Qualified immunity denied on allegation officers shot subject in parked car without any verbal warnings


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The events at issue in this case arise from the Houston Police Department’s investigation of an armed robbery that took place in or around November 2021. The robbery victim identified Charion Lockett and an unknown male as the perpetrators. Subsequently, the investigating officers secured a warrant for Lockett’s arrest. On February 7, 2022, at around 9:30 a.m., an unidentified officer called both Lockett and Shanetta Lewis (Lockett’s mother) and informed them of the warrant for Lockett’s arrest. Either Lockett or Lewis told the officer that Lockett intended to retain an attorney and would turn himself in later that day.

Approximately one hour later, police officers Devin Inocencio, Victor Villareal, Peter Carroll, and Shaun Houlihan arrived at Lockett’s residence. Inocencio was in plain clothes and was in an unmarked red car. Inocencio pulled up near Lockett, opened his car door, and pointed his gun at Lockett without saying a word. Lewis alleges that at least one officer, believed to be Inocencio, began shooting at Lockett while Lockett sat in his parked vehicle.

The other officers shot Lockett in the back as he attempted to run. At no point did any of the officers identify themselves as police officers or otherwise indicate they were police, inform Lockett he was under arrest, or tell Lockett to put his hands up. According to Lewis, Lockett did not assault anyone. Lewis does not concede that Lockett had a gun but pleads that Lockett had a concealed carry license and that if Lockett did point or shoot a gun, he did so because he feared for his life. Lockett died at the scene.

In March 2022, Lewis asserted a Fourth Amendment excessive-force claim against Inocencio, Villareal, Carroll, and Houlihan pursuant to 42 U.S.C. § 1983. The officers moved to dismiss Lewis’s Fourth Amendment claims on qualified-immunity grounds. The district court denied the officers’ motions to dismiss the excessive-force claims. On appeal, the officers argue that the district court erred when it found that Lewis pleaded sufficient facts to overcome the qualified-immunity defense. We conclude that the district court did not err in allowing Lewis’s excessive-force claims against the officers to proceed.


To defeat a qualified-immunity defense, the plaintiff must plead facts showing (1) that the defendants violated a federal statutory or constitutional right and (2) that the unlawfulness of the conduct was clearly established at the time. See Cloud.

A. Constitutional right

We begin with the first prong of the qualified-immunity analysis. Lewis claims that the officers’ shooting of Lockett violated Lockett’s Fourth Amendment right to be free from excessive force during a seizure. To state an excessive-force claim, Lewis must show that Lockett suffered an injury that resulted directly and only from a clearly excessive and objectively unreasonable use of force. Reasonableness is judged from the perspective of a reasonable officer on the scene, not with the 20/20 vision of hindsight. And the standard is an objective one, focusing on the facts and circumstances confronting the officers, without regard to their underlying intent or motivation.

We consider several factors in determining the reasonableness of force, paying careful attention to the facts and circumstances of each particular case: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether the suspect was actively resisting arrest or attempting to evade arrest. See SCOTUS Graham v. Connor, 490 U.S. at 396 (1989).

There is no dispute that the crime at issue—armed robbery—is a serious felony, and Lewis alleges that Lockett was fleeing when the second round of shots was fired. But officers may not shoot a fleeing felony suspect if the suspect does not pose an immediate threat. See SCOTUS Tennessee v. Garner, 471 U.S. 1 (1985). Thus, the threat-of-harm factor predominates in this case.

Accepting all well-pleaded facts as true and construing all reasonable inferences in the light most favorable to Lewis, the officers arrived at Lockett’s house without identifying themselves or issuing any instructions or warnings, and at least one officer immediately drew his gun and pointed it at Lockett. When the officers first used deadly force, Lockett was sitting in a parked car and the officers had not identified themselves as police or issued any warnings or instructions. As such, it is reasonable to infer that Lockett was not resisting arrest or refusing to comply with police commands. Officers then continued firing, shooting Lockett in the back as he attempted to run away. Lockett did not assault anyone as these events unfolded.

These facts are sufficient to establish that, when he was sitting in his car, Lockett did not pose an immediate threat to the officers’ or others’ safety to justify the use of deadly force without warning. See Cole (denying qualified immunity where the decedent was armed but posed no threat to the officers or others to support firing without warning). Similarly, Lockett did not pose an immediate threat when he was running away, with his back to the officers. See Poole (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).

On appeal, the officers raise two principal issues with the district court’s recitation of the facts. First, the officers argue that the conclusions that Lockett posed no threat to anyone and that the officers fired without cause are improper interpretations of Lewis’s allegations. The officers contend that Lewis’s actual allegation—that Lockett was sitting in his parked vehicle when officers began firing—is insufficient on its own to give rise to such inferences. However, we conclude at this stage Lewis has satisfied her burden to plead facts that if proved, would defeat the claim of immunity.

