In October 2016, I filed a Petition for a Writ of Certiorari in Salazar-Limon v. City of Houston, No. 16-515, seeking review of a decision of the Fifth Circuit. Excerpts of the petition are below. The City of Houston waived a response, but the Supreme Court requested one. The City then filed its Brief in Opposition, and we filed a Reply Brief.
The case involves basic questions of summary judgment under Rule 56--in essence, when is a person entitled to a jury trial? It also involves a frequent issue that arises in police shootings: How does the judicial system account for the officer's claim that he shot the person because the person allegedly "reached for his waistband"?
QUESTION PRESENTED
When a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, may a court grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did?
* * *
STATEMENT OF THE CASE
Underlying Facts
1. Salazar is unarmed and shot in the back.
The following facts are viewed in the light most favorable to Petitioner Ricardo Salazar-Limon (“Salazar”).
In October 2010, Salazar was 25 years old and working in Houston, Texas, supporting his wife and children. He had come to the United States from Mexico in 2001 when he was 16 years old. He had no criminal history—his lone interaction with the police over the years was when he received a traffic ticket.
On October 30, 2010, he had another encounter with police—one that effectively destroyed his life, leaving him paralyzed from the waist down.
It was Friday evening, and Salazar came home from work around 8:00 p.m. after a long day of installing sheetrock and painting at some apartments. His wife and son were home, along with his friend. Salazar and his friend had two or three beers and ate dinner. They then left to hang out with two other friends, and stopped to pick up a 12-pack of Bud Light. They arrived at their friends’ house around 10:00 p.m., and Salazar had one of the beers while they were all talking. Around 11 p.m., they decided to go to another friend’s house. They got into Salazar’s truck (one friend in the passenger seat and the other two in the back cab seats), brought the beers that remained in the 12-pack, and headed down the interstate.
There wasn’t too much traffic on the freeway, and Salazar was driving around 75 miles per hour in the left lane, though the posted speed limit was 65. Salazar was not drinking while driving. He drove past a police car that was sitting off to the right, and the police car immediately pulled out and turned on its lights and sirens as Salazar drove by. As soon as Salazar saw the police car coming up behind him, he pulled off on the right side of the freeway into the emergency lane as far as he could, and stopped the truck.
The officer ran the truck’s license-plate number and it came up clean—no indication of anything suspicious. The officer walked to the truck and asked Salazar if the officer could see his license and insurance. Salazar said, “of course.” Salazar explained that his insurance information was in the glove compartment, and he asked the officer if he could get it out. The officer said, “of course.” During the conversation, the other three men in the truck just sat quietly, waiting for the stop to be completed.
Salazar handed the officer his driver’s license, which is from Mexico, and the officer asked “what’s this?” Salazar explained that it was his license. Salazar then said, “Excuse me, sir. Can I ask you something?” The officer responded, “No. Quiet. Calm down.” Salazar said, “okay.” The officer then walked back to his car.
In the police car, the officer ran Salazar’s license through his computer system. The license came up totally clear—no indication of any crimes or problems.
The officer then exited his car, walked toward the front of his car and the back of the truck, and said to Salazar, “Hey, come here,” indicating that he should walk over. So Salazar opened his door and walked over to the officer, and they stood between the truck and the police car.
With no explanation, the officer told Salazar he was going to jail and started trying to handcuff him. Salazar pulled his hand back and started walking away. Salazar testified to this at his deposition, in response to questions by the officer’s attorney:
Q. Okay. And what happens?
A. So then I just recall that he says to me, he says that he’s going to take me to jail.
Q. Okay.
A. And I — I ask, I say, “Well, why?” And then he just tells me, “Don’t ask.” He didn’t say, like — He didn’t say, like, “Calm down” or Quiet.”
And then he takes his hand, and he’s going to get his handcuffs; and he grabs my hand, and he wanted to do like this (indicating) to me. So then when he was going to lock the handcuffs on me, I pulled my hand.
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Q. Okay. And you pulled back. What happened next?
