     Case: 19-20494   Document: 00515400668     Page: 1   Date Filed: 04/30/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit


                                 No. 19-20494                       FILED
                                                                April 30, 2020
                                                               Lyle W. Cayce
SONIA GARCIA; PHILLIP GARCIA,                                       Clerk

             Plaintiffs - Appellants

v.

WESLEY BLEVINS; CITY OF HOUSTON,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      Phillip Garcia, Jr. was shot and killed by Houston Police Officer Wesley
Blevins in a restaurant parking lot where Blevins was working as a security
guard. Garcia’s parents sued Blevins, claiming he violated Garcia’s
constitutional rights. The district court granted summary judgment for Blevins
because it determined that, while Blevins may have violated the Constitution,
the alleged violation was not clearly established when the shooting occurred.
We agree and AFFIRM.
                                       I.
      Garcia was with friends at Bombshells Restaurant and Bar in Houston,
Texas, after going to a Houston Rockets game. Garcia and some friends got into
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                                 No. 19-20494
an argument with other Bombshells patrons, and eventually restaurant
security—including Officer Blevins, who had a department-approved security
job at the restaurant—asked them to leave. The groups left, but another scuffle
flared up on the restaurant’s outdoor patio. Blevins and another security guard
again told the group to leave, so the group headed to the parking lot.
      The fighting continued in the parking lot. Garcia, who had been
challenged to a fight, ran to a friend’s parked car. Garcia’s opponents followed
him. Garcia grabbed a handgun from the back seat of his friend’s car in order
to “scare” the other men. The approaching group saw the handgun, and at least
one of the men tried to rush Garcia. But Garcia fled again and headed back in
the general direction of the restaurant.
      Meanwhile, Blevins and other guards, having just broken up the
fighting, were told by a young woman that someone in the parking lot had a
gun. Blevins requested police backup over his radio and went to investigate.
Once outside, Blevins saw Garcia. Garcia was holding a t-shirt in his left hand,
but Blevins could not see Garcia’s right hand. Blevins walked toward Garcia.
He saw Garcia move his right hand from behind his back and realized that
Garcia was holding a pistol.
      Blevins unholstered his own gun and ordered Garcia to drop his. Garcia
did not. Instead, he kept walking, passing between two parked vehicles. He
then re-emerged and continued walking toward the restaurant’s dumpster
area. At least two people were standing near the dumpster. Garcia stepped
behind one of them (apparently one of his friends) and tried to get the man to
take the gun from him. The man refused, stepped away from Garcia, and put
his hands up.
      There are conflicting stories about what exactly happened next, but it is
undisputed that Garcia never disarmed as instructed. Blevins stated that as
the man stepped away from Garcia, Garcia raised his gun toward Blevins.
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                                      No. 19-20494
Another eyewitness, Jesse Santana, stated that Garcia’s weapon was pointed
down during the entire encounter. Yet another eyewitness, Cesar Gonzalez,
recounted that Blevins “said something” to Garcia, and in response Garcia “put
his hands up in the air.” A third eyewitness, Adam Flores, stated that Garcia
did not raise his hands. Regardless of what happened, at this point Blevins
“engaged” Garcia. He fired multiple shots, hitting Garcia in the chin, chest,
and abdomen. Garcia died on the way to the hospital.
       His parents filed this action against the City of Houston and Blevins
under 42 U.S.C. § 1983, alleging excessive force under the Fourth and
Fourteenth Amendments, as well as municipal liability against the City. They
also sought punitive damages. The district court referred the case to a
magistrate judge, who recommended the district court grant summary
judgment for Blevins and the City. As to Blevins, the magistrate judge
concluded that there was a dispute of material fact over whether Blevins used
excessive force against Garcia, but that any constitutional violation was not
clearly established at the time of the shooting. The district court adopted the
magistrate judge’s recommendation and granted summary judgment.
       The Garcias timely appealed. 1 They argue that genuine fact questions
precluded summary judgment and that the law was clearly established.
Alternatively, they urge us to revisit this circuit’s approach to qualified
immunity and abandon the “clearly established” prong.
                                            II.
       “We review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Ratliff v. Aransas Cty., Texas, 948 F.3d 281,


