Qualified immunity granted where shots were fired at night as vehicle moved towards location where officer stood just seconds prior


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On the evening of January 17, 2017, Genevieve Dawes and her husband, Virgilio Rosales, parked a black Dodge Journey in the back corner of an apartment complex parking lot and went to sleep in the vehicle. A resident called police and reported a suspicious vehicle. Police ran the tag and were told the car was stolen. Officers were dispatched to the scene around 5:00 AM on January 18.

Officers Christopher Alisch and Zachary Hopkins arrived at the complex first, shortly after 5:00 AM. They found the Journey vehicle boxed in on three of four sides—by fences to the front and left and by another car to the right. They approached with weapons drawn, calling to the driver and repeatedly demanding that the occupants “put your hands out the window.” As they shouted, four more officers arrived, including Christopher Hess and Jason Kimpel.

The officers conferred, expressing uncertainty as to whether the Journey was still occupied. The windows of the car were fogged; one officer remarked that “you can’t see s***.” Around this time, Hess pulled a police cruiser closer to the Journey. He sounded the horn and turned on the cruiser’s spotlight. Hopkins tried to open the right rear door of the Journey and found it locked. Hopkins then moved around behind the Journey and stood near its rear left taillight. Meanwhile, another officer discerned and announced that the Journey was in fact occupied. During the first minute that elapsed after this discovery, officers shouted commands to the effect of “show your hands” eight times and twice identified themselves as Dallas police.

While the officers were shouting, Hopkins and Kimpel stood just behind the Journey. Hopkins decided to retreat and said, “C’mon Kimpel, back up a little bit.” The officers retreated but remained in the path directly behind the Journey. Eight seconds after Hopkins’s statement, the Journey’s engine ignited. Hess leapt into a police cruiser and said “watch out” as he pulled the cruiser behind the rear bumper of the otherwise boxed-in Journey.

The Journey reversed and collided with Hess’s cruiser. The Journey then accelerated forward and hit the fence in front of it. This impact occurred at low speed, but the sound of the impact is audible on Hopkins’s body camera, and the jolt of the fence visibly shook the surrounding trees. Kimpel and Hopkins still stood behind the Journey at the moment of the Journey’s impact against the fence. Kimpel said “watch out watch out watch out,” and moved laterally out of the Journey’s path and towards other officers near the police cruiser. Kimpel passed in front of Hopkins (and could not see Hopkins) as Kimpel traveled.

Hess, after the Journey hit the cruiser, jumped out from the driver’s seat and trained his weapon on the Journey. He and other officers shouted several more times for the Journey’s occupants to show their hands. After hitting the fence, the Journey immediately reversed. As it did so, Hess fired twelve rounds, all within a five second interval. Kimpel fired one round, simultaneous with Hess’s sixth shot.

Kimpel later stated that he fired his weapon “in fear of Officer Hopkins’ life.” Hess said he fired to protect both Hopkins and Kimpel, who he believed were in the path of the reversing Journey. Hopkins’s bodycam reveals that, although he was not in Hess’s or Kimpel’s immediate field of view, he had moved out of the Journey’s path several seconds before Hess first fired.

Four of Hess’s bullets struck Dawes, who later died at the hospital. None struck Rosales. Kimpel’s round struck neither person. Rosales and Dawes’s estate filed a 42 U.S.C. § 1983 excessive force suit against Hess and Kimmel. Hess and Kimpel prevailed on qualified immunity grounds at summary judgment. The 5th affirmed.


Plaintiffs here present several cases that they contend clearly established the law as applied to Hess and Kimpel’s specific actions. In part, they rely on seminal Fourth Amendment cases like SCOTUS Tennessee v. Garner, 471 U.S. 1 (1985), and SCOTUS Graham v. Connor, 490 U.S. 386 (1989). But neither of those cases involved a nighttime confrontation between officers and the occupants of a reportedly-stolen vehicle, much less did they involve suspects who backed their reportedly-stolen vehicle into a police cruiser after refusing numerous commands from police. SCOTUS has repeatedly made clear that we may not rely on general rule statements in Garner and Graham to clearly establish the law in far-afield cases like ours. See SCOTUS Mullenix v. Luna, 577 U.S. 7 (2015) (per curiam).

Plaintiffs also point to several circuit precedents. Newman concerned an alleged tasing and beating of a man not in a vehicle. Edwards post-dated the events of this case and so could not have given Hess and Kimpel fair notice of their legal obligations (the law must be clearly established “at the time of the defendant’s alleged misconduct”). Baker also post-dated the events of this case. Baker involved several fact disputes, including whether shots were fired after a vehicle was, in daylight and in the plain view of every responding officer, traveling away from officers when they fired. Here, the facts exhaustively documented by multiple cameras cannot be disputed. Shots were fired in the dead of night as a vehicle traveled towards a location an officer had stood in seconds before. Baker therefore cannot squarely govern today’s facts.

Plaintiffs rely most heavily on Lytle. Like Baker, Lytle did not find a constitutional violation, and so it did not clearly establish law. And Lytle featured significant fact disputes that distinguish it from this case. What were Lytle’s assumed facts? In broad daylight, with no other officers present, and without first giving a warning, an officer fired at a vehicle three to four houses down the block. This case could hardly be more different because officers gave several warnings, shot their weapons in close quarters, in the predawn darkness, and with officers in the harm’s way just seconds before the shots were fired.

The grant of summary judgment to the defendant officers is AFFIRMED.