Roque v. HarvelRoque v. Harvel
This qualified-immunity case involves the police shooting and killing of Jason Roque, a suicidal man experiencing a mental-health crisis. Roque‘s parents sued James Harvel, the officer who killed their son, alleging a violation of their son‘s Fourth Amendment right against the use of excessive force.
The Fourth Amendment turns on reasonableness. And “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”1 This allowance is particularly understandable when police officers encounter suicidal suspects. At some point, however, and even in the most difficult circumstances, the reasonableness rope ends. Here, the district court decided a jury should determine whether it ended after Officer Harvel‘s first shot. We agree and therefore affirm the district court‘s denial of summary judgment.
I
The Austin Police Department received two related 911 calls on the morning of May 2, 2017. Jason Roque made the first call to report a shirtless, Hispanic man “just going crazy” with a black pistol—not pointing it at anybody but “all up in the air and whatnot.” Jason was speaking about himself but didn‘t disclose that fact to the 911 operator. Jason‘s mother, Albina, then called 911. While crying and pleading with Jason, she told the operator that her son wanted to kill himself. Both Jason and Albina called to report the incident from their home address.
During the 911 calls, Officer Harvel was on patrol in northeast Austin, where the Roques live. Harvel learned of the 911 calls through his radio and the dispatch report. Dispatch first described the calls as “Gun Urgent” but changed the reported problem to “Attempted Suicide.” Dispatch also noted that Jason‘s only recent involvement with law enforcement was an allegation of criminal mischief the year before.
Multiple officers, including Harvel, responded to the situation. Harvel and the other officers positioned themselves at the end of Jason‘s street about 75 yards from Jason‘s house. Jason was pacing the sidewalk in front of his home with a black gun in his waistband. He was repeatedly saying, “Shoot me!” Albina was standing on the porch imploring Jason not to kill himself. The officers could hear—but not see—Albina from where they were standing. One officer yelled, “Put your hands up!” Jason put his arms out to the side and continued walking on the sidewalk. He yelled at the officers to shoot and kill him.
Jason then pulled out the gun, which was later determined to be a BB gun. Jason pointed the gun at his head then turned away from the officers and said, “I‘ll f---ing kill myself!” An officer then yelled (for the first time): “Put the gun down!”
The parties dispute what happened next. Video evidence (taken from two different home-surveillance systems)2 shows that, after the officer‘s order to put his gun down, Jason turned around to face the officers with the gun pointed in the air. All of the officers claim, however, that they didn‘t know where the gun was and didn‘t see Jason point it in their general direction. Nonetheless, in the split second between the officer‘s command to put the gun down and Jason‘s turning his body toward the officers with his arm and the gun in the air, Harvel shot Jason with a semi-automatic rifle. The video shows Jason immediately double over, drop the gun, and stumble from the sidewalk toward the street (away from his mother and the officers). The video also shows the black gun hitting the white sidewalk in broad daylight.
About two seconds after the first shot, while Jason was stumbling into the street, Harvel fired another shot that missed Jason. Jason continued floundering into the street, and two seconds later, Harvel took a final and fatal shot. The police officers then approached Jason‘s body and unsuccessfully attempted CPR. Paramedics took Jason to the emergency room; he died soon after. Harvel maintains that he took each shot because he thought Jason was a threat to his mother‘s life and safety.
Jason‘s parents, Albina and Vincente Roque, sued Officer Harvel as well as the City of Austin under
II
Qualified immunity “attempts to balance two competing societal interests: ‘the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment,
The unique nature and purpose of qualified immunity affects both our jurisdiction and the lens with which we review a district court‘s denial of the defense. We first discuss the changes to our jurisdiction and then the scope of our review.
When a district court denies summary judgment, that order “is generally not a final decision within the meaning of [
Qualified immunity also affects the scope of our review. The summary-judgment question is whether the movant has shown “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”12 When the district court answers this question, it inherently makes two separate findings regarding whether there are genuine fact disputes and whether those fact disputes are material to the outcome of the case.13 Typically, we review the district court‘s analysis de novo, asking the same questions the district court doesregarding genuineness and materiality.14 But on 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.”15 Our review therefore involves only “whether a given course of conduct would be objectively unreasonable in light of clearly established law.”16 We do not review the district court‘s determination that there are genuine fact disputes.17
Plaintiffs argue that we lack jurisdiction over this entire appeal because the district court found that genuine fact disputes precluded summary judgment. As explained above, however, “[w]e do have jurisdiction, but only to the extent that the appeal concerns the purely legal question whether the defendants are entitled to qualified immunity on the facts that the district court found sufficiently supported in the summary judgment record.”18
III
Although qualified immunity raises two distinct questions (whether the conduct was unconstitutional and whether the unconstitutionality was clearly established), we have discretion “to decline entirely to address the” first question.19 We can “skip straight to the second question concerning clearly established law.”20 But we have repeatedly emphasized that there is value in addressing both questions “to develop robust case law on the scope of constitutional rights.”21 In that vein, we first address Plaintiffs’ Fourth
A
The Fourth Amendment‘s right to be free from unreasonable seizures governs excessive-force claims.22 To prove an excessive-force claim, “a plaintiff must show (1) an injury, (2) which resulted directly and only from the use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.”23
Excessive-force claims are “necessarily fact-intensive,” so we must “examine the totality of the circumstances to determine whether an officer‘s actions were objectively unreasonable.”24 “The intent or motivation of the officer is irrelevant; the question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.”25 We only consider the facts “knowable to the defendant officers” at the time the officers used force, and we must be “careful to avoid ‘second-guessing a police officer‘s assessment, made on the scene, of the danger presented by a particular situation.‘”26
The parties do not dispute the district court‘s conclusion that, even though all of the officers claim they didn‘t see Jason point the gun in their direction, Harvel was justified in taking the first shot. The video evidence (from all angles) shows that right before the first shot, and after the officers shouted at Jason to put down his gun, Jason pointed the gun in the officers’ general direction. It‘s also undisputed that Jason Roque suffered an injury (element one of his excessive-force claim).
