On November 4, 2015, John Allen, Sr., was driving through Houston with friend Shannell Arterberry in the passenger seat of a pickup. Allen was a 58-year-old veteran known to the Houston Police Department (“HPD”) for his documented history of PTSD. He had twice struggled to comply with orders from Houston police, but officers had resolved both non-violent incidents with de-escalation tactics and follow-up mental health checks.
Late that night, Officers Justin Hayes and Tyler Salina stopped Allen for a routine traffic stop. After Allen pulled the truck over, the officers approached the passenger’s and driver’s sides of Allen’s vehicle with pointed guns. Salina went to the driver’s side and asked Allen to roll the window down, but the window did not function. Salina heard Allen state that he was going to reach for his wallet. On the passenger side, Hayes instructed Allen to stop moving, to stop reaching, and to remove his foot from the gas pedal. Hayes had a taser in his pocket but did not use it. Instead, within seconds and without further warning, Hayes leaned across Arterberry and fired six shots, hitting Allen five times at point-blank range.
After being shot, Allen fell onto the gas pedal, and his truck slammed into a nearby tree. Hayes radioed for backup and commanded Arterberry out of the truck and onto the street, where he handcuffed her and put her into the back of the police car. Several minutes later, Officers Diego Morelli, Jeffrey Sneed, Jason Zimmerman, Jose Lopez, Alton Baker, Matthew Hurbin, and Shirley Ellis arrived. The officers broke the driver’s side window with an officer’s rifle butt and dragged the injured Allen onto the street.
Once Allen was on the ground, Hayes handcuffed him. At no point did any officer attempt to use any life-saving procedures on Allen. Emergency Medical Services was not called until six minutes after the shooting, only after Hayes had radioed for backup and the dispatching officer had checked the license plate. Handcuffed on the ground, Allen died at the scene.
Seven officers searched the scene and found no weapons in the car or in Allen’s pockets. Twenty-two days later, however, Mandy Arroyo, an Internal Affairs Division investigator for HPD, reported that his investigation of the truck turned up a gun in plain sight on the back seat. The city awarded Hayes an award for the incident involving Allen and promoted him to sergeant.
Plaintiffs brought § 1983 claims against Hayes for excessive force, false arrest, denial of medical care, and racial discrimination. The District Court dismissed all claims. The 5th reverses and remands the dismissal of the claims of excessive force, false arrest, and denial of medical care. They affirmed the dismissal of the race-discrimination claim.
A. Excessive Force
To satisfy the first step, Allen must show that he suffered an injury that resulted directly and only from a clearly excessive and objectively unreasonable use of force. See Cloud. This is an objective standard. The use of force is not excessive and unreasonable if the officer’s actions are objectively reasonable in light of the facts and circumstances confronting him, without regard to their underlying intent or motivation.
Many factors are relevant: Courts consider the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Courts will consider not only the need for force, but also the relationship between the need and the amount of force used. And the reasonableness is judged from the perspective of a reasonable officer on the scene, instead of the 20/20 vision of hindsight.
It follows that it is manifestly unreasonable for an officer to seize a suspect the officer knows is unarmed and not aggressive by shooting him dead. See Poole. But if the officer believes the suspect has a gun, the calculation changes—even if there was never, in fact, a gun. This circuit has often found an officer’s use of deadly force to be reasonable when a suspect moves out of the officer’s line of sight such that the officer could reasonably believe the suspect was reaching for a weapon. See Manis.
Nevertheless, an officer cannot escape liability any time he claims he saw a gun. The question is whether the officer’s belief that he saw a gun was sufficiently reasonable to justify the use of deadly force in light of all the surrounding circumstances. Further, even when a suspect is armed, a warning must be given, when feasible, before the use of deadly force. See Poole. And the use of force should be proportional to the threat. See Brothers. Thus, if the officer could reasonably use less than deadly force, he must.
The majority of these factors cut against Hayes. Plaintiffs have alleged that Allen was not carrying a gun (nor was there a gun in the car), that a reasonable officer would have known there was no gun, and that Allen never reached outside the officer’s line of sight. Hayes had a taser he could have used instead of a gun, but he did not. Hayes never warned Allen that he would shoot. Taking these allegations as true, plaintiffs have pleaded sufficient facts plausibly to allege that Hayes’s decision to shoot Allen was an excessive use of force.
