Pearson v. Gage, 3:22-cv-02597

Background

On December 5, 2019, reserve officer Charles Gage (off-duty, in a marked personal truck with added lights/"police" markings) and off‑duty officer Joshua Hibschman pursued Zachary Pearson after Pearson entered a highway construction zone and allegedly struck a worker.
The parties had two encounters: the first involved O.C. spray, baton strikes, and Pearson fleeing back to his truck; the second ended with Pearson stopped in his truck and Gage firing nine rounds, striking Pearson five times; Pearson later died.
Plaintiffs contend Pearson’s truck was in park and that Gage was not in the truck’s path when he shot, arguing Gage fired from a position of safety; Plaintiffs also point to discrepancies in Gage’s and Hibschman’s accounts and deleted Zello communications as evidence of a cover‑up.
Gage contends Pearson rammed or pushed Gage’s truck during the second encounter, creating an immediate threat that justified deadly force; Gage also asserts qualified immunity.
The magistrate judge considered summary judgment on qualified immunity, stayed the motion pending the Supreme Court’s decision in Barnes v. Felix, then lifted the stay after Barnes and ordered supplemental briefing.
Ruling recommended: deny Gage’s motion for summary judgment because genuine disputes of material fact (threat, whether vehicle was in park, credibility issues including deleted communications) preclude qualified‑immunity dismissal; wrongful death and survival claims likewise proceed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gage used excessive deadly force in violation of the Fourth Amendment	Pearson was stopped/in park and not posing an imminent threat when Gage fired; force was excessive	Gage believed Pearson had struck a worker and was ramming/attempting to run him over, creating an immediate threat justifying deadly force	Denied summary judgment: disputed material facts (vehicle in park, threat, credibility) preclude resolving excessive‑force claim on qualified immunity grounds
Whether qualified immunity bars § 1983 excessive‑force claim	Plaintiffs say clearly established law prohibits deadly force against a non‑threatening, non‑fleeing subject	Gage asserts his actions were reasonable under the circumstances and within immunity	Denied: because factual disputes exist about whether Gage had probable cause to believe an imminent serious threat existed, immunity not resolved at summary judgment
Relevance of contemporaneous communications deletion (Zello)	Deletion suggests consciousness of guilt and undermines officers’ credibility	Gage offers no persuasive benign explanation for deletions; disputes about who deleted and why	Held that deletion raises credibility issues for jury; supports denial of summary judgment
Wrongful death / survival claims under § 1983 (state law standing)	Plaintiffs have standing under Texas wrongful‑death/survival statutes incorporated into § 1983	Gage does not challenge standing	Denied as to summary judgment; those claims proceed because qualified immunity not resolved

Key Cases Cited

Harlow v. Fitzgerald, 457 U.S. 800 (1982) (establishes qualified immunity framework)
Ashcroft v. al–Kidd, 563 U.S. 731 (2011) (two‑prong qualified immunity inquiry)
Graham v. Connor, 490 U.S. 386 (1989) (Fourth Amendment objective‑reasonableness/excessive‑force standard)
Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force against fleeing suspect limited to immediate threat or probable cause of serious harm)
Barnes v. Felix, 145 S. Ct. 1353 (2025) (rejected Fifth Circuit’s “moment‑of‑threat” rule; instructs totality‑of‑the‑circumstances analysis)
Lytle v. Bexar County, 560 F.3d 404 (5th Cir. 2009) (denied qualified immunity where officer shot at a vehicle not presenting imminent threat)
Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004) (deadly force unreasonable where officer shot from behind a fleeing vehicle)
Crane v. City of Arlington, 50 F.4th 453 (5th Cir. 2022) (denied qualified immunity for shooting a person in a parked car)