Summary judgement granted for officer who killed subject but did not see gun


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On June 25, 2018, Luis Argueta and his girlfriend, Mary Ann Luna, drove to a convenience store in Galveston around 3 a.m. According to Luna, Argueta intended to buy a cigar. While Argueta was inside the store, Officer Derrick Jaradi and his partner, Officer Matthew Larson, drove into the store’s parking lot. Luna indicated that the police officers were looking at Argueta like something was wrong, and, when Argueta returned to the car, Luna told Argueta that the officers were “looking at [him] crazy.” While Luna denies that Argueta talked to anyone in or outside the store besides a store employee, the officers indicate that Argueta spoke to a woman outside the store whom Jaradi suspected of being a prostitute. Argueta and Luna drove off shortly after the officers pulled into the parking lot. While Jaradi testified that Argueta sped off at a “really high rate of speed,” Luna said that Argueta’s car left “super slowly.”

The officers initially lost sight of Argueta’s car after it left the parking lot, but later, while patrolling the area, they saw the vehicle drive through an alleyway. The officers contend that Argueta’s headlights and taillights were off and that Argueta rolled through several stop signs. Around this time, Jaradi turned on the patrol car’s dashboard camera (“dashcam”). By the time the dashcam video footage begins, Argueta’s lights are turned on while the car was in motion. The video also indicates that the vehicle stopped, at least momentarily, at all stop signs, and moved at a moderate speed. The patrol car followed Argueta for a few blocks before the officers turned on the emergency lights. Argueta continued driving for roughly two blocks and then pulled over.

The video shows that Argueta quickly exited the car, turned his left side towards the officers, and ran toward a vacant lot across the street. Argueta’s right arm and hand were not visible in the dashcam footage because Argueta kept his right arm pressed against his side and ran in a direction where only his left side was visible to the officers; his right arm and hand were also not clearly visible in the officers’ body-camera (“bodycam”) footage as they were obscured, blurry, or—at times—apparently pressed down on the right side of Argueta’s body. Argueta’s apparent concealment of his right hand from Officer Jaradi’s view—by pressing his right hand near his right hip with the core of his body between him and Jaradi—made Jaradi concerned that he could not, if necessary, react with his handgun in time to stop an attack.

Approximately five seconds after Argueta exited his vehicle, Jaradi fired two shots at Argueta, both of which struck Argueta and caused Argueta to fall to the ground. There is no audio accompanying the bodycam footage until Jaradi shoots. Seconds later, the officers set their flashlights on Argueta, who was laying on his back in the empty lot. The bodycam footage shows a black pistol in Argueta’s right hand. The officers direct Argueta to drop the weapon and roll over onto his stomach. A few seconds later, Argueta complied, revealing the gunshot wounds on his back.

Shortly after the shooting, the officers called for Emergency Medical Services and backup. Two minutes later, additional officers arrived on the scene. They handcuffed Argueta and started administering medical aid until EMS arrived and transported Argueta to the hospital. Argueta was pronounced dead at 3:42 a.m.

In June 2020, Argueta’s parents and siblings, on behalf of themselves and Argueta’s estate, filed a wrongful-death lawsuit against Jaradi. At the close of discovery, Jaradi moved for summary judgment and the district court denied his motion. The 5th reversed, granting summary judgement to the officer.


The district court identified the following as genuine disputes of material fact that preclude summary judgment on qualified immunity:

(1) whether Jaradi could see that Argueta held a weapon;
(2) whether Argueta’s flight posed any risk to the officers or the public;
(3) whether Argueta raised the gun or otherwise made a threatening motion towards the officers; and
(4) whether either officer warned Argueta before firing.

We are not persuaded that the second “fact dispute” is a question of fact at all. Rather, it is a legal determination that turns on other factual issues. We conclude that video evidence confirms the genuineness of fact disputes one and three and does not bear on fact dispute four.

(In short, the 5th agrees with the District Court that there are factual disputes – for brevity, I did not include this analysis. However, it doesn’t matter about the factual disputes due to materiality of dispute – not clearly established that officers actions were improper – as will be explained below. If confused, please read FAQ on 1983 matters).

A. Clearly established that Argueta held a weapon?

We must take the facts in the light most favorable to Argueta and assume that Jaradi could not see that Argueta was armed before Jaradi used deadly force. So, we must look to cases where police officers confronted an individual whose actions suggested that he or she possessed, and might in that moment access, a firearm.

In Salazar-Limon, a police officer shot Salazar in his back after a traffic stop when the officer observed that Salazar did not comply with police commands and suddenly reached toward his waistband, which was covered by an untucked shirt. Although Salazar was later found to be unarmed, the officer—at the moment he fired—perceived Salazar’s combination of movements to be consistent with Salazar retrieving a weapon from his waistband. We held that the officer’s actions were objectively reasonable, citing the following circumstances: Salazar’s resistance, intoxication, his disregard for the officer’s orders, the threat he and the other three men in his truck posed while unrestrained, and Salazar’s actions leading up to the shooting (including suddenly
reaching towards his waistband).

