* District Judge of the Western District of Texas, sitting by designation.

** 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50547

RICHARD WAYNE GRAVES, 

Plaintiff-Appellee,

v.

DEPUTY DON ZACHARY, 

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

No. 1:06-CV-577

Before SMITH and PRADO, Circuit Judges, and YEAKEL, District Judge.*

JERRY E. SMITH, Circuit Judge:**

Deputy Sheriff Don Zachary shot Richard Graves, a criminal suspect,

twice. Graves sued Zachary for using excessive force. Zachary unsuccessfully

moved for summary judgment, claiming qualified immunity. Zachary filed this

United States Court of Appeals

Fifth Circuit

F I L E D

April 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-50547

1 Lloyd, contrary to all other accounts, recorded that Graves “waived [the gun] around

up in the air [and] then put the barrel to his head.” 

2

interlocutory appeal. Because there are genuine issues of material fact, we dismiss the appeal for want of appellate jurisdiction.

I.

A little after three o’clock one morning in 2004, Graves phoned his ex-girlfriend, Tania Besek, and told her he was coming to her second-floor apartment.

Earlier, Besek had attended a party, possibly with her new boyfriend; Graves

phoned repeatedly about that party. Approximately fifteen minutes later,

Graves arrived. Besek reported that she opened her door slightly and found that

Graves smelled of alcohol and had a gun and a box of bullets. 

Graves wanted Besek to take him to see her boyfriend. Graves put the

gun to his head, threatened to shoot himself, put the gun in Besek’s face, and

threatened to shoot her in the leg. Besek locked the door and called 911, saying

that Graves was threatening to shoot himself with what looked “like a small machine gun” and was banging on her door. She told the 911 dispatcher that the

police are “going to have to do it a certain way, because he’s got a gun, okay.” 

Zachary soon arrived with other officers (Deputies Ryan Lloyd, Robert

Newell, and Kenneth Wilson). Zachary unholstered his weapon and approached

the stairs leading to the apartment, with Lloyd and Newell behind him. Wilson

was farther away. 

As he was climbing the set of stairs, Zachary saw Graves kneeling in front

of the door. Calling “Sheriff’s Department” and displaying his badge, Zachary

either ordered Graves to “raise his hands”SSwhat Zachary reported sayingSSor

“let me see your hands”SSwhat Graves remembered hearing. Graves showed his

hands while pressing the gun against his own temple.1 Graves says he then told

Zachary that he “just want[ed] to die.” In his voluntary statement after the
No. 07-50547

2 A 911 transcript exists because Besek was still on the phone with the dispatcher when

Zachary shot Graves.

3

shooting, Zachary did not report hearing anything, but Newell reported that he

heard Graves say “something” to Zachary.

What happened next is uncertain. In his statement, Zachary said that he

told Graves two or three times to lower the gun. In his pleadings in the district

court, Graves denied hearing that order. Neither Besek nor Lloyd reported, in

their voluntary statements, that they heard it, and Newell, in his statement,

said that all the officers were “screaming at the guy [and that Newell] screamed

‘Sheriff’s Office. Drop the weapon,’ numerous times,” but Newell did not record

that Zachary also ordered Graves to lower the gun. WilsonSSwho was farthest

awaySSreported that he heard Zachary’s order. Graves did not lower the gun.

Zachary, in his statement, reported that he realized Graves mightturn the

weapon on him. Allegedly fearing for his life and Besek’s, Zachary contends in

his brief that he “instinctively” shot Graves. 

The first shot hit Graves in the groin; the impact of that shot on Graves

is disputed. Zachary, corroborated by Lloyd, said that Graves did not “slump

down” or drop his weapon after the first shot. Graves, however, though acknowledging that he still was holding his gun, says that after the first shot he “was

downed or incapacitated.” After a short delaySSwhich is reflected in the 911

transcript of the incident2SSZachary shot him again, this time in the chest.

Zachary then picked up Graves’s gun. 

It is not disputed that Graves never verbally threatened Zachary or the

other officers, never pointed his gun at the officers, and did not even move aggressively. Instead, Graves was sitting still with his eyes closed, his hands up,

and the gun to his head when Zachary started firing. 

In the ambulance, when asked why the police shot him, Graves answered

that it was “because I wanted them to,” and he did “whatever I had to” to get
No. 07-50547

4

them to shoot. When asked if this was a “suicide by cop,” Graves responded

“yeah.” He made similar comments in the emergency room. 

Graves pleaded guilty of aggravated assault with a deadly weapon. Pursuant to 42 U.S.C. § 1983, he then sued Zachary for using excessive force. 

II.

“This court reviews de novo the district court’s resolution of legal issues on

a motion for summary judgment on the basis of qualified immunity.” Freeman

v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). There has not been a final judgment

here, thus limiting our jurisdiction to address Zachary’s interlocutory appeal.

