Azucena Zamorano Aleman v. City of Charlotte

80 F.4th 264

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 16, 2023
• Docket: 21-2223
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2223

AZUCENA ZAMORANO ALEMAN, individually and as Administrator of the Estate of RUBEN GALINDO CHAVEZ,

Plaintiff – Appellant,

v.

CITY OF CHARLOTTE; DAVID GUERRA, individually and officially,

Defendants – Appellees,

and

COURTNEY SUGGS, individually and officially,

Defendant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad Jr., District Judge. (3:19-cv-00491-RJC-DCK)

Argued: December 7, 2022 Decided: August 16, 2023

Before KING and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by published opinion. Judge King wrote the majority opinion, in which Senior Judge Keenan joined. Judge Richardson wrote a dissenting opinion. USCA4 Appeal: 21-2223 Doc: 46 Filed: 08/16/2023 Pg: 2 of 67

ARGUED: S. Luke Largess, TIN FULTON WALKER & OWEN, Charlotte, North Carolina, for Appellant. Lori R. Keeton, LAW OFFICERS OF LORI KEETON, Charlotte, North Carolina; Roger A. McCalman, OFFICE OF THE CITY ATTORNEY, Charlotte, North Carolina, for Appellees. ON BRIEF: Brian R. Hochman, Bradley W. Butler, BUTLER, QUINN & HOCHMAN, PLLC, Charlotte, North Carolina, for Appellant. Clarence E. Matherson, Jr., OFFICE OF THE CITY ATTORNEY, Charlotte, North Carolina, for Appellee City of Charlotte.

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KING, Circuit Judge:

This civil action on appeal from the Western District of North Carolina arises from

the September 2017 fatal police shooting of Ruben Galindo Chavez (who used the surname

“Galindo”) during an encounter with officers of the Charlotte-Mecklenburg Police

Department. The action was initiated by plaintiff Azucena Zamorano Aleman — Galindo’s

girlfriend and the mother of his child — both as the administrator of Galindo’s estate and

in her individual capacity. The plaintiff’s five causes of action include a 42 U.S.C. § 1983

claim against defendant David Guerra, the police officer who fired the lethal shots, for use

of excessive force in violation of Galindo’s Fourth Amendment rights, plus the following

state law claims: a claim against Guerra for assault and battery; claims against both Guerra

and the City of Charlotte for wrongful death caused by negligence and for negligent

infliction of emotional distress; and a claim against the City alone for negligent police

officer training.

After amassing an assortment of evidence during discovery, including video footage

from body cameras worn by the officers present at the shooting scene, the parties filed

cross-motions for summary judgment. For reasons outlined in its Order of September

2021, the district court awarded summary judgment to the defendants on each of the

plaintiff’s claims. See Aleman v. City of Charlotte, No. 3:19-cv-00491 (W.D.N.C. Sept.

30, 2021), ECF No. 50 (the “Opinion”). The court therein determined that — because it

was objectively reasonable for Officer Guerra to shoot Galindo, in that Galindo posed an

immediate threat to Guerra and others — Guerra is entitled to qualified immunity on the

Fourth Amendment claim. For the same reason, the court awarded summary judgment to

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Guerra and the City on the assault and battery, wrongful death, and negligent infliction of

emotional distress claims. Citing a lack of sufficient evidence, the court also awarded

summary judgment to the City on the negligent training claim.

The appeal now being pursued by the plaintiff presents several close questions on

the facts and applicable law, against a backdrop of tragic and dangerous circumstances. As

we recently acknowledged in another fatal police shooting case, “[i]t is not lost on us that

we issue this decision from the calm of a courthouse” and that, “[u]nlike us, [the defendant

officer] could not press pause or rewind before determining whether [the decedent] posed

an imminent threat.” See Franklin v. City of Charlotte, 64 F.4th 519, 539 (4th Cir. 2023).

Upon careful consideration of the video footage and the other evidence in the record, we

are satisfied to affirm the district court’s summary judgment award to the City on the

negligent training claim. On the other hand, we vacate the award of qualified immunity to

Officer Guerra on the Fourth Amendment claim, as well as the related summary judgment

awards to Guerra and the City on the balance of the state law claims. Rather than directing

the entry of judgment in favor of the plaintiff on any of those claims, we remand for further

proceedings as to all of them.

I.

A.

The plaintiff initiated this action in August 2019 in a state court in Mecklenburg

County, North Carolina, and the defendants removed the matter in September 2019 to the

Western District of North Carolina. Of the plaintiff’s five causes of action, four were

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asserted on behalf of Galindo’s estate: the Fourth Amendment and assault and battery

claims against Officer Guerra; the wrongful death claim against Guerra and the City of

Charlotte; and the negligent training claim against the City. The plaintiff alleged the

remaining cause of action — the negligent infliction of emotional distress claim against

Guerra and the City — on her own behalf.

The parties engaged in extensive discovery proceedings, securing not only the video

footage from the body cameras worn by Officer Guerra and the other police officers present

at the shooting scene, but also copies of relevant 911 dispatch records, depositions of

Guerra and his colleagues, and records of the officers’ interviews during the Charlotte-

Mecklenburg Police Department’s internal investigation of the shooting. In addition, the

parties presented expert witnesses on the reasonableness of Guerra’s actions and the

adequacy of the City’s police officer training.

By their respective summary judgment motions, Officer Guerra and the City

requested judgment as to all the plaintiff’s claims. The plaintiff’s cross-motion for

summary judgment sought only a partial judgment, on the Fourth Amendment, assault and

battery, and negligent infliction of emotional distress claims.

1.

As the plaintiff has highlighted in the summary judgment proceedings, the record

reflects that at the time of the September 2017 shooting, Galindo was a 30-year-old

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Mexican man who worked in the Charlotte area and did not speak English. 1 He had

recently been diagnosed with paranoia, without being deemed a danger to himself or others.

Galindo was facing North Carolina charges of misdemeanor assault by pointing a firearm

and simple assault, but he had no other known history of criminal activity.

(1)

On September 6, 2017, at about 9:04 p.m., Galindo placed the first of two 911 calls

seeking assistance from the Charlotte-Mecklenburg Police Department. To accommodate

Galindo, that call was transferred to a Spanish-speaking dispatcher available through the

Department’s Spanish language phone line. During the call, which lasted approximately

18 minutes, Galindo said that he sought to turn himself in for impending court proceedings

and that he wanted police officers to pick him up at his apartment, located at 1918 Prospect

Drive, in Charlotte. Galindo also gave the following reason for requesting the officers:

“Because I have a gun in my hand.” See J.A. 243. 2

1 Of course, pursuant to the applicable summary judgment standard, we must view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). That means we must view the facts in the plaintiff’s favor when considering the summary judgment motions of Officer Guerra and the City, and in those defendants’ favor when considering the plaintiff’s cross-motion for partial summary judgment. 2 The English language transcripts of the two 911 calls quoted herein are unverified translations that the defendants provided in discovery and that the plaintiff has invoked in the summary judgment proceedings. See J.A. 243-48. (Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.)

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When asked by the dispatcher what he was “going to do with the gun,” Galindo

responded with the query, “Are you going to help me or are you not going to help me?”

See J.A. 243. Pressed about his intentions, Galindo said that the dispatcher should “tell me

if [the officers] are coming or not so that I can put my firearm there in the front or

whatever,” suggesting that he intended to surrender the firearm. Id. at 244.

Meanwhile, Galindo repeatedly failed to provide information expressly requested

by the dispatcher, including whether he was suicidal or homicidal. Some of Galindo’s

remarks to the dispatcher evidenced his paranoia. For example, Galindo first claimed his

name was “El Dios Estrella” (which translates to “the Star God”), before giving the name

“Ruben Galindo.” See J.A. 244-45. He complained of police officers and other people

“following me,” and he said that “I can’t take it any longer.” Id. at 245. Galindo also

admitting to drinking alcohol that day but denied using drugs.

Throughout the first 911 call, Galindo asked whether he was going to receive any

help, prompting the dispatcher to periodically assure him that police officers were on the

way. At one point, having heard a woman’s voice in the background, the dispatcher asked

Galindo how many people were in his apartment. Galindo did not provide that information.

Rather, he answered: “Look, I only need [the officers] to come for me[.] It’s only for me

[and] I will be outside of the apartment.” See J.A. 245. Galindo elaborated, “I only need

the police to come for me, for them to take me.” Id. He also requested that a responding

officer be “someone that speaks Spanish.” Id.

Near the end of the first 911 call, the dispatcher elicited from Galindo that he was

still inside the apartment but would go outside once the police officers were there. When

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specifically asked if he was “thinking of harming the officers” or “anyone in [his] house,”

Galindo responded, “No.” See J.A. 246. He again expressed that “I want to turn myself

in” and that “I prefer for [the officers] to lock me up.” Id. The dispatcher’s last statement

to Galindo during the call was that “the officers are in route, they are on their way and they

will be there as soon as possible, thank you.” Id. Galindo responded before the call was

disconnected, “Are they coming or not because [I] can’t take it anymore.” Id.

(2)

A few minutes later, Galindo placed his second 911 call, which lasted for nearly 12

minutes and remained connected until after the fatal shooting. During that call, Galindo

and the Spanish-speaking dispatcher mainly discussed Galindo’s firearm. At the outset,

Galindo said that the firearm was “[i]n my bag” and that “if you want I will take it out.”

See J.A. 247. The dispatcher then repeatedly instructed Galindo to leave the firearm in a

safe place and not to have it when the police officers arrived to meet him outside his

apartment. Specifically, the dispatcher advised: “leave it in a safe place and when you see

the officers, show your hands, I don’t want you to have the [firearm]”; “[n]o please, no, no

please [do not have the firearm with you]”; “please leave it” “for your safety and of

everyone’s”; “I need you to assure me that you will leave the gun please”; and “I need you

to please put that gun somewhere please.” Id. at 247-48.

Even as the dispatcher gave those instructions, Galindo continually indicated that

he planned to have his firearm with him when he met the police officers. He also suggested,

as he had during the first 911 call, that he intended to surrender the firearm. That is,

Galindo asked the dispatcher, “How do you want me to show a firearm?” See J.A. 248.

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Soon thereafter, he stated that “as long as [the officers] don’t shoot me I will throw them

the gun.” Id. While reportedly “giggling” during the second 911 call, Galindo asserted

that the firearm “doesn’t have bullets.” Id. at 247. He then said approximately 11 more

times that “I don’t have bullets.” Id. at 247-48. Galindo’s last words to the dispatcher

before the shooting were, “Look I know that you are nervous, and all of that, I know, well

me too,” followed by, “Can you help me or not?” Id. at 248.

b.

At about 9:10 p.m., approximately six minutes into Galindo’s first 911 call, a request

had gone out for officers of the Charlotte-Mecklenburg Police Department to respond to a

Spanish-speaking caller who “adv[ised] he’s armed with a gun and wants officers to come

help him.” See J.A. 108. That request was promptly entered into the Department’s

computer system as an “event.” The computer system identifies and records the officers

who respond to such an event and allows the dispatcher to provide updates as relevant

information becomes available. The responding officers receive the updated event

information in real time on laptops in their patrol vehicles.

Information about the “Galindo event” was updated throughout his first 911 call,

with the dispatcher relaying the following to the responding officers:

• “Refuses to give . . . further information”;

• “Unk[nown] what he wants to do with the gun”;

• “Unk[nown] if the comp[lainant] is homicidal or suicidal”;

• “Adv[ises] he wants to turn himself in, unk[nown] reason, unk[nown] warrant”;

• “Comp[lainant] is not cooperating”; 9 USCA4 Appeal: 21-2223 Doc: 46 Filed: 08/16/2023 Pg: 10 of 67

• “See El Dios Estrella (Rub[e]n Galindo)”; 3

• “Comp[lainant] has been drinking, neg [denies] drugs”;

• “Unk[nown] how many times the res[idence] is occupied. Heard a female in the b[ackground]”; and

• “***Use Caution. Comp[lainant] sounds delusional.***”

See J.A. 108-09.

The Galindo event information was not updated during his second 911 call. In radio

communications, however, the responding officers were informed that Galindo had told

the dispatcher that his “gun has no bullets.” See J.A. 241. The officers were also advised

that Galindo had “said that he would put down the gun when [the officers] arrived.” Id. at

313.

c.

