United States Court of Appeals
for the Fifth Circuit
___________
No. 22-40781
___________
Santos Argueta; Blanca Granado; Dora Argueta; Jelldy
Argueta; The Estate of Luis Fernando Argueta,
Plaintiffs—Appellees,
versus
Derrick S. Jaradi,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:20-CV-367
______________________________
ON PETITION FOR REHEARING
AND REHEARING EN BANC
Before Clement, Haynes, and Oldham, Circuit Judges.
Per Curiam:
The petition for panel rehearing is DENIED.
1
The petition for
rehearing en banc is DENIED because, at the request of one of its members,
1
Judge Haynes would grant the petition for panel rehearing.
United States Court of Appeals
Fifth Circuit
FILED
February 29, 2024
Lyle W. Cayce
Clerk
No. 22-40781
2
the court was polled, and a majority did not vote in favor of rehearing (Fed.
R. App. P. 35 and 5th Cir. R. 35).
In the en banc poll, seven judges voted in favor of rehearing
(Stewart, Elrod, Haynes, Graves, Higginson, Douglas, and
Ramirez), and ten voted against rehearing (Richman, Jones, Smith,
Southwick, Willett, Ho, Duncan, Engelhardt, Oldham,
and Wilson).
No. 22-40781
3
Jennifer Walker Elrod, Circuit Judge, joined by Stewart,
Graves, Higginson, and Douglas, Circuit Judges, dissenting from
denial of rehearing en banc:
This case is about whether an officer is entitled to qualified immunity
for shooting a fleeing suspect in the back without warning when that suspect
concealed his arm from view such that the officer thought that he might be
armed. Such are the facts read in the light most favorable to Argueta, the
non-moving party. The panel majority answered “yes,” overturning the
district court’s determination that genuine disputes of material fact bearing
on qualified immunity remained.
The panel majority relied heavily on our “furtive-gesture” line of
cases, which instructs that an officer’s use of deadly force is permissible
where a suspect appears to reach for what might be a weapon and the officer
reasonably believes that a suspect will imminently use violence. E.g., Manis
v. Lawson, 585 F.3d 839, 845 (5th Cir. 2009) (suspect ignored repeated
commands and reached under his seat to grab an object). But as Judge
Haynes observed in her dissent from the panel opinion, “each of those cases
included ‘other factors that led the officer to suspect that the victim would
resort to violence.’” Argueta v. Jaradi, 86 F.4th 1084, 1094 (5th Cir. 2023)
(Haynes, J., dissenting) (quoting Allen v. Hays, 65 F.4th 736, 744 (5th Cir.
2023)). Here, no such factors were present. Rather, all Argueta did was
“clutch[] his right arm to his side as he fled.” See id. at 1092 (majority
opinion).
I agree also with Judge Douglas that the panel majority contravenes
our precedent and that of the Supreme Court by failing to draw all inferences
in favor of Argueta, the non-moving party. See Tolan v. Cotton, 572 U.S. 650
(2014); Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc). And I agree
with the able district court, which held that several genuine issues of material
No. 22-40781
4
fact precluded granting summary judgment: as to whether Officer Jaradi
knew that Argueta was armed, whether Argueta threatened the officers with
a weapon, and whether Jaradi gave Argueta any orders or warning before
shooting him.
I offer no opinion as to whether Jaradi should have ultimately been
entitled to qualified immunity. That question turns on genuine fact disputes
that we have no jurisdiction to review in this posture. Kinney v. Weaver, 367
F.3d 337, 347 (5th Cir. 2004) (en banc). The panel majority removed that
determination from the hands of the fact finder, in the process effecting—
incorrectly, in my view—a sweeping expansion of our furtive-gesture
caselaw. I believe that this warranted en banc treatment.
No. 22-40781
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Dana M. Douglas, Circuit Judge, joined by Graves and Higginson,
Circuit Judges, dissenting from denial of rehearing en banc:
*
Luis Argueta was a teenager driving from a convenience store with his
girlfriend when Officer Jaradi pulled him over.
1
In a matter of seconds,
Argueta took off on foot and Officer Jaradi shot him in the back twice. Those
shots proved fatal, and Argueta’s family brought an excessive force claim
against Officer Jaradi. The district court rightfully denied the officer
qualified immunity because at least four disputed material facts undermined
the reasonableness of his deadly force. A panel of this court, however,
decided those facts were either not in dispute or not material to Fourth
Amendment protections and qualified immunity. See Argueta v. Jaradi, 86
F.4th 1084 (5th Cir. 2023). That decision misconstrues the law of this court
and the Supreme Court.
“When an officer uses deadly force, that force is considered excessive
and unreasonable ‘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.’” Roque v. Harvel, 993 F.3d 325, 333 (5th Cir. 2021) (quoting Romero
v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018)); see Tennessee v.
