Amador v. Vasquez
| Decision Date | 03 June 2020 |
| Docket Number | No. 17-51001,17-51001 |
| Citation | 961 F.3d 721 |
| Parties | Maritza AMADOR, Individually and as Representative of the Estate of Gilbert Flores and as Next Friend of Minor R.M.F.; Vanessa Flores; Marisela Flores; Carmen Flores; Rogelio Flores, Plaintiffs - Appellees v. Officer Greg VASQUEZ, Individually and in his Official Capacity; Officer Robert Sanchez, Individually and in his Official Capacity, Defendants - Appellants |
| Court | U.S. Court of Appeals — Fifth Circuit |
Matthew J. Kita, Dallas, TX, Robert Paul Wilson, Thomas J. Henry Injury Attorneys, San Antonio, TX, for Plaintiffs - Appellees.
Charles Straith Frigerio, Esq., Trial Attorney, Law Offices of Charles S. Frigerio, P.C., San Antonio, TX, for Defendants - Appellants.
Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
ON PETITION FOR REHEARING
While responding to a domestic violence call, Bexar County Sheriff's Deputies Greg Vasquez and Robert Sanchez shot and killed knife-armed Gilbert Flores after a twelve-minute encounter that ended with Flores standing nearly thirty feet from the deputies, motionless, and with his hands in the air. Flores's wife and other surviving family members (collectively, the "Estate" or "Plaintiffs") brought a 42 U.S.C. § 1983 claim against the deputies, alleging that Vasquez and Sanchez violated Flores's Fourth Amendment right to be free from excessive force. The deputies moved for summary judgment based on qualified immunity. The district court denied the motion, finding that there were genuine issues of material fact. The deputies filed this interlocutory appeal. Because we agree with the district court that genuine issues of material fact exist, we lack jurisdiction to review this appeal. Accordingly, we DISMISS.
In 2015, after a domestic dispute between Flores and his wife at Flores's mother's home, Flores's mother called 9-1-1 for assistance. According to the 9-1-1 call transcript, Flores's mother told the dispatcher that Flores beat up his wife and had "gone crazy". Deputies Vasquez and Sanchez were dispatched to the residence in separate vehicles. While in route, dispatch advised Vasquez and Sanchez that Flores was upset, and that Flores wanted to commit "suicide by cop."2 Vasquez was also informed that Flores had a knife.
Twelve minutes elapsed between Vasquez's arrival and the officers’ fatal shots at Flores.3 During those twelve minutes, the deputies had a number of encounters with Flores, and ultimately deescalated the situation. It was only after Flores was standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds that the officers looked at each other and then decided to shoot Flores. The officers each fired a shot, and Flores fell to the ground. Viewing the facts in the light most favorable to the Estate, Tolan v. Cotton , 572 U.S. 650, 655–56, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014), we summarize the encounters.
Vasquez arrived at the residence first, went into the house, and had an altercation with Flores who was holding a fixed blade Ozark Trail knife. Vasquez attempted to calm Flores and told him, "put the knife down, you're going to be alright." Flores began approaching Vasquez, and Vasquez retreated out of the residence.
Not long after Vasquez retreated outside, Flores exited the residence with the knife in hand and allegedly stabbed at Vasquez, striking Vasquez's protective shield. During this altercation, Sanchez arrived. Flores then began retreating toward the house.
As Flores retreated toward the house, Sanchez fired one shot at Flores and missed.
Flores went back to the residence, retrieved two metal folding chairs, and came back outside. While still holding at least one of the folding chairs, Flores allegedly came at Vasquez with the knife. Vasquez blocked the knife with his protective shield and deployed his taser at Flores. The taser missed Flores and hit a chair in Flores's hand, and its wires became entangled with the chair. Vasquez then struck Flores with the taser gun and dropped it from his hand. Flores then went back toward the residence.
At some point around this time, a bystander began videotaping the encounter on a phone.
For the first few minutes of the video, Flores, wearing only shorts and flip flops, and the officers, each holding a gun, talked and maintained distance from each other: Flores closer to the residence and the officers in or near the street. Around minute marker 4:20, Flores picked up the two metal chairs and walked toward the police officers in the street. The officers retreated, walking backwards away from Flores. Flores picked up the deployed taser that Vasquez dropped, walked back to the lawn, dropped the chairs, and chucked the taser away from the officers. The officers continued to retreat, backing away from Flores.4 See Video at 5:20–24.
