IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20213

JAY MAZOCH, 

 Plaintiff - Appellant

v.

A. CARRIZALES; CITY OF STAFFORD, TEXAS, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:14-CV-2893

Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.

PER CURIAM:*

Jay Mazoch pled guilty to aggravated assault against two police officers. 

He had trapped their arms in the window of his vehicle, causing them injury 

when he drove a short distance, dragging them along. One of the officers, Ann 

Carrizales, shot Mazoch during the incident. Mazoch sued Carrizales and the 

City of Stafford, Texas under 42 U.S.C. § 1983. The district court granted 

summary judgment to both defendants. We AFFIRM.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 18, 2018

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

In the early morning of October 14, 2012, Officer Ann Carrizales and 

Detective Pauline Fitzgerald of the Stafford, Texas Police Department were 

interviewing witnesses to a possible gang-related shooting. They were 

conducting the interviews while standing in a residential cul-de-sac. Plaintiff 

Jay Mazoch, 20 years old, drove his vehicle into the cul-de-sac and stopped near 

Detective Fitzgerald. He rolled down his window and asked why the officers 

were there. 

According to Officer Carrizales, Mazoch ignored repeated instructions to 

leave the area before he eventually drove further into the cul-de-sac, turned 

around, and drove back toward the officers. Mazoch then again stopped near 

the officers. The two officers walked up to the driver’s side of the vehicle. 

Carrizales stated she believed Mazoch “was now being detained for a brief 

investigatory detention.” After Mazoch ignored several orders to turn off his

vehicle, Carrizales reached through the vehicle’s window to unlock the door. 

As Carrizales reached into the car, Mazoch rolled up the window, 

trapping the officer’s arm. Detective Fitzgerald stepped closer and attempted 

to assist by also reaching through the narrow opening above the window. 

Mazoch alleged that during this time, the officers began using their nowtrapped arms to strike him in the face with metal pistol magazines. 

At this point, Mazoch drove the vehicle forward with the officers’ arms 

still trapped in the window. He stopped after moving about 20 feet. The 

vehicle’s movement with the officers’ arms trapped shattered the window and 

caused the officers to fall onto the pavement. Photographs later taken of 

Carrizales show extensive injuries to her arms and hands. Mazoch contends 

that after stopping, he made no additional movements and kept his hands on 

the steering wheel. 

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Carrizales alleged that her fall left her perhaps 10–15 feet to the front 

and side of the vehicle. She could no longer see Detective Fitzgerald and feared 

the officer was underneath Mazoch’s car. Carrizales stood up, drew her 

handgun, and fired a single shot at Mazoch, striking him in the nose. Mazoch 

alleges that before firing the shot, Carrizales quickly moved to a position 

directly in front of the vehicle. All three individuals were transported to the 

hospital for treatment. 

A Fort Bend County grand jury indicted Mazoch in December 2012 for 

two counts of aggravated assault on a public servant. Mazoch pled guilty to 

both charges in January 2016. As part of his plea, Mazoch admitted to the 

facts of the indictment, which described his use of a motor vehicle to cause 

bodily injury to the officers while their arms were trapped by the window. The 

trial court decided that the interests of justice would be “served by deferring 

further proceedings without entering an adjudication of guilt pursuant to 

Article 42.12 of the Texas Code of Criminal Procedure.” The court therefore 

deferred adjudication pending Mazoch’s successful completion of probation. 

In October 2014, which was between the dates of his indictment and his 

guilty plea, Mazoch filed a Section 1983 suit against Officer Carrizales and the 

City of Stafford in the United States District Court for the Southern District of 

Texas. He alleged that Officer Carrizales used excessive force and that the 

City of Stafford ratified her action. In April 2015, the district court abated the 

civil case pending disposition of the criminal charges against Mazoch. 

Following Mazoch’s deferred adjudication, Carrizales and the City of Stafford 

filed motions for summary judgment on multiple grounds. The district court 

determined that Carrizales was entitled to qualified immunity. Judgment was 

entered in favor of both Carrizales and the City of Stafford. Mazoch timely 

appealed. 

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DISCUSSION

We review a district court’s grant of a motion for summary judgment de 

novo. Trammell v. Fruge, 868 F.3d 332, 338 (5th Cir. 2017). Summary 

judgment is required “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” 

FED. R. CIV. P. 56(a). “A qualified immunity defense alters the usual summary 

judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 

2010). “Once an official pleads the defense, the burden then shifts to the 

plaintiff, who must rebut the defense by establishing a genuine fact issue as to 

whether the official’s allegedly wrongful conduct violated clearly established 

law.” Id. “[W]e view the facts in the light most favorable to the non-moving 

party and draw all reasonable inferences in its favor.” Trammell, 868 F.3d at 

338 (quoting Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017)). We may 

affirm a grant of summary judgment on any grounds supported by the record, 

even if the district court did not rely on those grounds in making its 

determination. Ballard v. Burton, 444 F.3d 391, 401–02 (5th Cir. 2006). 

