United States Court of Appeals

for the Fifth Circuit

____________

No. 22-40781

____________

Santos Argueta; Blanca Granado; Dora Argueta; Jelldy 

Argueta; The Estate of Luis Fernando Argueta, 

Plaintiffs—Appellees,

versus

Derrick S. Jaradi, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:20-CV-367

______________________________

Before Clement, Haynes, and Oldham, Circuit Judges.

Edith Brown Clement, Circuit Judge:

On June 25, 2018, Galveston Police Officer Derrick Jaradi fatally shot 

Luis Argueta, who was armed with a handgun equipped with a high-capacity 

ammunition extension. Representatives of Argueta’s estate1sued, alleging

that Jaradi used excessive force in violation of Argueta’s Fourth Amendment 

_____________________

1 The plaintiffs include Argueta’s parents—Santos and Blanca Granado—and his 

sisters—Dora and Jelldy Argueta. For ease of reference, we refer to the plaintiffs 

collectively as “Argueta.”

United States Court of Appeals

Fifth Circuit

FILED

November 17, 2023

Lyle W. Cayce

Clerk
No. 22-40781

2

rights. The district court concluded that four genuine issues of material fact 

preclude Jaradi’s motion for summary judgment on qualified-immunity

grounds. For the reasons explained below, we REVERSE and RENDER

judgment in favor of Jaradi.

I.

On June 25, 2018, 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, 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 slow[ly].”

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
No. 22-40781

3

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.
No. 22-40781

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In June 2020, Argueta’s parents and siblings, on behalf of themselves 

and Argueta’s estate, filed a wrongful-death lawsuit against Jaradi.2 At the 

close of discovery, Jaradi moved for summary judgment, arguing that 

Argueta could not overcome qualified immunity. The district court denied 

his motion, and Jaradi filed an interlocutory appeal.

II.

Although an order denying summary judgment is normally not 

immediately appealable, a pretrial order denying an officer’s qualifiedimmunity defense is subject to immediate appeal. Plumhoff v. Rickard, 572 

U.S. 765, 771–72 (2014). We review such appeals de novo. Walsh v. Hodge, 975 

F.3d 475, 481 (5th Cir. 2020). In so doing, our jurisdiction is generally limited 

to examining the materiality (i.e., legal significance) of factual disputes the 

district court determined were genuine, not their genuineness (i.e., 

existence). Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020). But an 

exception exists: we are permitted to review genuineness where, as here,

video evidence is available. Poole v. City of Shreveport, 13 F.4th 420, 424 (5th 

Cir. 2021) (citing Scott v. Harris, 550 U.S. 372, 380–81 (2007) and Curran v. 

Aleshire, 800 F.3d 656, 663–64 (5th Cir. 2015)).

III.

“The doctrine of qualified immunity protects government officials 

from civil damages liability when their actions could reasonably have been 

believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir.

2011) (en banc). The qualified-immunity inquiry has two parts. First, we ask 

whether the facts, “taken in the light most favorable to the party asserting 

_____________________

2Argueta also sued the City of Galveston, under a municipal-liability theory, but 

the district court granted summary judgment in favor of the city. That part of the summary 

judgment order is not subject to this appeal. 
No. 22-40781

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the injury, . . . show the officer’s conduct violated a federal right.” Tolan v.

Cotton, 572 U.S. 650, 655–56 (2014) (alterations adopted) (quotation marks

and citation omitted). And second, we ask “whether the right in question was 

‘clearly established’ at the time of the alleged violation, such that the officer 

was on notice of the unlawfulness of his or her conduct.” Cole v. Carson, 935

F.3d 444, 451 (5th Cir. 2019) (en banc). Once an officer pleads qualified 

immunity, it is the plaintiff’s burden to establish that the officer violated the 

plaintiff’s clearly established federal rights. Estate of Davis v. City of North 

Richland Hills, 406 F.3d 375, 380 (5th Cir. 2005).

“This is a demanding standard.” Vincent v. City of Sulphur, 805 F.3d 

543, 547 (5th Cir. 2015), cert. denied, 136 S. Ct. 1517 (2016). Because qualified 

immunity protects “all but the plainly incompetent or those who knowingly 

violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), we do not deny 

its protection unless existing precedent places the constitutional question 

“beyond debate,” Swanson, 659 F.3d at 371 (quoting Ashcroft v. al–Kidd, 563 

U.S. 731, 741 (2011)).

