Facts
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At approximately 5:42 a.m. on November 26, 2019, two officers of the Laredo Police Department responded to a domestic disturbance at a residence in their city. As the officers reached the scene, Cesar Terrazas opened fire on them with an AR-15-style rifle, striking one officer in the leg. After a brief gunfight with the officers, Terrazas broke into the home where the plaintiff, Jorge Martinez, lived along with his mother and sister. Once inside, Terrazas shot and wounded Mr. Martinez’s mother before Mr. Martinez and his sister overpowered and disarmed Terrazas. Still inside the home, Mr. Martinez removed the magazine from Terrazas’s rifle.
Officer Hinojosa arrived on the scene at 5:51 a.m., only seconds before Terrazas entered Mr. Martinez’s home. At 5:52, Officer Hinojosa retrieved a rifle from his vehicle and began walking toward the gunfire. Unaware of the suspect’s identity, description, or clothing, Officer Hinojosa stopped and established a defensive position approximately 60 yards from Mr. Martinez’s home. Just before 5:56 a.m., Mr. Martinez exited the home completely naked and carrying the confiscated weapon in his left hand. We found no explanation in the record for why Mr. Martinez wore no clothes. Once outside, he walked a few steps away from the home and shouted, “I am not the shooter.” Officer Hinojosa — who would later state he did not hear Mr. Martinez and perceived him as the suspect — immediately alerted his fellow officers: “He’s naked,” and “he’s got a 32.” Mr. Martinez then quickly walked between two vehicles and into the street.
There, he first turned 90 degrees to his right — causing him to face away from Officer Hinojosa — then turned completely around such that he was facing directly toward that officer. That is when Officer Hinojosa shot him once in the abdomen. That officer stated, in his post-incident statement, that he feared for his safety and the safety of other officers and the public in the area. Though he suffered severe injuries, Mr. Martinez survived the shooting.
In May 2020, Mr. Martinez filed suit in the United States District Court in Laredo, asserting claims under 42 U.S.C. § 1983. The complaint alleged the three police officers used excessive force that night. Defendants moved for summary judgment as to Officer Hinojosa, who asserted qualified immunity. The district court granted the motion, holding that no constitutional violation had occurred. As a result, the court held that Officer Hinojosa was entitled to qualified immunity. The 5th affirmed.
Analysis
A. Seizure
Notwithstanding the mistake of identity, Mr. Martinez was the object of the application of force. That means that a seizure occurred. We now must decide if the seizure, as unfortunate as it was, was reasonable.
B. Reasonableness
Mr. Martinez argues that summary judgment was improper because the evidence demonstrates genuine disputes of material fact as to whether Officer Hinojosa’s use of deadly force was objectively unreasonable. We first address Officer Hinojosa’s perception of Mr. Martinez as an imminent threat, then discuss the reasonableness of his use of force.
B1. Mistaken Identity
Mr. Martinez’s primary argument is that a fact question exists regarding whether or not Officer Hinojosa heard Mr. Martinez shout that he was “not the shooter.” The district court held that Officer Hinojosa’s testimony that he could not hear Mr. Martinez was uncontroverted. As to the video footage specifically, the court stated: There is no discernable audio of Plaintiff shouting “I’m not the shooter.” There is some barely audible sound of someone’s voice in the distance, but the words are inaudible on the audio of the body camera footage. To the extent Plaintiff asserts that this audio recording reflects what Officer Hinojosa could hear at the time of the shooting, it does not support the conclusion that he could clearly hear Plaintiff shouting ‘I’m not the shooter’ before he fired.
Our listening to the body camera recording revealed that the sounds on the audio are overlapping and indistinct. No shouted words can be discerned. The recording cannot by itself be conclusive about what a specific person in a particular location would have heard, as that depends on the quality of the person’s hearing as well as the quality of the audio recording. Without more, we cannot give the audio portion of the body camera recording in this case any conclusive effect on what the officer heard.
Regardless of the recording’s inconclusiveness, the disputed fact is whether Officer Hinojosa heard Mr. Martinez shouting that he was not the shooter. A genuine factual dispute about what the officer heard could arise from the testimony of two of Mr. Martinez’s neighbors, one of them further away from Mr. Martinez than Officer Hinojosa, who said they heard the shouted assertion. We agree that such testimony does raise a genuine factual dispute, but we also must consider whether the dispute is material.
The district court held, in effect, that the dispute was not material: “Even if Officer Hinojosa could clearly hear and understand what Plaintiff was saying, it would not be unreasonable for him to conclude that the shooter may have been lying to evade the police and continue his shooting spree.”