For over a minute, Flores talked and gestured at the officers from the lawn area, remaining some distance away from the officers. During this time, the officers were not in the video and when they reappeared, they were in the street beyond the neighbor's residence. Flores then jogged back toward the house, picked up the chairs on the lawn, and placed the chairs on the porch. Around the seven-minute mark, Flores trotted and walked toward the officers’ unlocked patrol SUV, which had an AR-15 inside and keys in the ignition. While Flores was on the other side of the patrol SUV, he was out of view of the video recording. The officers, in view, jogged toward the vehicle and Vasquez pointed his gun at Flores. See Video at 7:10.
Flores walked away from the vehicle and toward the officers, talking and gesturing, then went back toward the vehicle. The officers advanced toward Flores. Flores was out of view of the camera until he again walked away from the vehicle. In full view of the video recording, Flores then stood in the driveway of the residence, some steps away from the SUV, and some distance from the officers. At 7:32, Flores moved the knife from his right hand to his left hand. Sanchez had his gun drawn. At 7:33, Flores stood stationary in the driveway.
At 7:34, Flores was stationary in the driveway, approximately thirty feet from Vasquez, who was in the street with a protective shield and drawn gun. Sanchez was approximately thirty feet from Flores as well. Flores was closer to the SUV than he was to the officers. At 7:35, Flores, still stationary in the driveway, put both arms up in the air with his hands above his head and the knife in his palm and remained motionless. There was nothing behind the officers hindering their ability to retreat backwards. For about five seconds, Flores did not advance toward the officers, the vehicle, or the home.
While Flores stood motionless with his hands in the air, Sanchez turned to look toward Vasquez. At about 7:37, Vasquez and Sanchez fatally shot Flores, who stood motionless in a surrender pose. Flores fell backward onto the pavement.
The Estate sued the county and the officers under § 1983 for excessive force. The county and the officers moved for summary judgment. The officers argued that they were entitled to qualified immunity. The district court granted the county's motion and denied the officers’ motion. In denying the officers’ request for qualified immunity, the district court determined there were genuine issues of material fact, and construing the facts in favor of Plaintiffs, the deputies’ use of deadly force was objectively unreasonable. The district court found that the deputies’ use of deadly force was unreasonable because Flores, "who was stationary for several seconds and put his hands in the air while remaining otherwise motionless, was no longer resisting and had signaled surrender." The officers now appeal.
This court has jurisdiction over appeals from a district court's final decision. 28 U.S.C. § 1291. "Ordinarily, [this court does] not have jurisdiction to review a denial of a summary judgment motion because such a decision is not final within the meaning of 28 U.S.C. § 1291." Perniciaro v. Lea , 901 F.3d 241, 250 (5th Cir. 2018) (citation and internal quotation marks omitted). "However, the ‘denial of qualified immunity on a motion for summary judgment is immediately appealable if it is based on a conclusion of law.’ " Id. (quoting Palmer v. Johnson , 193 F.3d 346, 350 (5th Cir. 1999) ). "We have no jurisdiction to hear an interlocutory appeal, however, when a district court's denial of qualified immunity rests on the basis that genuine issues of material fact exist." Michalik v. Hermann , 422 F.3d 252, 257 (5th Cir. 2005).
"Because of this case's posture ... review is limited to determining whether the factual disputes that the district court identified are material to the application of qualified immunity." Samples v. Vadzemnieks , 900 F.3d 655, 660 (5th Cir. 2018) (emphasis omitted); see also Mitchell v. Mills , 895 F.3d 365, 369 (5th Cir. 2018) ().
This court accepts "plaintiff's version of the facts as true and [reviews the facts] through the lens of qualified immunity." Samples , 900 F.3d at 660. "If the defendant would still be entitled to qualified immunity under this view of the facts, then any disputed fact issues are not material, the district court's denial of summary judgment was improper, and [this court] must reverse; otherwise, the disputed factual issues are material and [this court] lack[s] jurisdiction over the appeal." Lytle v. Bexar County. , 560 F.3d 404, 409 (5th Cir. 2009). Put another way, "[i]f a factual...
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