Facts
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Early in the morning of September 14, 2022, Sgt. Iversen pulled Timothy Randall over for failure to fully stop at a stop sign at the intersection of State Highways 42 and 64 in Rusk County, Texas. The parties dispute whether justification existed for the stop; the body camera footage and Sgt. Iversen’s deposition suggest that Sgt. Iversen could not see the stop bar. Responding to Sgt. Iversen’s emergency lights, Randall turned left off Highway 64 and pulled over on County Road 4125. Sgt. Iversen radioed into dispatch that he was performing a traffic stop.
Sgt. Iversen then approached Randall’s vehicle. Iversen and Randall exchanged pleasantries. Iversen informed Randall that he had pulled him over because “[he] blew that stop sign back there.” Randall disagreed, asserting that he “came to a complete stop at that stop sign.” For approximately 10 seconds, Randall and Iversen disputed whether Randall had failed to come to a complete stop. During a subsequent deposition, Iversen described Randall’s conduct at this point as “somewhat uncooperative.” Sgt. Iversen ordered Randall out of the vehicle. Randall indicated assent, and then asked, “Did you sh—Can you show me that I blew—” Sgt. Iversen interrupts: “Step out.” Randall responded, “OK. I’m stepping out.” Randall then opened the vehicle door, stepping out as he says, “I’m just wondering.” After Randall is out of the car and facing the officer, he put his wallet in his back pocket. Iversen instructs him to turn around and put his hands “right there real quick.” Randall turns to face the vehicle and appears to be adjusting his belt and pants as Iversen asks him “You got anything on you you shouldn’t have?”
Sgt. Iversen then moves Randall’s hands away from his belt and to the top of the vehicle. Randall complies. Iversen instructs him: “Keep your hands out of your pocket.” Randall denies that his hands were in his pocket: “No—I—I wasn’t.” As instructed, he keeps his hands on the top of the car vehicle while Sgt. Iversen begins patting down Randall’s beltline. Feeling something suspicious, Sgt. Iversen put his hand down the front of Randall’s pants. Randall’s hands remained on top of the car. Simultaneously orally commanding Randall to put his hands behind his back, Sgt. Iversen grabbed Randall’s right hand and moved it toward Randall’s back. Randall moved his hand back up, toward the roof of the car. He protested, “I don’t have anything on me, officer!” Sgt. Iversen then repeated the command to put his hands behind his back. A second later, Sgt. Iversen had placed Randall’s right hand in a wristlock, and he had Randall in a half-nelson with his other arm. Randall had his left hand raised. He protested again: “I don’t have anything on me!” Sgt. Iversen again commanded Randall to put his hands behind his back, but as he did so, Randall’s left arm was held in position by Iversen’s half-nelson. Randall’s hands remained up as he pleaded with Sgt. Iversen to tell him why he’s under arrest: “Can you tell me what I’m under arrest for? Please. Please—”
Sgt. Iversen adjusted his hands and threw Randall to the ground. Randall landed on his hands and knees, with Iversen on top of him. Iversen tried to put Randall in a half-nelson as Randall rose to his feet. Failing that, Sgt. Iversen put his arm across Randall’s throat and suplexed him. Sgt. Iversen fell in the process. Randall was flung to the ground and—carried by momentum—rolled away from Sgt. Iversen, as the officer rose to his knees and drew his gun. Randall rose and turned to flee, with his palms at chest-height, open to the officer. Sgt. Iversen fired one shot. The bullet entered Randall’s chest at the right, traversed it, and settled on the left side of his torso. Randall cried out and continued to flee, running into a mailbox and then collapsing some distance down the road. He died at the scene. The object in Randall’s pants that had apparently alarmed Sgt. Iversen turned out to be a meth pipe in a soft glasses case.
Wendy Tippitt, Randall’s mother and the administrator of his estate, sued Sgt. Iversen, alleging that his use of deadly force violated Randall’s Fourth Amendment right to be free from unreasonable seizures. The district court’s denial of qualified immunity to Randall as to Tippitt’s constitutional claims are the only issues before the court in this appeal.
Analysis
The district court identified several facts it concluded were undisputed and one fact it concluded was genuinely disputed. The facts identified by the district court as undisputed are that “(1) Randall was never armed with a weapon; (2) Iversen never observed a weapon on Randall; and (3) Randall’s hands were open and empty as he was (4) turning to get away from Sgt. Iversen when the shot was fired.”
After viewing the video, we cannot endorse the district court’s conclusion that it is undisputed that Randall was turning to flee at the moment Sgt. Iversen shot him. However, the dashcam video and autopsy are competent evidence from which a reasonable jury could reach that conclusion.
In our court, Iversen advances a different set of facts. He contends that Randall, upon rising after being thrown to the ground the second time, rushed at Sgt. Iversen. The dashcam video does not conclusively resolve this question. For an instant, Randall leaves the frame of the video as he rolls away from Sgt. Iversen. When Randall re-enters the frame, however, shortly before he is shot, he appears to be moving down the road, away from but at least partially facing the officer. The bullet entered Randall’s chest at the right side of his chest, traversed it, and settled on the left side of his torso.