An officer’s use of deadly force is not unreasonable when the officer 

has reason to believe that the suspect poses a threat of serious harm to the 

officer or to others. Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir.

2003). The reasonableness of the use of deadly force “must be judged from 

the perspective of a reasonable officer on the scene, rather than with the 

20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). In 

so doing, the “court must ‘ask whether the law so clearly and unambiguously 

prohibited [the police officer’s] conduct that every reasonable [police officer] 

would understand that what he is doing violates [the law].’” Vincent, 805 

F.3d at 547 (emphasis in original) (citation omitted). “If reasonable public 

officials could differ on the lawfulness of the defendant’s actions, the 

defendant is entitled to qualified immunity.” Pfannstiel v. City of Marion, 918 

F.2d 1178, 1183 (5th Cir. 1990).
No. 22-40781

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IV.

Argueta pleads excessive force, a cause of action derived from the 

Fourth Amendment. See Graham, 490 U.S. at 388. An excessive-force claim 

requires (1) an injury, (2) resulting directly and only from excessive force, (3)

that was objectively unreasonable. Westfall v. Luna, 903 F.3d 534, 547 (5th 

Cir. 2018) (citation omitted). Here, only the last element is at issue. 

Determining whether the force used was objectively unreasonable “requires 

careful attention to the facts and circumstances of [the] particular case,” 

including “(1) the severity of the crime at issue, (2) whether the suspect 

pose[d] an immediate threat to the safety of the officers or others, and (3) 

whether [the suspect] is actively resisting arrest or attempting to evade arrest 

by flight.” Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir.

2017) (quoting Graham, 490 U.S. at 396) (internal quotation marks omitted).

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.

As a preliminary matter, we are not persuaded that the second “fact 

dispute” is a question of fact at all. Rather, as explained below, it is a legal 

determination that turns on other factual issues. Because our jurisdiction is 

limited to examining the materiality (and, in cases of video evidence, 

genuineness) of fact disputes, we set aside question two and review the 

remaining three fact disputes for genuineness and materiality.
No. 22-40781

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A.

Because video evidence is available here, we begin by reviewing fact 

disputes one, three, and four—listed above—for genuineness. Scott, 550 U.S. 

at 380; Poole, 13 F.4th at 424.3 We conclude that video evidence confirms the 

genuineness of fact disputes one and three and does not bear on fact dispute 

four.

In the police footage, the street is very dark, and Argueta’s flight from 

the vehicle towards the vacant lot is illuminated only minimally by streetlight 

and very briefly by police flashlights. Argueta flees the vehicle in such a way 

that the right side of his body, including his right arm and hand, is completely 

hidden in the dashcam video and either obscured or not in focus in the 

bodycam footage. The bodycam video is not of the highest resolution and is 

filmed from the vantage of Jaradi’s chest rather than eyes, which creates a 

partially obscured view of Argueta after Jaradi raises his gun. The result of 

the foregoing is that, from the moment Argueta exits the vehicle until the 

moment he is laying on the ground, not one frame of video evidence presents 

a clear glimpse of the firearm. Like the district court, we find that a reasonable 

jury could conclude that Argueta’s weapon was not visible to Jaradi before or 

at the moment he used deadly force.

_____________________

3 Scott could be read to hold that we are empowered to review the genuineness of 

fact disputes only to determine whether video evidence “blatantly contradicts” one party’s 

version of events. See Scott, 550 U.S. at 380. However, we have interpreted Scott more 

broadly, reading it as recognizing a general exception to the prohibition on interlocutory 

review of genuineness in cases involving video evidence. See Poole, 13 F.4th at 424; Curran, 

800 F.3d at 663–64. That wrinkle does not impact the outcome of this appeal, however, 

because we conclude that the video evidence does not “blatantly contradict” either party’s 

version of events for the fact disputes on which it bears, and in fact serves only to confirm 

the existence of such fact disputes. Thus, the result is the same whether we are agreeing 

with the genuineness of the fact disputes identified below after our own independent review 

or simply deferring to the district court’s determinations of genuineness.
No. 22-40781

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The same goes for “whether Argueta raised the gun or otherwise 

made a threatening motion towards the officers.” The only action visible in 

the police footage is Argueta slowly driving away from the police, exiting the 

vehicle, and fleeing toward an empty lot. And, while the footage does show 

that Argueta keeps his right arm pressed against the right side of his body 

during flight—which, Jaradi argues, suggests Argueta was “trying to conceal 

his right arm and hand from the officers”—the video does not clearly reflect

that Argueta showed the gun during his flight. 