Officer Guerra and three of his colleagues — Officers Ryan Tran-Thompson,

Courtney Suggs, and David Batson — responded to the Galindo event. As explained in

their depositions in this civil action, none of the four responding officers was fluent in

Spanish. The officers initially met in a parking lot near their police station to review the

information they had about Galindo, to discuss concerns that he could be intending an

ambush, and to make a plan for safely approaching him. During the meeting, Officer

Batson searched law enforcement databases for Galindo’s name and found that a “Ruben

Galindo” had been charged in April 2017 with assault by pointing a firearm. Additionally,

3 The Galindo event information thus reported the two names that he gave the dispatcher — “El Dios Estrella” and “Ruben Galindo” — without explaining that “El Dios Estrella” translates to “the Star God.” See J.A. 113.

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Officer Tran-Thompson asked his colleagues how to say “hands up” in Spanish and got the

reply “manos arriba.” See J.A. 628.

Consistent with the request made by Galindo during his first 911 call, a Spanish-

speaking officer was summoned from a neighboring division to assist the responding

officers. At about 9:21 p.m., the Spanish-speaking officer announced that he was en route.

By then, however, the responding officers had received the event update that included

“[h]eard a female in the b[ackground].” See J.A. 109. That update, which came at about

9:18 p.m., alerted the responding officers that there was a woman or girl in the apartment

with Galindo and caused them to fear that the situation could escalate to domestic violence.

Consequently, the responding officers decided to proceed to Galindo’s apartment without

waiting for the Spanish-speaking officer.

Based on his police experience with Spanish speakers, Officer Guerra expected

Galindo to understand simple English phrases such as “are you okay” and “what can I do

for you.” See J.A. 303. Guerra also thought he could speak enough Spanish to convey the

message, “Hey, I don’t speak Spanish, but someone who speaks Spanish is coming soon.”

Id. As for the dispatcher’s warning that Galindo “sounds delusional,” see id. at 109, Guerra

“wasn’t sure if it was a clinical diagnosis that [Galindo] was delusional or if it was

figurative or what.” Id. at 295. Guerra thought “to assess the situation accurately,” he

“would have to do it best in person” and “try to establish an open line of communication

[with Galindo] and basically feel him out.” Id. at 296.

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d.

Between 9:28 and 9:29 p.m., after dark, the four responding officers arrived at the

large apartment complex where Galindo resided and parked several buildings away from

Galindo’s Building 1918. His residence was in an apartment located at an end of the

building and abutted by a small, wooded area. The patio entrance to Galindo’s apartment

faced a wall of Building 1920 containing the patio entrances to the apartments located

therein. A bright streetlight illuminated the walkway right outside of Galindo’s apartment,

affording a clear view of where Galindo would stand when he exited through his screen

patio door. No other person was present in the outside area between the apartment

buildings.

The four responding officers approached Galindo’s apartment at approximately

9:30 p.m. Officer Guerra took a position alongside the closest corner of Building 1920,

approximately 10 yards from Galindo’s patio entrance. Meanwhile, Officer Tran-

Thompson took a position several yards farther away, in the wooded area behind and to the

left of Guerra. Both Tran-Thompson and Guerra were armed with rifles. For their part,

Officers Batson and Suggs carried handguns and took positions on the opposite corner of

Building 1920, approximately 20 yards from Galindo’s patio entrance. Each of the

responding officers had a position that provided cover.

Each officer also wore a body camera, with the video footage from Officer Tran-

Thompson’s camera being the footage that most fully shows the scene as it unfolded.

Because of the stance of his body during the encounter, Officer Guerra’s camera was

largely blocked by the corner of Building 1920, with just a partial view of Galindo.

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Moreover, the footage from Officer Batson’s and Officer Suggs’s cameras shows

Galindo’s left arm only. But Tran-Thompson’s camera was unobstructed and filmed both

Guerra and Galindo throughout the encounter, including the moments when the fatal shots

were fired.

e.

As the plaintiff has described it, the video footage from the responding officers’

body cameras reveals that, upon taking his position alongside the corner of Building 1920,

Officer Guerra called out “Ruben” to a man standing behind the screen patio door of

Galindo’s apartment. That man — Ruben Galindo — responded in the affirmative and

opened the door, prompting Guerra to call out, in Spanish, “Ruben, policia, manos, manos”

(which translates to “Ruben, police, hands, hands”). Guerra moved out from his cover to

engage with Galindo, such that Galindo could view Guerra’s entire body.

Immediately after opening the screen patio door, Galindo stood in the doorway,

facing Officer Guerra. Galindo’s left arm was down at his side, and his right arm was

similarly at his side but just behind the door frame. Guerra pointed his rifle at Galindo’s

lower body and quickly said “manos” two more times. Concomitantly, Guerra raised his

right arm off the barrel of his rifle, demonstrating to Galindo to raise his hand.

In response to Officer Guerra’s Spanish commands of “manos,” Galindo raised his

left hand — in which he was holding a pistol — to about waist level. According to the

plaintiff, it is unclear from the video footage whether the pistol had already been in

Galindo’s left hand or whether Galindo grasped the pistol just before raising the hand, but

the video footage suggests that the pistol had already been in Galindo’s left hand. After

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raising the hand to about waist level, Galindo paused, which the plaintiff asserts was a

demonstration of Galindo’s uncertainty as to whether he should throw the pistol or continue

holding it in his raised hand.

The sight of the pistol caused Officer Guerra to yell, now in English, “put it down,

drop the gun, put it down.” Galindo reacted to those English commands by quickly raising

his left arm above his shoulder and extending his left hand — still holding the pistol —

past the end of the opened screen patio door. Galindo’s left arm was then extended about

45 degrees from the center of his body and pointing toward the wall of Building 1920,

leaving it about 45 degrees away from Guerra.

When Galindo raised his left arm, he also began to raise his right arm. From there,

the four responding officers shouted over each other, still in English, to “drop the gun” and

“put it down.” As they shouted, Galindo swiftly raised his right arm and extended it out

like his left, above shoulder height and about 45 degrees from the center of his body.

The plaintiff does not contend that any of the video footage from the responding

officers’ body cameras is clear enough to conclusively show how Galindo was holding the

pistol in his left hand or where the pistol itself was pointing as he raised his left and then

right arms. But the plaintiff maintains that the video footage firmly establishes that Galindo

was ultimately standing still with both his arms frozen in place and both his hands in the

air, in a universally recognized position of surrender. And Galindo’s left arm remained

pointing at the wall of Building 1920, not at Officer Guerra.

It was at that point that Officer Guerra fired at Galindo twice. Under the plaintiffs’

interpretation of the video footage, the first shot caused Galindo to collapse and fall

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forward, and the second shot hit him in the top of the head as he fell. Approximately four

seconds had elapsed between Guerra’s first English commands to “put it down, drop the

gun, put it down” and his first shot at Galindo, who died at the scene. 4

f.

Two days later, on September 8, 2017, investigators with the Charlotte-

Mecklenburg Police Department interviewed Officer Guerra about the fatal shooting.

Notably, Guerra had not yet viewed the video footage from his and the other responding

officers’ body cameras.

In his interview with the shooting investigators, Officer Guerra asserted that when

Galindo opened his screen patio door, Guerra called out “manos arriba” (“put your hands

up”). See J.A. 446. Guerra described Galindo as facing Guerra, with the door open behind

Galindo. Additionally, Guerra demonstrated that Galindo fully raised both his arms in

response to Guerra’s “manos arriba” command. Guerra then said that — after Galindo

fully raised both his arms — Galindo kept his right arm raised but lowered his left arm,

reached into his pocket, and pulled out his pistol. According to Guerra, Galindo had the

pistol “gripped high in the palm of the hand” and “his fingers were wrapped around the

4 Plaintiff Azucena Zamorano Aleman was inside the apartment at the time of the fatal shooting and was heard screaming in the background of Galindo’s still-connected second 911 call, which had been made on a cell phone that Galindo was carrying during the encounter with Officer Guerra and his colleagues. The plaintiff has described the video footage from the officers’ body cameras as showing her rushing outside, shouting “Ruben,” and becoming hysterical when she saw Galindo’s body on the ground. The plaintiff asserts that she has since been diagnosed with severe chronic depression and post-traumatic stress disorder related to the shooting.

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pistol grip” such that he was “about to fire.” Id. at 447. Guerra also recounted that, upon

his subsequent instructions to “drop the gun,” Galindo “pivot[ed] the firearm towards me”

with “the muzzle raised in my direction.” Id. at 448-49. In Guerra’s words, “I had the

conscious thought of I have to shoot this guy because I immediately felt a threat [of] death

[or] serious bodily injury from him pointing a firearm at me.” Id. at 449. Guerra explained

that he fired the second shot at Galindo because Galindo remained standing after the first

shot, making it unclear whether the first shot had hit him.

At Officer Guerra’s subsequent deposition in this civil action, after viewing the

video footage from the responding officers’ body cameras, Guerra conceded that he had

called out only “manos” to Galindo, not “manos arriba.” See J.A. 315. Guerra confirmed

that Galindo had been facing Guerra during the encounter. He also reiterated, based on his

“memory” rather than the video footage, that Galindo initially raised both his arms and

then kept his right arm raised while lowering his left arm and retrieving his pistol from his

pocket. Id. at 318.

Upon rewatching the video footage during his deposition, Officer Guerra admitted

that, when he shot Galindo, both of Galindo’s arms were raised and extended about 45

degrees from the center of his body, with his left arm pointed at the wall of Building 1920,

away from Guerra. Further, Guerra acknowledged that he would consider that to be a

position of surrender “[f]or an unarmed subject.” See J.A. 326.

In any event, Officer Guerra stood by his previous account that Galindo had pivoted

his pistol toward Guerra, justifying Guerra’s shooting of Galindo. Guerra sought to clarify

that Galindo had pivoted his left elbow and thereby pointed his pistol at Guerra. Further,

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Guerra asserted that, although Galindo’s left arm continued to point at the wall of Building

1920, “it is possible to hold your arm up and still point [a pistol] in a separate direction.”

See J.A. 332. Guerra did not claim that any pivot of Galindo’s left elbow, or the direction

in which the pistol was pointed, can be seen in the video footage.

Regarding his prior statement that he fired the second shot at Galindo because

Galindo remained standing after the first, Officer Guerra conceded that the second shot hit

Galindo in the top of the head. But Guerra allowed only that it was “possible” that Galindo

must have been falling from the first shot in order for the second shot to have hit where it

did. See J.A. 340.

Finally, as for the issue of how Galindo had been holding his pistol, Officer Guerra

continued to insist that Galindo held the pistol “high and firm with a pistol grip,” which is

“how you hold [a pistol] before you fire it.” See J.A. 317. Prior to Guerra’s deposition,

however, Officer Batson had related in his interview with the shooting investigators that

he saw Galindo holding the pistol upside down, with the grip pinched between his thumb

and fingers — not in the shooter’s position described by Guerra. Batson later, in his

deposition testimony, reiterated that description of how Galindo had been holding his

pistol. Confronted with Batson’s account during his own deposition, Guerra acknowledged

that the manner in which Batson saw Galindo holding the pistol was “pretty much the

opposite” from the way in which Guerra saw it. Id. at 333. Guerra then suggested that he

was in a better position than Batson to discern how the pistol was actually being held, as

his “vantage point” had “better lighting” and was “much closer” than Batson’s. Id. at 335.

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Indeed, Guerra confirmed that he “could see the gun and the details of the gun” throughout

the encounter with Galindo. Id. at 338.

2.

For their parts, Officer Guerra and the City of Charlotte have highlighted much of

the same foregoing evidence in the summary judgment proceedings, with an emphasis on

inferences that can be drawn in their favor. The defendants have also raised some

additional aspects of the record. Those include Officer Batson’s deposition testimony that

Galindo could have fired his pistol while holding it upside down by either using his pinky

finger or changing his grip, along with deposition testimony of Batson, as well as Officer

Suggs, that Galindo’s pistol had been pointed toward Guerra.

