Judge Stewart concurs in the judgment only. *

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No.08-20081

MARIA ONTIVEROS, INDIVIDUALLY, AND

AS NEXT FRIEND OF MODESTO ONTIVEROS,

DECEASED; MARTHA DURAN; MODESTO

ONTIVEROS JR.; and ERIKA ZAMORA

Plaintiffs-Appellants

v.

CITY OF ROSENBERG, TEXAS;

ROBERT GRACIA, CHIEF OF POLICE; and

DEWAYNE LOGAN, OFFICER

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

Before JONES, Chief Judge, and, STEWART and SOUTHWICK, Circuit *

Judges.

EDITH H. JONES, Chief Judge:

On Sunday, October 17, 2004, police officer Logan fatally shot Modesto

Ontiveros while executing a warrant for his arrest. The plaintiffs, surviving

family members, brought the current action under 42 U.S.C. § 1983, asserting

United States Court of Appeals

Fifth Circuit

F I L E D

March 30, 2009

Charles R. Fulbruge III

Clerk
No. 08-20081

2

that Logan used excessive force and that his actions were ratified by the City

when it reinstated and later promoted him to lieutenant. In a detailed and wellreasoned opinion, the district court granted summary judgment in favor of

Lt. Logan and the City, finding that Lt. Logan had not used excessive force, that

the officer was alternatively entitled to qualified immunity, and that the City

was not liable. Because the Appellants have failed to raise a genuine issue of

material fact surrounding the events in question, we affirm.

I. BACKGROUND

In light of the district court’s thorough opinion, only a sketch of the

relevant evidence is necessary here. On the night of October 16, 2004, Ontiveros

instigated a fight with James and Joel Arellano, friends of Glafiro Rodriguez.

After being struck by the Arellanos, Ontiveros left the fight, warning that he

would come back with a gun to kill the Arellanos. The next morning, Ontiveros

went to the house shared by Rodriguez and the Arellanos, kicked in the door,

and yelled that he was going to kill the Arellanos. When Rodriguez came

outside, Ontiveros hit him in the head with a revolver, put the gun against his

ribcage, and pistol-whipped him in the face. Ontiveros left again while repeating

his threat to come back to kill the Arellanos.

Ontiveros returned home and test-fired his rifle. He and his friend

Francisco Lara went back to Rodriguez’s home where they found Rodriquez, the

Arellanos, and other men outside. Ontiveros had both guns and a bottle of

whiskey. He again threatened to kill the Arellanos. He handed the rifle to Lara

who also pointed it at the men. After these threats, Ontiveros and Lara got back

into their van and left.

Rodriguez and the Arellanos reported these threats to the police. After a

magistrate issued felony warrants for Ontiveros and Lara, Chief of Police Robert

Gracia classified the warrants as high risk because Ontiveros and Lara had been

involved in a violent altercation earlier in the day, may have been drinking,
No. 08-20081

3

possessed and threatened to use a pistol and a rifle, and were believed capable

of using the weapons. Gracia authorized a SWAT team to serve the warrants.

The team, including Logan, was briefed on the dangerous circumstances and was

advised that the suspects may not speak English.

When the team arrived at Ontiveros’s mobile home about 9 p.m., the door

was ajar. Sergeant Seymour and Detective Slater were the first to approach the

house and yelled, “Police,” in English and Spanish. As they opened the front

door, Seymour could see Lara and ordered him to come outside. Instead, Lara

began to move down the hallway. Seymour immediately ordered the SWAT

team, dressed in black uniforms with “POLICE” written in bold white letters on

the front and back, to enter. Lara was detained in the hallway. Seymour

observed someone close the door to the master bedroom. With only one light

turned on in the mobile home, Seymour could see the silhouette of feet under the

bedroom door.

Lt. Logan was the fourth member of the SWAT team to enter. He saw

Lara had been detained and was then informed by Seymour that someone was

in the master bedroom. Seymour told Logan to kick down the door to the

bedroom. When it did not open, Seymour instructed Lt. Logan to kick it again.

Both men believed that Ontiveros was blocking the door. Lt. Logan believed that

he kicked the door at least three times before it opened slightly.

When the door opened, Lt. Logan illuminated Ontiveros with the tactical

light on his pistol and saw him a few feet away holding an object over his head.