“A defendant in a section 1983 action can immediately appeal a district court’s

denial of a motion for summary judgment based on qualified immunity under the

collateral order doctrine to the extent that the appeal turns on a question of

law.” Id. But “[w]here the district court has denied summary judgment on the

ground that material issues of fact exist as to the plaintiff's claims, this court

lacks jurisdiction to review the court’s determination that a genuine fact issue

exists.” Id.

Nonetheless, we “review whether any factual dispute found by the district

court is material for summary judgment purposes; that is, [we] can consider the

legal sufficiency of the facts that the district court found to be supported by the

summary judgment record.” Id. “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 . . . and discuss only the legal issues

raised by the appeal.” Id. (internal citations and quotations omitted). 

We “appl[y] a two-step analysis to determine whether a defendant is entitled to summary judgment on the basis of qualified immunity. First, we determine whether, viewing the summary judgment evidence in the light most favorable to the plaintiff, the defendant violated the plaintiff's constitutional rights,”
No. 07-50547

5

and, “[i]f so, we next consider whether the defendant’s actions were objectively

unreasonable in light of clearly established law at the time of the conduct in

question.” Id. at 410-11 (internal citations omitted). We “appl[y] an objective

standard based on the viewpoint of a reasonable official in light of the information then available . . . and the law that was clearly established at the time . . . .”

Id. at 411.

Relative to the firstinquiry,“the use of excessive force to apprehend a subject implicates the Fourth Amendment’s guarantee against unreasonable seizures.” Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). “To prevail on an excessive force claim, a plaintiff must establish: (1) injury (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Freeman, 483 F.3d at 416 (internal

citations and quotations omitted). “[T]he question [is] whether the totality of the

circumstances justified” that use of force. Tennessee v. Garner, 471 U.S. 1, 8-9

(1985). 

The testis objective, Fontenot v. Cormier, 56 F.3d 669, 675 (5th Cir. 1995),

but it “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). After all, “police 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.” Id. at 397. “The intent or motivation of the officer is irrelevant; the question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.” Elliot v. Leavitt, 99 F.3d 640, 642 (4th

Cir. 1996) (citing Graham, 490 U.S. at 396-97).

The “[u]se of deadly force is not unreasonable when an officer would have

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

others.” Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003). On the
No. 07-50547

3 Though “[t]he test of reasonableness under the Fourth Amendment is not capable of

precise definition or mechanical application, . . . its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime

at issue, whether the suspect poses an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham,

490 U.S. at 396 (internal citations and quotations omitted).

4 Caselaw from this circuit (and, of course, from the Supreme Court) is the best way to

determine whether a right was clearly established. See McClendon v. City of Columbia, 305

F.3d 314, 329 (5th Cir. 2002) (en banc) (“[I]n the absence of directly controlling authority, a

consensus of cases of persuasive authority might, under some circumstances, be sufficient to

compel the conclusion that no reasonable officer could have believed that his or her actions

were lawful.”) (internal citations and quotations omitted). Caselaw need not be directly on

point, though it should be close, and if the conduct is particularly outrageous, the caselaw putting the officer on notice can be more general in character. See Pierce v. Smith, 117 F.3d 866,

882 (5th Cir. 1997) (“We recognize that in order to preclude qualified immunity it is not necessary that the very action in question has previously been held unlawful, or that the plaintiff

(continued...)

6

other hand,“[i]tis objectively unreasonable to use deadly force unless itis necessary to prevent [a suspect’s] escape and the officer has probable cause to believe

that the suspect poses a significant threat of death or serious physical injury to

the officer or others.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004)

(internal citations and quotations omitted). Thus, “[t]o gauge the objective reasonableness of the force used by a law enforcement officer, we must balance the

amount of force used against the need for force,” paying “careful attention to the

facts and circumstances of each particular case.” Id. (internal citations and quotations omitted).3

After determining whether the Constitution was violated, we assess

whether the right was clearly established. It must be “clearly established in a

. . . particularized . . . sense: The contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that

right,” Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (internal citations and

quotations omitted), and the conduct at issue must not fall “in the hazy border

between excessive and acceptable force,”id. at 201 (internal citations and quotations omitted).4

“Of course, in an obvious case, [general] standards can ‘clearly
No. 07-50547

4

(...continued)

point to a previous case that differs only trivially from his case. However, the facts of the previous case do need to be materially similar. We also recognize that the egregiousness and outrageousness of certain conduct may suffice to obviously locate it within the area proscribed by

a more general constitutional rule . . . .”) (internal citations and quotations omitted).

5 Cf. Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir. 1996) (finding genuine issue

of material fact where there were questions “regarding the sequence of events immediately

preceding the shooting”).

7

establish’ the answer, even without a body of relevant case law.” Id. at 199.