In other deposition testimony invoked by the defendants, Officer Tran-Thompson

recounted hearing Officer Guerra shout out “manos arriba” to Galindo and seeing a metallic

object in Galindo’s left hand. Tran-Thompson stated that, as he then joined Guerra in

yelling “drop the gun” and “drop it,” Galindo raised both his hands upward, turned his

body toward Guerra, took a small step in Guerra’s direction, and began to lower his left

arm or elbow. According to Tran-Thompson, it appeared to him that “Galindo was getting

ready to punch out and take a shooter’s stance by punching his arm straight forward out

towards Officer Guerra and possibly begin shooting at Officer Guerra.” See J.A. 619. That

is, Tran-Thompson said he “observed movements [indicating that Galindo] was going to

take a shooter’s stance and start firing at Guerra.” Id. at 624. Once the deposition

proceeded to a viewing of the video footage from the responding officers’ body cameras,

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however, Tran-Thompson acknowledged that the footage does not show any of the

threatening movements that he had described.

3.

Turning to the expert witnesses, the parties collectively presented three experts on

the use of force and police officer training: Jon Blum for the defendants, and William

Harmening and Melvin Tucker for the plaintiff. Upon reviewing the evidence in the

summary judgment record, those witnesses opined — by written reports and, in the case of

the plaintiff’s experts, by deposition testimony — on both the reasonableness of Officer

Guerra’s actions and the adequacy of the training provided by the City of Charlotte. 5

Regarding the issue of whether Officer Guerra’s actions were reasonable, each

expert witness considered the totality of the circumstances facing Guerra when he fired the

fatal shots at Galindo. Those circumstances included that Galindo: had called 911 for

unclear reasons and admitted to drinking and being armed with a “gun”; was described by

the Spanish-speaking dispatcher as being uncooperative and seemingly “delusional”; was

suspected of having committed a previous firearm-related offense; presently posed a threat

5 We note that, in summary judgment proceedings, a court may consider an expert report that would itself be inadmissible at trial where “the party submitting the evidence shows that it will be possible to put the information into an admissible form.” See Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015) (alterations and internal quotation marks omitted). That showing must be made where there has been an objection to the court’s consideration of the expert report on grounds of inadmissibility. Id. at 538-39 (citing Fed. R. Civ. P. 56(c)(2)). Here, however, no such objection was lodged.

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of domestic violence to a “female” inside his apartment and of ambush to the responding

police officers; brandished his pistol when he met the other officers outside the apartment,

in contravention of the dispatcher’s repeated Spanish instructions to leave the firearm

behind; and failed to drop the pistol in response to Guerra’s and the other officers’ English

commands to “drop the gun” and “put it down.” See J.A. 108-09.

As part of the analysis in his report, the defendants’ expert (Blum) also accepted as

true — based on Officer Guerra’s post-shooting statements, and not on the video footage

from the body cameras worn by Guerra and the other responding officers — that Galindo

had “pivoted his left elbow backwards” after raising his left arm and hand holding his

pistol. See J.A. 203. According to Blum, that movement “led officers on the scene and in

the moment to believe that [Galindo] was going to point the handgun at and shoot Officer

Guerra.” Id. at 206. Consequently, Blum concluded that Guerra’s use of deadly force

against Galindo was justified in the totality of the circumstances. In Blum’s words, “it was

reasonably necessary for Guerra . . . to use deadly force and defend [himself] because Mr.

Galindo posed an imminent threat of death or great bodily harm.” Id. at 211 (emphasis

omitted).

Of the plaintiff’s experts, the first (Harmening) readily acknowledged in his

deposition testimony that the circumstances created a “volatile and dangerous situation”

— “especially with a gun involved.” See J.A. 731. Harmening also recognized that, even

if Galindo had been holding his pistol upside down as Officer Batson described, the pistol

could have been fired. Id. at 734 (explaining that “a gun can always be fired no matter how

they’re holding it”). Nonetheless, based on Batson’s description of Galindo pinching the

20 USCA4 Appeal: 21-2223 Doc: 46 Filed: 08/16/2023 Pg: 21 of 67

pistol’s grip between his thumb and fingers — as well as what Harmening could see on the

video footage from the responding officers’ body cameras — Harmening concluded that

Galindo was not holding the pistol in “a firing stance” or in such a way “to indicate that

he’s going to use it.” Id. at 733-34.

The video footage further led Harmening to reject Officer Guerra’s account that

Galindo had pivoted his left elbow and thereby pointed the pistol toward Guerra. As

Harmening interpreted the video footage and Galindo’s demeanor therein, Galindo “never

pointed a gun at [Guerra] and never demonstrated anything to indicate that he was going

to point a gun at [Guerra].” See J.A. 733. Harmening elaborated:

[M]y perception of the video and what I see is a man who’s trying to comply with everything he’s being told. I get it, [Galindo] didn’t leave the gun inside, he didn’t drop the gun yet, but I think there’s also a communication barrier and some confusion here, but I think for the most part he was trying to comply.

Id. at 734. Similarly, Harmening interpreted Galindo’s 911 calls and discussion with the

dispatcher to indicate that he did not intend to harm any of the responding officers.

Harmening specifically mentioned Galindo’s assurances that his pistol had no bullets,

explaining that although Guerra could not assume the pistol was unloaded, “it’s part of the

totality of the consideration here that [Galindo] says it’s not loaded.” Id. at 733.

Additionally, Harmening suggested that Guerra should have considered that he and the

other officers had “good cover” available. Id.

All told, Harmening opined “that a gun is always a threat,” but that “there has to be

an active threat before [police officers] shoot somebody.” See J.A. 733, 735. In

Harmening’s view, there was no active threat justifying Officer Guerra’s shooting of

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Galindo, because Galindo was “complying with [Guerra and his colleagues],” albeit “not

perfectly,” and “because at the moment [Galindo] got shot, both [his] arms [were] in the

air, [and] he [was] clearly showing [the officers] the gun that I believe [was] not pointed at

anyone, nor [was] it even being held in a manner that could be fired accurately at anyone.”

Id. at 736.

Much like Harmening, the plaintiff’s second expert (Tucker) opined that Officer

Guerra “did not have any justification on September 6, 2017 to use deadly force against

Ruben Galindo” because Galindo had not been “posing an immediate threat of serious body

harm or death to anyone,” i.e., “a threat that is going to occur at that moment in time absent

intervention.” See J.A. 650, 652. As Tucker explained in his report, he based that opinion

on the video footage from the responding officers’ body cameras, which Tucker interpreted

to show that Galindo “never pointed [his pistol] at anyone before he was shot and killed”

and that “the officers had cover available, nobody else was in danger[,] and [the] firearm

in [Galindo’s] left hand was up in the air.” Id. Tucker “reaffirm[ed]” his opinion by his

subsequent deposition testimony, saying that — in reviewing the contrary opinion of

defendants’ expert Blum that deadly force was reasonable and necessary in the totality of

the circumstances — “I kept thinking necessity, necessity, where in the heck is necessity

here?” Id. at 785-86.

With further respect to the reasonableness of Officer Guerra’s actions, as well as to

the adequacy of the police officer training provided by the City of Charlotte, the plaintiff’s

experts Harmening and Tucker acknowledged that the City had relevant policies in place

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concerning the use of force and interacting with non-English speakers and persons

suffering from mental illness. Those experts also acknowledged that the City had trained

Guerra and his colleagues on those policies. Rather than questioning the sufficiency of the

policies or the attendant training, Harmening and Tucker criticized Guerra and the other

responding officers for disregarding their training and violating the City’s policies. Indeed,

Tucker testified in his deposition that he “thought the officers were either plainly

incompetent or intentionally violated the laws and protocols.” See J.A. 785.

Specifically addressing the responding officers’ decision not to await the arrival of

a Spanish-speaking officer before confronting Galindo, Harmening opined in his report

that the officers should have recognized from their training “that a Spanish-speaking officer

was going to be critical,” in that the Galindo event “should have been viewed as a crisis

intervention, and as such, effective communication (i.e., de-escalation) was going to be

needed, especially with the presence of a gun.” See J.A. 693. Harmening further asserted

that Officer Guerra should have yet followed his training by, inter alia, “ask[ing] [Galindo]

in a calm voice if he spoke English”; “reassur[ing] him that [the officers] were there to

help”; “ask[ing] him in a non-threatening voice to lay the gun down on the ground”; and,

“[i]f he indicated in some manner that he did not speak English, . . . motion[ing] to him

with hand gestures to lay the gun down.” Id. at 695. Instead, Harmening underscored,

Guerra simply said “manos” (“hands”) in Spanish and then he and the other officers

“commanded Galindo to drop the gun in English,” thereby increasing “[t]he possibility of

confusion.” Id. at 693.

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The defendants’ expert Blum countered that the responding officers’ conduct was

consistent with both the City’s policies and the training provided by the City to the officers.

Blum focused on Officer Guerra’s use of deadly force against Galindo, opining that Guerra

followed his training and the applicable policies on the use of such force when he fatally

shot Galindo after “Mr. Galindo refused to follow repeated officer instructions to ‘Manos’

and ‘Drop the gun!’” and then “began to point [his pistol] at Officer Guerra (as perceived

by officers in the moment and on the scene).” See J.A. 210-11.

4.

By his summary judgment motion, Officer Guerra sought qualified immunity on the

Fourth Amendment claim, arguing that his fatal shooting of Galindo was objectively

reasonable (such that he did not contravene Galindo’s Fourth Amendment rights by using

excessive force) and that there was no controlling legal precedent at the time of the shooting

that indicated otherwise (such that any constitutional right violated was not, in any event,

clearly established). See, e.g., Mays v. Sprinkle, 992 F.3d 295, 301 (4th Cir. 2021)

(explaining that, to defeat a claim of qualified immunity, a plaintiff must “plead[] facts

showing (1) that the official violated a statutory or constitutional right, and (2) that the right

was clearly established at the time of the challenged conduct” (internal quotation marks

omitted)). Based on the alleged objective reasonableness of the shooting, Guerra and the

City of Charlotte also sought summary judgment on the assault and battery, wrongful death,

and negligent infliction of emotional distress claims.

The defendants have insisted that the shooting was objectively reasonable in that

Officer Guerra shot Galindo only after perceiving that Galindo was poised to fire his pistol

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at Guerra or others — a perception that the defendants admit may have been mistaken, but

that they contend was nonetheless reasonable. In so arguing, the defendants have relied on

supportive deposition testimony of Guerra and his colleagues, along with the report of the

defendants’ expert Blum. To the extent that the video footage from the responding officers’

body cameras conflicts with or fails to corroborate Guerra’s account of the shooting, the

defendants maintain that the video footage does not reflect what Guerra could reasonably

perceive because it was largely taken from the body cameras of other officers whose

positions were different from his. The defendants also emphasize that the video footage is

not clear in all details and did not capture everything that occurred at the shooting scene.

The plaintiff generally has not disputed that the video footage is neither entirely

clear nor complete. But in opposing the defendants’ summary judgment motions, and in

advancing her own request for partial summary judgment, the plaintiff has argued that the

video footage is decisive in that it “quite clearly establish[es] that Galindo was not a threat

to anyone at the moment Guerra killed him.” See Br. of Appellant 22 (internal quotation

marks omitted) (echoing arguments made in district court). As the plaintiff’s experts

Harmening and Tucker opined after studying the video footage, the plaintiff contends that

the video footage shows that Guerra and the other responding officers had cover available;

that Galindo was apparently confused by but attempted to comply with the officers’ mix

of Spanish and English commands; that Galindo quickly assumed a position of surrender;

that Galindo did not seem to be pointing his pistol at Guerra; and that Galindo did not make

any movement suggesting that he intended to fire his pistol, whether at Guerra or anyone

else.

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Additionally, the plaintiff has argued that the video footage “blatantly contradicts”

Officer Guerra’s account of the shooting. See Br. of Appellant 22; see also Scott v. Harris,

550 U.S. 372, 380 (2007) (recognizing that “[w]hen opposing parties tell two different

stories, one of which is blatantly contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of the facts for purposes of ruling on

a motion for summary judgment”). Specifically, under the plaintiff’s interpretation of the

video footage, it establishes the following:

● In response to Officer Guerra’s initial Spanish commands of “manos,” Galindo kept his right hand down while raising his left hand, in which he held his pistol (and apparently had already been holding the pistol), to about waist level;

● Next, after Guerra commanded in English to “put it down, drop the gun, put it down,” Galindo continued to hold the pistol in his left hand while raising his left arm above his shoulder and extending it about 45 degrees from the center of his body, and then similarly raising and extending his right arm;

● Thereafter, Galindo was standing still with both his arms frozen in place, leaving his left arm pointing at the wall of Building 1920, not at Guerra; and

● Galindo remained in that position until he was hit by Guerra’s first shot, which caused Galindo to collapse and fall forward, such that Guerra’s second shot hit Galindo in the top of the head as he fell.