Second, focusing on the allegation that Lockett had a concealed carry license and relying on a single line of speculation in Lewis’s pleadings, the officers assert that Lockett was in fact holding a gun or, at least, armed. Lewis never alleges that Lockett was armed, pointed a gun, or fired at officers. Instead, Lewis provides a hypothetical alternative and contends that if Lockett pointed or fired a gun, he did so out of fear for his life. The alternative to this hypothetical—that Lockett did not assault anyone by pointing or firing a gun suffices at this stage.

Construing all reasonable inferences in the light most favorable to Lewis, the pleadings establish that Lockett was merely sitting in his car and later running from gunfire when the officers fatally shot him. Lewis adequately pleaded that the shooting was objectively unreasonable and clearly excessive.

B. Clearly established

A right is clearly established if every reasonable official would have understood that what he is doing violates that right. See SCOTUS Mullenix v. Luna, 577 U.S. 7 (2015) A plaintiff may demonstrate clearly established law by identifying a case or body of relevant case law in which a violation of the Constitution was found under factually similar circumstances. Here, the question is whether police officers violate the Fourth Amendment when they fire without warning upon a non-threatening suspect who is either sitting in a stationary car or running away.

Lewis identifies two excessive-force cases from this circuit that demonstrate that this right was clearly established at the time of the alleged misconduct. In Baker, we reversed a district court’s grant of summary judgment on qualified-immunity grounds where an officer shot and killed a man sitting in a parked car. A gun was later found in the decedent’s truck, but the parties disagreed about whether the decedent was holding it or pointing it at the officer. The officer maintained that he issued a warning before shooting and that the decedent aimed a pistol at him, while the plaintiff’s witnesses testified that the officer did not call out a warning and that the decedent merely moved to turn and face the officer before the officer pulled the trigger. We held that these disputes raised issues of material fact as to whether the officer acted reasonably.

In Cole, we affirmed a district court’s denial of summary judgment on qualified-immunity grounds where officers shot and killed a suicidal teenager who was holding a gun to his head. Because the district court found that, among other things, the decedent had not been facing the officers or pointing a gun at them, we concluded that the facts did not support firing without warning. We held that Baker clearly established that using deadly force without provocation and without warning constitutes excessive force.

The above-cited precedent provided the officers with fair notice that using deadly force without warning on a non-threatening suspect who was, at different times, sitting in a car and running away was a constitutional violation. Both cases establish that even where a suspect may have a gun, there must still be a threat before use of deadly force is justified. Further, both cases recognize that a failure to warn before firing can influence the threat posed by a suspect and, thus, the reasonableness of the officer’s use of deadly force.

As for the shots fired after the initial round, we also consider the fact that it has long been clearly established that, absent any other justification for the use of force, it is unreasonable for a police officer to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others. This conclusion applies both to a felon fleeing on foot and to one fleeing in a vehicle. See Crane.

The officers cite several cases upholding the use of deadly force against individuals who were unarmed or facing away from officers. But none of these cases involve the use of deadly force without warning or provocation. For instance, in Salazar-Limon, our decision to affirm the district court’s grant of summary judgment on qualified-immunity grounds was based on the totality of the circumstances, including the plaintiff’s resistance to the officer’s attempt to handcuff him, disregard for the officer’s orders, and sudden reach toward his waistband. Such circumstances are not present here, where the officers did not issue any orders and Lockett was first sitting in his vehicle and then running away.

In Cloud, we affirmed the district court’s grant of qualified immunity to a police officer who tased and then fatally shot an individual during a traffic stop. The circumstances in that case warranted a reasonable belief that the decedent threatened serious physical harm where the officer fired only after the decedent’s revolver discharged into the officer’s chest, the officer had to wrest it from the decedent’s hands and toss it away, and, thereafter, the decedent still made a sudden move in the gun’s direction.

And in Manis, we held that the act that led the officer to discharge his weapon was the decedent, in defiance of the officers’ contrary orders, reaching under the seat of his vehicle and appearing to retrieve an object that the officer reasonably believed to be a weapon.

In contrast, Lewis alleges that the officers drove up with one of the officers already pointing a gun at Lockett and, without any verbal warnings or words indicating it was an arrest, shot him as he sat in his parked vehicle and then continued shooting at him as he attempted to flee.

Because Lewis sufficiently pleaded facts that, if true, show that the officers violated Lockett’s Fourth Amendment rights and because the unlawfulness of the officers’ conduct was clearly established at the time of the shooting, the officers are not entitled to qualified immunity at this stage.