The second part of fact dispute three asks whether Argueta “made a 

threatening motion towards the officers.” To the extent the district court is 

asking whether Argueta made any motion in the direction of the officers, the 

video evidence appears to confirm the existence of a fact dispute; the footage 

shows no such motion, so a jury would be left to determine what happened in 

the moments the footage is dark, blurry, or physically obscured. To the extent 

the court is asking whether the motions that Argueta made were threatening, 

however, that is a legal question and not a fact dispute. As we explain further 

below, an assessment of whether a suspect’s physical actions amount to 

threatening behavior bearing on an excessive-force claim is a question of law.

Finally, the video evidence does not bear on “whether either officer 

warned Argueta before firing” because the dashcam video does not contain

audio and neither officer’s bodycam video contains any audio until the 

moment Jaradi fires the shots (in the Larson video) or until after the shots are 

fired (in the Jaradi video). Because the video evidence does not bear on the 

genuineness of the warning dispute, we defer to the district court’s 

assessment, consistent with the scope of our review.
No. 22-40781

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B.

1.

Next, we examine the materiality of the above-listed fact disputes, 

beginning with whether Jaradi could see that Argueta held a weapon. 

Because a genuine dispute of fact exists as to this issue, 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. Accordingly, 

each of Jaradi’s cases in which a gun (or apparent gun) was visible to police 

prior to their use of deadly force is facially inapposite. See, e.g., Wilson v. City 

of Bastrop, 26 F.4th 709, 711 (5th Cir. 2022); Garza v. Briones, 943 F.3d 740, 

743 (5th Cir. 2019); Ramirez v. Knoulton, 542 F.3d 124, 126–27 (5th Cir. 

2008). Instead, 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 v. City of Houston, 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. 826 F.3d 272, 275 (5th Cir. 2016). 

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. Id. 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).” Id. at 279 (emphasis in 

original).
No. 22-40781

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Similarly, in Batyukova v. Doege, 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. 994 F.3d 717, 722–23 

(5th Cir. 2021). The deputy, believing that Batyukova was reaching for a 

weapon to kill him, shot her. Id. at 723. 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.” Id. at 729.

Further illustrative of the “furtive gesture” line of cases: in Manis v. 

Lawson, 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.” 585 F.3d 839, 844 (5th Cir. 2009). 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.” Id. (collecting cases); accord Ontiveros v. 

City of Rosenberg, 564 F.3d 379, 385 (5th Cir. 2009); see also Young v. City of 

Killeen, 775 F.2d 1349, 1353 (5th Cir. 1985); Reese v. Anderson, 926 F.2d 494, 

500–01 (5th Cir. 1991) (both involving a refusal to comply with police 

commands coupled with reaching under a car seat during a traffic stop).

On the other hand, consider our recent decision in Poole. In that case, 

Poole sued a police officer, Briceno, for excessive force after Briceno shot 

Poole four times in the back during a traffic stop. Poole, 13 F.4th at 422. The 

facts relevant here are as follows: Briceno responded to a police dispatch 

describing a silver truck that had driven down a street several times; Briceno 

located a silver truck at a stop sign, driven by Poole; Briceno pulled up behind 
No. 22-40781

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and engaged his lights and sirens; Poole evaded Briceno for fifteen minutes 

in a low-speed car chase; Poole eventually stopped the vehicle, exited, and 

reached into the bed of his truck; Briceno exited his police car, drew his 

weapon, and allegedly shouted “Show me your hands”; Briceno alleged that 

he could not see Poole’s hands but believed that Poole intended to harm him 

or the other officers that had arrived on the scene; dashcam footage showed 

that, as Poole raised his hands from the truck bed, they were empty; Briceno 

got into a shooting stance and shouted something to Poole that is 

indecipherable on dashcam audio; as Poole opened the car door and lowered 

himself into the driver’s seat, Briceno fired six times, striking Poole four 

times. Id.