This is competent evidence from which a jury could conclude that Randall was turning to flee, not rushing at Sgt. Iversen. As required we consider the totality of the circumstances. This includes the crime for which Randall was stopped and the extent to which Randall physically resisted the officer. The district court concluded that the evidence was equivocal as to whether Randall had, in fact, committed a traffic violation. It reasoned that Randall’s remaining offenses, for which probable cause developed after the stop began, would not justify the use of deadly force: possession of an open container of alcohol, driving while intoxicated, possession of drug paraphernalia, and possession of methamphetamine. It found no evidence that Randall’s resistance constituted the crime of assault of a peace officer.
The district court characterized Randall’s resistance as passive. It considered Randall’s verbal questioning of the officer and noted that Randall’s physical contact with Sgt. Iversen arose only through Iversen’s escalating use of force. Randall did resist placing his hands behind his back. However, prior to attempting to physically force Randall’s hands behind his back, Sgt. Iversen’s preceding oral command was for Randall to keep his hands out of his pockets, and his last physical impulse was to place Randall’s hands atop the car. The totality of the circumstances includes the fact that Randall was subjected to rapidly evolving commands. Within two seconds of orally commanding Randall to place his hands behind his back, Sgt. Iversen had Randall’s right arm in a wrist-lock and his left arm in a half-nelson— actions that may have made it difficult for Randall to comply. Randall’s only further resistance was attempting to stand after Sgt. Iversen threw him to the pavement. This is competent evidence from which a jury could conclude that Randall’s resistance was non-violent.
The district court identified as a genuinely disputed fact “whether a reasonable officer would have mistakenly believed the meth pipe to be a gun.” Assuming without deciding that the officer’s mistaken belief that Randall’s meth pipe was a weapon would materially change the analysis— even in the absence of a furtive reach for it—we may not, at this stage, resolve disputed questions of material fact in the officer’s favor unless the video evidence compels the conclusion that there is no genuine dispute. The video reveals that an otherwise unremarkable stop turned violent shortly after Sgt. Iversen felt something in Randall’s pants, but that does not speak to the reasonableness of Sgt. Iversen’s belief that the meth pipe was a weapon or that Randall had retrieved it. Because the district court has identified “questions of credibility [that] arise with respect to whether a meth pipe felt during a pat down could reasonably be believed to have been a small handgun,” and because the video does not conclusively resolve this question in Sgt. Iversen’s favor, we must provisionally resolve it in favor of Randall.“ To the extent that credibility questions exist, of course, a fact-finder will be necessary.”
The district court also noted that Sgt. Iversen issued a warning—“Get down!”—in the very same second that he shot him, and concluded that the warning was thus “effectively null.” Officers must issue a warning before deadly force is used where feasible. Given the limited distance between Sgt. Iversen and Randall, it is not clear that a warning would have been feasible.
When we resolve all genuine disputes of material fact in Randall’s favor, the following factual scenario is plausible: a police officer deployed deadly force against a visibly empty-handed DWI suspect who was fleeing from the officer, with his palms facing out around chest-level, whom no reasonable officer would infer was armed based on the pat-down, and who prior to the officer’s deployment of deadly force had non-violently resisted the officer’s rapidly-evolving commands. From these facts, a jury could conclude that Randall posed no immediate threat to the officer and no threat to others, and accordingly that the deployment of deadly force violated the Fourth Amendment.
We emphasize that Sgt. Iversen’s subsequent discovery that Randall was unarmed has no bearing on our conclusion. Facts an officer learns after the incident ends—whether those facts would support granting immunity or denying it—are not relevant. An officer’s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm.
At the second step of the qualified immunity analysis, we ask whether—by September of 2022, when the events occurred—existing precedent had placed the statutory or constitutional question beyond debate. While the right to be free from excessive force is clearly established in a general sense, the right to be free from the degree of force employed in a particular situation may not have been clear to a reasonable officer at the scene. Specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. A defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.
Under Tippitt’s version of events, Randall was visibly unarmed and fleeing on foot when Sgt. Iversen shot him. Common sense, and the law, tells us that a suspect is less of a threat when he is turning or moving away from the officer. An officer violates clearly established law if he shoots a visibly unarmed suspect who is moving away from everyone present at the scene.
Were a jury to accept Tippitt’s version of the facts, it could conclude that Iversen violated Randall’s clearly established Fourth Amendment right to be free from unreasonable seizure. We have no jurisdiction to review a district court’s determination that there are genuine disputes of fact where we have decided, as a matter of law, that those factual issues are material to the officer’s entitlement to qualified immunity. We rule only on the state of the summary-judgment record, and we express no view on the ultimate facts that may be determined at trial or on the ultimate merits of any claim.
The appeal is DISMISSED.
https://www.ca5.uscourts.gov/opinions/unpub/25/25-40397.0.pdf