A. I pulled back my hand, and I give him my back.
Q. Okay. And what happens next?
A. I became frightened when he said that. I turned around, and I began to walk.
Q. Okay. Showing with lines, indicate where you were walking.
A. (Complying.)
Q. At any point before you started work— walking, did you and Officer Thompson get involved in a struggle?
A. No.
Q. So the only movement between the two of you is you pulling away from him, turning around.
A. Corre— Correct.
Q. And walking away.
A. Correct.
Q. And on your — your map here, it appears that you began walking along the passenger side of your truck.
A. Correct. Because on this side, there were cars coming.
(Pet. App. 43–47.)
Salazar then described how he continued merely walking along the side of the truck when Officer Thompson suddenly shot him in the back:
Q. Okay. All right. What happens when you start walking by the side of your truck?
A. Okay. I start walking. I start — I start, and I’m — when I’m passing the passenger-side window —
Q. Would that be where [your friend] is sitting?
A. That’s correct.
Q. Okay.
A. I just hear the policeman says — he says — in English, he says, “Stop” — He said, “Stop right there.” And when he says that, so I just hear boom.
Q. Did you turn around?
A. When I hear — When I hear, boom, I began to feel hot in my back, wet. And so I turn around, and I see him; and then I fall.
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Q. When he told you to stop, did you stop?
A. No. Because immediately, he says, “Stop,” and then he fires.
(Id. 48–50.)
Salazar couldn’t move: “I feel that I’m not able to move my legs.” (Id. 50.) “I was trying to get up, but I wasn’t able to move at all.” (Id. 51.) He also stated: “I just recall that I wanted to try to stand up, and I was kind of like suffocating.” (Id.) Salazar could hear the officer talking, but doesn’t know what he was saying because, Salazar said, “I was dying.” (Id. 52.)
Salazar survived, but the bullet entered his back and severed his spine, leaving him paralyzed from the waist down. He is a wheelchair-bound paraplegic.
In sum, Salazar was unarmed, had no criminal history, was pulled over for speeding, told without any explanation that he was going to jail, threatened with handcuffs, and then shot in the back by a police officer while merely walking away.
2. Thompson tells a different story and claims Salazar reached for his waistband.
The officer who shot Salazar is Respondent Christopher Thompson of the Houston Police Department. He has a different story about what occurred. Crucially, unlike Salazar’s description of being shot while merely walking, Thompson claims that Salazar reached for his waistband—even though Salazar had nothing in his waistband.
At 5:28 a.m. that morning, a few hours after shooting Salazar in the back, Thompson completed a typed statement describing his version of the encounter as follows. He pulled Salazar’s truck over for speeding, clocking it at 83 miles per hour. He spoke to the driver and noticed a strong odor of alcoholic beverages. He saw that there were three other male passengers. He asked Salazar to come out between the police car and the truck. When he was talking with Salazar and tried to put handcuffs on him, he said Salazar “turned around and pushed me as if trying to push me into traffic.”[1] He pushed Salazar back and they struggled toward the guard rail that was about 20 feet over the road below. He claimed that he felt as if “Salazar was trying to pull me over the guard rail.” Thompson tried to hold Salazar, but he broke away and “began walking” along the passenger side of the truck. Thompson pointed his gun at Salazar and “began yelling at him to show his hands.” Salazar kept walking and was yelling something in Spanish.
At this point in Thompson’s statement, he claimed that he saw Salazar move “both of his hands” toward his waistband, leading Thompson to shoot: “He then took both of his hands and moved them to the front of his waistband. I fired one shot and continued to yell for him to show his hands. I was in fear for my life at that point because I believed he was reaching for a weapon.”
But Thompson then stated he “finally” could see Salazar’s hands after he shot him in the back: “He then collapsed and finally put his hands where I could see them.”
3. Thompson gives a second statement, adding that Salazar turned toward him before he shot.
A few months later, on January 25, 2011, Officer Thompson gave another statement. This statement was similar to his first one, but it added that while Salazar was walking away, “he started to turn his body but still did not show his hands.” Further, Officer Thompson stated, “[a]s he was turning and still not exposing his hands, I discharged my duty weapon.”