Garner, 471 U.S. 1, 11 (1985). “Further, ‘an exercise of force that is
reasonable at one moment can become unreasonable in the next if the
justification for the use of force has ceased.’” Roque, 993 F.3d at 333 (quoting
Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir. 2009)). “Whether an
officer’s use of force was excessive is ‘necessarily a fact-intensive’ endeavor
that ‘depends on the facts and circumstances of each particular case.’”
*
Judge Elrod joins in Parts I and II of this opinion.
1
It is disputed whether Officer Jaradi, and his partner Officer Larson, had probable cause or
reasonable suspicion to conduct a traffic stop. Also, Officers Jaradi and Larson provided conflicting
statements of the events leading up to the shooting.
No. 22-40781
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Barnes v. Felix, 91 F.4th 393, 400 (5th Cir. 2024) (Higginbotham, J.,
concurring) (quoting Amador v. Vasquez, 961 F.3d 721, 727 (5th Cir. 2020)).
In this case, the district court found four facts at issue, including: (1)
whether Officer Jaradi saw that Argueta had a weapon; (2) whether Argueta
was running away or toward officers or the public; (3) whether Argueta
threatened officers; and (4) whether officers warned Argueta before shooting
him. Each of these facts are material to whether an officer’s use of force was
excessive. See, e.g., Roque, 993 F.3d at 333. And nothing in the officers’ dash
or body camera footage “resolve[s] the parties’ dispute.” Curran v. Aleshire,
800 F.3d 656, 664 (5th Cir. 2015) (“Because the visual evidence does not
refute Curran’s testimony, we must accept it for purposes of this appeal.”);
see Scott v. Harris, 550 U.S. 372, 380 (2007).
The opinion of the panel was not faithful to the legal standards
underlying Argueta’s claims. Specifically, the opinion commits at least three
errors. First, it does not view the facts in favor of the non-movant, Argueta,
and is based on inferences in favor of Officer Jaradi. Second, it distorts
precedent regarding armed suspects and the summary judgment standard for
qualified immunity. Third, it misconstrues flight risk as a question of law,
rather than fact. For these reasons, I must dissent from denial of rehearing
en banc—the only process through which this opinion can be corrected.
I.
The opinion contravenes Tolan v. Cotton, 572 U.S. 650 (2014) and
Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc) because it fails to
consider the evidence in the light most favorable to the non-movant, Argueta.
In Tolan, the Supreme Court stated that the Fifth Circuit “failed to view the
evidence at summary judgment in the light most favorable to Tolan with
respect to central facts of this case.” 572 U.S. at 657. “In failing to credit
evidence that contradicted some of its key factual conclusions, the court
No. 22-40781
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improperly ‘weigh[ed] the evidence’ and resolved disputed issues in favor of
the moving party.” Id. (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986)); see Cole, 935 F.3d at 452.
Moreover, “‘drawing inferences in favor of the nonmovant’” is
especially important when determining whether there is clearly established
law. Roque, 993 F.3d at 335 (quoting Tolan, 572 U.S. 650, 657 (2014)).
“That’s because the Supreme Court has ‘instructed that courts should
define the ‘clearly established’ right at issue on the basis of the ‘specific
context of the case.’” Id. (quoting Good v. Curtis, 601 F.3d 393, 398 (5th Cir.
2010); see also id. (“[A] defendant challenging the denial of a motion for
summary judgment on the basis of qualified immunity must be prepared to
concede the best view of the facts to the plaintiff.”)). “‘In other words, a
court assessing the clearly established law cannot ‘resolve disputed issues in
favor of the moving party.’ And it must ‘properly credit’ Plaintiffs’
evidence.” Id. (quoting Tolan, 572 U.S. at 660).
In this case, the video footage and autopsy report confirm that Argueta
was running away. Jaradi’s partner, Officer Larson, conceded that he did not
know “why” Jaradi shot Argueta. In addition, Jaradi provided conflicting
testimony regarding whether he felt Argueta posed a risk or threat. We
cannot ignore the long line of cases demonstrating that these facts, among
others, are material and preclude summary judgment here. See, e.g., Cole, 935
F.3d at 453 (affirming denial of qualified immunity, finding Fourth
Amendment violation where, though the suspect held a weapon in his hand,
he had not directed it toward the officer when he was shot); Roque, 993 F.3d
at 335 (affirming denial of qualified immunity, finding Fourth Amendment
violations “where a suspect has a weapon but is incapacitated or otherwise
incapable of using it (functionally unarmed)”); Mason v. Lafayette City-Par.