According to the plaintiff, the video footage thereby contradicts these aspects of Guerra’s

account of the shooting:

● Guerra’s assertion that Galindo initially raised both his arms and then kept his right arm raised while lowering his left arm and retrieving his pistol from his pocket;

● Guerra’s assertion that — although Galindo subsequently had both his arms raised and extended about 45 degrees from the center of his

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body, with his left arm pointed at the wall of Building 1920, away from Guerra — Galindo then pivoted his left elbow and thereby pointed his pistol at Guerra;

● Officer Tran-Thompson’s assertion that, just before being shot, Galindo took a small step in Guerra’s direction and began to lower his left arm or elbow, making it appear that Galindo was preparing to “punch out,” i.e., to take a shooter’s stance and fire his pistol at Guerra; and

● Guerra’s assertion that Galindo remained standing after the first shot, explaining why Guerra fired the second shot. 6

The plaintiff has further highlighted the discrepancies between Guerra’s assertion that

Galindo had been holding his pistol “high and firm with a pistol grip” — as if he was about

to fire it — and Officer Batson’s statements that Galindo was holding the pistol upside

down, with the grip pinched between his thumb and fingers.

Even if the video footage is not so unambiguous as to merit an award of partial

summary judgment against Officer Guerra and the City, the plaintiff argues that she is at

least entitled to a trial on the Fourth Amendment, assault and battery, wrongful death, and

negligent infliction of emotional distress claims. In that regard, the plaintiff contends that

a jury could rely on the video footage and other evidence not only to find that Galindo

posed no immediate threat to Guerra or anyone else at the time of the shooting, but also to

6 The plaintiff has also pointed out that the video footage contradicts the assertions of both Guerra and Tran-Thompson that Guerra’s Spanish command to Galindo was “manos arriba” (“put your hands up”), rather than simply “manos” (“hands”). After viewing the video footage, Guerra conceded during his deposition that he said only “manos.”

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find that Guerra knew that the shooting was unjustified and that he concocted “a

remarkably false story” to evade liability. See Br. of Appellant 23.

As for the negligent training claim against the City, the City sought summary

judgment as to that claim on the ground, inter alia, of inadequate evidentiary support, as

the plaintiff’s own experts Harmening and Tucker criticized not the City’s training of its

police officers, but the failure of Officer Guerra and his colleagues to act in accordance

with that training. That is, the plaintiff’s experts acknowledged that the City had trained

the officers on relevant policies concerning the use of force and interacting with non-

English speakers and persons suffering from mental illness, and those experts identified no

deficiencies in either the policies or the attendant training. In her summary judgment

briefing, however, the plaintiff has suggested that negligent training can be inferred from

the conduct of Guerra and his colleagues, particularly their decision to approach Galindo

without the assistance of a Spanish-speaking officer.

Based on the analysis in its Opinion of September 2021, the district court granted

the defendants’ summary judgment motions and denied the plaintiff’s cross-motion for

partial summary judgment. The Opinion began with the Fourth Amendment claim against

Officer Guerra, recognizing that Guerra would be entitled to qualified immunity if he did

not “use[] unreasonable and excessive force in violation of Rub[e]n Galindo’s Fourth

Amendment rights.” See Opinion 8. The court thus assessed the Fourth Amendment claim

on the first prong of the qualified immunity analysis (whether Guerra had “violated a

statutory or constitutional right”), and not on the second prong (whether “the right was

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clearly established at the time of the challenged conduct”). Id. (quoting Mays, 992 F.3d at

301).

From there, the district court explained that “[w]hether excessive force was used is

an objective inquiry assessing what a ‘reasonable officer on the scene’ would have done,

taking into account [factors that include] whether the suspect posed an immediate threat to

the safety of the officers or others.” See Opinion 8 (quoting Graham v. Connor, 490 U.S.

386, 396 (1989)). The Opinion elaborated that, “if at the moment Galindo was shot, he

posed an immediate threat to officers and others, then Officer Guerra’s actions were

objectively reasonable. Conversely, if Galindo did not pose an immediate threat, [the

plaintiff] would be entitled to partial summary judgment or at least the right to a jury trial.”

Id. at 9.

In the course of analyzing the Fourth Amendment claim, the district court rendered

its own interpretation of the video footage from the body cameras worn by Officer Guerra

and his colleagues. As the court saw it, the video footage shows the following:

Guerra can be heard yelling out “manos, manos” (hands, hands) as Galindo came out [his screen patio] door with his right arm initially hidden from view behind the door frame and his left hand empty. Galindo then reached his left hand down to his left pocket and pulled out a gun . . . . As officers yelled “put it down” and “drop the gun, drop the gun,” Galindo raised the gun half- way up to shoulder height and lowered it again. As officers continued to yell “put it down” and “drop the gun,” Galindo raised his left arm then his right arm above shoulder height. At this point it can be seen from the [vantage points of Officers Batson and Suggs] that Galindo is holding the firearm upside down, but from the [video footage from Officer Tran-Thompson’s body camera], the same cannot be said. Galindo’s left hand began to drop just before shots were fired.

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See Opinion 5. The court thereby interpreted the video footage in ways different from both

the plaintiff and the defendants. For example, no party has asserted that the video footage

establishes that Galindo’s left hand was initially empty or that he reached into his pocket

and then pulled out his pistol. Nor has any party contended that the video footage shows

that Galindo’s left hand began to drop just before he was fatally shot by Officer Guerra.

Additionally, the district court rejected the plaintiff’s contention that the video

footage “blatantly contradict[s]” Officer Guerra’s account of the shooting and criticized

the plaintiff for “sometimes hyperbolic characterizations of what is contained in the video

footage.” See Opinion 5 n.2. The Opinion also emphasized that the video footage

“include[s] angles of observation unavailable to Officer Guerra” — particularly the Batson

and Suggs video footage — and that “Guerra’s view was split-second and of course not

subject to slow-motion or replay.” Id. Indeed, the court went so far as to declare that the

Batson and Suggs video footage is from “a view that cannot be the view of a reasonable

officer in Guerra’s position.” Id. at 10.

In any event, the district court’s ruling on the Fourth Amendment claim was

ultimately premised on what it deemed to be “the core uncontested and most probative fact

of this case”: “that Galindo ignored the [Spanish-speaking dispatcher’s] directive to leave

the gun in the house and in response to the officer’s command ‘manos,’ . . . drew [the]

gun.” See Opinion 12. As the Opinion characterized it, Galindo’s conduct “could hardly

be more provocative,” even if it “was done in an ill-conceived attempt at surrender.” Id.

That is, once Galindo brandished his pistol, “[a] reasonable officer in Guerra’s position did

not have to wait; did not have to trust a man believed to be delusional, and possibly

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homicidal or suicidal; a man who had refused every law enforcement directive aimed at

keeping him and others safe.” Id. at 11. Accordingly, the court concluded that Galindo

posed an “imminent threat to officers and others” by being “a non-compliant, armed

subject,” such that it was objectively reasonable for Guerra to shoot him. Id. at 13.

The district court relied for its conclusion that Officer Guerra acted reasonably on

this Court’s decisions in Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001), Sigman v. Town

of Chapel Hill, 161 F.3d 782 (4th Cir. 1998), and Slattery v. Rizzo, 939 F.2d 213 (4th Cir.

1991). Those decisions, the Opinion observed, stand for the legal principle “that an officer

does not have to wait until a gun is pointed at the officer before the officer is entitled to

take action.” See Opinion 11 (quoting Anderson, 247 F.3d at 131).

Turning to the state law claims against Officer Guerra and the City of Charlotte for

assault and battery, wrongful death, and negligent infliction of emotional distress, the

district court incorporated the Opinion’s analysis concerning the reasonableness of

Guerra’s actions, as conducted for purposes of the Fourth Amendment claim. See Opinion

18. The court then concluded that — because “Guerra’s conduct was justified and

reasonable” — each of the state law claims fails as a matter of law. Id.

Finally, in assessing the state law claim against the City for negligent training, the

district court ruled that the plaintiff had failed to produce evidence sufficient to establish

any alleged training failure. See Opinion 18-20. The Opinion observed, inter alia, that the

plaintiff’s own expert witnesses had acknowledged that the City both had relevant policies

in place and had trained Officer Guerra and his colleagues on those policies. Id. at 19. The

court then emphasized that — without criticizing the policies or the training — the

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plaintiff’s experts simply opined that Guerra and the other responding officers disregarded

their training and violated the City’s policies in their encounter with Galindo. Id. at 19-20.

Consistent with its Opinion, the district court awarded summary judgment to the

defendants on each of the claims against them — to Officer Guerra on the Fourth

Amendment, assault and battery, wrongful death, and negligent infliction of emotional

distress claims, and to the City on the wrongful death, negligent infliction of emotional

distress, and negligent training claims. Having done so, the court denied the plaintiff’s

cross-motion for partial summary judgment. The plaintiff has timely noted this appeal, and

we possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review de novo district court decisions on motions for summary judgment and

qualified immunity. See Franklin v. City of Charlotte, 64 F.4th 519, 529 (4th Cir. 2023).

Summary judgment is appropriate only “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.”

See Fed. R. Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under

the governing law,” and a genuine dispute exists “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

When cross-motions for summary judgment are before us, we “examine[] each

motion separately, employing the familiar standard under Rule 56 of the Federal Rules of

Civil Procedure.” See Fusaro v. Howard, 19 F.4th 357, 366 (4th Cir. 2021) (internal

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quotation marks omitted). Applying that standard, the facts and all reasonable inferences

drawn therefrom must be viewed in the light most favorable to the nonmoving party. See

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). That means “we may not

credit [the movant’s contrary] evidence, weigh the evidence, or resolve factual disputes in

the [movant’s] favor,” even if “a jury could well believe the evidence forecast by the

[movant].” See Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 579 (4th Cir. 2017).

III.

On appeal, the plaintiff contests the district court’s awards of summary judgment to

Officer Guerra and the City of Charlotte on all her claims, and she renews her own request

for partial summary judgment. As previously stated, we are satisfied to affirm the summary

judgment award to the City on the negligent training claim. We vacate, however, the award

of qualified immunity to Guerra on the Fourth Amendment claim, as well as the summary

judgment awards to Guerra and the City on the assault and battery, wrongful death caused

by negligence, and negligent infliction of emotional distress claims. Because there are

genuine disputes of material fact as to the objective reasonableness of Guerra’s actions, we

remand for further proceedings on each of those claims, without directing the entry of a

judgment in the plaintiff’s favor.

We first address the plaintiff’s Fourth Amendment claim against Officer Guerra,

brought under 42 U.S.C. § 1983 for the alleged use of excessive force. Section 1983

“creates a cause of action against any person who, acting under color of state law, abridges

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a right arising under the Constitution or laws of the United States.” See Cooper v. Sheehan,

735 F.3d 153, 158 (4th Cir. 2013). Law enforcement officers sued in their individual

capacities under § 1983 may invoke the doctrine of qualified immunity, which shields

“government officials from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted). Qualified immunity is designed to “protect[] law enforcement

officers from bad guesses in gray areas and ensures that they are liable only for

transgressing bright lines.” See Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005)

(internal quotation marks omitted).

As the district court recognized, the qualified immunity analysis consists of two

prongs: (1) whether a statutory or constitutional violation occurred, and (2) whether the

right was clearly established at the time of the violation. See Mays v. Sprinkle, 992 F.3d

295, 301 (4th Cir. 2021) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). If the

answer to either question is “no,” the officer being sued is entitled to qualified immunity.

See Pearson, 555 U.S. at 232. Courts possess discretion concerning which prong to address

first. Id. at 236. In reviewing an award of qualified immunity to a defendant officer at the

summary judgment stage, our job is to “consider whether there are any material disputes

of fact . . . that, when resolved, would amount to the violation of a clearly established

constitutional right.” See Stanton v. Elliott, 25 F.4th 227, 234 (4th Cir. 2022). “If there

are, summary judgment is inappropriate.” Id.

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We begin, as did the district court, with the first prong of the qualified immunity

analysis: here, whether — viewing the facts in the light most favorable to the plaintiff —

Officer Guerra may have contravened the Fourth Amendment by employing excessive

force when he fatally shot Ruben Galindo. On the premise that Guerra’s use of deadly

force was objectively reasonable, the district court concluded that there was no

constitutional violation and thus that Guerra is entitled to qualified immunity.