Ontiveros moved behind the door. Lt. Logan yelled, “Let me see your hands,”

several times in English and continued to view Ontiveros only by glancing

around the door with his tactical light. Logan then believed he saw Ontiveros

reaching into a boot at chest level for what Logan believed could be a weapon.

At that point, Logan fired two shots. The dispatch record shows that an officer

called in “shots fired” at 9:07:24 p.m.—approximately 8 seconds after the SWAT
No. 08-20081

4

team entered the house. A subsequent search of the bedroom revealed no

weapons.

Ontiveros was transported to Hermann Hospital where he died from a

gunshot wound. The autopsy report showed that one bullet entered Ontiveros’s

left arm and chest at an angle indicating that he was leaning forward at the

waist or kneeling when shot.

After placing Logan on administrative leave, the Rosenberg Police

Department Internal Affairs Unit, Texas Ranger Jeff Cook, and a Fort Bend

County grand jury investigated the shooting. The grand jury did not indict

Logan, and Ranger Cook found no fault on Logan’s part. As a result, Chief

Gracia allowed Logan to return to work and later promoted him to his current

rank.

Ontiveros’s survivors brought the current action, seeking damages under

42 U.S.C. § 1983. They alleged that Lt. Logan used excessive force when he shot

Ontiveros and that the City of Rosenberg ratified this conduct by reinstating and

promoting Logan. They have appealed from the district court’s adverse

summary judgment.

II. DISCUSSION

We review de novo the district court’s grant of summary judgment, using

the same standards as the district court and considering whether there is any

genuine issue of material fact that requires resolution by a jury. Freeman v.

Gore, 483 F.3d 404, 410 (5th Cir. 2007). When a defendant pleads qualified

immunity as an affirmative defense and moves for summary judgment on that

basis, a court must decide (1) whether the facts alleged or shown by the plaintiff

made out a violation of a constitutional right, and (2) whether that right was

“clearly established” at the time of the defendant’s alleged misconduct. Qualified

immunity is applicable unless the defendant’s conduct violated a clearly

established constitutional right. To negate a defense of qualified immunity and
No. 08-20081

5

avoid summary judgment, the plaintiff need not present “absolute proof,” but

must offer more than “mere allegations.” Reese v. Anderson, 926 F.2d 494, 499

(5th Cir. 1991).

For several years, the Supreme Court required that the first of these

criteria—whether plaintiffs’ facts allege a constitutional violation—must be

decided at the outset. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156

(2001). Recently, however, the Court reversed course, holding that “courts of

appeals should be permitted to exercise their sound discretion in deciding which

of the two prongs of the qualified immunity analysis should be addressed first

in light of the circumstances in the particular case at hand.” Pearson v.

Callahan, ___ U.S. ___, 129 S. Ct. 808 (2009). The district court’s decision,

rendered before Pearson, principally addressed the merits question whether

Lt. Logan’s use of deadly force was unconstitutional. We see no reason, postPearson, to alter that approach here.

To prevail on their excessive force claim, the plaintiffs must establish

“(1) an 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 at 416 (quoting Tarver v City of Edna, 410 F.3d 745, 751 (5th Cir.

2005)). An officer’s use of deadly force is presumptively reasonable 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, 623 (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, 396–97 (1989). It is a question

of objective reasonableness “in light of the facts and circumstances confronting
No. 08-20081

 Even if the plaintiffs established that the officer used excessive force (and thus

1

performed an unreasonable seizure under the Fourth Amendment), the court would perform

an entirely separate inquiry applying a different reasonableness standard. In order to

evaluate the “clearly established law” prong of the qualified immunity test, the court must ask

whether, at the time of the incident, the law clearly established that such conduct would

violate the right. This inquiry focuses not on the general standard—when may an officer use

deadly force against a suspect?—but on the specific circumstances of the incident—could an

officer have reasonably interpreted the law to conclude that the perceived threat posed by the

suspect was sufficient to justify deadly force? Brosseau v. Haugen, 543 U.S. 194, 199–200, 125

S. Ct. 596 (2004).

Excessive force incidents are highly fact-specific and without cases squarely on point,

officers receive the protection of qualified immunity. Id. at 201; see also Anderson v.

Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034 (1987) (“[Q]ualified immunity protects all but

the plainly incompetent or those who knowingly violate the law.” (internal quotation omitted)).

6

[the officer], without regard to [the officer’s] underlying intent or motivation.”

Id.

1

Although other members of the SWAT team partially corroborated

Lt. Logan’s version of events, Lt. Logan is the only witness to those events

immediately surrounding the shooting. In light of this, Appellants ask us to

consider “circumstantial evidence that, if believed, would tend to discredit the

police officer’s story, and consider whether this evidence could convince a

rational factfinder that the officer acted unreasonably.” O’Bert ex rel. O’Bert v.

Vargo, 331 F.3d 29, 38-40 (2d Cir. 2003). Even so, we agree with the district

court that the force used by Lt. Logan, when viewed from the officer’s perspective, in light of the evidence before the court, was not clearly unreasonable.

The Appellants rest the majority of their argument on the short time

frame covering the events in question, the location of Ontiveros’s boots, and the

position of Ontiveros’s body when he was shot. None of these facts is disputed

by the Appellees, yet none contradicts Lt. Logan’s testimony. Instead,

Appellants are attempting to use these undisputed facts to imply a speculative

scenario that has no factual support.
No. 08-20081

7

Appellants most forcefully assert that no factfinder could reasonably

believe that all of Logan’s self-described conduct happened in eight seconds

before Ontiveros was shot. Although Ranger Cook testified on the basis of his

investigation that it would have been “close,” he also said that it was “very

possible that it could have happened in eight seconds.” Logan’s recounting of

discrete actions he took in leading up to the shooting, including the number of

times he peeked around the door to see Ontiveros and the number of times he

called for Ontiveros to show his hands, is corroborated by the other officers who

were present. Notably, Appellants provide no evidence to support their

skepticism, and “at the summary judgment stage, we require evidence—not

absolute proof, but not mere allegations either.” Reese v. Anderson, 926 F.2d

494, 499 (5th Cir. 1991).

Appellants also point to what they believe is evidence of a cover-up—the

location of Ontiveros’s boots after the shooting. Lt. Logan stated that he

searched the room after the shooting and found a single boot, which Ontiveros

had been holding. A different officer who entered the room later believed that

he saw a pair of boots. Someone else found a second, bloody boot in a closet

across the room from where Ontiveros was shot. Appellants construe this

evidence to suggest that Ontiveros was actually trying to put on his boots at the

time he was shot and that Lt. Logan moved the second boot to make his version

of the story more reasonable. Again, Appellants offer no evidence that the boot

was moved as part of a cover-up rather than an effort to facilitate emergency

medical treatment at the scene.

In any event, the presence of a second boot does not make Lt. Logan’s

actions less reasonable or trustworthy. Appellants do not argue that a second

boot contradicts that Ontiveros: went into the bedroom after Lara was detained;

appeared to be blocking the door; moved out of Lt. Logan’s sight when the door

was kicked open; and appeared to be reaching into a boot. These are the facts
No. 08-20081

 Ranger Cook starkly explained the exigency confronting Logan: 2

16 If Lieutenant Logan perceived Mr. Ontiveros’s

17 actions as Mr. Ontiveros putting his hand inside the boot

18 do you think it would have been necessary for

19 Lieutenant Logan to wait until Mr. Ontiveros exhibited a

20 weapon before taking defensive action?

21 A. Absolutely not.

22 Q. And why not?

23 A. Because he will then be behind the curve on

24 reacting. Action is always - - action always beats

25 reaction.

Page 88

1 Q. If Mr. Ontiveros had a handgun in this boot,

2 would there be any threat to Lieutenant Logan by

3 Mr. Ontiveros just leaving his hand in the boot?

4 A. Absolutely.

5 Q. And why so?

6 A. Because you can shoot through a boot. If

7 Mr. Ontiveros had a weapon, a gun in the boot, he could

8 simply fire through the boot at Officer Logan.

9 Q. And do you think that it’s likely that

10 Lieutenant Logan would have had enough time to take

11 appropriate steps to protect himself if he waited until

12 Mr. Ontiveros removed a handgun from the boot if he had

13 had one in there?

