     Case: 13-10899      Document: 00512877937        Page: 1     Date Filed: 12/19/2014




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

                                                                                  FILED
                                                                            December 19, 2014
                                     No. 13-10899                              Lyle W. Cayce
                                                                                    Clerk

BEATRICE LUNA, Individually and as Representative of the Estate of Israel
Leija, Jr.; CHRISTINA MARIE FLORES, as Next Friend of J.L. and J.L.,
Minor Children,

                                                Plaintiffs - Appellees
v.

CHADRIN LEE MULLENIX, In His Individual Capacity,

                                                Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before HAYNES and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      We withdraw our prior opinion of August 28, 2014, Luna v. Mullenix, 765
F.3d 531 (5th Cir. 2014), and substitute the following. 1
      This § 1983 excessive use of force case arises from the shooting and death
of Israel Leija, Jr. by Texas Department of Public Safety (DPS) Trooper
Chadrin Mullenix during a high-speed pursuit.               The district court denied
Mullenix’s motion for summary judgment on the issue of qualified immunity,
holding that multiple genuine disputes of material fact existed as to the


      1 Judge King, a member of the original panel in this case, did not participate in the
consideration of this opinion. This matter is decided by a quorum. 28 U.S.C. § 46(d).
    Case: 13-10899    Document: 00512877937     Page: 2   Date Filed: 12/19/2014



                                 No. 13-10899
qualified immunity analysis.     Because we conclude that Mullenix is not
entitled to summary judgment on qualified immunity, we affirm.
                 I. Factual and Procedural Background
      On March 23, 2010, at approximately 10:21 p.m., Sergeant Randy Baker
of the Tulia Police Department followed Israel Leija, Jr. to a Sonic Drive-In to
arrest him on a motion to revoke misdemeanor probation. The arrest warrant
had been filed because (1) Leija had failed to complete all of his hours of
community service, and (2) a new complaint of domestic violence had been filed
against Leija, who was on probation. After some discussion with Baker, Leija
fled the scene and headed north towards Interstate Highway 27 (“I-27”), with
Baker in pursuit. Texas DPS Trooper Gabriel Rodriguez was on patrol nearby
and took the lead in the pursuit. Around mile marker 77, Leija entered I-27
and continued north, with Rodriguez directly behind him.            During the
approximately 18 minutes that the pursuit lasted, Rodriguez followed Leija
and captured the pursuit on his video recorder.       The video supports the
plaintiffs’ assertions that although the pursuit proceeded north on 1-27 at
speeds between 85 and 110 miles per hour, traffic on the dry roadway was light;
Leija remained on the paved portion of the road with his headlights on, did not
run any vehicles off the road, did not collide with any vehicles, and did not
cause any collisions; there were no pedestrians or stopped vehicles along the
road; and all of the pursuit occurred in rural areas, without businesses or
residences near the interstate, which was divided by a wide center median.
      As the pursuit headed north on I-27, other law enforcement units joined.
Officer Troy Ducheneaux of the Canyon Police Department deployed tire
spikes underneath the overpass at Cemetery Road and I-27. DPS Troopers set
up spikes at McCormick Road, north of Cemetery Road. Other police units set
up spikes at an additional location further north, for a total of three spike
locations ahead of the pursuit. The record reflects that officers had received
                                       2
    Case: 13-10899     Document: 00512877937        Page: 3   Date Filed: 12/19/2014



                                     No. 13-10899
training on the deployment of spikes, and had been trained to take a protective
position while deploying spikes, if possible, so as to minimize the risk posed by
the passing driver.
      During the pursuit, Leija twice called the Tulia Police Dispatch on his
cell phone, claiming that he had a gun, and that he would shoot at police
officers if they did not cease the pursuit. This information was relayed to all
officers involved. It was discovered later that Leija had no weapon in his
possession.
      DPS Trooper Chadrin Mullenix was on patrol thirty miles north of the
pursuit, and also responded. Mullenix went to the Cemetery Road overpass,
initially intending to set up spikes at that location, but ultimately decided to
attempt to disable the car by shooting it. He positioned his vehicle atop the
Cemetery Road bridge, twenty feet above I-27, intending to shoot at the vehicle
as it approached. Mullenix planned to use his .223 caliber M-4 rifle to disable
the vehicle by shooting at its engine block, although he had never attempted
that before and had never seen it done before. The district court noted that
“[t]here is no evidence—one way or another—that any attempt to shoot out an
engine block moving at 80 mph could possibly have been successful.” Mullenix
testified that he had been trained in shooting upwards at moving objects,
specifically clay pigeons, with a shotgun. He had no training on how to shoot
at a moving vehicle to disable it.
      Mullenix’s dash cam video reflects that once he got to the Cemetery Road
overpass, he waited for about three minutes for the pursuit to arrive. Mullenix
relayed to Officer Rodriguez that he was thinking about setting up with a rifle
on the bridge. Rodriguez replied “10-4,” told Mullenix where the pursuit was,
and that Leija had slowed down to 85 miles per hour. Mullenix then asked the
Amarillo DPS dispatch to contact DPS Sergeant Byrd, Mullenix’s supervisor,
to tell Byrd that he was thinking about shooting the car and to ask whether
                                          3
    Case: 13-10899        Document: 00512877937   Page: 4   Date Filed: 12/19/2014