Consol. Gov’t, 806 F.3d 268, 281-82 (5th Cir. 2015) (remanding for
consideration of whether the officer’s decision to shoot plaintiff “when he
No. 22-40781
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was already on the ground” was entitled to qualified immunity); Poole v. City
of Shreveport, 13 F.4th 420, 425 (5th Cir. 2021) (“Common sense, and the
law, tells us that a suspect is less of a threat when he is turning or moving
away from the officer.”).
The panel’s opinion contravenes these precedents. That reason alone
was sufficient to warrant rehearing en banc as the opinion runs afoul of our
own rule of orderliness with respect to the above decisions, as well as the
Supreme Court’s own precedents. See In re Bonvillian Marine Serv., Inc., 19
F.4th 787, 792 (5th Cir. 2021) (“‘It is a well-settled Fifth Circuit rule of
orderliness that one panel of our court may not overturn another panel’s
decision, absent an intervening change in the law, such as by a statutory
amendment, or the Supreme Court, or our en banc court.’” (quoting Jacobs
v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008))).
II.
Perhaps most egregiously, the opinion concludes that the lack of
visibility of Argueta’s right arm and hand constituted a “furtive gesture akin
to reaching for a waistband.” Argueta, 86 F.4th at 1092. Such “gesture” is
akin to running, as Argueta argues, Jaradi admits, and the district court found.
The conclusion that Argueta’s movements constituted a “furtive gesture”
stems from both the panel’s substituting its view over the district court’s
without any clear video evidence, and declining to apply the correct summary
judgment standard to the facts. See Tolan, 572 U.S. at 651 (“In articulating
the factual context of the case, the Fifth Circuit failed to adhere to the axiom
that in ruling on a motion for summary judgment, ‘[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in
his favor.’” (quoting Liberty Lobby, 477 U.S. at 255)).
To be clear, the furtive-gesture line of cases does not apply here. For
example, unlike the plaintiff in Salazar-Limon, Argueta presented
No. 22-40781
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“controverting evidence” to rebut Officer Jaradi’s testimony. Salazar-
Limon v. City of Houston, 826 F.3d 272, 278-79 (5th Cir. 2016), as revised (June
16, 2016); see also Manis v. Lawson, 585 F.3d 839, 844 (5th Cir. 2009)
(explaining that “Appellees do not dispute the only fact material to whether
[the officer] was justified in using deadly force” (emphasis added)). In
Salazar-Limon, the court explained that the plaintiff “did not deny reaching
for his waistband; nor [had] he submitted any other controverting evidence
in this regard.” Salazar-Limon, 826 F.3d at 278-79. If the “furtive gesture”
cases are inapposite, almost all of the majority’s arguments about the four
identified genuine disputes of material fact identified by the district court fall
away. See Argueta, 86 F.4th at 1092-93.
As Judge Haynes mentioned in her dissent, “the genuinely
disputed facts here undermine the objective reasonableness of Officer
Jaradi’s use of deadly force,” even with deference to the higher standard for
qualified immunity cases. Argueta, 86 F.4th at 1094-95 (Haynes, J.,
dissenting). For example, whether the officers had reasonable suspicion to
stop and detain Argueta is material to the analysis. See Goodson v. City of
Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (declining to extend
qualified immunity to officers in part because material issues remained as to
whether the officers had reasonable suspicion to detain suspect or probable
cause to arrest him); see also Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir.
2017) (concluding a minor offense militated against the use of force).
Further, the factual dispute concerning Officer Jaradi’s warning, or lack
thereof, is equally material to the analysis. See, e.g., Cole, 935 F.3d at 453
(explaining that disputed material facts regarding whether the officer warned
the plaintiff before shooting him precluded qualified immunity).
The opinion held that “no reasonable jury could conclude that
Argueta was visibly unarmed—because he was armed. At most, a jury could
conclude that Argueta was apparently unarmed.” Argueta, 86 F.4th at 1092.
No. 22-40781
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This pronouncement has no basis in our precedent, and there are no citations
in the opinion to support it. In fact, this is an impermissible conclusion to
reach under relevant precedent. As we have repeatedly stated: “We only
consider the facts ‘knowable to the defendant officers’ at the time the officers
used force.” Roque, 993 F.3d at 333 (quoting Garza v. Briones, 943 F.3d 740,
745 (5th Cir. 2019)); see also White v. Pauly, 580 U.S. 73, 76-77 (2017)
(“Because this case concerns the defense of qualified immunity, however,
the Court considers only the facts that were knowable to the defendant
officers.” (citing Kingsley v. Hendrickson, 576 U.S. 389, 399 (2015))).