District Court
Salazar then brought this § 1983 suit against Thompson and the City of Houston, alleging violations of the Fourth and Fourteenth Amendments. Salazar contended that (1) Thompson used excessive force in shooting Salazar in the back while he was unarmed, and (2) the City was liable for failing to properly train and supervise Thompson. The district court had jurisdiction under 28 U.S.C. § 1331 (federal question).
Discovery ensued, and Salazar testified at his deposition on August 15, 2013. Salazar provided the facts noted above regarding his full encounter with Thompson, explaining that Thompson shot him in the back as he was simply walking away. There was no shoving, no aggressive action toward Thompson, no reaching for a waistband (and nothing to reach for), and no turning toward Thompson before Thompson shot Salazar.
Thompson then testified at his deposition two weeks later. Thompson testified to a very different set of facts, similar to his post-shooting statements noted above. Again, Thompson stated that while Salazar was walking away, Salazar made a motion toward his “waistband area.” Moreover, Thompson claimed, Salazar turned to his left and looked at Thompson. In light of these alleged motions toward the “waistband” and the “turning,” Thompson testified that he shot Salazar in the back. Thompson further testified to his view that he believed Salazar was an “imminent threat” when he was walking and remained an imminent threat after he was shot and even after he was put into the ambulance paralyzed. Thompson also admitted that he had no scrapes or bruises after his encounter with Salazar.
The district court granted summary judgment for Thompson and the City. In the first paragraph of the opinion, the district court stated as fact that as Salazar was walking away, he “turned toward the officer, reaching toward his waistband” before he was shot. (Pet. App. 14.) The district court asserted that there was “no summary judgment evidence contradicting Thompson’s testimony.” (Id. 34.) Concluding that there were no disputed material facts, the district court granted summary judgment to Thompson and to the City.
Fifth Circuit
The Fifth Circuit affirmed, having jurisdiction under 28 U.S.C. § 1291 (final decisions of district courts). The court recited the familiar summary-judgment standard, noting that the court is supposed to “view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” (Id. at 2.) Yet the court stated that the “undisputed facts” included that Salazar was “suddenly reaching toward his waistband” as he walked away. (Id. at 11 (court’s emphasis).) Despite Salazar’s testimony describing being shot while merely walking away, the court stated that Salazar “did not deny” reaching for his waistband. The court affirmed, and it later denied Salazar’s petition for rehearing. (Id. at 40.)
Thus, unless this Court intervenes, no jury will ever decide the truth of what occurred that night. And, under the precedent of the decision below, the same will be true of all forthcoming cases where an unarmed person is shot by an officer and testifies to actions presenting no threat whatsoever, so long as the officer claims the person “reached for a waistband.”
Salazar now petitions for a writ of certiorari.
REASONS FOR GRANTING THE PETITION
The decision below violates the summary-judgment standard, is an outlier among all circuits in the Nation, and sets a dangerous precedent that will undermine the public’s perception of the right to have facts decided by a jury, especially when police shoot an unarmed person. Certiorari should be granted.
I. The decision below is contrary to precedent of this Court and every other court of appeals.
A. The legal framework.
Section 1983 enables a person to bring a suit for violation of clearly established constitutional rights, including excessive force in violation of the Fourth Amendment. Whether police use of force is reasonable turns on the circumstances of the case, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). Police may not use deadly force on a person who poses no immediate threat to the officer and no threat to others. Tennessee v. Garner, 471 U.S. 1, 11 (1985).
Individual defendants in § 1983 suits are entitled to raise the defense of qualified immunity. To overcome the defense, the plaintiff must establish that (1) the defendant violated a constitutional right, and (2) the right was clearly established. Tolan v. Cotton, 134 S. Ct. 1861, 1865–66 (2014); Ortiz v. Jordan, 562 U.S. 180, 183 (2011).