                                   No. 13-10899
the sergeant thought that was “worth doing.”            According to plaintiffs’
allegations, he contacted Byrd to “request permission” to fire at the vehicle.
Mullenix denies that he requested or needed “permission,” but stated that he
“asked for what [Byrd] advised” and asked to “get his advice.” Mullenix did
not wait for a response from Sergeant Byrd, but exited his patrol vehicle, took
out his rifle, and took a shooting position on the bridge. During this time, the
dispatcher relayed a response from Sergeant Byrd to “stand by” and “see if the
spikes work first.” Mullenix alleges that he was unable to hear that instruction
because he had failed to turn on his outside loudspeakers, thereby placing
himself out of communication with his dispatch or other officers involved in the
pursuit. Plaintiffs allege that since the trunk was open, Mullenix should have
heard the response. Mullenix did have his radio microphone on him. During
the waiting minutes, Mullenix had a short, casual conversation with Randall
County Sheriff’s Deputy Tom Shipman about whether he could shoot the
vehicle to disable it. When Shipman mentioned to Mullenix that there was
another officer beneath the overpass, Mullenix replied that he did not think he
would hit that officer.
      As the two vehicles approached, Mullenix fired six rounds at Leija’s car.
There were no streetlights or ambient lighting.         It was dark.     Mullenix
admitted he could not discern the number of people in Leija’s vehicle, whether
there were passengers, or what anyone in the car was doing. Mullenix testified
that at the time of the shooting, he was not sure who was below the overpass,
whether Ducheneaux had actually set up spikes there, or where Ducheneaux
was positioned beneath the overpass.          After Mullenix fired, Leija’s car
continued north, engaged the spike strip, hit the median and rolled two and a
half times.   In the aftermath of the shooting, Mullenix remarked to his
supervisor, Sergeant Byrd, “How’s that for proactive?” Mullenix had been in a


                                         4
    Case: 13-10899    Document: 00512877937     Page: 5   Date Filed: 12/19/2014



                                 No. 13-10899
counseling session earlier that same day, during which Byrd intimated that
Mullenix was not being proactive enough as a Trooper.
      Leija was pronounced dead soon after the shooting. The cause of death
was later determined to be one of the shots fired by Mullenix that had struck
Leija in the neck. The evidence indicates that at least four of Mullenix’s six
shots struck Leija’s upper body, and no evidence indicates that Mullenix hit
the vehicle’s radiator, hood or engine block.
      The incident was investigated by Texas Ranger Jay Foster. Foster
concluded that Mullenix complied with DPS policy and Texas law. The DPS
Firearms Discharge Review board reviewed the shooting and concluded that
Mullenix complied with DPS policy and Texas law. A grand jury declined to
return an indictment of Mullenix. A DPS Office of the Inspector General
(“OIG”) Report concluded the opposite, that Mullenix was not justified and
acted recklessly. The parties disputed the relevance and admissibility of that
OIG report, which was subsequently called into question by its author, who
testified that he did not have full information on the incident or investigation
when he wrote the report. The district court mentioned the report in its
statement of facts, but did not further discuss the report.
      Beatrice Luna, as the representative of Leija’s estate, and Christina
Flores, on behalf of Leija’s minor child, sued DPS, the Director of DPS Steve
McCraw, Trooper Rodriguez, and Trooper Mullenix, in state court, asserting
claims under the Texas Tort Claims Act and 42 U.S.C. § 1983. Defendants
removed to federal court. Director McCraw’s Motion to Dismiss was granted,
and plaintiffs’ stipulation of dismissal against DPS and Trooper Rodriguez was
granted with prejudice. The sole remaining claim is the § 1983 claim against
Mullenix, alleging that he subjected Leija to an unconstitutional use of
excessive force in violation of the Fourth Amendment. Mullenix answered and
asserted the defense of qualified immunity. After discovery, Mullenix moved
                                       5
    Case: 13-10899     Document: 00512877937      Page: 6   Date Filed: 12/19/2014