The district court held that genuine issues of material fact preclude 

summary judgment on Briceno’s qualified-immunity claim, namely (1) 

whether Briceno warned Poole before firing, (2) whether Poole was turned 

away from Briceno during the shooting, and (3) whether Briceno could see 

that Poole’s hands were empty. Id. at 424. On interlocutory appeal, we held, 

inter alia, that “whether it was apparent that Poole’s hands were empty” 

constituted a genuine dispute of material fact precluding summary judgment. 

Id. at 425. 

Here, the question we must decide is whether Argueta’s case is more 

like the Salazar-Limon line of furtive-gesture cases or Poole. On balance, we 

think this case is more like the former than the latter. In Poole, the suspect 

was visibly unarmed, a fact made apparent from video evidence showing his 

empty hands from the approximate vantage of the defendant officer. 13 F.4th 

at 424. 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 
No. 22-40781

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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 “mov[ing his arm] out 

of the officer’s line of sight such that the officer could reasonably believe the 

suspect was reaching for a weapon.” 585 F.3d at 844. 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.” Wilson, 

26 F.4th at 713 (citing Valderas v. City of Lubbock, 937 F.3d 384, 389 (5th Cir. 

2019) (per curiam)). 

In Poole, we distinguished the facts at hand from the furtive-gesture 

cases because, we concluded, a jury could find that Poole was “visibly 

unarmed” at the moment of the shooting. Thus, Poole was unlike furtivegesture cases in “in which the officer could reasonably fear that the suspect 

was about to pull a gun from a waistband or other hidden location.” 13 F.4th 

at 425. 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 

“reasonabl[e] fear that [Argueta] was about to pull a gun from a ... hidden 

location.” Id.

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 
No. 22-40781

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existing precedent places the constitutional question “beyond debate.” 

Swanson, 659 F.3d at 371.

2.

As stated above, 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. As the district court 

appears itself to acknowledge in its citations to Wilson and Blevins, whether 

the suspect’s flight posed a threat to the officers or onlookers is a question of 

law left to the court. Indeed, we have repeatedly recognized that the risk an 

individual poses to officers or others is part of our objective-reasonableness 

analysis, a legal inquiry: “The question for this court is whether [the police 

officer] could reasonably believe that [the fleeing suspect] posed a serious 

threat of harm.” Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir. 

2021); see also Roque v. Harvel, 993 F.3d 325, 333 (5th Cir. 2021) (explaining 

that determining whether an officer acted in an objectively reasonable way is 

a legal question for the court which asks whether “the suspect poses a threat 

of serious physical harm, either to the officer or to others”); Romero v. City 

of Grapevine, 888 F.3d 170, 176–77 (5th Cir. 2018) (same) (collecting cases).

Accordingly, we decline to address the genuineness or materiality of this 

“fact dispute” because it is actually a question of law.

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, e.g., Salazar-Limon, 

826 F.3d at 279; Fraire v. City of Arlington, 957 F.2d 1268, 1277 (5th Cir. 

1992).
No. 22-40781

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3.

Next, we consider the materiality of fact dispute three: “whether 

Argueta raised the gun or otherwise made a threatening motion towards the 

officers.” Our analysis of the first fact dispute obviates this one. 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, e.g., 

Salazar, 826 F.3d at 279; Batyukova, 994 F.3d at 729.

4. 

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, the Supreme Court held:

[I]f 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.

471 U.S. 1, 11–12 (1985). And we recently held in Poole that, “[e]ven when a 

suspect is armed, a warning must be given, when feasible, before the use of 

deadly force.” 13 F.4th at 425; see also Cole, 935 F.3d at 453 (but note that the 

record reflected Cole was armed but not dangerous).

Notwithstanding this general rule, neither party has presented, and 

we have not located, clearly established law holding that a furtive gesture 
No. 22-40781

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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. 994 F.3d at 729. For this 

reason, we conclude that whether Jaradi issued a warning prior to firing is 

immaterial here.

IV.

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.
No. 22-40781

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Haynes, Circuit Judge, dissenting:

I would affirm the district court’s order denying summary judgment 

to Officer Jaradi. Although I agree with the majority opinion’s conclusions 

that there are genuine disputes of fact, I disagree with respect to the 

purported immateriality of these genuine factual disputes. 