14 A. No. Once again, action beats reaction. If

15 someone pulls a gun - - I don’t know if you want me to go

16 into that or not but —

17 Q. Explain that for us.

18 A. Action is going to beat reaction every time.

8

that Logan faced when he made the split-second decision to use deadly force. At

most, the presence of a second boot may support a theory that Ontiveros merely

was trying to put his boots on as the police descended on the mobile home, but

hindsight and speculation create no genuine, material fact issue as to how a

reasonable officer could have interpreted Ontiveros’s actions.2
No. 08-20081

19 For example, if I have - - if I have a gun and my brain - -

20 I have made the decision to shoot, then that message is

21 going to travel down to my muscles and I’m going to

22 shoot. For you to react to that - - I have already

23 started a process. You have to recognize it, then your

24 brain has to tell your muscles to react, and then you’re

25 reacting to my actions. So action is going to beat

Page 89

1 reaction simply because of the cognitive element

2 involved.

3 Q. Have you observed a training exercise where

4 one training officer stands across a room from an

5 officer, for example, and the training officer has his

6 hand down next to his body with a gun in it and then the

7 other officer is supposed to react? Have you seen that

8 kind of training exercise?

9 A. I actually participated in that training about

10 three weeks ago.

11 Q. Can you explain that in detail, how that

12 training section works?

13 A. Well, we had simunition guns. I don’t know if

14 I need to explain, but it’s guns that look and feel real

15 but they don’t shoot real bullets. And literally, I

16 stood there and pointed a gun at the instructor and the

17 instructor had the gun actually pointed to the ground and

18 just told me to shoot whenever he acted. And I could not

19 shoot him before he shot me. At best, I could tie him.

20 He could bring the gun up, pull the trigger before I

21 could pull the trigger. I never beat him, and at best I

22 could tie him.

23 Q. Is a tie good enough in this work?

24 A. No, a tie, you die, you know.

9

Finally, Appellants contend that the autopsy report demonstrates that

when Ontiveros was shot, he was either bent over, with his hands raised in

apparent surrender as he attempted to get on the ground in front of the officer,

or he was already on his knees. Neither Logan nor the City of Rosenberg

disputes that the bullet trajectory shows Ontiveros was leaning forward at the

time he was shot. As the district court noted, “even if Ontiveros was leaning
No. 08-20081

10

forward . . . a reasonable officer could have interpreted the totality of his actions

as a refusal to comply with orders.” The autopsy report does not contradict the

corroborated evidence of Ontiveros’s actions or Lt. Logan’s statement that

Ontiveros appeared to be reaching into the boot out of the officer’s line of sight.

The issues raised by the Appellants do not create the kind of genuine

dispute that can overcome summary judgment in excessive force cases involving

police shootings. The cases to which Appellants point are easily distinguished.

In Bazan v. Hidalgo County, 246 F.3d 481 (5th Cir. 2001), for instance, witness

testimony differed from the officer’s, and the use of force was explained by events

for which corroborating evidence should have been available. In Pineda v. City

of Houston, 124 F.Supp. 2d 1037, 1055 (S.D. Tex. 1999), the autopsy and

bloodstain analysis contradicted the officer’s version of events. Appellants here,

unlike in those cases, offer only their own conjecture arising from undisputed

facts that do not materially contradict Lt. Logan’s testimony.

To the contrary, this court has upheld the use of deadly force where a

suspect moved out of the officer’s line of sight and could have reasonably been

interpreted as reaching for a weapon. See Reese v. Anderson, 926 F.2d 494 (5th

Cir. 1991) (refusing to find excessive force where the suspect repeatedly refused

to keep hands raised and appeared to be reaching for an object); Young v. City

of Killeen, 775 F.2d 1349 (5th Cir. 1985) (upholding the use of deadly force when

the suspect refused instructions to exit the vehicle and reached down to the

floorboard). Given this, we agree with the district court that “an officer could

have reasonably believed that Ontiveros posed a threat of serious physical harm

to himself or other officers” and that Lt. Logan’s actions were reasonable under

the circumstances as he described them.

Because we hold that Lt. Logan did not violate Ontiveros’s constitutional

rights, we need not determine whether Lt. Logan would have had qualified
No. 08-20081

11

immunity or whether the City of Rosenberg would have been liable had

Lt. Logan’s use of force violated the Fourth Amendment.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.