                                  No. 13-10899
for summary judgment on the issue of qualified immunity. On August 7, 2013,
the district court issued a memorandum opinion and order denying Mullenix’s
motion for summary judgment. Mullenix appeals.
                                II. Discussion
      The doctrine of qualified immunity shields “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). In reviewing a motion for summary judgment based
on qualified immunity, we undertake a two-step analysis.           First, we ask
whether the facts, taken in the light most favorable to the plaintiffs, show the
officer’s conduct violated a federal constitutional or statutory right. See Tolan
v. Cotton, 134 S. Ct. 1861, 1865 (2014); Flores v. City of Palacios, 381 F.3d 391,
395 (5th Cir. 2004) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second,
we ask “whether the defendant’s actions violated clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Flores, 381 F.3d at 395 (internal quotation marks omitted) (quoting Hope v.
Pelzer, 536 U.S. 730, 739 (2002)); see Tolan, 134 S. Ct. at 1866. We may
examine these two factors in any order. See Pearson v. Callahan, 555 U.S. 223,
236 (2009) (overruling in part Saucier v. Katz, 553 U.S. 194 (2001)). Claims of
qualified immunity must be evaluated in the light of what the officer knew at
the time he acted, not on facts discovered subsequently.         See Graham v.
Connor, 490 U.S. 386, 396 (1989); Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 411
(5th Cir. 2009). As the Supreme Court has recently reaffirmed, “in ruling on a
motion for summary judgment, the evidence of the nonmovant is to be believed,
and all justifiable inferences are to be drawn in his favor.” Tolan, 134 S. Ct. at
1863 (internal quotation marks and alteration omitted) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
                                        6
    Case: 13-10899     Document: 00512877937      Page: 7   Date Filed: 12/19/2014



                                   No. 13-10899
      Our jurisdiction to review a denial of a motion for summary judgment
based on qualified immunity is limited to legal questions. See, e.g., Kinney v.
Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc).             Because of this
jurisdictional limitation, “we consider only whether the district court erred in
assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.” Id. at 348; see
Flores, 381 F.3d at 394.     We review the objective reasonableness of the
defendant government official’s actions and the scope of clearly established law
de novo. See Flores, 381 F.3d at 394. We “may review the district court’s
conclusion that issues of fact are material, but not the conclusion that those
issues of fact are genuine.” Id.
      A.    Constitutional Violation
      Under the first prong of the qualified immunity analysis, the plaintiffs
must produce facts sufficient to show that Mullenix’s actions violated Leija’s
Fourth Amendment rights. Tolan, 134 S. Ct. at 1865; Flores, 381 F.3d at 395.
“[T]here can be no question that apprehension by the use of deadly force is a
seizure subject to the reasonableness requirement of the Fourth Amendment.”
Tennessee v. Garner, 471 U.S. 1, 7 (1985). To show a violation, the plaintiffs
must produce facts sufficient to show that Leija suffered (1) an injury; (2) which
resulted directly from a use of force that was clearly excessive to the need; and
(3) the force used was objectively unreasonable. Goodson v. City of Corpus
Christi, 202 F.3d 730, 740 (5th Cir. 2000). “This is an objective standard: ‘the
question is whether the officers’ actions are objectively reasonable in light of
the facts and circumstances confronting them, without regard to their
underlying intent or motivation.’” Ramirez v. Knoulton, 542 F.3d 124, 128-29
(5th Cir. 2008) (quoting Graham, 490 U.S. at 396).
      “There are few, if any, bright lines for judging a police officer’s use of
force; when determining whether an officer’s conduct violated the Fourth
                                        7
    Case: 13-10899     Document: 00512877937     Page: 8   Date Filed: 12/19/2014