At issue, then, is whether Officer Harvel‘s second and third shots were excessive (element two) and objectively unreasonable (element three). These questions are “often intertwined.”29 Because Officer Harvel used deadly force, the answer to these intertwined questions depends on whether Jason posed a threat of serious physical harm after the first shot struck him. Two factual disputes concerning the placement of the gun and Jason‘s movements prevent us from answering these questions.
First, the gun. Harvel asserts that, after the first shot, he perceived Jason to be a continuing threat to his mother because he didn‘t see Jason drop his gun. Plaintiffs argue, with video and expert evidence, that a reasonable
Both fact disputes go to whether a reasonable officer would have known that Jason was incapacitated after the first shot. If Jason was incapacitated, he no longer posed a threat. And if he no longer posed a threat, Harvel‘s second and third shots were excessive and unreasonable. Whether Jason was incapacitated is therefore not only disputed but material to Plaintiffs’ Fourth Amendment claim.
Harvel‘s only arguments to the contrary center around whether Plaintiffs’ evidence is sufficient to dispute his subjective version of events. These arguments fail. On interlocutory appeal, “we cannot challenge the district court‘s assessments regarding the sufficiency of the evidence—that is, the question whether there is enough evidence in the record for a jury to conclude that certain facts are true.”30 So we accept the district court‘s evidence-sufficiency (or genuineness) determination. And we agree with its determination that material fact disputes preclude summary judgment on the Fourth Amendment question.
Even if genuine disputes of material fact exist concerning the Fourth Amendment violation, Harvel is entitled to qualified immunity unless his “actions were objectively unreasonable in light of clearly established law at the time of the” shooting.31 The critical question when ascertaining the clearly established law is “whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged conduct was unconstitutional.”32 Put differently, “[a] clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.‘”33
A plaintiff must “identify a case—usually, a body of relevant case law—in which an officer acting under similar circumstances was held to have violated the Constitution.”34 While a plaintiff need not find a case “directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate.”35 The Supreme Court has also explained that the clearly established law “should not be defined ‘at a high level of generality.‘”36 It “must be ‘particularized’ to the facts of the case.”37 But, “in an obvious case,” general standards “can ‘clearly establish’ the
Finally, “drawing inferences in favor of the nonmovant” is especially important when determining whether there is clearly established law.40 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.‘”41 So “courts must take care not to define a case‘s ‘context’ in a manner that imports genuinely disputed factual propositions.”42 In other words, a court assessing the clearly established law cannot “resolve[] disputed issues in favor of the moving party.”43 And it must “properly credit[]” Plaintiffs’ evidence.44
The district court implied that this was an obvious case under Tennessee v. Garner. In Garner, the Supreme Court held that “[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead.”45 Although the officer in Garner shot and killed a fleeing burglary
The district court stated that, according to Plaintiffs’ narrative, which is supported by video evidence, Jason never pointed the gun at anyone but himself. Before the first shot, Jason simply waved the gun in an arc as he turned around to look in the officers’ direction right after they yelled at him to drop the gun. As Jason was turning around, Harvel took the first shot. The shot hit Jason, and he dropped the gun and stumbled into the street away from the officers and his mother. Thus, the district court concluded that under these facts, it was obviously unconstitutional to continue shooting at an unarmed suspect who was limping away from everyone present.