       1On appeal, the Garcias press only the claim against Blevins. They have thus waived
any challenge to the summary judgment for the City. See United States v. Scroggins, 599 F.3d
433, 446–47 (5th Cir. 2010). The summary judgment for the City is therefore affirmed.
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287 (5th Cir. 2020) (quoting Gonzalez v. Huerta, 826 F.3d 854, 856 (5th Cir.
2016)). The movant must show “there is no genuine dispute as to any material
fact and [he is] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“However, a good-faith assertion of qualified immunity alters the usual
summary judgment burden of proof, shifting it to the plaintiff to show that the
defense is not available.” Ratliff, 948 F.3d at 287 (cleaned up) (quoting Orr v.
Copeland, 844 F.3d 484, 490 (5th Cir. 2016)). Thus, to avoid summary
judgment, the Garcias must point out a genuine dispute of material fact “as to
whether [Blevins’] allegedly wrongful conduct violated clearly established
law.” McCoy v. Alamu, 950 F.3d 226, 230 (5th Cir. 2020) (quoting Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010)). “We still draw all inferences in
the plaintiff’s favor.” Taylor v. Stevens, 946 F.3d 211, 217 (5th Cir. 2019).
                                       III.
      “Qualified immunity protects government officials from civil liability in
their individual capacity to the extent that their conduct does not violate
clearly established statutory or constitutional rights.” Cass v. City of Abilene,
814 F.3d 721, 728 (5th Cir. 2016). It shields “all but the plainly incompetent or
those who knowingly violate the law.” Thompson v. Mercer, 762 F.3d 433, 437
(5th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). We
apply a two-step inquiry. See Winzer v. Kaufman Cty., 916 F.3d 464, 473 (5th
Cir. 2019). First, we ask whether the facts alleged, viewed “in the light most
favorable to the party asserting the injury,” establish that “the officer’s conduct
violated a constitutional right.” Valderas v. City of Lubbock, 937 F.3d 384, 389
(5th Cir. 2019) (quoting Trammel v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017)).
Second, we ask “whether the right was clearly established.” Id. The Garcias
bear the burden of showing that the right was clearly established. See Cass,
814 F.3d at 733. We can analyze the prongs in either order or resolve the case
on a single prong. See Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).
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      Because it resolves the case, we begin and end with step two: was the
alleged right clearly established at the time of the shooting? The district court
determined it was not. We agree.
      To be clearly established, a right must be “sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” Mullenix v. Luna, --- U.S. ---, 136 S. Ct. 305, 308 (2015) (per curiam).
We cannot “define clearly established law at a high level of generality.”
Ashcroft, 563 U.S. at 742. Rather, the question must be “frame[d] . . . with
specificity and granularity.” Morrow, 917 F.3d at 874–75. We do not require
plaintiffs to identify a case “directly on point,” but the case law must “place[ ]
the statutory or constitutional question beyond debate.” Morgan v. Swanson,
659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft, 563 U.S. at 741). Our
inquiry “must be taken in light of the specific context of the case, not as a broad
general proposition.” Mullenix, 136 S. Ct. at 308 (quoting Brosseau v. Haugen,
543 U.S. 194, 198–99 (2004)). In excessive-force cases, “police officers are
entitled to qualified immunity unless existing precedent squarely governs the
specific facts at issue.” Morrow, 917 F.3d at 876 (emphasis added) (quoting
Kisela v. Hughes, --- U.S. ---, 138 S. Ct. 1148, 1153 (2018) (per curiam)).
      The Garcias fail to show Blevins violated clearly established law. It is
not enough to argue Garcia had a clearly established right “to be free from
deadly force where he was not attempting to flee and did not pose an immediate
threat to the officers, nor anyone else.” That high level of generality cannot
clearly establish the relevant law. Morrow, 917 F.3d at 874–85.
      The Garcias rely primarily on Reyes v. Bridgewater, 362 F. App’x 403
(5th Cir. 2010), to show the law was clearly established. Reyes is unpublished,
however, and so cannot clearly establish the law. See McCoy, 950 F.3d at 233
n.6 (citing Cooper v. Brown, 844 F.3d 517, 525 n.8 (5th Cir. 2016)). And Reyes
would fail to do so in any event. In that decision, we concluded that officers
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                                        No. 19-20494
violated clearly established law by shooting a man who held a kitchen knife,
but who did not make a movement towards the officers or any other
threatening gestures. Id. at 405, 407. We emphasized that a knife is a very
different weapon than a gun, which is capable of causing fatal harm instantly
at distance. Id. at 407. We concluded that no reasonable officer could have
concluded that the suspect posed an immediate danger of harm, and thus
deadly force was excessive. Id. Here, by contrast, Garcia was holding a gun,
which he could at any time have turned on Blevins or any of the other
individuals in the parking lot. Reyes thus provides no help to the Garcias’ case.
       While not cited by the Garcias, our recent en banc decision in Cole v.
Carson is also distinguishable. In that case, while searching in the woods,
officers suddenly confronted a teenager holding a gun to his head and shot him.
935 F.3d 444, 454–55 (5th Cir. 2019) (en banc). We explained that it violated
clearly established law in 2010 for police to shoot someone who—though
pointing a gun at his own head—made no threatening movements toward the
officers, was facing away from the officers, was not warned by the officers even
though there was opportunity to do so, and may have been unaware of the
officers’ presence. Id. Here, by contrast, it is undisputed Garcia was aware of
Blevins’ presence and that Blevins ordered Garcia to put down his weapon, but
Garcia refused to do so. Those facts take this case beyond the contours of
clearly established law at the time of the shooting. 2