                                  No. 13-10899
Amendment, we must slosh our way through the factbound morass of
reasonableness.”     Lytle, 560 F.3d at 411 (internal quotation marks and
alteration omitted) (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)). “To
gauge the objective reasonableness 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.” Flores, 381 F.3d at 399. “The intrusiveness of a seizure by means of
deadly force is unmatched.” Garner, 471 U.S. at 9; see Flores, 381 F.3d at 399.
Balanced against this intrusion are “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.”
Lytle, 560 F.3d at 411.
      When deadly force is used, it is clear that the severity and immediacy of
the threat of harm to officers or others are paramount to the reasonableness
analysis. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2021 (2014) (concluding
that deadly force was not objectively unreasonable where “it is beyond serious
dispute that Rickard’s flight posed a grave public safety risk”); Scott, 550 U.S.
at 386 (noting that the use of deadly force was not objectively unreasonable
when “[t]he car chase that respondent initiated in this case posed a substantial
and immediate risk of serious physical injury to others”); see also Garner, 471
U.S. at 11 (“Where the suspect poses no immediate threat to the officer . . . the
harm resulting from failing to apprehend him does not justify the use of deadly
force to do so.”); Thompson v. Mercer, 762 F.3d 433, 440 (5th Cir. 2014) (noting
that “the question is whether the officer had reason to believe, at that moment,
that there was a threat of physical harm”); Hathaway v. Bazany, 507 F.3d 312,
320 (5th Cir. 2007) (noting that the “reasonableness of an officer’s use of deadly
force is. . . determined by the existence of a credible, serious threat to the
                                        8
    Case: 13-10899      Document: 00512877937       Page: 9   Date Filed: 12/19/2014



                                   No. 13-10899
physical safety of the officer or to those in the vicinity”); Bazan ex rel. Bazan v.
Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001) (“The excessive force inquiry
is confined to whether the Trooper was in danger at the moment of the threat
that resulted in the Trooper’s shooting Bazan.”); Vaughan v. Cox, 343 F.3d
1323, 1330 (11th Cir. 2003) (“Genuine issues of material fact remain as to
whether [the suspects’] flight presented an immediate threat of serious harm
to [the police officer] or others at the time [the officer] fired the shot.”).
      With regard to high-speed chases, the Supreme Court has held that “[a]
police officer’s attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the Fourth
Amendment, even when it places the fleeing motorist at risk of serious injury
or death.” Scott, 550 U.S. at 386; see also Plumhoff, 134 S. Ct. at 2021-22
(applying Scott to a case involving the shooting of a suspect in a high-speed
chase). Likewise, this court has recently held that a sheriff who used an
assault rifle to intentionally shoot a fleeing suspect as he approached in a
truck, after a lengthy, dangerous chase, did not violate the Fourth
Amendment.      Thompson, 762 F.3d at 438.          These cases, however, do not
establish a bright-line rule; “a suspect that is fleeing in a motor vehicle is not
so inherently dangerous that an officer’s use of deadly force is per se
reasonable.” Lytle, 560 F.3d at 416. Instead, Scott, Plumhoff and Thompson
are simply applications of the Fourth Amendment’s reasonableness
requirement to particular facts. See Plumhoff, 134 S. Ct. at 2020-22; Scott, 550
U.S. at 382-83; Thompson, 762 F.3d at 438. “Nearly any suspect fleeing in a
motor vehicle poses some threat of harm to the public. As the cases addressing
this all-too-common scenario evince, the real inquiry is whether the fleeing
suspect posed such a threat that the use of deadly force was justifiable.” Lytle,
560 F.3d at 415; see Thompson, 762 F.3d at 438.


                                          9
    Case: 13-10899    Document: 00512877937      Page: 10   Date Filed: 12/19/2014



                                  No. 13-10899
      Mullenix asserts that, as a matter of law, his use of force was not
objectively unreasonable because he acted to protect other officers, including
Officer Ducheneaux beneath the overpass and officers located further north up
the road, as well as any motorists who might have been located further north.
However, accepting plaintiffs’ version of the facts (and reasonable inferences
therefrom) as true, these facts are sufficient to establish that Mullenix’s use of
deadly force was objectively unreasonable. See Newman v. Guedry, 703 F.3d
757, 762 (5th Cir. 2012) (“Mindful that we are to view the facts in a light most
favorable to Newman, and seeing nothing in the three video recordings to
discredit his allegations, we conclude, based only on the evidence in the
summary-judgment record, that the use of force was objectively unreasonable
in these circumstances.”); Haggerty v. Tex. State. Univ., 391 F.3d 653, 655 (5th
Cir. 2004) (“In an interlocutory appeal in which the defendant asserts qualified
immunity, to the extent that the district court found that genuine factual
disputes exist, we accept the plaintiff’s version of the facts (to the extent
reflected by proper summary judgment evidence) as true.”); see also Tolan, 134
S. Ct. at 1863 (“[I]n ruling on a motion for summary judgment, the evidence of
the nonmovant is to be believed, and all justifiable inferences are to be drawn
in his favor.”).
      Many of the facts surrounding Leija’s flight from police, viewed in the
light most favorable to the plaintiffs, negate the risk factors central to the
reasonableness findings in cases like Scott, Plumhoff and Thompson.
According to the plaintiffs’ version of the facts, although Leija was clearly
speeding excessively at some times during the pursuit, traffic on the interstate
in the rural area was light. There were no pedestrians, no businesses and no
residences along the highway, and Leija ran no other cars off the road and
engaged no police vehicles. Further, there is evidence showing that Leija had
slowed to 85 miles per hour prior to the shooting. Spike systems, which could
                                       10
    Case: 13-10899    Document: 00512877937       Page: 11   Date Filed: 12/19/2014



