Roque v. Harvel
993 F.3d 325
| 5th Cir. | 2021Background
- Jason Roque, suffering a mental-health crisis, called 911 and later his mother also called, stating Jason was suicidal and had a black pistol; officers responded to the Roque home.
- Officers positioned about 75 yards away; Jason paced the sidewalk with a black gun (later determined to be a BB gun) and repeatedly yelled “Shoot me!” while his mother pleaded with him from the porch.
- After one command to “put the gun down,” Jason turned toward the officers with the gun in the air; Officer Harvel fired a first shot that struck Jason.
- Video shows Jason double over, drop the black gun onto the white sidewalk in daylight, and stumble away from the officers and his mother; Harvel says he did not see the gun fall and perceived a continuing threat.
- Harvel fired two additional shots within seconds (one missed, the last fatal); Jason died shortly thereafter.
- Plaintiffs sued under 42 U.S.C. § 1983 for excessive force. The district court granted the City’s Monell motion, granted qualified immunity to Harvel as to the first shot, but denied qualified immunity as to the second and third shots; Harvel appealed interlocutorily.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Harvel’s second and third shots violated the Fourth Amendment (excessive force) | The second/third shots were unreasonable because Jason was incapacitated, unarmed (gun dropped), and moving away — any continuing threat had ended | Harvel believed Jason remained armed and mobile and posed an ongoing threat (didn’t see gun drop) | Denial of summary judgment affirmed: genuine, material fact disputes (placement of gun; Jason’s movements/incapacitation) preclude resolution at summary judgment |
| Whether Harvel is entitled to qualified immunity for the second/third shots (clearly established law) | By 2017 it was clearly established (and possibly obvious) that officers may not shoot an incapacitated or unarmed suspect moving away; cases like Garner/Mason/Graves provided fair warning | No controlling precedent made the unlawfulness clear given officers’ perception of continuing threat | Denial of qualified immunity affirmed on the facts the district court found plausible for plaintiffs: prior case law clearly established liability if the jury credits plaintiffs’ version |
| Whether the appellate court has jurisdiction over this interlocutory appeal | N/A (plaintiffs) | Harvel argued lack of jurisdiction because the district court found genuine fact disputes | Court has interlocutory jurisdiction over qualified-immunity denials but only to decide the purely legal question whether the defendant is entitled to immunity given the facts the district court found genuine |
| Whether this is an "obvious" Garner-type case (no close precedent required) | The facts (video-supported) present an obvious Garner situation: an unarmed, wounded suspect posed only self-harm risk and was shot after incapacitation | Harvel contends facts do not support obviousness because officers reasonably believed the suspect remained a threat | Court: could be an obvious case if jury credits plaintiffs’ facts, but resolution not necessary because controlling precedent already clearly established the rule |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (1989) (deadly-force/excessive-force claims analyzed under Fourth Amendment reasonableness)
- Tennessee v. Garner, 471 U.S. 1 (1985) (officer may not use deadly force on an unarmed, nondangerous fleeing suspect)
- Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268 (5th Cir. 2015) (officer entitled to immunity for initial shots but whether further shots were lawful depended on whether suspect was incapacitated)
- Graves v. Zachary, [citation="277 F. App'x 344"] (5th Cir. 2008) (factual dispute whether suspect was incapacitated after first shot made further shooting obviously unconstitutional)
- Garza v. Briones, 943 F.3d 740 (5th Cir. 2019) (contrast case where video supported officers’ account and circumstances differed; courts must assess video and context when evaluating reasonableness)
- Plumhoff v. Rickard, 572 U.S. 765 (2014) (qualified-immunity interlocutory appeal context and limits on deadly force when threat has ended)