When, as here, qualified immunity is raised at the summary-judgment stage, the familiar summary-judgment standard applies: “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [the nonmovant’s] favor.” Tolan, 134 S. Ct. at 1863 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
B. As Judge Kozinski has stated, it is not a justifiable inference that a person reached for a waistband with nothing in it.
Judge Kozinski of the Ninth Circuit recently explained the proper analysis in this situation, i.e., where a person is shot by police, the police claim “waistband,” there was nothing in the waistband, and the record is otherwise silent on the alleged movement toward the waistband. Cruz v. City of Anaheim, 765 F.3d 1076 (9th Cir. 2014).
In Cruz, a confidential informant told police that Cruz was a gang member, sold drugs, was carrying a gun in his waistband, and made clear that he was not going back to prison. Id. at 1077–78. Officers pulled over Cruz’s car, he tried to drive away, and officers surrounded him with weapons drawn. Id. at 1078. Cruz opened his door and police shouted at him to get on the ground. Four officers stated that he ignored them and reached for his waistband. The officers opened fire and killed him. He had no weapon on him, but a loaded gun was found on the passenger seat. Cruz’s family brought suit, and the district court granted summary judgment to the officers, concluding that the plaintiffs “hadn’t presented anything to contest the officers’ version of events.” Id.
In a unanimous opinion, the Ninth Circuit reversed. Writing for the court, Judge Kozinski explained that everything turned on the waistband: “Given Cruz’s dangerous and erratic behavior up to that point, the police would doubtless be justified in responding to such a threatening gesture by opening fire.” “Conversely,” Judge Kozinski continued, “if the suspect doesn’t reach for his waistband or make some similar threatening gesture, it would be clearly unreasonable for the officers to shoot him after he stopped his vehicle and opened the door.” Id. at 1078–79. At that point, the suspect no longer poses an immediate threat to the police or the public. Id. at 1079 (citing Garner, 471 U.S. at 9).
Judge Kozinski explained that the district judge relied entirely on the testimony of the four officers who said Cruz indeed reached for his waistband. Id. But courts cannot rely solely on “what may be a self-serving account by the police officer.” Id. (citation omitted). This remains true where the shooting victim was killed and is unable to testify to his or her version of the events. Id. The courts must also consider “circumstantial evidence that, if believed, would tend to discredit the police officer’s story.” Id. (citation omitted).
Judge Kozinski then noted that one particular piece of evidence could give a reasonable jury pause regarding the officers’ claims of reaching for the waistband: “Most obvious is the fact that Cruz didn’t have a gun on him, so why would he have reached for his waistband?” Id. Judge Kozinski further stated that it would have been foolish, but not implausible, for Cruz to try to quickly reach a gun in his waistband when surrounded by officers if he actually had a gun on him. “But for him to make such a gesture when no gun is there makes no sense whatsoever.” Id. (italics in original). “A jury may doubt Cruz did this,” he continued. Id. Of course a jury could reach the opposite conclusion, he explained, but a jury “could also reasonably conclude that the officers lied.” Id. at 1079–80.
Further emphasizing that it would make no sense to reach for a waistband that had nothing in it, Judge Kozinski remarked that saying shooting victims “reached for a gun” might be a plausible defense, but saying that such victims “‘reached for no gun’ sounds more like song-and-dance.” Id. at 1080.
Judge Kozinski was also careful to emphasize that the court took no position about whether the officers ultimately were telling the truth: “We make no determination about the officers’ credibility, because that’s not our decision to make. We leave it to the jury.” Id. The case was therefore remanded to trial.
C. Salazar is entitled to have a jury decide whether Thompson’s version of the facts is the truth.
Salazar has a right to have a jury decide the facts of his case.
