Facts
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Texas State Trooper Jesse Perez was patrolling Interstate 10 in Kendall County, Texas on April 11, 2019, when he pulled over a white sedan for following another vehicle too closely. Trooper Perez advised the driver of the reason for the stop and asked for his license. Upon noticing that the vehicle was a rental car, he asked for the rental car agreement too. The driver seemingly searched for the documents in his car and pockets without success, prompting Trooper Perez to ask him to step out of the car. The driver exited the car and informed Trooper Perez that he did not have his license on him.
While we now know that this driver was Marcus McVae, Trooper Perez was unaware of his identity at the time. Instead, McVae told Trooper Perez that his name was Montrea McCullough, that he was born on June 1, 1991, and that he could not remember his social security number or driver’s license number. Trooper Perez asked both McVae and his passenger several questions over approximately ten minutes before returning to his patrol car to look up “Montrea McCullough.” Apparently having difficulties locating a “Montrea McCullough” in the system, Trooper Perez asked his age. McVae responded “twenty-six,” despite that the birthday he gave made him almost twenty-eight. When questioned further, McVae confirmed that Trooper Perez had his correct birthday and the correct spelling of his name, but he eventually admitted that he is not a licensed driver.
After receiving McVae’s consent, Trooper Perez patted him down and removed a vape pen from his pocket. He then gave McVae one last opportunity to honestly identify himself. When McVae again failed to identify himself, Trooper Perez consensually searched his pockets, instructed him to put his hands behind his back, and informed him that he was being detained until his identity could be determined. As Trooper Perez attempted to handcuff him, McVae broke free and sprinted across the interstate. Trooper Perez immediately jumped in his patrol car and drove momentarily before exiting the vehicle to chase McVae on foot. He followed McVae into a wooded area and across a shallow creek while yelling, “Get on the ground!” and “I’m going to shoot you!” before deploying his taser. It is unclear whether the taser made contact with McVae, who continued to run undeterred.
McVae eventually tripped, allowing Trooper Perez to catch up to him. Trooper Perez continued yelling at McVae to get on the ground while tasing him. McVae, still apparently unphased by the taser, struck Trooper Perez, and a physical altercation on the ground ensued. During this altercation— which left Trooper Perez with a broken finger—an out-of-breath Trooper Perez repeatedly yelled at McVae to put his hands behind his back. McVae refused to comply and fought back, even after Trooper Perez repeatedly struck him with his fists and baton. McVae eventually managed to break free from Trooper Perez’s grasp and stood up facing Trooper Perez, next to several rocks. Trooper Perez then moved so his body camera no longer captured McVae, right as a rock at least the size of a softball whirled past him from McVae’s direction. Trooper Perez then immediately fired his gun four times, all within less than 2.5 seconds of when the rock passed him. He ceased shooting when he saw McVae fall into a creek.
An autopsy revealed that three of the shots hit McVae, all from behind. Two of the shots were fatal. Trooper Perez testified that he unholstered his gun when he saw McVae reach for a rock, and that he decided to fire the gun when he saw McVae throw the rock at his head.
McVae’s parents, Ethel McVae and Wiley West, sued Trooper Perez under 42 U.S.C. § 1983, alleging that he used excessive force in violation of McVae’s Fourth Amendment right to be free from unreasonable seizure. Trooper Perez sought summary judgment on the basis that he is entitled qualified immunity. Relying on Trooper Perez’s body camera footage, the district court granted his motion for summary judgment. Plaintiffs appeal that decision. The 5th affirmed.
Analysis
The only contested material fact is whether McVae threw the rock that flew past Trooper Perez. The record contains two relevant pieces of evidence: Trooper Perez’s testimony that McVae threw the rock at him, and the body camera footage, which verifies Trooper Perez’s testimony. While the body camera footage does not show McVae throwing the rock, the rock came from his direction while he was standing near several rocks and facing Trooper Perez. It is undisputed that only Trooper Perez and McVae were present, eliminating anyone else. And given the size of the rock, and the speed and angle at which it flew past Trooper Perez, no reasonable jury could conclude that the rock was inadvertently kicked. Plaintiffs do not provide any other explanation for the source of the rock.
