     Case: 16-41347      Document: 00514144643         Page: 1    Date Filed: 09/06/2017




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

                                      No. 16-41347
                                                                                Fifth Circuit

                                                                              FILED
                                                                       September 6, 2017

JEFFREY JONES,                                                           Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellant

v.

OFFICER ALEX SHIVERS, Individual and Official Capacity; CORPORAL
NICK EMMONS, Individual and Official Capacity,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:14-CV-354


Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       This is a qualified immunity case. While executing an arrest warrant,
the defendant, Officer Alex Shivers, was posted at the rear of the suspect’s
house. The plaintiff, Jeffrey Jones (a firefighter, bounty hunter, and licensed
peace officer), believed himself to be assisting in the operation and thought
that he was supposed to “watch the rear.” While Shivers held his position,
Jones came up from behind. Dressed in plain clothes, Jones entered the back


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-41347    Document: 00514144643     Page: 2   Date Filed: 09/06/2017



                                 No. 16-41347
yard by stumbling over a fence, rising with a weapon in hand. The weapon
was a Taser, but Shivers did not know that. And Shivers did not know that
Jones was a friend; he perceived an armed man who had just crossed over a
back yard fence to interfere with the execution of a warrant. Reacting to Jones’
unanticipated arrival, Shivers took a spill of his own, falling behind a
doghouse. Upon rising, Shivers shot Jones twice.
      There is a factual dispute over whether Jones was aiming the Taser at
Shivers, but not over whether the weapon was unholstered and in his hand. A
police officer does not have to permit a suspect to aim his weapon before
answering the threat. See Salazar-Limon v. City of Houston, 826 F.3d 272, 279
n.6 (5th Cir. 2016), as revised (June 16, 2016). There is a factual dispute over
whether the officer in charge at the scene had told Shivers about Jones being
there or instructed Jones to assist by moving to the rear of the home, but there
is no genuine dispute as to whether Shivers was expecting Jones to help him
guard the backyard. He was not. While facts are viewed in the light most
favorable to the nonmovant, we must consider “only the facts that were
knowable to” Shivers. White v. Pauly, 137 S.Ct. 548, 550 (2017). Finally, on
these particular facts, Shivers’ failure to issue a verbal warning prior to
shooting is no bar to the grant of qualified immunity. Id. at 551–52.
      Ultimately, this case involves a highly unusual fact pattern—multiple
miscommunications and mistakes of fact that led to a friendly-fire incident.
Under the circumstance, whether or not the shooting represented a Fourth
Amendment violation, Shivers is entitled to qualified immunity. AFFIRMED.




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