Similarly, in Batyukova, Batyukova refused to comply with the officer’s instructions, became verbally aggressive, and, instead of heeding the officer’s admonition to “get down” and show her hands, reached her hand toward the waistband of her pants and behind her back. The deputy, believing that Batyukova was reaching for a weapon to kill him, shot her. We affirmed the grant of summary judgment in the officer’s favor, emphasizing that Batyukova, though later determined to be unarmed, repeatedly ignored the officer’s commands, walked towards him, was actually facing him, and then made a movement towards her waistband as if she was reaching for a weapon to use against Deputy Doege.

In Manis, Manis ignored police commands to show his hands and instead reached under the seat of his vehicle and then moved as if he had obtained the object he sought. We found that the officer’s use of deadly force did not violate Manis’s Fourth Amendment rights, reasoning that such force is 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.

Here, Argueta was armed with a high-capacity semiautomatic weapon, which he kept out of view as he fled, and needed only a slight turn to begin firing on the officers from close range. Rather than swing both of his arms, as one naturally does when running, Argueta swung only his left arm, keeping his right arm purposefully and unnaturally pressed along his right side and out of sight as he ran away. Although Argueta did not make any sudden movement for his gun, as in Manis, Argueta’s clutching his right arm to his side as he fled at top speed was tantamount to moving his arm out of the officer’s line of sight such that the officer could reasonably believe the suspect was reaching for a weapon. Jaradi testified that he concluded the same and that he was concerned that he could not, if necessary, react with his handgun in time to stop an attack. We have repeatedly cautioned against second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation. See Wilson.

Here, no reasonable jury could conclude that Argueta was visibly unarmed—because he was armed. At most, a jury could conclude that Argueta was apparently unarmed. Considering the furtive-gesture case law, we conclude that whether Jaradi could see Argueta’s weapon is immaterial because Argueta clutched his right arm to his side as he fled, which created reasonable fear that Argueta was about to pull a gun from a hidden location.

We therefore conclude that, even taking the facts in the light most favorable to Argueta—that the gun was not visible to Jaradi when Jaradi fired—this fact question is immaterial because Argueta’s clutching his right arm to his side as he fled police confrontation was a furtive gesture akin to reaching for a waistband. And again: it is Argueta’s burden to establish that Jaradi is not entitled to qualified immunity, a protection that we honor unless existing precedent places the constitutional question beyond debate.

B. Clearly established that flight posed risk?

We are not persuaded that the second “fact dispute” identified by the district court—whether Argueta’s flight posed any risk to the officers or the public—is a question of fact at all. Whether the suspect’s flight posed a threat to the officers or onlookers is a question of law left to the court.

Instead, we review as part of our objective-reasonableness analysis whether Argueta posed a threat to the officers or others. Our answer is straightforward: because we conclude that Argueta’s concealing his right arm as he fled the police amounted to a furtive gesture akin to reaching for a waistband during a police confrontation, Jaradi’s conclusion that Argueta posed an immediate danger was not unreasonable. See Salazar-Limon.

C. Clearly established that Argueto raised gun or made threatening motion?

Our analysis of the first fact dispute makes this moot. Even if Argueta never touched his gun and his gun remained completely concealed from the moment he exited the vehicle until after he was shot, that fact is immaterial: Argueta did not need to raise (or even show) his gun or make a threatening motion towards the officers because, by suspiciously concealing his right arm as he fled in a way that objectively suggested he was armed and dangerous, he engaged in a furtive gesture justifying deadly force. See Salazar-Limon and Batyukova.

D. Clearly established that Argueto was warned?

Finally, we consider the materiality of fact dispute four: whether either officer warned Argueta before firing. Taking the facts in the light most favorable to Argueta, Argueta received no warning before Jaradi shot him.

In Tennessee v. Garner, 471 U.S. 1 (1985) the SCOTUS held:  If the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Notwithstanding this general rule, we have not located clearly established law holding that a furtive gesture signaling an immediate threat to officers followed by deadly force without warning constitutes a violation of the suspect’s federal rights. To the contrary, we held in Batyukova that the suspect’s ignoring police commands and reaching behind her back to her waistband justified deadly force notwithstanding the officer’s lack of warning. For this reason, we conclude that whether Jaradi issued a warning prior to firing is immaterial here.

In sum, we hold that Argueta has failed to establish “beyond debate” that Jaradi violated a clearly established federal right.

Accordingly, we REVERSE and RENDER judgment in favor of Jaradi.