                                  No. 13-10899
have ended the pursuit without resort to deadly force, had already been
prepared in three locations ahead of the pursuit. In Scott and Plumhoff, on the
other hand, multiple other methods of stopping the suspect through alternate
means had failed, the suspects were traveling on busy roads, had forced
multiple other drivers off the road, had caused collisions with officers or
innocent bystanders, and at the time of the shooting were indisputably posing
an immediate threat to bystanders or other officers in the vicinity.            See
Plumhoff, 134 S. Ct. at 2017-18, 2021-22; Scott, 550 U.S. at 379-80, 383-84.
Likewise, in Thompson, this court found that the officers had tried “four times”
to stop the chase with “alternate means of seizure before resorting to deadly
force” to stop a driver who posed “extreme danger to human life.” Thompson,
762 F.3d at 438, 440. The Thompson court explained that
      even the Thompsons concede that their son represented a grave
      risk when he “reached speeds exceeding 100 miles per hour on the
      interstate, when he ran numerous stop signs, when he had
      ‘recklessly’ driven on the wrong side of the road, [and] when he
      avoided some road spikes [and] took officers down Blue Flat Road
      where a horse was loose.” Indeed, parts of the police camera
      footage might be mistaken for a video game reel, with Keith
      disregarding every traffic law, passing other motorists on the left,
      on the right, on the shoulder, and on the median. He occasionally
      drove off the road altogether and used other abrupt maneuvers to
      try to lose his pursuers. The truck was airborne at least twice,
      with Keith struggling to regain control of the vehicle. In short,
      Keith showed a shocking disregard for the welfare of passersby
      and of the pursuing law enforcement officers.
Id. at 438.
      To the extent that we must view facts in accordance with the video, see
Scott, 550 U.S. at 378-80; Thompson, 762 F.3d at 439, the video supports the
plaintiffs’ version of the facts. In Scott, the plaintiff argued that the force used
was unreasonable because the driver posed “little, if any actual threat to



                                        11
    Case: 13-10899      Document: 00512877937      Page: 12   Date Filed: 12/19/2014



                                   No. 13-10899
pedestrians or other motorists.” Scott, 550 U.S. at 378. However, the Court
said,
        [t]he videotape tells quite a different story. There we see
        respondent’s vehicle racing down narrow, two-lane roads in the
        dead of night at speeds that are shockingly fast. We see it swerve
        around more than a dozen other cars, cross the double-yellow line,
        and force cars traveling in both directions to their respective
        shoulders to avoid being hit. We see it run multiple red lights and
        travel for considerable periods of time in the occasional center left-
        turn-only lane, chased by numerous police cars forced to engage in
        the same hazardous maneuvers just to keep up. Far from being
        the cautious and controlled driver the lower court depicts, what we
        see on the video more closely resembles a Hollywood-style car
        chase of the most frightening sort, placing police officers and
        innocent bystanders alike at great risk of serious injury.
Id. at 379-80. The Court relied on the video to resolve disputed facts, holding
that the video “blatantly contradicted” the plaintiff’s version of the facts, “so
that no reasonable jury could believe it.” Id. at 380. Likewise, in Thompson,
the plaintiffs argued that the threat posed by the chase had ended because the
rural road was empty by the time of the shooting, but this court found that “the
Thompsons’ characterization of the scene is belied by the video evidence,”
which showed multiple cars pulling over to avoid the chase, and dangerous
conditions on the road, which had limited visibility and no shoulder for cars to
pull onto. Thompson, 762 F.3d at 439. Here, however, the video supports the
plaintiffs’ assertions that during the pursuit, traffic on the divided highway
was light, there were no pedestrians, businesses or residences along the
highway, and Leija ran no other cars off the road and did not engage any police
vehicles.
        Further, in concluding that the use of force was not objectively
unreasonable, the Thompson opinion relies repeatedly on the fact that the
officers had made four attempts to disable the vehicle with “alternate means
of seizure before resorting to deadly force.” Thompson, 762 F.3d at 438, 440.
                                         12
   Case: 13-10899     Document: 00512877937     Page: 13   Date Filed: 12/19/2014