The majority opinion’s reliance on the “furtive gesture” line of cases 

does not support its conclusion that the genuine factual disputes are 

immaterial here because each of those cases included “other factors that led 

the officer to suspect that the victim would resort to violence.” Allen v. Hays, 

65 F.4th 736, 744 (5th Cir. 2023) (“[A]n officer cannot escape liability any 

time he claims he saw a gun. The question is whether the officer’s belief that 

he saw a gun was sufficiently reasonable to justify the use of deadly force in 

light of all the surrounding circumstances.”). For instance, in Batyukova v. 

Doege, where we affirmed the district court’s grant of summary judgment on 

the “clearly established” prong, the suspect refused to comply with the 

officers’ demands, gave them the middle finger, and yelled “f**k you,” 

“f**k America,” and, allegedly, “you’re going to f**king die tonight.” 994 

F.3d 717, 722–23 (5th Cir. 2021). In Salazar-Limon v. City of Houston, we 

concluded there was no violation of the plaintiff’s Fourth Amendment rights 

in light of the totality of the circumstances, “which include[d] [plaintiff’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 

[plaintiff’s] actions leading up to the shooting (including suddenly reaching 

towards his waistband.” 826 F.3d 272, 279 (5th Cir. 2016), as revised (June 

16, 2016). Finally, in Manis v. Lawson, the suspect ignored the officers’

orders and “began shouting obscenities and flailing his arms aggressively at 

them.” 585 F.3d 839, 843 (5th Cir. 2009). 
No. 22-40781

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By contrast, these “other factors” are almost entirely absent in this 

case. Argueta did not verbally threaten the Officers, did not shout 

obscenities, did not make any sudden movements toward an apparent 

weapon, was not visibly agitated and aggressive, nor was there any suspicion 

that he was intoxicated. Thus, on the facts before us, there is very little 

justification for a reasonable officer “to suspect that [Argueta] would resort 

to violence.” Allen, 65 F.4th at 744. 

Indeed, the genuinely disputed facts here undermine the objective 

reasonableness of Officer Jaradi’s use of deadly force. For instance, whether 

the Officers had reasonable suspicion to stop and detain Argueta for minor 

traffic violations certainly weighs against the objective reasonableness of the 

use of deadly force. See Goodson v. City of Corpus Christi, 202 F.3d 730, 740 

(5th Cir. 2000) (declining to extend qualified immunity to two officers on an 

excessive force claim in part because material issues remained as to whether 

the officers had reasonable suspicion to detain suspect or probable cause to 

arrest him); see also Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017) 

(concluding a minor offense militated against the use of force). So too does 

whether Argueta fled away from the officers toward an empty lot. Poole v. 

City of Shreveport, 13 F.4th 420, 425 (5th Cir. 2021) (“Common sense, and 

the law, tells us that a suspect is less of a threat when he is turning or moving 

away from the officer.”). The warning, or lack thereof, is also equally 

material to the objective reasonableness calculus. SeeCole v. Carson, 935 F.3d 

444, 453 (5th Cir. 2019) (en banc) (explaining an officer must give a warning, 

where feasible, before using deadly force because a warning is “a critical 

component of risk assessment and de-escalation”). 

In short, if the jury views the disputed factors in Argueta’s favor—

concluding that the Officers had no reason to stop and detain Argueta and 

that within five seconds of Argueta exiting his vehicle, Officer Jaradi shot him 

twice in the back, without warning, as Argueta ran away from the Officers
No. 22-40781

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toward a vacant lot with his right arm obscured from view during flight—then 

Officer Jaradi violated Argueta’s clearly established right to be free from 

unreasonable seizure. See Poole, 13 F.4th at 426 (holding that if a jury views 

the disputed facts in favor of the plaintiff—“concluding that [the officer] 

shot [the suspect], without warning, seeing that he was empty handed and 

turning away from the officer”—then the clearly established prong was 

satisfied); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1866–67 (2017) (explaining 

for the particular conduct to be clearly established there need not be a case 

directly on point nor is it necessary that “the very action in question has 

previously been held unlawful”). 

I therefore respectfully dissent from the majority opinion with respect 

to the immateriality of the genuine factual disputes. Accordingly, I would 

affirm the district court’s order denying summary judgment to Officer Jaradi 

on qualified immunity grounds.