As the second step of overcoming a qualified-immunity defense, plaintiffs must also plead enough to allege that the constitutional violation was clearly established at the time of the shooting. It was well established, at the time of the shooting, that such use of deadly force against a person who the officer knows is not dangerous is a constitutional violation. See Bazan. Plaintiffs have plausibly alleged that Hayes knew Allen was unarmed and not aggressive. Their claim of excessive force thus survives the motion to dismiss.
B. False Arrest
Plaintiffs bring two claims of unlawful arrest and detention against Hayes. They first claim that Hayes unlawfully detained Allen when he pulled Allen over without reasonable suspicion. Their second claim is that Hayes unlawfully arrested Allen when he handcuffed him without probable cause.
1. False Arrest By Stop
The first allegation is that the initial traffic stop was an unlawful seizure. The Fifth Circuit analyzes the legality of traffic stops under the Terry standard, a two-tiered reasonable suspicion inquiry: 1) whether the officer’s action was justified at its inception, and 2) whether the search or seizure was reasonably related in scope to the circumstances that justified the stop in the first place. If Hayes thought Allen was committing a traffic violation, then the first prong of Terry would be satisfied.
Plaintiffs’ complaint is inconsistent regarding whether Hayes suspected a traffic violation. Plaintiffs’ opening brief suggests that the police officers pulled Allen over for a broken tail light and running a stop sign. Later, in their reply brief, they claim that Allen had not committed any traffic violations. Even so, an argument cannot be raised for the first time in a reply brief, so it is waived. Without a specific allegation that the traffic stop was without grounds, the claim of illegal detention is conclusory. The claim’s dismissal is thus affirmed.
2. False Arrest By Handcuffs
An arrest is unlawful if the officer did not have probable cause. A seizure is an arrest if a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. See Turner. But using some force on a suspect, pointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect do not automatically convert an investigatory detention into an arrest requiring probable cause.
If Hayes reasonably thought he saw a gun, then it would have been reasonable to handcuff Allen and not necessarily an arrest. Conversely, if Hayes did not have reason to believe there was a gun, failing to use less intrusive procedures than handcuffs to detain Allen likely constituted an arrest without probable cause, especially given Allen’s injuries. Plaintiffs have alleged that nothing supports the contention that Hayes was reasonable in believing he saw a gun: There was never a gun in Allen’s pocket, Salina had instructed Allen to pull out his wallet, and nothing else in the surrounding circumstances led Hayes to believe Allen had a gun.
We construe all pleadings in favor of the plaintiffs. Taking as true that Hayes had no reason to believe Allen was armed and that Hayes knew Allen was seriously injured and likely could not move, a police officer would know, under these precedents, that to handcuff Allen was an arrest without probable cause under clearly established law. Accordingly, we vacate and remand the dismissal of that claim.
C. Denial of Medical Care
The Fourteenth Amendment right of a pretrial detainee to medical care is violated if an officer acts with deliberate indifference to a substantial risk of serious medical harm and resulting injuries. See Mace.
Plaintiffs alleged that after Allen was shot five times at point-blank range and crashed into a tree, Hayes waited six minutes after the shooting to call for medical care, dragged Allen out of the truck, handcuffed him on the ground, and never attempted to provide CPR, oxygen, chest compressions, or any other life-saving measures. In this posture, that is sufficient to survive a motion to dismiss. The claim is thus vacated and remanded.
D. Race Discrimination
Plaintiffs contend that Hayes pulled Allen over because he was black, thus violating the Equal Protection Clause. To make out an equal protection violation, a party cannot merely prove disparate impact—he must prove the existence of purposeful discrimination motivating the state action which caused the complained-of injury. See Johnson.
Plaintiffs allege nothing regarding Hayes’s intent. Their entire allegation is that data in the Houston area tends to show that black drivers are stopped at a higher rate and that a higher rate of searches of black drivers is unwarranted. We agree with the district court that at best, such data shows disparate impact, not discriminatory purpose. The dismissal of that claim is affirmed.