                                 No. 13-10899
With regard to the existence of a Fourth Amendment violation, the holding of
Thompson is that “after multiple other attempts to disable the vehicle failed,
it was not unreasonable for Mercer to turn to deadly force to terminate the
dangerous high-speed chase.” Id. at 438. The opinion later similarly concludes
that “law enforcement reasonably attempted alternate means of seizure before
resorting to deadly force,” id. at 440, and discusses this fact twice in its
discussion of whether the law was sufficiently clearly established, id. at 440-
41. In the instant case, there were spikes already in place under the bridge,
and officers prepared to deploy spikes in two additional locations up the road.
Yet Mullenix fired his rifle at Leija’s vehicle before Leija had encountered any
of the spikes. In contrast to Thompson, the alternative methods of seizure that
were already prepared were never given a chance to work before Mullenix
resorted to deadly force.
      We certainly do not discount Leija’s threats to shoot officers, which he
made to the Tulia dispatcher and which were relayed to Mullenix and other
officers. However, allegedly being armed and in a car fleeing are not, by
themselves, sufficient to establish that Leija posed such an imminent risk of
harm that deadly force was permitted. In a case involving the shooting of a
suspect, we have stated that the “core issue” is “whether the officer reasonably
perceived an immediate threat.” Reyes v. Bridgwater, 362 F. App’x 403, 408
(5th Cir. 2010). “[T]he focus of the inquiry is the act that led the officer to
discharge his weapon.” Id. at 406 (internal quotation marks and alteration
omitted) (quoting Manis v. Lawson, 585 F.3d 839, 845 (5th Cir. 2009)); see also
Bazan, 246 F.3d at 493 (“The excessive force inquiry is confined to whether the
Trooper was in danger at the moment of the threat that resulted in the
Trooper’s shooting.”). The factual scenario here is substantially different, in
terms of the imminence and immediacy of the risk of harm, from situations
where we have granted qualified immunity to officers who shot an armed
                                      13
    Case: 13-10899    Document: 00512877937       Page: 14   Date Filed: 12/19/2014



                                  No. 13-10899
suspect, or a suspect believed to be armed. See Ramirez, 542 F.3d at 127, 129
(suspect stopped by the side of the road after a brief chase displayed a gun,
repeatedly ignored police commands, was located yards from police officers,
and brought his hands together in a manner that indicated he may have been
reaching for the gun, prompting officer to shoot him); Ballard v. Burton, 444
F.3d 391, 402-03 (5th Cir. 2006) (mentally disturbed suspect “refused to put
down his rifle, discharged the rifle into the air several times while near officers,
and pointed it in the general direction of law enforcement officers”); Reese v.
Anderson, 926 F.2d 494, 500-01 (5th Cir. 1991) (suspect stopped after a high-
speed chase refused to exit the car, refused to follow police commands,
repeatedly raised and lowered his hands, turned away from the officer and
reached lower toward the floorboard, prompting the officer to shoot him);
compare Reyes, 362 F. App’x at 407 (fact issue precluded qualified immunity
where suspect was armed with a knife, but made no threatening gesture or
motion), with Harris v. Serpas, 745 F.3d 767, 773 (5th Cir. 2014) (qualified
immunity granted to officer where video confirmed that suspect “was standing
up out of bed and had raised the knife above his head at the time the shots
were fired”). We discuss these cases not because we hold that an officer must
actually see a weapon before taking action to protect himself or others from the
suspect, but because they illustrate that, even when a weapon is present, the
threat must be sufficiently imminent at the moment of the shooting to justify
deadly force.
      In Thompson, the court did note the existence of a stolen gun in the car
of the fleeing suspect as a fact that supported its conclusion that the suspect
posed an “ongoing threat of serious harm,” even though the officer had no way
of ascertaining whether the suspect intended to use the weapon. Thompson,
762 F.3d at 439 (quotation omitted). However, in Thompson, the officer also
knew at the time of the shooting that the suspect was fleeing in a stolen car
                                        14
    Case: 13-10899        Document: 00512877937          Page: 15     Date Filed: 12/19/2014