It is not disputed that Graves was injured by the use of deadly force. The

question is whether that force was unnecessary and, if so, whether Zachary

should have been on notice that his conduct violated the Fourth Amendment. 

III.

There are factual disputes as to whether Graves was incapacitated by the

first shot such that the second shot was unnecessary and whether Zachary told

Graves to drop the gun. As to the first, Graves claims that after the first bullet

he “was downed or incapacitated” but that, after waiting atleastlong enough for

the 911 dispatcher to mention hearing the shot, Zachary fired again. Zachary,

however, says that Graves did not “slump down” until after the second shot.

This factual dispute is material. If Graves obviously was “down[],” then Zachary

would not have had a “reason to believe that the suspect pose[d] a threat of serious harm to the officer or others.” Mace, 333 F.3d at 624.5

Zachary tries to cloud this straightforward issue of material fact by pointing out that Graves still had his gun, going so far as to say “[a]s long as Graves

possessed the gun, Zachary had probable cause to believe that Graves posed a

threat to Zachary and others.” This is unsatisfactory. Though police have good

reason to be wary of a suspect who has just been shot, this argument cuts far too

broadly. Merely having a gun in one’s hand does not mean per se that one is

dangerous. 
No. 07-50547

6 Though we are mindful of the danger of armchair quarterbacking law enforcement,

there are too many unanswered questions here. For instance, after Graves was shot, did it

appear to Zachary that Graves was still able to fire his gun, and which way was Graves’s gun

pointing? The record is silent on these issues. Moreover, what did Graves do immediately after being shot? Did he yell or convulse? We do not know from the record. Consequently, when

the record is viewed in the light most favorable to Graves, we must assume that, objectively,

he was no longer a threat, but Zachary fired again.

7 Graves does not argue that Zachary did not order him to drop his gun, but only that

Graves did not hear the specific command. There is a strong argument that if an officer makes

an order in a crisis situation, we ought not second-guess whether that order was given based

on speculation that if it was not heard, it was not said. 

Here, however, there is more. The three people closest to Zachary and GravesSSBesek,

Lloyd, and NewellSSfailed to report that they heard Zachary order Graves to drop the gun.

(continued...)

8

The question is this: Viewing the facts objectively, after being shot, did

Graves appear to be in any condition to fire his weapon? Zachary says yes, but

Graves says no. Reading the facts in the light most favorable to Graves, there

is a genuine material issue whether Zachary violated Graves’s constitutional

rights by shooting him after he was already “incapacitated.”6

There is also a factual dispute as to whether Zachary told Graves to put

the gun down before shooting him. Zachary says he gave the order, but Graves

claims there was only generalized yelling, not a specific command. Graves’s account is supported by Besek, who reported hearing only yelling. Lloyd also did

not record hearing that statement, reporting only that he heard Zachary’s instruction for Graves to raise his hands. 

Newell reported that heSSfarther away from Graves than was ZacharySS

ordered Graves to drop the gun, but his statement does not mention Zachary,the

officer directly engaged with Graves, as also giving such an order. The only officer who reported hearing Zachary tell Graves to drop the gun was Wilson, whoSS

it is uncontestedSSwas farthest away. The evidence, thus, when viewed in the

light most favorable to Graves, indicates that he was complying with Zachary’s

instructions when Zachary shot him.7
No. 07-50547

7

(...continued)

Lloyd’s failure to hear that specific order, even though he was the closest officer to Zachary at

the time, and even though he acknowledged hearing Zachary’s other statement, is particularly

important. When we view the facts in the light most favorable to Graves, there is a genuine

issue as to whether Zachary actually ordered Graves to drop his weapon.

On appeal, Zachary argues that “Graves’ argument that he was not given adequate or

fair warning that he was about to be shot is ludicrous at best. It is doubtful that peace officers

confronted with an armed suspect are going to be yelling for the New Orleans Saints to score

a touchdown.” If Zachary never ordered Graves to drop the gun, however, it was reasonable

for Graves to continue to hold the gun until he was ordered to put it down.

8 The district court found that whether Graves said “I just want to die” when Zachary

arrived was also a genuine issue of material fact. Though we are skeptical as to the materiality of that fact issue, cf. Mace, 333 F.3d at 624-25, we need not reach the question. 

9

The next question is whether Zachary’s violation was objectively unreasonable in light of clearly established law. Accepting Graves’s accountSSas we must

SSthe violation of his constitutional rights would have been “obvious . . . even

without a body of relevant case law.” Brosseau, 543 U.S. at 199. Under general

precedents such as Garner, Zachary should have known that his use of force was

excessive. It does not take a specific case for an officer to know that he cannot

shoot a compliant suspect and that he cannot fire again at someone who is objectively “downed or incapacitated.”8

Because there are genuine issues of material fact, we have no appellate

jurisdiction, so the appeal is DISMISSED. We express no view on the ultimate

merits of the claim.