Furthermore, despite repeatedly asserting that “not one frame of
video evidence presents a clear glimpse of the firearm,” and that “the video
does not clearly reflect that Argueta showed the gun during his flight,” the
opinion concluded that these disputes were immaterial. Argueta, 86 F.4th at
1090. This contravenes the Supreme Court’s mandate to consider the facts
knowable to the officers at the time force was used. Kingsley, 576 U.S. at 399
(“[W]e have stressed that a court must judge the reasonableness of the force
used from the perspective and with the knowledge of the defendant officer.”
(emphasis added)). The opinion is particularly troubling because it reversed
a district court’s careful conclusion regarding genuinely disputed material
facts. As the district court found, however, the officers are not entitled to
qualified immunity because nothing in the record “blatantly contradicted”
Argueta’s version of events. Scott v. Harris, 550 U.S. 372, 380 (2007).
III.
Finally, the opinion “set aside” the district court’s finding that there
is a genuine dispute as to “whether Argueta’s flight posed any risk to the
officers or the public.” Argueta, 86 F.4th at 1089. It appears that the opinion
ignores our deferential standard of review by holding that “whether the
suspect’s flight posed a threat to the officers or onlookers is a question of law
No. 22-40781
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left to the court.” Id. at 1092; see also id. at 1093 (“We decline to address the
genuineness or materiality of this ‘fact dispute’ because it is actually a
question of law.”). But see, e.g., Poole, 79 F.4th at 460 (explaining that “we
decline to disturb the district court’s factual determination” because the
district court sits as the factfinder). In doing so, the opinion drastically
changes the law with respect to excessive force claims.
In Roque, two factual disputes on video prevented the court from
answering whether the officer’s force was excessive and objectively
unreasonable. Roque, 993 F.3d at 333-34 (“Two fact disputes . . . prevent us
from answering these questions”). As to whether Roque posed a risk, the
court determined that two fact disputes existed, including the placement of
Roque’s gun and his movements (i.e., whether Roque was incapacitated).
Those facts were material to whether the officer’s second and third shots
were excessive and objectively unreasonable. Id. at 334. Because of the
disputed facts, and the clearly established law preventing officers from using
deadly force after incapacitating an individual, the officer was precluded from
qualified immunity. Id. at 339. The logic in Roque is as follows:
[O]n interlocutory appeal following the denial of qualified
immunity, the scope of our review is limited to whether the
factual disputes that the district court identified are material to
the application of qualified immunity. Our review therefore
involves only whether a given course of conduct would be
objectively unreasonable in light of clearly established law. We
do not review the district court’s determination that there are
genuine fact disputes.
Id. at 332 (quotation marks and internal citations omitted).
The opinion appears to concede that Roque is controlling but
contravenes it. See Argueta, 86 F.4th at 1093 (citing Roque, 993 F.3d at 333).
Again, the disputed facts here raise the issue of whether Jaradi’s force was
No. 22-40781
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excessive and objectively unreasonable. See, e.g., Poole, 13 F.4th at 424 (citing
Roque, 993 F.3d at 339; Hanks v. Rogers, 853 F.3d 738, 746 (5th Cir. 2017)).
When a suspect poses no immediate threat to officers or other individuals,
“‘the harm resulting from failing to apprehend him does not justify the use
of deadly force to do so.’ Garner also requires a warning before deadly force
is used ‘where feasible,’ a critical component of risk assessment and de-
escalation.” See Cole, 935 F.3d at 453 (emphasis added) (quoting Garner, 471
U.S. at 11-12).
Indeed, whether Argueta posed a risk to the officers or the public is
“not only disputed but material to Plaintiffs’ Fourth Amendment claim.”
Roque, 993 F.3d at 333-34. And nothing in the video “resolve[s] the parties’
dispute.” Curran, 800 F.3d 656 at 664. Moreover, the opinion narrows the
moment-of-threat-analysis despite finding that “a reasonable jury could
conclude that Argueta’s weapon was not visible to Jaradi before or at the
moment he used deadly force.” Argueta, 86 F.4th at 1090. To the contrary,
we must “agree with the district court that the video and still picture
evidence of the . . . use of force is ‘inconclusive.’” Curran, 800 F.3d at 663.
IV.
In holding that Officer Jaradi was entitled to qualified immunity, the
panel “failed to view the evidence at summary judgment in the light most
favorable to [Argueta] with respect to the central facts of this case.” Tolan,
572 U.S. 650 at 657. Indeed, the panel disregarded crucial facts and
precedent and, in doing so, improvidently suggested that this court is the
judge, jury, and executioner. The panel’s opinion foments inconsistency in
the caselaw and contributes to a confusing network of cases for district courts
to navigate in reviewing qualified immunity claims. For clarity’s sake, our
circuit must comply with the rule of orderliness. Accordingly, I dissent from
the denial of rehearing en banc.
