Facts
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In the early morning of October 7, 2020, Officer Halie Watkins responded to two separate 911 calls, both of which originated from a duplex in Victoria, Texas. One came from Rosalia Flores, who was in one of the units with Rico Macias. Flores and Macias had seen a man—who we now know was Nick Salazar—and a woman standing outside the duplex. Concerned that Salazar and the woman were attempting to break into the neighbor’s unit, Flores called the police to report a potential burglary. The dispatcher asked whether anyone had a gun, and she said no.
The other came from Salazar, who said he was checking on—not breaking into—his brother’s adjacent unit. Salazar called the police to tell them that the neighbor mistakenly thought that he was breaking into the unit and that the neighbor was outside with a gun. Officer Watkins was told the contents of both calls and dispatched to the scene. Officer Watkins’s body camera captured the rest of the incident. When Officer Watkins arrived at the duplex, she approached slowly from the back. Near the front of the building, she called out to the woman accompanying Salazar and, referring to a man out of sight, asked, “Hey ma’am, does he have a gun?” The woman did not respond. She instead turned to Salazar and, over unintelligible shouting in the background, said, “Come on Nick, the cops are right there.”
Macias, who had been out of sight on the porch, stepped into view. Officer Watkins yelled “hey” twice and then said “let me see your” before Macias quickly raised his arms and aimed a light at her. The video does not clearly show the object in Macias’s hands. Officer Watkins immediately fired three shots at Macias but missed and hit the side of the duplex. Officer Watkins and Macias fell to the ground. Officer Watkins then returned to her vehicle and fled the scene. Macias stood up with his hands in the air and then walked inside his apartment.
Macias sued Officer Watkins under 42 U.S.C. § 1983, alleging that Officer Watkins violated his Fourth Amendment rights by seizing him without probable cause. The district court concluded that Officer Watkins was entitled to qualified immunity, and granted her motion for summary judgment. The 5th affirmed.
Analysis
Start with Macias’s claim that Officer Watkins used excessive force when she fired three shots in his direction. To prove an excessive-force claim under the Fourth Amendment, Macias must show (1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable. See Romero. Deadly force is clearly excessive and objectively unreasonable unless the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.
Macias contends that Officer Watkins is not entitled to qualified immunity because the parties dispute whether Officer Watkins saw the flashlight’s pistol-grip handle. Whether Officer Watkins could see the pistol-grip and say that the item in Macias’s hand was a gun, he argues, is material to whether she had probable cause to believe that he posed a threat and could thus use deadly force.
We agree with Macias that he has raised a genuine factual dispute. Macias argues that Officer Watkins could not see the pistol-grip handle, while Officer Watkins argues that she saw something big and black in his hands that looked like a handgun with a weapon mounted light. The video is unclear and does not blatantly contradict either party’s account. But although this dispute is genuine, it is immaterial. Even taking the facts in the light most favorable to Macias—that Officer Watkins could not see the pistol-grip handle—Officer Watkins’s use of deadly force was not excessive.
The uncontested facts show that Officer Watkins reasonably believed that Macias was attempting to use or reach for a weapon and thus did not violate the Fourth Amendment by using deadly force. When Officer Watkins arrived on the scene, she reasonably expected someone to be armed: She had been told that a potential burglary had occurred or was in progress and that someone may have a gun. And when she asked the woman standing near the duplex whether a man out of sight had a gun, the woman did not answer. Rather than respond when she shouted “hey” twice, Macias abruptly raised his arms and pointed an object at her—a swift movement that was consistent with raising and pointing a gun.
Because we assume, as Macias argues, that Officer Watkins could not see what he was holding, we must also assume that she could not see that he was holding only a flashlight. And, as a result, she could not dispel her reasonable belief, based on the circumstances known to her then, that he was armed. That Macias was ultimately found to have been unarmed is immaterial. Accordingly, judged in light of the circumstances confronting her, Officer Watkins reasonably believed that Macias was attempting to use a gun. Officer Watkins therefore did not use excessive force.
We have already determined that Officer Watkins’s use of force was reasonable under the circumstances. It follows, then, that Officer Watkins could not have unreasonably seized Macias. Officer Watkins, in other words, had probable cause to seize Macias using deadly force.
Officer Watkins is thus entitled to qualified immunity. Accordingly, we AFFIRM summary judgment in her favor.
https://www.ca5.uscourts.gov/opinions/unpub/23/23-40580.0.pdf