                                       No. 13-10899
with a stolen weapon, had abducted a woman during his flight, and that the
“unidentified suspect was admittedly suicidal and had already acted with utter
desperation in attempting to evade law enforcement.” Id. Thus, the court
found that the officer was “justified in assuming” that the presence of the stolen
weapon contributed to the continuing threat posed by suspect. Id.
       Here, although Leija had stated to the dispatcher that he was armed and
would shoot officers, he was not fleeing the scene of a violent crime, no weapon
was ever seen, and at the time of the shooting, most officers and bystanders
were miles away, where they would not have been encountered until after the
spikes were given a chance to stop the chase. On appeal, Mullenix relies
heavily on the presence of Ducheneaux beneath the overpass, and the risk that
Leija could shoot Ducheneaux as he sped by. However, he also testified that
he did not actually know Ducheneaux’s position or what he was doing beneath
the overpass. 2      Mullenix argues that he knew that an officer had to be
positioned near a roadway to deploy spikes, but the facts, taken in the light
most favorable to the plaintiffs, also show that officers were trained to deploy
spikes in a location where they were able to take a protective position, that
there were several pillars at the Cemetery Road overpass and that
Ducheneaux had positioned himself behind a pillar as he was trained to do.
Further, just prior to the shooting, Sheriff’s Deputy Shipman mentioned
Ducheneaux’s presence beneath the overpass, and Mullenix replied only that
he did not think he would hit Mullenix; he did not indicate that he perceived a
threat to Ducheneaux from Leija. In this situation, the facts, viewed in the



       2 We do not hold that an officer must necessarily have another officer that he believes
to be in danger in his sightline at the time he takes action. We merely state that the facts,
viewed in favor of the plaintiffs, are sufficient to show that Mullenix—positioned atop a
bridge in the dark of night, and eventually out of contact with other officers—lacked sufficient
knowledge to determine whether or not Ducheneaux was in immediate danger from Leija, or
whether Mullenix’s own actions were decreasing the risk to Ducheneaux.
                                              15
   Case: 13-10899     Document: 00512877937      Page: 16   Date Filed: 12/19/2014



                                  No. 13-10899
light most favorable to the plaintiffs, do not establish that Mullenix reasonably
perceived an immediate threat at the time of the shooting, sufficient to justify
the use of deadly force.
      The plaintiffs also point to evidence in the record showing that Mullenix
heard the warning that Leija had said he had a gun six minutes before the
shooting, and went to the bridge and waited three minutes for Leija’s car to
approach. During this period Mullenix had time to consider his approach,
including time to ask for his supervisor’s opinion, inform Rodriguez of his
intentions, and discuss the feasibility of shooting the car with Shipman. This
is not the type of “split-second judgment” that officers must make when faced
with an imminent risk of harm to themselves or others. See Plumhoff, 134 S.
Ct. at 2020; Graham, 490 U.S. at 396-97; Hathaway, 507 F.3d at 320-21.
Although Mullenix relies heavily on the assertion that it is up to the “officer on
the scene” to make judgments about the use of deadly force, Mullenix was not
the only, or even the primary, officer on the scene. Officer Rodriguez was
immediately in pursuit of Leija, and multiple other officers from various law
enforcement agencies were on the scene at Cemetery Road and were at
multiple locations further north along I-27, planning to deploy tire spikes to
stop the suspect. There is no evidence that any other officer from any of the
law enforcement agencies involved in the pursuit, hearing the same
information that Mullenix heard, including the information regarding Leija’s
threats, decided that deadly force was necessary or warranted. Further, via
the dispatcher, Mullenix asked his supervisor, Sergeant Byrd, about his plan
to shoot at the car. It is undisputed that Sergeant Byrd advised Mullenix to
“stand by” and “see if the spikes work first.” While Mullenix contends he did
not hear his supervisor’s command to stand by, plaintiffs proffered evidence
that he could have heard that command. If plaintiffs’ evidence is taken as true,
it supports the conclusion that Mullenix acted objectively unreasonably.
                                       16
    Case: 13-10899    Document: 00512877937       Page: 17   Date Filed: 12/19/2014



