Amendments. See 42 U.S.C. § 1983. He sued Lawrence, the City of
New Orleans, and Lieutenant Fred Austin, the police officer who ultimately
arrested him.
      The defendants moved for judgment on the pleadings or summary
judgment. The district court dismissed the false arrest claims against Lawrence,
Austin, and the City of New Orleans. The motions were denied as to the claim
against Lawrence for excessive force in violation of the Fourth and Fourteenth
Amendments. That claim was the only one remaining after the dismissal of the
false arrest claims. Lawrence appealed. He argues that Giardina did not plead
sufficient facts to identify a Fourth Amendment violation or to overcome
qualified immunity.
      We have jurisdiction to review the district court’s order, even though it is
not a final judgment. A district court order denying qualified immunity is
reviewable under the collateral order doctrine, provided the decision is based on
a question of law. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945-46 (2009).

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                                  No. 09-30437

A. Motion for Judgment on the Pleadings
      This court reviews de novo a district court’s denial of a Rule 12(c) motion
for judgment on the pleadings. In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007). We accept the well-pleaded facts in the complaint as
true and view them in the light most favorable to the plaintiff. Id. A motion to
dismiss is granted unless the plaintiff pleads “enough facts to state a claim to
relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
      In order to state a claim for the constitutional violation of excessive force,
Giardina must establish that an injury occurred that resulted directly from the
use of clearly excessive force, and that the excessiveness was unreasonable.
Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009). We find
the officer’s use of deadly force presumptively reasonable where “the officer has
reason to believe that the suspect poses a threat of serious harm to the officer or
to others.”   Id.   That reasonableness is judged “from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Id. (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)). We do not look at
the officer’s subjective intent. Mace v. City of Palestine, 333 F.3d 621, 624 (5th
Cir. 2003).
      Taking the pleaded facts in the light most favorable to Giardina, we find
that he may be able to prove excessive force in violation of the Fourth and
Fourteenth Amendments. It is true that the complaint did not include specific
allegations that addressed the likely qualified immunity defense. However, a
plaintiff need not anticipate the defense in the complaint. Johnson v. Johnson,
385 F.3d 503, 529 (5th Cir. 2004).       Thus, Lawrence’s argument that the
complaint has not overcome qualified immunity is without merit.
      The district court did not err in denying Lawrence’s motion for judgment
on the pleadings on the excessive force claim.

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                                     No. 09-30437

B. Summary Judgment
      In the alternative, Lawrence requested summary judgment.                 “The
standard of review that we apply in an interlocutory appeal asserting qualified
immunity differs from the standard employed in most appeals of summary
judgment rulings.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en
banc). We lack jurisdiction to determine whether a genuine issue of fact exists
regarding the defendant’s actions. Id. at 346. Thus, we cannot challenge the
district court’s determination regarding “whether there is enough evidence in the
record for a jury to conclude that certain facts are true.” Id. at 347. We do have
jurisdiction over the purely legal question of whether the conduct is “objectively
unreasonable in light of clearly established law.” Id. We therefore examine
whether the district court “erred in assessing the legal significance” of the
conduct in question. Id. at 348. In this inquiry, we must accept as true the
plaintiff’s version of events. Id.
      It is clearly established that it is unconstitutional for an officer to use
deadly force where there is no threat of serious physical harm.           See, e.g.,
Tennessee v. Garner, 471 U.S. 1, 10-12 (1985). As the district court noted, the
plaintiff alleged that Lawrence shot him while he was speaking on his cell phone
with the 911 operator. Giardina alleged that he was not instructed to halt or
drop his weapon. Giardina did not have a weapon, and the alleged assailant had
already been apprehended at the time of the shooting. While Lawrence claimed
that Giardina appeared to be wielding a small revolver instead of a cell phone
and that Giardina did not respond to orders to drop the weapon, the district
court found these to be disputed issues of fact. If Giardina’s allegations are true,
a reasonable juror could find that Lawrence violated a clearly established
constitutional right.
      As noted above, we do not have jurisdiction to analyze whether the factual
dispute is genuine, but only whether it is material. Kinney, 367 F.3d at 346.

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                                  No. 09-30437

The disputed facts here are material and concern whether Lawrence could
lawfully use deadly force under the circumstances. The district court did not err
in finding that Giardina alleged a violation of a clearly established constitutional
right.
         We AFFIRM.




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