When an officer acts on a reasonable belief, what fact the officer is wrong about generally will not matter and does not matter here. Officer Hinojosa was forced to make a split-second judgment, and we must not scrutinize that decision with the benefit of our later knowledge. Mr. Martinez did not appear to be an innocent victim nor a fleeing non-dangerous suspect in a non-violent crime. As the district court found: He was in a dark neighborhood with a shooter on the loose and did what he reasonably thought was best to keep him and his fellow officers safe. The fact that a naked man exited the residence, while holding a rifle in his hand and yelling something that Officer Hinojosa could not clearly hear, does not mean that Officer Hinojosa should have concluded that it was not Terrazas. His decision to shoot a person whom he saw emerging from a house with an automatic rifle in the context of that night’s events was sufficiently reasonable to justify the use of deadly force.
To that analysis, we add only that even if the officer did hear the claim that Mr. Martinez was not the shooter, it was reasonable for him not to accept it. We conclude that this mistake was objectively reasonable.
B2. Use of Deadly Force
Officer Hinojosa’s misidentification of Mr. Martinez was reasonable. The question remains whether the use of deadly force was reasonable.
First, the severity of the crime to which Officer Hinojosa was responding was the shooting of another officer and an exchange of gunfire with the police. That is a severe crime.
Second, we consider whether the facts support that Officer Hinojosa reasonably believed the person he saw with a gun posed a serious threat of harm to others. Officer Hinojosa arrived on the scene at 5:51 a.m. He knew the following at that point: (1) officers were engaged in an active shootout with the suspect, and (2) an officer had been shot. Officer Hinojosa armed himself and established a defensive position. Within a few seconds, a person with an assault rifle came out of the residence where the shooting had been occurring and walked into the street. These facts, as they appeared to Officer Hinojosa, easily meet our standard for using deadly force. From this officer’s perspective, he was using deadly force against an active shooter. While the shooting had recentlyceased prior to Officer Hinojosa’s use of force, the officer could not know whether that was simply a brief interlude before more shooting occurred.
Finally, the factor of whether the suspect was resisting or attempting to flee is less clear than the other factors. The issue, though, is whether Officer Hinojosa reasonably believed the person he saw with a gun was positioning himself to recommence his shootout with officers. It was reasonable for the officer to believe the person he saw with an assault rifle was not surrendering and subjecting himself to arrest.
Mr. Martinez contends that Officer Hinojosa had time to issue a warning and relies on the fact that Hinojosa gave a clear post-shooting warning. First, was a warning feasible? Only 13 seconds elapsed after Mr. Martinez exited the home and until Officer Hinojosa shot him. In that time, Mr. Martinez was acting erratically while holding a dangerous weapon, and he was shot less than three seconds after entering the street. We have found that Officer Hinojosa’s perception of Mr. Martinez as a violent suspect was reasonable, and Mr. Martinez turned towards Officer Hinojosa immediately before being shot.
Second, it would have been reasonable for Officer Hinojosa, arriving after other officers have been engaged in an exchange of gunfire, to assume either that “proper procedures,” such as a warning, had already been followed, or that the actual shooter’s exchange of gunfire with the police was sufficient to warn him that he would be shot. With limited knowledge of the situation, Officer Hinojosa reacted swiftly to protect himself and those around him. As a result, we conclude that Officer Hinojosa’s not issuing a warning was reasonable.
Lastly, Mr. Martinez raises other arguments purporting to create a fact question as to whether or not Officer Hinojosa reasonably perceived him as an imminent threat. Mr. Martinez contends he never raised the weapon toward Hinojosa or made any other movement that could be interpreted as presenting an imminent threat, and that generally Officer Hinojosa should have understood his hand above his head as a gesture of surrender.
In considering this argument, it is important that we have never required officers to wait until a defendant turns towards them, with weapon in hand, before applying deadly force to ensure their own safety or the safety of others. Officer Hinojosa’s testimony, as well as the video footage, supports that Mr. Martinez’s erratic movements caused the rifle to move around as he walked to the street. Moreover, when he turned in the direction of the officers, Officer Hinojosa believed that the “firearm could have come up immediately.” Despite Mr. Martinez’s subjective attempt to surrender, we must take the facts from the perspective of the reasonable officer. As stated by the district court: “Hinojosa’s decision to shoot [Mr. Martinez], while a mistake, was reasonable and not excessive given the totality of the circumstances before him.”
We conclude that Officer Hinojosa did not violate Mr. Martinez’s constitutional rights and that the district court did not err in granting summary judgment.
https://www.ca5.uscourts.gov/opinions/pub/24/24-40535-CV0.pdf