Because McVae is deceased and there were no other witnesses, the body camera footage and Trooper Perez’s testimony that McVae threw the rock are the only evidence that would be presented at trial. Simply because the footage does not show McVae throwing the rock does not necessarily create a genuine dispute. Reviewing the evidence in the light most favorable to Plaintiffs, as we must for summary judgment, no reasonable jury could conclude that McVae did not throw the rock at Trooper Perez.
Having determined that McVae threw the rock at Trooper Perez, we proceed to whether Trooper Perez is entitled qualified immunity.
We start with whether Plaintiffs have established that Trooper Perez violated one of McVae’s constitutional rights. Plaintiffs allege that by shooting McVae from behind, Trooper Perez used excessive force in violation of McVae’s Fourth Amendment right to be free from unreasonable seizure because McVae was an unarmed fleeing person who did not pose an imminent threat of death or serious physical injury.
An officer has the right to arrest a person who he has probable cause to believe committed a crime. This right to make an arrest necessarily includes the right to use some degree of physical coercion or threat to effectuate the arrest. See SCOTUS Graham v. Connor, 490 U.S. 386 (1989).
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. 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.
That is precisely what happened here. While the events leading to McVae’s death started with a simple traffic violation, things quickly escalated. Once McVae threw the rock at Trooper Perez, the crime at issue was much more severe: aggravated assault of a public servant, a first-degree felony that includes threatening an officer with a weapon and serious physical harm.
Trooper Perez had already warned McVae that he was going to shoot him, and had attempted to subdue him using a taser, a baton, and physical force. But McVae proved to be a dangerous opponent, and these escalating attempts failed. When McVae threw the rock, Trooper Perez had to make an immediate reflexive decision of how to protect himself in a rapidly evolving situation against an increasingly violent individual who had repeatedly resisted lesser forms of force.
A reasonable officer could have believed that McVae posed a threat of serious harm even if he was running away and unarmed in the exact moment that Trooper Perez shot him. Plaintiffs’ reliance on Lytle, Baker, and Janice Poole to conclude otherwise is misplaced. Lytle and Baker are both in a line of cases involving officers who shot at fleeing cars in response to purported threats of a driver intentionally driving into the officer. Excessive force cases addressing suspects fleeing in motor vehicles often focus on the position of the officer relative to the vehicle. See Hathaway. This makes sense; a car that has driven a sufficient distance away from an officer no longer poses a threat of intentionally driving into the officer. These cases are not applicable here, however. As McVae—who was an unarmed fleeing suspect immediately before he picked up and hurled a rock at Trooper Perez—demonstrated, a threat does not necessarily cease when a violent suspect attempts to flee.
That McVae’s weapon of choice was freely available to him in nature also demonstrates why this case is not analogous to Janice Poole. There, this court stated: “If a jury views the disputed facts in favor of the plaintiff concluding that the officer shot Poole, without warning, seeing that he was empty-handed and turning away from the officer—then the officer violated Poole’s clearly established right to be free from unreasonable seizure.” In contrast, that McVae could have picked up another rock at any time makes this case more akin to furtive gesture cases in which the officer could reasonably fear that the suspect was about to pull a gun from a waistband or other hidden location. By arguing that the threat had ceased because McVae was running away unarmed in the moment Trooper Perez shot him, Plaintiffs define the issue much too narrowly. Trooper Perez was not obligated to give McVae a second chance.
Given the events that preceded the shooting, a reasonable officer in Trooper Perez’s shoes could have believed that McVae posed a threat of serious harm. Trooper Perez’s use of deadly force was therefore reasonable and not excessive, and did not violate McVae’s constitutional right to be free from unreasonable seizure. Trooper Perez is entitled qualified immunity. The district court’s judgment is AFFIRMED.
https://www.ca5.uscourts.gov/opinions/pub/23/23-50703-CV0.pdf