Harvel argues that this is not an obvious case for the same reasons he argues that there are no disputed facts: “All of the officers, including Officer Harvel, believed that after the first shot, Roque was still armed. Roque was not compliant with police commands, was not running away or surrendering but was armed, mobile and capable of firing his weapon at his mother.” Plaintiffs’ evidence contradicts all of these points, and the district court already decided these facts were genuinely disputed. As stated above, we lack jurisdiction to resolve the genuineness of factual disputes.48 Further, we prioritize video evidence.49 If the jury accepts Plaintiffs’ narrative, which is
But we need not rely on obviousness here, as multiple cases show that by May 2, 2017, the day that Harvel shot Jason, it was clearly established that after incapacitating a suspect who posed a threat, an officer cannot continue using deadly force.51
The closest case is Mason v. Lafayette City-Parish Consolidated Government.52 In Mason, officers responded to a suspected armed robbery at an apartment.53 The apartment belonged to the suspect‘s girlfriend, and both the suspect and girlfriend were inside.54 When the police arrived, the couple opened the door and found the officers with their guns drawn.55 The girlfriend told the officers that Mason, the suspect, wasn‘t doing anything wrong.56 The officers ordered Mason and his girlfriend to put their hands up and get on the ground (although the exact commands were disputed).57 One
The officer claimed that when the dog attacked Mason, Mason reached for his gun.59 In response, the officer started shooting.60 The officer‘s initial round of shots, five in total, all hit Mason in different parts of his body.61 After the fifth shot, Mason was face down on the ground, and the officer temporarily stopped firing.62 The officer claimed that Mason made a movement that indicated he was reaching for his gun, so the officer fired two more shots into Mason‘s back.63 Mason died at the scene.64
Mason‘s girlfriend told a different story. She said that Mason never did anything to justify the dog attack, never touched his gun, and never attempted to resist the officers.65 She also claimed that after the first five shots, Mason only picked up his head and put it back down—he never moved in a threatening manner.66 An expert also testified that after the first five shots, Mason could have moved, but not effectively, and moving his arm toward the gun would have been very painful.67
Harvel attempts to distinguish Mason by recycling the same argument that there is no fact dispute about whether Harvel believed Roque was a continuing threat. Harvel also, once again, claims that the evidence is undisputed that Jason was not incapacitated after the first shot because “[h]e was not motionless.” As we previously stated, these arguments about the genuineness of the fact disputes are inappropriate in this interlocutory appeal.
There are certainly differences between Mason and this case. Mason was attacked by a dog and was lying face down when the officer fired the last two shots.72 But Mason still had his gun.73 And both the plaintiffs and defendants stated that Mason continued to make some movements.74 We
Our unpublished decision in Graves v. Zachary in 2008 is also instructive—not for its precedential value but for discerning the clearly established law we cited in 2008.75 In that case, Graves arrived at his ex-girlfriend‘s apartment, asking about her new boyfriend.76 Graves smelled of alcohol, had a gun and a box of bullets, threatened to shoot himself, and then threatened to shoot his ex-girlfriend, Besek, in the leg.77 Besek locked herself in a bathroom and called 911.78 Officers arrived at the scene and told Graves to show his hands, which Graves did while pressing the gun against his temple.79 The officers claimed that they told Graves to drop his weapon, and
We held that there was a factual dispute about whether Graves was incapacitated after the first shot and whether the shooting officer told Graves to put the gun down before shooting him the first time.85 Those disputes were material, and, accepting Grave‘s account, “the violation of [Grave‘s] constitutional rights would have been obvious even without a body of relevant case law.”86 We further explained that a reasonable officer wouldn‘t need a specific case “to know that he cannot shoot a compliant suspect and that he cannot fire again at someone who is objectively ‘downed or incapacitated.‘”87 Since we determined in Graves that shooting an incapacitated suspect, even one still holding a weapon, was obviously unconstitutional in 2008, the similar officer conduct here was at a minimum clearly established in 2017.
Harvel claims that Garza controls here because Jason, like Garza, had a BB gun that the officers thought was real. And Jason, like Garza, ignored orders to drop his weapon and displayed erratic behavior, “indicating that he may [have] pose[d] an imminent threat to anyone on the scene.”
These arguments are unpersuasive. The first, concerning the BB gun, played no role in the district court‘s decision. The court noted that the officers didn‘t know the gun was fake until after their encounter with Jason. As to the second point, the record in Garza showed that the officers gave numerous warnings to Garza before shooting. Here, the officers told Jason to drop his weapon once and started shooting barely a second later. No officer, including Harvel, repeated the command, even though Harvel paused between the first and second shots while Jason dropped his gun and limped away. Further distinguishing this case from Garza is the video evidence. In Garza, we noted that the video evidence supported the officers’ story and contradicted the plaintiff‘s version of events.100 The video here does the exact opposite.
To sum up, Garner, Mason, and Graves are the most pertinent cases. And those cases show that by 2017, it was clearly established—and possibly even obvious—that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.
This is a tragic case that raises difficult questions about how police officers should respond to suicidal suspects. Those questions cannot be answered here without the resolution of several factual disputes. And if resolved in Plaintiffs’ favor, Harvel is not entitled to qualified immunity. We thus AFFIRM the district court‘s denial of summary judgment.