I. Qualified Immunity

We look first to whether the district court erred in granting qualified 

immunity to Officer Carrizales. “The qualified immunity defense has two 

prongs: whether an official’s conduct violated a constitutional right of the 

plaintiff; and whether the right was clearly established at the time of the 

violation.” Brown, 623 F.3d at 253. Here, the district court determined that 

qualified immunity was appropriate but failed to state whether its holding was 

based on the absence of a constitutional violation or whether such a right was 

not clearly established. We may affirm the district court’s grant of summary 

judgment “on any ground supported by the record, even if it was not the basis 

for the judgment.” Gonzalez v. Huerta, 826 F.3d 854, 856 (5th Cir. 2016) 

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(quoting Terrebonne Par. Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 878 (5th 

Cir. 2002)). Our de novo review will allow us to affirm if we conclude immunity 

is proper under either prong.

Mazoch argues that Officer Carrizales violated his Fourth Amendment 

rights by using excessive force. The Fourth Amendment contains the “right to 

be free from excessive force during a seizure.” Poole v. City of Shreveport, 691 

F.3d 624, 627 (5th Cir. 2012). “To establish a claim of excessive force under 

the Fourth Amendment, plaintiffs must demonstrate: ‘(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.’” Trammell, 868 F.3d 

at 340 (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). 

The only dispute on this issue is whether Officer Carrizales used clearly 

unreasonable excessive force against Mazoch. Such a determination “‘requires 

careful attention to the facts and circumstances of each particular case, 

including’ (1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect poses 

an immediate threat to the safety of the officers or others,’ and (3) ‘whether he 

is actively resisting arrest or attempting to evade arrest by flight.’” Id. (quoting 

Graham v. Connor, 490 U.S. 386, 396 (1989)). We are to judge reasonableness

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

20/20 vision of hindsight.” Id. (quoting Graham, 490 U.S. at 396). 

In challenging the reasonableness of Officer Carrizales’s use of force, 

Mazoch first argues that no crime was occurring when Carrizales fired the 

shot, as the assault against the officers had ended. He cites his criminal

indictment to argue that the only relevant crime in our Fourth Amendment 

analysis was the aggravated assault that occurred when he dragged the two 

officers pinned by his window. Because his indictment refers only to those 

facts, he argues that no crime was occurring after the officers fell to the 

pavement. For purposes of qualified immunity, though, there is no basis to 

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limit our reasonableness inquiry to what is stated in a criminal indictment 

involving the same incident. On the contrary, we are concerned with the 

severity of the crime from the perspective of a reasonable officer on the scene. 

Id. When assessing the severity of the crime, we must consider actions that a 

reasonable officer could perceive to be a crime regardless of whether those 

actions were later the basis for a prosecution. 

Mazoch’s criminal indictment had the benefit of hindsight that we must 

avoid in our objective analysis. See id. The indictment looked to past events 

to determine whether Mazoch committed a crime. Our Fourth Amendment 

inquiry, on the other hand, requires us to view from the perspective of an officer 

in real-time. See id. If Officer Carrizales could reasonably believe that the 

assault was ongoing, it does not matter whether the indictment incorporated

Mazoch’s actions at the time the shot was fired. In this regard, we have 

previously held that vehicle-inflicted harm against law enforcement is 

“severe.” See Lytle v. Bexar Cnty., 560 F.3d 404, 412 (5th Cir. 2009). 

Mazoch also argues that at the time of the shot, the assault had ended.

Officer Carrizales had fallen away from the vehicle, the vehicle was stopped, 

his hands were visible, and he was not moving. In arguing that such facts 

indicate excessive force, Mazoch looks primarily to three cases. In one, an 

officer was involved in a chase of a suspected drunk driver who stopped his 

vehicle in a cul-de-sac. Fraire v. City of Arlington, 957 F.2d 1268, 1275 (5th 

Cir. 1992). The pursuing officer exited his vehicle; the suspect sped towards 

the officer despite commands to halt. Id. The officer fired a single shot that 

killed the driver. Id. We held that the question was not “whether [the officer’s] 

actions were grossly disproportionate to the need for action in arresting [the 

suspect] for a misdemeanor offense, but whether his actions were grossly 

disproportionate to the need to defend himself from an attack.” Id. The totality 

of circumstances reasonably signaled the officer that he was in imminent 

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danger as the suspect’s vehicle approached. Id. The suspect Fraire had 

attempted to evade the officer, drove his vehicle recklessly through a 

neighborhood, caused damage to his vehicle, and ignored numerous 

commands. Id. Although it was true the officer would have been struck but 

for firing the shot, the reasonableness determination drew from the officer’s 

entire interaction with the suspect. See id. Nothing in Fraire stands for the 

proposition that officers may fire on a vehicle only if they are about to be struck. 