                                  No. 13-10899
Lastly, Mullenix testified that he intended to shoot the engine block of the car
in an attempt to disable it, although there is no evidence that shooting at the
engine is a feasible method of immediately disabling a car. His justification
for the use of force was to disable the car, but alternative methods were already
in place to achieve the same goal, undermining the asserted necessity for
resorting to deadly force at that particular instant.
      We conclude that the plaintiffs have produced facts that, viewed in their
favor and supported by the record, establish that Mullenix’s use of force at the
time of the shooting was objectively unreasonable under the Fourth
Amendment.
      B.    Clearly Established Law
      Under the second prong of the qualified immunity analysis, plaintiffs
must show that Mullenix’s actions violated a constitutional right that was
sufficiently clearly established. Flores, 381 F.3d at 395. For a right to be
clearly established, “[t]he contours of that right must be sufficiently clear that
a reasonable official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Because the focus is
on whether the officer had fair notice that her conduct was unlawful,
reasonableness is judged against the backdrop of the law at the time of the
conduct.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). “The central concept
[of the test] is that of ‘fair warning’: The law can be clearly established ‘despite
notable factual distinctions between the precedents relied on and the cases
then before the Court, so long as the prior decisions gave reasonable warning
that the conduct then at issue violated constitutional rights.’” Kinney, 367 F.3d
at 350 (quoting Hope, 536 U.S. at 740). Further, while the Supreme Court has
stated that “courts should define the ‘clearly established’ right at issue on the
basis of the ‘specific context of the case,’” it has also recently reminded us that
we “must take care not to define a case’s ‘context’ in a manner that imports
                                        17
    Case: 13-10899    Document: 00512877937       Page: 18   Date Filed: 12/19/2014



                                  No. 13-10899
genuinely disputed factual propositions.” Tolan, 134 S. Ct. at 1866 (quoting
Saucier, 533 U.S. at 201).
      While Mullenix devotes the bulk of his argument to this prong of the
qualified immunity analysis, “We need not dwell on this issue. It has long been
clearly established that, absent any other justification for the use of force, it is
unreasonable for a police officer to use deadly force against a fleeing felon who
does not pose a sufficient threat of harm to the officer or others.” Lytle, 560
F.3d at 417. “This holds as both a general matter and in the more specific
context of shooting a suspect fleeing in a motor vehicle.” Id. at 417-18 (internal
citations omitted) (citing Kirby v. Duva, 530 F.3d 475, 484 (6th Cir. 2008);
Vaughan, 343 F.3d at 1332-33); see also Sanchez v. Fraley, 376 F. App’x 449,
452-53 (5th Cir. 2010) (holding that “it was clearly established well before
[April 23, 2007] that deadly force violates the Fourth Amendment unless the
officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others,” and “the threat of serious
harm must be immediate”); Reyes, 362 F. App’x at 406 (“Unlike some areas of
constitutional law, the question of when deadly force is appropriate—and the
concomitant conclusion that deadly force is or is not excessive—is well-
established.”).
      Mullenix points to the Supreme Court’s recent decision in Plumhoff to
argue that the law was not clearly established. The Plumhoff Court relied
primarily on Brosseau, which held that as of 1999 it was not clearly established
that it was objectively unreasonable force “to shoot a disturbed felon, set on
avoiding capture through vehicular flight, when persons in the immediate area
are at risk from that flight.” Brosseau, 543 U.S. at 195-97, 200. However,
Plumhoff holds only that where a fleeing suspect “indisputably posed a danger
both to the officers involved and to any civilians who happened to be nearby,”
a police officer’s use of deadly force is not clearly established as unreasonable.
                                        18
      Case: 13-10899      Document: 00512877937           Page: 19      Date Filed: 12/19/2014



                                        No. 13-10899
Plumhoff, 134 S. Ct at 2021-22, 2023; see Brosseau, 543 U.S. at 200. It does
not, however, undermine the clearly established law that an officer may not
use deadly force against a fleeing suspect absent a sufficient risk to officers or
bystanders. See Lytle, 560 F.3d at 417-18. Thompson is no different. Similar
to Plumhoff, it holds that the officer’s use of force to stop a high-speed chase
was not clearly established as unreasonable where the fleeing suspect had
stolen a car and kidnapped a woman, had evaded four attempts to stop the car
with alternate methods of seizure, and whose driving continued to pose a
“tremendous risk” to the public and other officers. Thompson, 762 F.3d at 440-
41.
        At the time of this incident, the law was clearly established such that a
reasonable officer would have known that the use of deadly force, absent a
sufficiently    substantial      and     immediate       threat,     violated     the    Fourth
Amendment. 3
                                      III. Conclusion
        For the foregoing reasons, we AFFIRM the denial of summary judgment.




        3Mullenix makes a separate argument that the district court relied on inadmissible
summary judgment evidence, specifically the OIG report concluding that Mullenix’s actions
were not justified. This report was later called into question by its author, who testified that
it was not based on a full review of the incident. However, there is no indication in the district
court’s order that it relied on the OIG report in denying summary judgment, and we likewise
do not rely on it. If there are questions as to its admissibility, the district court can resolve
those in due course as the litigation proceeds.
                                               19