Pursuant to the Supreme Court’s precedent in Graham v. Connor, any claim “that

law enforcement officers have used excessive force — deadly or not — in the course of an

arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its ‘reasonableness’ standard.” See 490 U.S. 386, 395 (1989). In

conducting that analysis, “[t]he ‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Id. at 396. “The calculus of reasonableness must embody allowance for the

fact that 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 396-97. Moreover, the analysis “requires

careful attention to the facts and circumstances of each particular case,” including “whether

the suspect poses an immediate threat to the safety of the officers or others,” as well as “the

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severity of the crime at issue” and whether the suspect “is actively resisting arrest or

attempting to evade arrest by flight.” Id. at 396.

Where deadly force has been used, the Graham factor of whether the suspect posed

an immediate threat “is particularly important.” See Franklin v. City of Charlotte, 64 F.4th

519, 531 (4th Cir. 2023). In such cases, this Court considers whether a reasonable officer

on the scene would have had “probable cause to believe that the suspect pose[d] a threat of

serious physical harm, either to the officer or to others.” See Waterman v. Batton, 393 F.3d

471, 477 (4th Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). We assess

the objective reasonableness of an officer’s use of deadly force “based on the totality of the

circumstances,” see Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 582 (4th Cir.

2017) (citing Yates v. Terry, 817 F.3d 877, 883 (4th Cir. 2016)), “and based on the

information available to the [officer] ‘immediately prior to and at the very moment [he]

fired the fatal shots,’” id. (quoting Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991)).

It has long been “established in this circuit that the reasonableness of an officer’s

actions is determined based on the information possessed by the officer at the moment that

force is employed.” See Waterman, 393 F.3d at 481 (citing Elliott v. Leavitt, 99 F.3d 640,

643 (4th Cir. 1996)); see also Betton v. Belue, 942 F.3d 184, 191 (4th Cir. 2019) (“We

assess the reasonableness of the officer’s conduct based on the circumstances confronting

the officer immediately prior to and at the very moment he fired his weapon.” (internal

quotation marks omitted)). As such, we have recognized “that force justified at the

beginning of an encounter is not justified even seconds later if the justification for the initial

force has been eliminated.” See Waterman, 393 F.3d at 481. That is, our reasonableness

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“determination must focus on the moment that deadly force was used, not the whole

episode,” and we must be mindful that “the justification for deadly force can fall away in

seconds.” See Stanton, 25 F.4th at 233.

In our 2013 decision in Cooper v. Sheehan, we clarified when a reasonable officer

is — and is not — entitled to use deadly force against an armed suspect. See 735 F.3d at

159. Specifically, we explained that “the mere possession of a firearm by a suspect is not

enough to permit the use of deadly force.” Id. “Thus, an officer does not possess the

unfettered authority to shoot a member of the public simply because that person is carrying

a weapon.” Id. “Instead,” as we illuminated, “deadly force may only be used by a police

officer when, based on a reasonable assessment, the officer or another person is threatened

with the weapon.” Id.

We recognized in Cooper that “there are many circumstances under which a police

officer could reasonably feel threatened,” such that the use of deadly force would be

permissible. See 735 F.3d at 159 n.9. Those circumstances include, of course, when a

firearm-brandishing suspect “point[s], aim[s], or fir[es] his weapon.” Id.; accord Elliott,

99 F.3d at 642-44 (concluding that a fatal police shooting was justified where the

handcuffed suspect had grasped a handgun, pointed it at officers with his finger on the

trigger, and ignored an officer’s directive to drop the firearm). To be sure, “[n]o citizen

can fairly expect to draw a gun on police without risking tragic consequences.” See

Cooper, 735 F.3d at 159 (quoting Elliott, 99 F.3d at 644).

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The circumstances under which a police officer could reasonably feel threatened

also include when a suspect who is armed, or mistakenly believed to be armed, makes some

other threatening movement. As examples of those circumstances, Cooper identified three

of our earlier cases: Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001), wherein “the

officers ordered a detainee to his hands and knees, and then shot him when he reached for

a bulge in his waistband that turned out to be a radio”; McLenagan v. Karnes, 27 F.3d 1002

(4th Cir. 1994), wherein “a bystander was shot as he ran toward a police officer moments

after the officer learned that an armed arrestee was on the loose in the area”; and Slattery

v. Rizzo, 939 F.2d 213 (4th Cir. 1991), wherein “an officer shot a suspect who ignored

commands to show his hands before turning quickly toward the officer with what turned

out to be only a beer bottle in a clinched fist.” See Cooper, 735 F.3d at 159; see also

Sigman v. Town of Chapel Hill, 161 F.3d 782, 787 (4th Cir. 1998) (recognizing that police

officers reasonably felt threatened by a suspect who — after wielding a knife and issuing

threats against the officers and others — walked toward the officers, appeared to still be

armed, and disobeyed commands to stop).

As we explained in Cooper, deadly force has been deemed constitutionally

permissible where “the objective basis for the threat was real, but the [suspect’s weapon]

was not.” See 735 F.3d at 159. Crucially, however, deadly force has proven to violate the

Fourth Amendment where the suspect’s weapon “was real,” but “the threat was not.” Id.

Moreover, although Cooper and the decisions that preceded it reflect that deadly

force may be allowable where a suspect has ignored or defied a police officer’s commands,

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those precedents establish that noncompliance alone is an insufficient justification. Under

those precedents,

the failure to obey commands by a person in possession of, or suspected to be in possession of, a weapon only justifies the use of deadly force if that person makes some sort of furtive or other threatening movement with the weapon, thereby signaling to the officer that the suspect intends to use it in a way that imminently threatens the safety of the officer or another person.

See Knibbs v. Momphard, 30 F.4th 200, 225 (4th Cir. 2022) (summarizing Cooper,

Anderson, Sigman, Elliott, McLenagan, and Slattery, plus this Court’s post-Cooper

decision in Hensley). Our precedents further reflect that, in order for deadly force to be

justified, the commands defied by the suspect must have been “clear commands.” See

Franklin, 64 F.4th at 533 (citing Elliott, Slattery, and Hensley).

(3)

Applying the foregoing principles in Cooper, we concluded that it was not

objectively reasonable for law enforcement officers to fire on a suspect holding a shotgun,

in that the evidence showed, inter alia, that the muzzle of the shotgun was “pointed at the

ground” and the suspect “made no sudden moves” or “threats” and “ignored no

commands.” See 735 F.3d at 159. As we put it, “the facts fail[ed] to support the proposition

that a reasonable officer would have had probable cause to feel threatened by [the

suspect’s] actions.” Id. Since Cooper, we have similarly and repeatedly ruled that it was

not objectively reasonable for officers to fire on suspects who, though armed, were not

threatening the officers or others with their weapons at the moment they were shot. See

Hensley, 876 F.3d at 583 (suspect kept a “handgun pointed toward the ground at all times,”

“never raised the gun to the officers,” and “never otherwise threatened them”); Betton, 942

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F.3d at 192 (suspect “was holding a firearm ‘down’” by his hip and had no opportunity to

raise it); Knibbs, 30 F.4th at 217 (suspect was “holding a loaded shotgun that was not aimed

at [the officer]” and had not “made any furtive movement towards [the officer] that would

indicate his intent to cause physical harm”); Franklin, 64 F.4th at 533-34 (suspect “pointed

[his handgun] at no one” and “held it with just one hand from the top of the barrel,” such

that he “would have had to reposition his grip to become a threat”).

In those cases, we were reviewing the grant or denial of qualified immunity to the

defendant officers at the summary judgment stage, and we thus viewed the facts in the light

most favorable to the plaintiffs. 7 Consequently, we disregarded contrary evidence

proffered by the defendants, including sworn statements that certain suspects had actually

pointed their firearms at the officers just before the officers shot those suspects. See, e.g.,

Hensley, 876 F.3d at 579 (explaining that “we may not take as true the [officers’] assertion

that [the suspect] had the muzzle of the gun pointed toward them in a ‘shoot-from-the-hip’

position”).

Moreover, we highlighted additional circumstances that — if found by a jury —

would undermine the officers’ claims that they reasonably felt threatened by the suspects

and their weapons. For example, in Cooper, it was apparent that the suspect had a

7 In the cases wherein qualified immunity had been denied, we were also required to accept the facts as viewed by the district court. See, e.g., Cooper, 735 F.3d at 157 (recognizing that our jurisdiction under the collateral order doctrine was limited to the “claim that there was no violation of clearly established law accepting the facts as the district court viewed them” (quoting Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc))).

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“perfectly reasonable rationale” for being armed: The officers had gone onto the suspect’s

property at night without announcing their presence or identifying themselves. See 735

F.3d at 160 (internal quotation marks omitted). Nevertheless, without giving any

commands or having any “information suggesting that [the suspect] might harm them,” the

officers “fired on [the suspect while] he stood at the threshold of his home.” Id. at 159.

Similarly, in Betton, the officers made a violent, unannounced entry into the suspect’s

residence and then “fired 29 shots without warning or issuing any commands.” See 942

F.3d at 192. And in Knibbs, the officer knocked on the suspect’s door and announced

himself, but he was not “readily recognizable as a law enforcement officer in the middle of

the night on [the] unlit porch.” See 30 F.4th at 217. The suspect thus “racked his shotgun

in order to load it while investigating who was on his porch” and understandably ignored

two commands to drop the firearm, without aiming his shotgun at the officer or making

any furtive movements before the officer shot him through a window. Id. at 220-21.

In Hensley, although the officers had witnessed the suspect striking his daughter

with his handgun on the front porch of his home, that “brief altercation” had ended with

the suspect walking away from his daughter into his yard and thereafter making “no

threatening statements or actions toward anyone.” See 876 F.3d at 583-84. Meanwhile,

the officers never spoke to the suspect and “never ordered [him] to drop the gun or warned

that they would shoot.” Id. at 585. Rather, the officers “opened fire on [the suspect] and

killed him,” apparently for the simple reason that “he had possession of a firearm.” Id. at

583.

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Most recently, in Franklin, the officers “receiv[ed] 911 accounts of a man

terrorizing people [with a handgun] at a fast-food restaurant.” See 64 F.4th at 532. But

“the officers arrived at a very different scene than the one described in those reports,” in

that the suspect “was no longer inside the restaurant” and no longer being “aggressive or

outwardly threatening.” Id. Instead, the suspect was “crouched down next to the [open]

passenger side of a Honda sedan parked in the restaurant parking lot,” about a foot away

from and facing a restaurant employee who was sitting in the passenger seat. Id. at 525-

26. As the officers had been advised as they were en route to the scene, the restaurant

employee had been “calming [the suspect] down” and “pray[ing] with him.” Id. at 526 n.1.

Notably, video footage from the officers’ body cameras showed how their ensuing

encounter with the suspect unfolded. See Franklin, 64 F.4th at 526. Upon arrival, while

approaching the suspect and before they could see him, the officers shouted four commands

for the suspect to show his hands, without being able to visually ascertain whether the

suspect was complying. Id. Once the suspect came into one officer’s view, the suspect’s

handgun was out of sight and his “hands appeared to be clasped together between his legs.”

Id. The officers then yelled 22 commands for the suspect to drop his firearm. Id. at 526-

27, 532. In the midst of those commands, another “restaurant employee felt comfortable

enough to walk up to [the suspect],” only to be ordered by the officers “to get back.” Id.

at 526, 532. The commands were so loud and frequent that the officers could not hear

whether the suspect said anything back to them. Id. The suspect did not immediately

comply with the commands and retained what appeared to be a “passive” demeanor. Id.

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As it turned out, the suspect had not — as the officers “apparently assumed” — been

holding his firearm in his hands when commanded to drop the weapon. See Franklin, 64

F.4th at 532. Rather, the suspect’s “gun was concealed under his jacket, not in his hands.”

Id. Thus, “the only way for him to obey the officers’ commands to drop the gun was to

reach into his jacket to retrieve it.” Id. “When he did just that,” however, the one officer

who could see the suspect “interpreted his movement as a threatening maneuver.” Id.

Although the suspect then held his handgun “in a non-firing grip, pointed away from

everyone,” the officer promptly shot the suspect twice and killed him. Id.

