IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20193

AUDRY L. RELEFORD, JR., Individually, and as Representative of the 

Estate of Kenneth Brian Releford, 

 Plaintiff - Appellee 

v. 

JASON ROSEMON, 

 Defendant - Appellant 

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:14-CV-2810

Before DAVIS, CLEMENT, COSTA, Circuit Judges. 

PER CURIAM:*

“Few facts in this case are undisputed.”1 However, the parties stipulate 

to the following. In the pre-dawn hours of October 11, 2012, Kenneth Brian 

Releford was accused of breaking into a neighbor’s home and assaulting two of 

its occupants. The Houston Police Department dispatched Officer Jason 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

1 Releford v. City of Hous., No. 4:14-CV-2810, 2016 WL 774552, at *1 (S.D. Tex. Feb. 

29, 2016).

United States Court of Appeals

Fifth Circuit

FILED

March 8, 2017

Lyle W. Cayce

Clerk

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No. 16-20193

2 

Rosemon to the scene. When Rosemon encountered Releford – who was 

unarmed – a dispute ensued, and Rosemon shot Releford twice, resulting in 

Releford’s death. 

Releford’s estate filed suit against Rosemon in his individual capacity 

pursuant to 42 U.S.C. § 1983. Rosemon filed a motion for summary judgment 

based on qualified immunity, the district court denied it, and Rosemon filed 

this interlocutory appeal. 

Rosemon claims that when he shot and killed Releford, Releford posed 

an imminent risk of serious harm. His account reads as follows: Releford was 

agitated and aggressive. He was accused of breaking into a neighbor’s home 

and assaulting two of its occupants. His left hand was hidden behind his back. 

It was dark. He was advancing towards Rosemon. Rosemon begged Releford to 

stand down, to show his left hand, and to engage in dialogue rather than 

violence. Releford refused. He continued to advance with his left hand behind 

his back. When he got within a few feet of Rosemon, Rosemon shot him. 

Releford absorbed the bullet and continued to advance — his left hand still 

behind his back. So Rosemon shot him again. This time, Releford collapsed, 

and Rosemon could see that he was unarmed. But it was too late. Releford was 

already dead. 

Releford’s estate presents a very different picture of the morning in 

question, based in part on unsworn declarations that constitute competent 

summary judgment evidence pursuant to 28 U.S.C. § 1746(2).2 Creola Scott, 

for example, claims that it was Rosemon who was animated, not Releford. That

Rosemon got out of his car with his gun drawn, walked toward Releford’s home, 

and ordered Releford outside. Releford came outside. That Rosemon then 

began backpedaling and ordered Releford to follow him, which Releford did. 

 

2 See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).

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That Releford was not being loud or aggressive. That both of Releford’s hands 

were in plain sight. That Releford clearly was not hiding a weapon in his left 

hand. That Releford clearly was unarmed. That Rosemon shot and killed 

Releford for no reason. That Releford never attempted to run. That Releford 

did not charge at Rosemon. That Releford did not provoke Rosemon. That 

Releford did not pose a threat to Rosemon. That Releford was compliant in all 

respects. 

“Where factual disputes exist in an interlocutory appeal asserting 

qualified immunity, we accept the plaintiff’s version of the facts as true.”3 To 

the extent that Rosemon argues that he is entitled to qualified immunity under 

Releford’s version of the facts, we disagree. The Supreme Court established in 

1985 that “[a] police officer may not seize an unarmed, nondangerous suspect 

by shooting him dead.”4 

To the extent that Rosemon argues that he is entitled to qualified 

immunity under a different version of the facts, we DISMISS his appeal for 

lack of appellate jurisdiction. “Where the district court has determined that 

genuine issues of material fact preclude a determination of qualified immunity, 

we have jurisdiction only to address the legal question of whether the 

genuinely disputed factual issues are material for the purposes of summary 

judgment.”5 “Thus, a defendant challenging the denial of a motion for summary 

judgment on the basis of qualified immunity ‘must be prepared to concede the 

best view of the facts to the plaintiff and discuss only the legal issues raised by 

the appeal.’”6 

 

3 Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014) (alteration 

omitted) (quoting Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004)). 4 Tennessee v. Garner, 471 U.S. 1, 11 (1985). 5 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009). 6 Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007) (quoting Gonzales v. Dallas Cty., 

Tex., 249 F.3d 406, 411 (5th Cir. 2001)). 

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Appeal DISMISSED. 

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