       2  Cole relied on Baker v. Putnal, 75 F.3d 190 (5th Cir. 1996), but Baker is also
distinguishable. In Baker, gunfire erupted on a crowded beach and police officers were
directed to a vehicle where the suspect was sitting. Id. Viewing the facts favorably to the
plaintiffs, the suspect made no threatening move, was not holding a gun, and “may have
barely had an opportunity to see [the officer] before [the officer] fired his gun.” Id. at 198. We
held that “[c]haos on the beach and [the suspect’s] mere motion to turn and face [the officer]
are not compelling reasons to find that [the officer’s] use of force was not excessive as a matter
of law.” Id. This case is quite different: it is undisputed that Garcia knew of Blevins’ presence,
that Blevins ordered Garcia to drop the gun, and that Garcia was holding the weapon in such
a way that he could have turned it quickly on Blevins.
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                                   No. 19-20494
      “[P]olice officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Graham v. Connor,
490 U.S. 386, 397 (1989). For that reason, we judge the reasonableness of the
force used “from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight,” id., and we avoid “second-guessing a
police officer’s assessment, made on the scene, of the danger presented by a
particular situation. Valderas, 937 F.3d at 389 (quoting Ryburn v. Huff, 565
U.S. 469, 477 (2012)).
      Blevins, having just twice broken up fighting in the restaurant in which
Garcia was involved, was told someone in the parking lot had a gun. He saw
Garcia walking, gun in hand, towards other people in the parking lot. Garcia
ignored Blevins’ commands to drop the weapon, first ducking between parked
vehicles and then trying to give the gun to someone else. Even under Plaintiffs’
version of events, it is undisputed that—although he may have put his hands
up at some point—Garcia refused to drop the gun when ordered to do so, and
he could have quickly turned it on Blevins. “[W]e have never required officers
to wait until a defendant turns towards them, with weapon in hand, before
applying deadly force to ensure their safety.” Salazar-Limon v. City of Houston,
826 F.3d 272, 279 n.6 (5th Cir. 2016), as revised (June 16, 2016). Here, we
cannot say the law was “so clearly established that—in the blink of an eye . . .—
every reasonable officer would know it immediately.” Morrow, 917 F.3d at 876.
We therefore hold Blevins is entitled to qualified immunity because he did not
violate clearly established law.
                                       IV.
      The Garcias also assert that, if we conclude the law was not clearly
established, we should reconsider our approach to qualified immunity. As a
panel of this court, however, we are bound by the precedential decisions of both
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                                No. 19-20494
our court and the Supreme Court. See Vaughan v. Anderson Reg. Med. Ctr.,
849 F.3d 588, 591 (5th Cir. 2017). Those cases set forth the qualified immunity
analysis we apply today, and we are bound to follow them.
                                    * * *
      The judgment of the district court is AFFIRMED.




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