In those circumstances, we concluded that a reasonable jury could find that the fatal

shooting “rested on [the suspect’s] ‘mere possession of a firearm.’” See Franklin, 64 F.4th

at 532 (quoting Cooper, 735 F.3d at 159). That was due, in part, to “the non-threatening

way [the suspect] handled the weapon once he retrieved it.” Id. at 534. It was also because

— “observing the facts in the light most favorable to [the plaintiff] — there was nothing

furtive or menacing about [the suspect’s] response to the officers’ commands.” Id. at 532.

Indeed, the officers’ “commands simply were too ambiguous to transform [the suspect’s]

hesitation into recalcitrance.” Id. at 533 (recapping that, “after demanding to see [the

suspect’s] hands, the officers then pivoted to an inconsistent instruction, ordering him to

drop his gun”). As we explained, when the suspect “hesitated through twenty-some-odd

commands as if contemplating something,” he may have been “deciding how to drop a gun

he was not holding” or he may have been “just frightened by the torrent of shouting and

gun-pointing.” Id. (internal quotation marks omitted). We also noted the officers’ failure

to act in accordance with their training, including their training “to give various commands

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to achieve specific results precisely because one misjudgment could endanger the officers

or the public.” Id.

Lastly, we related in Franklin that — although the district court had ruled in favor

of the defendant officer who fatally shot the suspect — the district court recognized that,

“in hindsight,” the officer likely made a mistake in perceiving the suspect to pose an

immediate threat. See 64 F.4th at 531-32 (internal quotation marks omitted). In refusing

to affirm the district court, we emphasized that “the question [was] whether [the officer’s]

mistake was reasonable.” Id. at 532. Given the evidence, particularly “the body camera

footage depicting the encounter,” we concluded that a reasonable jury could find that any

mistake by the officer was not a reasonable one. Id.

Here, viewing the facts in the light most favorable to the plaintiff, 8 Ruben Galindo

sought help from police officers because — in the throes of paranoia — he wanted to

surrender his pistol and turn himself in for impending court proceedings. Although he was

firmly instructed by the Spanish-speaking 911 dispatcher to leave the firearm inside his

apartment when he met the responding officers outside, Galindo insisted that he would

have the firearm with him. He also denied any plan to harm the officers or anyone else,

and he repeatedly asserted that he had no bullets for his pistol. Before they reached

8 Our recitation of the facts in the light most favorable to the plaintiff is drawn from the record before us, including the 911 dispatch records, the video footage from the responding officers’ body cameras, the officers’ deposition testimony and records of their interviews with police department investigators, and the reports and deposition testimony of the parties’ expert witnesses.

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Galindo’s apartment, the responding officers were advised by the dispatcher of both

Galindo’s assurances that he had no bullets and his intention to “put down the gun” only

after the officers arrived. See J.A. 313.

Unquestionably, the responding officers had good reason to be skeptical of Galindo

and to treat him as a potential threat to the safety of the officers and others. Galindo’s

purported reason for summoning the officers was dubious, he was refusing to disarm

himself, and he was otherwise being uncooperative with the dispatcher and “sound[ing]

delusional.” See J.A. 109. Moreover, he had admitted to consuming alcohol, was

suspected of a previous firearm-related offense, and posed a threat not only of ambush to

the officers, but also of domestic violence to a “female” inside his apartment. Id.

Before proceeding to Galindo’s apartment, Officer Guerra recognized that, “to

assess the situation accurately,” he “would have to do it best in person” and “try to establish

an open line of communication [with Galindo] and basically feel him out.” See J.A. 296.

Furthermore, Guerra and the other responding officers had been trained to regard an event

like the Galindo event “as a crisis intervention” necessitating “effective communication”

and “de-escalation.” Id. at 693. Notwithstanding that training — and despite that they

were not fluent in Spanish, could speak only a few Spanish words, and could only presume

that Galindo would be able to understand simple English phrases — the officers decided

to proceed to Galindo’s apartment without awaiting the assistance of a Spanish-speaking

colleague. Even then, the officers’ training would have had them calmly asking Galindo

if he spoke English, conveying their intent to help him, non-threateningly asking him to

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lay his pistol on the ground, and using recognizable physical gestures in lieu of English

words and phrases that Galindo may not have understood.

Instead, Officer Guerra greeted Galindo with a Spanish command of “manos”

(“hands”), rather than the more precise “manos arriba” (“put your hands up”), albeit with

a physical gesture demonstrating to Galindo what he should do. When Galindo then raised

his left hand and showed himself to be holding the pistol that he had advised he would have

with him, Guerra and the other responding officers immediately shouted English

commands — neither calmly nor non-threateningly — to “drop the gun” and “put it down.”

Those commands, unlike the “manos” command, were not accompanied by any physical

gestures that would illustrate what the officers meant.

In the midst of the Spanish and then English commands, Galindo demonstrated

uncertainty as to whether he should throw his pistol or continue holding it in his raised left

hand. He also demonstrated that he was trying to understand and comply with the officers’

instructions. Quickly, Galindo assumed a position of surrender, with both his arms raised

above shoulder height and about 45 degrees from the center of his body. Galindo’s left

arm was pointing toward the wall of the apartment building across from his own, away

from Officer Guerra and his colleagues. Galindo was holding the pistol upside down, with

the grip pinched between his thumb and fingers. Although he could have fired the pistol

while holding it in that position, he could not have done so accurately. Moreover, Galindo

never pointed his pistol toward Guerra or another officer, and no other person was present.

Galindo also did not make any movement suggesting that he was about to fire the pistol.

Rather, Galindo remained frozen in his position of surrender until he fell as a result of the

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first of the two shots fired at him by Guerra. Throughout the encounter, Guerra’s rifle had

been aimed at Galindo, Guerra had backup from his colleagues, and cover had been

available to all the officers, with only Guerra choosing to step away from his.

Two days later, during his interview with police department investigators, Officer

Guerra gave an account of the fatal shooting in which he asserted the following: that he

had greeted Galindo with the Spanish command “manos arriba”; that, in response, Galindo

raised both his arms and only then lowered his left arm, reached into his pocket, and pulled

out his pistol; that Galindo pivoted the pistol and pointed it toward Guerra just before

Guerra fired his rifle at Galindo; and that Galindo remained standing after Guerra’s first

shot, such that Guerra was compelled to fire the second. Following the interview, however,

the video footage from the responding officers’ body cameras was shown to either flatly

refute or at least fail to corroborate each of those assertions.

Somewhat undeterred, Officer Guerra continued to claim during his deposition that

Galindo raised then lowered his left arm to reach into his pocket to retrieve his pistol, and

that he pivoted the pistol toward Guerra after subsequently taking his position of surrender.

Guerra has also endorsed the deposition testimony of Officer Tran-Thompson that, just

before being shot, Galindo took a small step toward Guerra and began to lower his left arm

or elbow in such a way that he appeared to be “getting ready to punch out and take a

shooter’s stance.” See J.A. 619. Tran-Thompson’s account, however, varies from Guerra’s

account and also lacks corroboration in the video footage. Additionally, although Guerra

asserted in his police department interview and subsequent deposition that Galindo was

holding his pistol in a shooter’s position — i.e., “high and firm with a pistol grip,” id. at

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317 — that assertion has been contradicted by Officer Batson’s statements that Galindo

was less-threateningly holding the pistol upside down, with the grip pinched between his

thumb and fingers.

In his statements, Officer Guerra has confirmed that he had a clear view of Galindo

and his pistol throughout the encounter. Guerra has also proposed that differences between

his account of the fatal shooting and those of other officers on the scene — as well as

differences between his account and the video footage from the other officers’ body

cameras — are the result of the officers’ varying vantage points. See, e.g., J.A. 335

(suggesting that, because his vantage point was better lit and closer than Officer Batson’s,

he was in superior position to discern how Galindo’s pistol was actually being held).

Furthermore, it is generally undisputed in these proceedings that the video footage is not

clear in all details and did not capture everything that occurred at the shooting scene.

Under the foregoing view of the facts — which, again, is necessarily in the light

most favorable to the plaintiff — Galindo posed a threat to the safety of the responding

officers at the moment he was shot, but a reasonable officer on the scene would not have

had probable cause to believe that he posed an “immediate threat” such that deadly force

could constitutionally be used against him. See Graham, 490 U.S. at 396; Waterman, 393

F.3d at 477. Simply put, Officer Guerra fired at Galindo while Galindo was standing still

in a position of surrender. Although Galindo was armed with a pistol, he did not threaten

anyone with the pistol by “pointing, aiming, or firing his weapon.” See Cooper, 735 F.3d

at 159 n.9. And although Galindo failed to obey the officers’ English commands to “drop

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the gun” and “put it down,” he made no “furtive or other threatening movement with the

weapon” that would have signaled an “inten[t] to use it in a way that imminently

threaten[ed] the safety of [Guerra] or another person.” See Knibbs, 30 F.4th at 225. 9

Indeed, the Spanish-speaking Galindo may not have even understood the English

commands to “drop the gun” and “put it down.” He seemed to want to comply with the

officers’ instructions, while being confused by what they were commanding. As we have

explained, a suspect’s failure to obey commands may not justify deadly force if the

commands were unclear. See Franklin, 64 F.4th at 533 (observing that “our cases support

[the] position that if [the suspect] defied clear commands, then his actions may have

provoked deadly force”).

Moreover, although it may not have been “perfectly reasonable,” Galindo had a

“rationale” for being armed: In a state of paranoia, he wanted to surrender his pistol and

turn himself in for impending court proceedings. Cf. Cooper, 735 F.3d at 160 (recognizing

suspect’s “perfectly reasonable rationale” for being armed, i.e., officers’ unannounced

nighttime incursion on his property (internal quotation marks omitted)). Galindo so

advised the Spanish-speaking 911 dispatcher, who in turn informed the responding officers

9 We focus herein on the Graham factor of whether the suspect posed an immediate threat because, where deadly force has been used, it “is particularly important.” See Franklin, 64 F.4th at 531. In any event, due to the facts of this case, the other factors specified in Graham — “the severity of the crime at issue” and whether the suspect was “actively resisting arrest or attempting to evade arrest by flight,” see 490 U.S. at 396 — are “not particularly germane to our analysis.” See Knibbs, 30 F.4th at 215-16 (concluding same where the defendant officer “was only trying to investigate a dispute between neighbors that may have involved an attempted misdemeanor property crime”).

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that Galindo planned to “put down the gun” only after the officers arrived outside his

apartment. See J.A. 313. The dispatcher also relayed to the officers that Galindo had given

assurances that he had no bullets. That is not to say that the officers were obliged to believe

Galindo or trust that he was not dangerous. But the fact that Galindo disclosed that he

would be carrying the pistol so that he could surrender it, as well as the fact that Galindo

affirmatively indicated that he intended the officers no harm, can be seen as further

weakening the case for probable cause to believe that Galindo posed an immediate threat.

Cf. Sigman, 161 F.3d at 787 (including in probable cause analysis that suspect had recently

wielded knife while issuing verbal threats against officers and others).

It also may be deemed significant that Officer Guerra and his colleagues went into

the Galindo event knowing that it should be treated “as a crisis intervention” with a person

who “sound[ed] delusional,” and knowing that they therefore needed “to establish an open

line of communication” with someone who spoke Spanish and may have understood no

English. See J.A. 109, 296, 693. Yet they proceeded to confront Galindo without the

assistance of a Spanish-speaking officer, and they otherwise disregarded their training on

how to properly interact with non-English speakers and persons suffering from mental

illness. See Franklin, 64 F.4th at 533 (noting officers’ failure to follow their training to

issue clear commands).

Viewing the video footage and the other evidence in the light most favorable to the

plaintiff, it may further be concluded that Officer Guerra’s account of the fatal shooting

was either contrived or unreasonably mistaken. See Franklin, 64 F.4th at 532 (recognizing

that deadly force will be justified where officer erroneously perceived immediate threat

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only if “mistake was reasonable”). That is, at this stage of the proceedings, Guerra’s

account cannot be credited, nor can inaccuracies in his account be excused as innocent

misperceptions. See id. at 529-30 (underscoring that, in considering a request for qualified

immunity made by summary judgment motion, “[w]e may not credit [the movant’s]

evidence, weigh the evidence, or resolve factual disputes in the [movant’s] favor” (quoting

Hensley, 876 F.3d at 579)).