Consistent with our holding in Fraire, Carrizales could reasonably 

consider that Mazoch used his vehicle as a weapon against her and Detective 

Fitzgerald just seconds before, had caused damage to the vehicle in the process, 

had injured the officers, and was still in control of that same vehicle that was 

running and capable of being used to renew the assault at any second. She 

was also reasonably concerned the other officer might be at even greater risk 

than was she, depending on where that officer had fallen.

In another precedent that Mazoch cites, an officer observed a drug 

transaction in a parking lot. Young v. City of Killeen, 775 F.2d 1349, 1351 (5th 

Cir. 1985). The officer blocked the suspect’s vehicle with his own and 

approached the driver’s side on foot, ordering the occupants to exit. Id. At that 

moment, the driver appeared to reach for something under the seat and,

fearing that the suspect was reaching for a weapon, the officer fatally shot the 

driver. Id. We held that there was no Fourth Amendment violation. Id. at 

1353. Mazoch argues that Young means that deadly force in such a situation 

is only permitted where the suspect’s hands suddenly disappear from view. 

Because Mazoch’s hands remained visible as he was shot, he argues that 

Carrizales used excessive force. 

The problem with this argument is that Mazoch was using the vehicle 

itself as a weapon. The officer in Young was concerned about the driver’s

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reaching for a weapon, while Mazoch’s hands were still in control of the weapon 

he had just used in an assault. The two cases thus are conceptually similar.

Finally, Mazoch cites to a case in which the officer attempted to stop a 

suspected stolen car. Lytle, 560 F.3d at 407. At one point in the chase, the 

suspect collided with another vehicle. Id. The officer exited his vehicle 12–15 

feet to the rear of the suspect’s stopped vehicle. Id. It was undisputed that the 

officer fired two shots at the vehicle, killing a passenger, but very much in 

dispute was when the shots were fired. Id. at 407–08. The chase resumed, and 

the suspect was apprehended. Id. at 408. Because we viewed the facts in the 

light most favorable to the plaintiff, we considered the plaintiff’s version of the 

encounter. He asserted that his vehicle was already going away from the 

officer at a distance of four houses when the shots were fired. Id. at 408. We 

rejected the officer’s argument that the vehicle posed the same danger 

regardless of whether it was a few feet away or “four houses down the block.” 

Id. at 412. “It is unclear,” we held, “how firing at the back of a fleeing vehicle 

some distance away was a reasonable method of addressing the threat.” Id. 

Mazoch focuses on our language in Lytle discussing the time after the 

vehicle backed up toward the officer and the time of the shots. Id. at 414. In 

Lytle, we distinguished a case where an officer did not use excessive force when 

he fired on a vehicle immediately after it struck him. Id. at 413–14 (citing 

Hathaway v. Bazany, 507 F.3d 312, 322 (5th Cir. 2007)). We described how 

Hathaway turned on whether the transpired time “was insufficient for the 

officer to perceive ‘new information indicating the threat was past.’” Id. at 414

(quoting Hathaway, 507 F.3d at 322). Viewing the facts favorably to the 

plaintiff, we found that the time between when the vehicle began to accelerate 

in the opposite direction and the shots’ being fired “could have been anywhere 

from three to ten seconds, perhaps even more.” Id. We therefore concluded 

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“that sufficient time might have passed for [the officer] to perceive that the 

threat to him had ceased.” Id.

As in Hathaway, we conclude that here the length of time between the 

assault and the gunshot “was insufficient for the officer to perceive ‘new 

information indicating the threat was past.’” Id. (quoting Hathaway, 507 F.3d 

at 322). Even when viewing the facts in the light most favorable to Mazoch, 

we find that Officer Carrizales faced a situation in which her partner was out 

of sight, possibly under the still-running vehicle controlled by the same person 

who had placed the officers in potentially grave danger just seconds before. 

Given that both Mazoch and Carrizales could not see Detective Fitzgerald, 

Carrizales was in a substantially different position than the officer in Lytle. 

From her perspective, if Detective Fitzgerald was now underneath Mazoch’s 

vehicle, then any subsequent movement of the vehicle could have resulted in 

severe harm or death to Fitzgerald. 

Mazoch fails to meet his burden in demonstrating that Officer Carrizales 

used excessive force. As in Hathaway, because we conclude that Carrizales 

failed to violate Mazoch’s constitutional rights, “we have no call to reach the 

second part of the qualified immunity analysis.” 507 F.3d at 320. Further, 

because there is no underlying constitutional violation, the City of Stafford also 

cannot be held liable under a ratification theory. See City of Los Angeles v. 

Heller, 475 U.S. 796, 799 (1986). 

AFFIRMED.

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