At bottom, a reasonable jury could review and interpret the video footage, consider

the other evidence, and decide that Galindo did not pose an immediate threat to Officer

Guerra or anyone else at the moment Guerra shot him. A reasonable jury could also find

that Guerra fabricated his account of the fatal shooting because he knew that the real facts

showed that the shooting was not justified. Or a reasonable jury could find that Guerra

mistakenly perceived that Galindo posed an immediate threat, but that Guerra’s mistake

was not reasonable. As such, it very well may be concluded that Guerra used excessive

force in contravention of the Fourth Amendment, meaning that he is not presently entitled

to qualified immunity under the first prong of the qualified immunity analysis.

In ruling to the contrary, the district court erred. As an initial matter, the court

rendered its own interpretation of the video footage from the responding officers’ body

cameras and failed in several instances to view the facts in the light most favorable to the

plaintiff. For example, the court declared that the video footage shows that “Galindo’s left

hand began to drop just before shots were fired” — something not even Officer Guerra has

claimed — and it dismissed the video footage from the body cameras of Officers Batson

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and Suggs as being from “a view that cannot be the view of a reasonable officer in Guerra’s

position.” See Opinion 5, 10.

Because one of the few important things that is undisputed about the video footage

is that it is not clear in all details and did not capture everything that occurred at the shooting

scene — and because our own review of the video footage has confirmed that it is subject

to different interpretations — neither the district court nor this Court is permitted to decide

at the summary judgment stage of these proceedings what the video footage shows or what

it did not capture. Like ours, the role of the district court is limited to viewing the facts in

the light most favorable to the plaintiff and leaving material factual disputes to be resolved

by a jury. See Hensley, 876 F.3d at 579 (explaining that, under the summary judgment

standard, we may not “weigh the evidence” or “resolve factual disputes”).

Its error in improperly viewing the facts aside, the district court ultimately ruled in

favor of Officer Guerra based on the uncontested evidence “that Galindo ignored the

[Spanish-speaking dispatcher’s] directive to leave the gun in the house and in response to

the officer’s command ‘manos,’ . . . drew [the] gun.” See Opinion 12. According to the

court, once Galindo brandished his pistol, Guerra was immediately entitled to use deadly

force against him because he posed an immediate threat to the responding officers by being

“a non-compliant, armed subject.” See id. at 11, 13. In other words, the court concluded

that the fatal shooting was justified because of Galindo’s conduct before he assumed a

position of surrender and then allegedly pivoted his pistol toward Guerra and indicated he

was about to fire.

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The district court’s theory is at odds, however, with the well-established principle

“that the reasonableness of an officer’s actions is determined based on the information

possessed by the officer at the moment that force is employed,” so that “force justified at

the beginning of an encounter is not justified even seconds later if the justification for the

initial force has been eliminated.” See Waterman, 393 F.3d at 481. Even accepting that

deadly force was justified at the moment Galindo brandished his pistol, that justification

would have vanished once Galindo assumed his position of surrender.

Additionally, the district court’s theory disregards our precedents that deadly force

cannot be used simply because a suspect is armed and has ignored commands. To be sure,

the decisions invoked by the district court — Anderson, Sigman, and Slattery — stand for

the legal principle “that an officer does not have to wait until a gun is pointed at the officer

before the officer is entitled to take action.” See Opinion 11 (quoting Anderson, 247 F.3d

at 131). But those and other decisions make clear that there must be some basis, other than

a suspect’s mere possession of a weapon and failure to obey commands, for the officer to

reasonably feel threatened. That is, the suspect must “make[] some sort of furtive or other

threatening movement with the weapon, thereby signaling to the officer that the suspect

intends to use it in a way that imminently threatens the safety of the officer or another

person.” See Knibbs, 30 F.4th at 225 (summarizing Anderson, Sigman, and Slattery, as

well as Cooper, Elliott, McLenagan, and Hensley). Here, the allegation is that Galindo

made such a furtive or threatening movement with his pistol only after taking the position

of surrender.

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In these circumstances, the district court erred in concluding at the summary

judgment stage that Officer Guerra’s use of deadly force was objectively reasonable, such

that no Fourth Amendment violation occurred. Consequently, the court erred in awarding

qualified immunity to Guerra under the first prong of the relevant analysis.

Although we conclude that Officer Guerra is not presently entitled to qualified

immunity under the first prong of the qualified immunity analysis, we also rule that the

plaintiff is not entitled to summary judgment on her Fourth Amendment claim. In seeking

such relief, the plaintiff has largely relied on the video footage from the responding

officers’ body cameras, arguing that the video footage is sufficiently unambiguous both to

“quite clearly establish that Galindo was not a threat to anyone at the moment Guerra killed

him” and to “blatantly contradict[]” Guerra’s account of the shooting. See Br. of Appellant

22 (internal quotation marks omitted); see also Scott v. Harris, 550 U.S. 372, 380 (2007)

(recognizing that “[w]hen opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for summary

judgment”).

We cannot agree with the plaintiff that the video footage is unambiguous enough

either to prove the lack of an immediate threat or to wholly discredit Officer Guerra’s

version of events. As the plaintiff has not disputed, the video footage is inconclusive as to

key issues such as how Galindo was holding his pistol and where the pistol was pointing.

Moreover, it is generally agreed that the video footage did not capture everything that

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occurred at the shooting scene, rendering it possible that, just before Guerra shot him,

Galindo made threatening movements that the video footage does not show. Thus, the

video footage provides only “some support” to the plaintiff, and it does not compel an

award of summary judgment in her favor. See Witt v. W. Va. State Police, Troop 2, 633

F.3d 272, 276 (4th Cir. 2011) (observing that “Scott does not hold that courts should reject

[the nonmoving party’s] account on summary judgment whenever documentary evidence,

such as a video, offers some support for [the movant’s] version of events”).

It bears emphasis that — although a reasonable jury could rule in favor of the

plaintiff after reviewing the video footage and other evidence — a reasonable jury could

instead find that Galindo did pose an immediate threat at the moment Officer Guerra fatally

shot him or that Guerra was reasonably mistaken in perceiving an immediate threat. We

therefore decline to direct the entry of a judgment in the plaintiff’s favor on her Fourth

Amendment claim.

That brings us to the second prong of the qualified immunity analysis with regard

to the Fourth Amendment claim: whether the constitutional right allegedly violated was

clearly established in September 2017 when Officer Guerra fatally shot Galindo. In light

of its ruling in Guerra’s favor under the first prong, the district court did not reach this

issue. We address it, however, because if the right was not clearly established, Guerra

would yet be entitled to qualified immunity and we would have an alternative ground for

affirming the district court.

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In assessing whether a right was clearly established, we look to decisions of the

Supreme Court and this Court to “consider whether officers within our jurisdiction have

been provided fair warning, with sufficient specificity, that their actions would constitute

a deprivation of an individual’s constitutional rights.” See Betton, 942 F.3d at 193-94. “It

is not enough that a rule be suggested by then-existing precedent; the rule’s contours must

be so well defined that it is clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” See City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021)

(internal quotation marks omitted). Nevertheless, “[a] right need not be recognized by a

court in a specific factual context before such right may be considered ‘clearly established’

for purposes of qualified immunity.” See Wilson v. Prince George’s Cnty., 893 F.3d 213,

221 (4th Cir. 2018).

Here, the question is whether it was clearly established in September 2017 that an

officer would contravene the Fourth Amendment by using deadly force against a suspect

who is holding a firearm in his hand and ignoring commands to drop the weapon, but who

is standing still in a position of surrender, is not firing the weapon or aiming it at any

person, and is not otherwise making a furtive or threatening movement that would suggest

he had an intent to use the weapon to harm the officer or anyone else. The answer is plainly

“yes” under our 2013 decision in Cooper, as well as our earlier decisions in Anderson

(2001), Sigman (1998), Elliott (1996), McLenagan (1994), and Slattery (1991).

Precisely on point, we have held that those six decisions — along with our

November 2017 decision in Hensley — “together clearly establish” the following:

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[T]he failure to obey commands by a person in possession of, or suspected to be in possession of, a weapon only justifies the use of deadly force if that person makes some sort of furtive or other threatening movement with the weapon, thereby signaling to the officer that the suspect intends to use it in a way that imminently threatens the safety of the officer or another person.

See Knibbs, 30 F.4th at 225 (emphasis added); see also Franklin, 64 F.4th at 534-35

(explaining that we had “little trouble concluding that [the suspect’s] Fourth Amendment

right was clearly established by our precedents,” including Cooper and Hensley). That is,

we not only have decisions that clearly establish the very right at issue in these proceedings,

but we also have decisions that already recognize the right was clearly established under

the earlier precedents.

Notably, Officer Guerra — who bears the burden of proof under the second prong

of the qualified immunity analysis, see Stanton, 25 F.4th at 233 — does not argue that the

aforementioned right did not become clearly established until we decided Hensley, two

months after he fatally shot Galindo. And there is good reason for that, as it is not Hensley

that clearly established the right. At best, Hensley simply made even clearer the right that

was clearly established by Cooper, Anderson, Sigman, Elliott, McLenagan, and Slattery.

Officer Guerra is thus left to assert that a different right is at issue in these

proceedings — a right that has never been clearly established. Specifically, Guerra

maintains that there is no precedent of this Court or the Supreme Court ruling that where

an officer is “interacting with a subject who has a gun in his hand which the officer

reasonably believes the subject is preparing to fire,” and where “the officer has announced

his presence and the subject has been commanded repeatedly to disarm,” that officer “is

not allowed to defend himself, his fellow officers and others with deadly force.” See Br.

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of Appellees 41. The critical problem for Guerra is that his argument assumes that he shot

Galindo based on a reasonable belief that Galindo was about to fire his own pistol, but that

is not what the plaintiff contends.

Considering, as we must, the Fourth Amendment right that the plaintiff alleges was

violated, we are readily satisfied that the right was clearly established at the time of the

September 2017 fatal shooting. We therefore vacate the district court’s award of qualified

immunity to Officer Guerra and reinstate the plaintiff’s Fourth Amendment claim for

further proceedings.

We next address the plaintiff’s state law claims against Officer Guerra for assault

and battery, and against both Guerra and the City of Charlotte for wrongful death caused

by negligence and negligent infliction of emotional distress. The district court awarded

summary judgment to the defendants on those claims, based on its conclusion with respect

to the Fourth Amendment claim that Guerra’s use of deadly force was objectively

reasonable. As we have explained, however, there are genuine disputes of material fact as

to the objective reasonableness of Guerra’s actions. Thus, as with the Fourth Amendment

claim, we reinstate the assault and battery, wrongful death, and negligent infliction of

emotional distress claims for further proceedings, without directing the entry of judgment

in the plaintiff’s favor as to any of the claims.

Finally, we address the plaintiff’s state law claim against the City of Charlotte for

negligent training police officer training. The district court awarded summary judgment to

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the City on the negligent training claim because of the plaintiff’s failure to produce

evidence sufficient to establish any alleged training failure. In so doing, the court observed

that the plaintiff’s own expert witnesses acknowledged that Officer Guerra and his

colleagues received appropriate training from the City, as the plaintiff’s experts blamed the

officers for disregarding their training and did not criticize the training itself. Despite that

evidence, the plaintiff suggests that negligent training can somehow be inferred from the

officers’ conduct, particularly their decision to approach Galindo without the assistance of

a Spanish-speaking officer. We agree with the district court, however, that there is an

insufficient evidentiary basis for the negligent training claim, and we therefore affirm the

summary judgment award to the City as to that claim.

IV.

Pursuant to the foregoing, we affirm the district court’s summary judgment award

to the City of Charlotte on the plaintiff’s negligent training claim. We vacate the court’s

award of qualified immunity to Officer Guerra on the Fourth Amendment claim, as well as

the related summary judgment awards to Guerra and the City on the assault and battery,

wrongful death caused by negligence, and negligent infliction of emotional distress claims.

We remand for such other and further proceedings as may be appropriate.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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RICHARDSON, Circuit Judge, dissenting:

In its fifty-seven-page opinion, the majority devotes a mere three pages to whether

Officer Guerra violated clearly established law. Its brevity is telling. While the law may

be established now, we must consider the law as it stood when Galindo was shot in

September 2017. And the law at that time did not clearly establish that Officer Guerra

violated the Fourth Amendment.

Determining whether an official violates clearly established law is a two-step

process. We first must specifically define the right. City of Tahlequah v. Bond, 142 S. Ct.

9, 11 (2021). Then, based on that right, we look to see if caselaw at the time of the conduct

places the constitutional question “beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). “It is not enough that the

rule be suggested by then-existing precedent; the rule’s contours must be so well defined

that it is clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Bond, 142 S. Ct. at 11 (quoting District of Columbia v. Wesby, 138 S. Ct.

577, 590 (2018)) (internal quotation marks omitted). This does not require an existing case

directly on point. But it does demand that officers are entitled to qualified immunity

“unless existing precedent ‘squarely governs’ the specific facts at issue.” Kisela, 138 S.

Ct. at 1153 (quoting Mullinex v. Luna, 577 U.S. 7, 13 (2015)). This clarity requires an

existing “body of relevant case law” that actually finds “a Fourth Amendment violation

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‘under similar circumstances.’” 1 Wesby, 138 S. Ct. at 590–91 (first quoting Brosseau v.

Haugen, 543 U.S. 194, 199 (2004), and then quoting White, 580 U.S. at 79).

It is here that the majority goes astray. Even were one to accept its definition of the

right, 2 the majority does not identify a single case published before this September 2017

shooting—let alone a “body of relevant case law”—“finding a Fourth Amendment

violation under similar circumstances.” Wesby, 138 S. Ct. at 590–91. Its conclusory

analysis instead relies on cases after the shooting and cases finding no violation.

The majority rests on our decisions in Knibbs v. Momphard, 30 F.4th 200 (2022),

and Franklin v. City of Charlotte, 64 F.4th 519 (4th Cir. 2023). But both were decided

well after the shooting here, so they could not be part of the law that was clearly established

by September 2017. Wesby, 138 S. Ct. at 589 (“To be clearly established, a legal principle

must have a sufficiently clear foundation in then-existing precedent.” (emphasis added));

Kisela, 138 S. Ct. at 1154 (finding a case decided after the shooting at issue was of no use

in the clearly established inquiry). To get around this problem, the majority reads Knibbs

to say that our pre-shooting caselaw clearly established the right. The majority says that

1 There is an exception—which the majority doesn’t purport to rely on—for when the constitutional violation is “obvious . . . even though existing precedent does not address similar circumstances.” Wesby, 138 S. Ct. at 590. 2 The majority defines the question as “whether it was clearly established in September 2017 that an officer would contravene the Fourth Amendment by using deadly force against a suspect who is holding a firearm in his hand and ignoring commands to drop the weapon, but who is standing still in a position of surrender, is not firing the weapon or aiming it at any person, and is not otherwise making a furtive or threatening movement that would suggest he had an intent to use the weapon to harm the officer or anyone else.” Majority Op. at 56.

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the right at issue in Knibbs is the same as the one at issue here. And—according to the

majority—Knibbs said that right was clearly established “under . . . earlier precedents.”

Majority Op. at 57.

But Knibbs doesn’t say that. Knibbs lists seven cases that it says “together” clearly

establish the right as of April 2018. Knibbs, 30 F.4th at 224–25. One of those cases,

Hensley, was decided after Galindo’s shooting. Nor can the majority reasonably rely on

Hensley as holding that the right was, prior to that decision, clearly established, because

Hensley expressly refused to consider whether any right was clearly established. 3 876 F.3d

at 580. So Knibbs doesn’t say that our pre-shooting cases clearly establish the right; it says

our pre-shooting cases plus one post-shooting case do. And if it takes all seven cases

“together” to clearly establish the right, and the majority can’t rely on all seven, then the

majority can’t rely on Knibbs. This is especially true in relation to Hensley, which the

Knibbs majority said “applied [the] right more directly to the particular situation presented

in this appeal” than did any of the other cases discussed. Id. at 224; see also Franklin, 64

F.4th at 531, 535 (including Hensley as an important part of the analysis). In fact, Knibbs

is a better case for Officer Guerra since it implies that the majority with its six cases comes

up one short.

The majority speeds right past this hole in its logic, pausing only to half-heartedly

assert that “Hensley simply made even clearer the right that was clearly established” by the

3 We specifically noted in Hensley that the officers “failed to raise—and, therefore, have waived—any argument that the right at issue was not clearly established.” Id. at 580. So the only question was whether a constitutional violation occurred. Id. at 580–81.

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other six cases. Majority Op. at 57. But now the majority is adding its gloss to Knibbs’s

gloss. And if our precedent needs that many coats to paint a right as clearly established,

it’s obvious that right was never clearly established at all.

Plus, the majority’s gloss isn’t even correct. Without Knibbs, Franklin, or Hensley,

and looking only to the caselaw that existed in September 2017, see Wesby, 138 S. Ct. at

589, Officer Guerra is entitled to qualified immunity. The majority cites six pre-shooting

cases: (1) Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013); (2) Anderson v. Russell, 247

F.3d 125 (4th Cir. 2001); (3) Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir. 1998);

(4) Elliot v. Leavitt, 99 F.3d 640 (4th Cir. 1996); (5) McLenagan v. Karnes, 27 F.3d 1002

(4th Cir. 1994); and (6) Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991). But together or

separately, none of these make it clear to “every reasonable official” that the use of deadly

force in this case was clearly unlawful. Wesby, 138 S. Ct. at 589.

Start with Cooper. There, we denied qualified immunity when officers shot a man

who stepped onto his front porch carrying a shotgun. Cooper, 735 F.3d at 154–56. Key to

that holding was the officers’ failure to present themselves as law enforcement officials.

Id. at 159 (“Importantly, the Officers never identified themselves.” (emphasis added)).

This failure made their assumption that the man was threatening less reasonable. Id. But

Officer Guerra identified himself. So Cooper is “simply too factually distinct to speak

clearly to the specific circumstances here.” Mullenix, 577 U.S. at 18; cf. Knibbs, 30 F.4th

at 224 (noting that Cooper only defined the right “at a higher level of generality”).

And, to the extent it does speak to these circumstances, Cooper actually suggests

that Officer Guerra acted reasonably. We explained in Cooper that, if the officers had

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identified themselves, “they might have been safe in the assumption that a man who greets

law enforcement with a firearm is likely to pose a deadly threat.” Cooper, 735 F.3d at 159.

We also said that “an armed suspect need not engage in some specific action—such as

pointing, aiming, or firing his weapon—to pose a threat.” Id. at 159 n.9. So, after Cooper,

Officer Guerra might have reasonably assumed he could respond with deadly force to a

man approaching him with a drawn weapon. Doubly so since Galindo was in fact drunk,

delusional, and had repeatedly ignored commands to leave the firearm in his home. Cooper

therefore did not put the constitutionality of Officer Guerra’s actions “beyond debate.” See

Kisela, 138 S. Ct. at 1152.

The majority’s other cases—Anderson, Sigman, Elliot, McLenagan, and Slattery—

are even less helpful. The district court used all but one of them to hold that Officer Guerra

did not violate the Fourth Amendment. Aleman v. City of Charlotte, No. 3:19-cv-00491,

2021 WL 4495907, at *6–7 (W.D.N.C. Sept. 30, 2021). Officer Guerra argued the same.

And Aleman argued that they have “no application here.” 4 Appellant’s Br. at 32–35. None

of them help show that Officer Guerra violated clearly established law.

In Anderson, Sigman, and Elliot, we held the officer’s use of deadly force was

reasonable. Anderson, 247 F.3d at 127; Sigman, 161 F.3d at 784; Elliot, 99 F.3d at 641.

Officer Guerra and the district court could thus be forgiven for thinking they are evidence

4 You might think the majority would be concerned that every actor involved in this litigation disagrees with it. Ordinarily this wouldn’t be much of a problem. That others might think us wrong should not stop us from doing what we think is right. But when the question is whether something is beyond debate, it should give us pause when both parties and the district court judge go the other way.

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of what a police officer can legally do. Instead, the majority uses them as evidence of what

a police officer cannot legally do—presumably on the theory that if Galindo posed less of

a threat than the plaintiffs in those cases, then his shooting was unreasonable. But the

Supreme Court has rejected this reasoning: “[t]he mere fact that courts have approved

deadly force in more extreme circumstances says little, if anything, about whether such

force was reasonable in the circumstances here.” Mullenix, 577 U.S. at 18. So these cases

cannot demonstrate that Officer Guerra violated clearly established law.

What’s more, those cases could reasonably be read—like Cooper—to support

Officer Guerra’s position. In Anderson we noted that “[t]his Circuit has consistently held

that an officer does not have to wait until a gun is pointed at the officer before the officer

is entitled to take action.” 247 F.3d at 131. Similarly, in Elliot we explained that “[n]o

citizen can fairly expect to draw a gun on police without risking tragic consequences.” 99

F.3d at 644. We also said that “[o]fficers need not be absolutely . . . sure of the nature of

the threat or the suspect’s intent to cause them harm” before using deadly force. Id. Given

their holdings and dicta, a reasonable officer could look at these cases—where we

condoned the use of deadly force against drunk, armed individuals—and infer that Officer

Guerra’s use of deadly force was reasonable. So these cases—where there was no

constitutional violation at all—do nothing to place the unlawfulness of Officer Guerra’s

conduct “beyond debate.”

McLenagan and Slattery are no better. In McLenagan, we granted qualified

immunity to an officer who shot a handcuffed detainee that was running towards him

because another officer was shouting “[t]he [detainee] has got a gun.” 27 F.3d at 1005–

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06. The officer did not check to see if the detainee was armed or command him to stop.

Id. at 1007. Nor did the detainee move his hands. Id. Yet we still condoned the officer’s

use of deadly force: “We will not second-guess the split-second judgment of a trained

police officer merely because that judgment turns out to be mistaken, particularly where

inaction could have resulted in death or serious injury to the officer or others.” Id. at 1007–

08. I—along with the district court and the parties—fail to see how a reasonable officer

would know from McLenagan that Officer Guerra’s use of deadly force was clearly

unlawful.

Lastly, in Slattery, we granted qualified immunity to an officer who shot a man who

ignored the officer’s commands and began reaching for what the officer thought was a

weapon. 939 F.2d 215. We noted that “[a] police officer should prevail on an assertion of

qualified immunity if a reasonable officer possessing the same information could have

believed that his conduct was lawful.” Id. at 216. Outside of that statement, there is scant

analysis of the qualified immunity issue. Id. at 216–17. So Slattery does not clearly

establish that Officer Guerra’s conduct was unlawful; it hardly bears on the issue at all.

The point is not that the dicta in these cases is binding, or that officers are entitled

to qualified immunity unless we’ve held otherwise on identical facts. It’s simply that using

cases in which there was no constitutional violation at all to show that an officer violated

clearly established Fourth Amendment principles is a fraught endeavor. Such cases might

show a constitutional violation, but they are unlikely to put the question “beyond debate.”

All told, the majority has “failed to identify a case where an officer acting under

similar circumstances . . . was held to have violated the Fourth Amendment.” White, 580

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U.S. at 79. It has not shown that—based on our caselaw in September 2017—a reasonable

officer would have known that using deadly force in these circumstances was clearly

unlawful, beyond debate. Officer Guerra’s conduct at least falls in the “hazy border”

between the unreasonable use of force in Cooper and the reasonable uses of force in

Anderson, Sigman, Elliot, McLenagan, and Slattery. See Mullenix, 577 U.S. at 18 (quoting

Brosseau, 543 U.S. at 201). That means he is entitled to qualified immunity. Wilson v.

Prince George’s County, 893 F.3d 213, 223 (4th Cir. 2018).

* * *

“Qualified immunity is controversial, contested, and binding.” Stanton v. Elliott,

25 F.4th 227, 237 (4th Cir. 2022) (cleaned up). While many criticize the doctrine, lower

court judges are duty-bound to faithfully apply it so long as it exists. The majority does

not. It instead joins the lengthy list of courts of appeals to improperly deny qualified

immunity in a Fourth Amendment case. 5 I refuse to join that list and respectfully dissent.

5 See, e.g., Bond, 142 S. Ct. 9; Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021); City of Escondido v. Emmons, 139 S. Ct. 500 (2019); Kisela, 138 S. Ct. 1148; Wesby, 138 S. Ct. 577; White, 580 U.S. 73; Mullenix, 577 U.S. 7; City and County of San Francisco v. Sheehan, 575 U.S. 600 (2015); Plumhoff v. Rickard, 572 U.S. 765 (2014); Caroll v. Carman, 574 U.S. 13 (2014); Stanton v. Sims, 571 U.S. 3 (2013); Ryburn v. Huff, 565 U.S. 469 (2012); Ashcroft v. al-Kidd, 563 U.S. 731 (2011); Brosseau, 543 U.S. 194.