First consider his evidence, and how much more obvious the need for a trial is here than in a case such as Cruz. Salazar was pulled over for speeding. He was not aggressive. Thompson ran the truck’s plates and Salazar’s license, and they both came back clean. Without any explanation, Thompson told Salazar he was going to jail and started handcuffing him. That likely violated Salazar’s rights from the start, even under Fifth Circuit law. See Brown v. Lynch, F. App’x 69, 75 (5th Cir. 2013) (“[W]e have never allowed the use of handcuffs on reasonable suspicion alone in circumstances like this when a person who is suspected of committing a nonviolent crime on some prior date posed only such a remote threat of either fight or flight.”). Realizing he was suddenly being handcuffed and arrested for no apparent reason, Salazar pulled his hand back and simply turned to walk away. While merely walking, Salazar heard the command to stop and then his back almost immediately became hot and wet from the gunshot, and he collapsed.
Then consider how this conflicts with Thompson’s version, including the crucial allegation that Salazar was reaching for his waistband. Unlike Cruz (who was killed), Salazar testified about the shooting and specifically explained that he simply walked away from the officer. The fair inference from his description—which must be taken as true—is that he did not reach for his waistband. Any remaining doubt about that is erased by the objective fact that Salazar had nothing in his waistband, as Judge Kozinski emphasized in Cruz: “[F]or him to make such a gesture when no gun is there makes no sense whatsoever.” 765 F.3d at 1079. Contrary to the view of the court below, there is no requirement that Salazar explicitly sound out the words “I did not reach for my waistband” when the evidence viewed in his favor shows that he did not. See Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 35 (1944) (“The very essence of [the jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.”).[3]
And Thompson’s claim that Salazar “reached for no gun” (as Judge Kozinski would phrase it) is not the only problem with Thompson’s credibility. Thompson’s first statement, written hours after the shooting, never mentioned Salazar turning toward him before Thompson fired—Thompson added that in his second statement months later. Thompson also said he could see Salazar’s hands before shooting, claiming that Salazar “took both of his hands and moved them to the front of his waistband,” but Thompson then stated that after Salazar collapsed he “finally put his hands where I could see them.” Thompson further claimed that Salazar struggled with him and literally tried to pull Thompson over the guard rail to throw him down to the street 20 feet below—but Thompson later admitted didn’t have a single scrape or bruise on him after the encounter. Thompson also claimed that the area was “dimly lit,” but photographs and statements of investigators showed the area was illuminated by light poles. Finally, Thompson appears inclined to stretch the definition of “imminent threat,” as he testified to his view that Salazar remained an imminent threat even after he was put into the ambulance.
These are the sort of things Thompson would be asked about at trial. A jury would look him and Salazar in the eye as they testify, and decide who is telling the truth. That is all Salazar is asking for—the chance to have a jury decide what really happened that fateful night, and whether he really reached for his waistband. And the law requires a jury, not a court, to do so. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (in deciding a motion for summary judgment, a court “may not make credibility determinations or weigh the evidence”).
The court below usurped the jury’s role, writing in italics to emphasize that it is an “undisputed fact” that Salazar was “suddenly reaching toward his waistband,” and relying on that “fact” to grant judgment against Salazar without a trial. (Pet. App. 11 (court’s emphasis).) This is a severe misapprehension of the summary-judgment standard and the Seventh Amendment’s right to a jury trial. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 624–25 (1991) (“In the federal system, the Constitution itself commits the trial of facts in a civil cause to the jury.”).
II. This Court will intervene when a lower court applies such a “clear misapprehension of summary judgment standards.”
This isn’t the first time the Fifth Circuit has veered dangerously far from these basic summary-judgment principles in a case where police shot an unarmed person who police claimed reached for his “waistband.” Two years ago, in Tolan v. Cotton, this Court summarily reversed the Fifth Circuit in such a case. 134 S. Ct. at 1863.
In Tolan, an officer entered the wrong license-plate number for a car, mistakenly believed it was stolen, drew his gun, and ordered the driver (Tolan) to lie down on the front porch of his own house where he lived with his parents. Id. at 1863. Tolan’s parents came out to explain it was all a mistake, but Tolan stated that the officer slammed his mother against the garage, prompting Tolan to rise to his knees about 20 feet from the officer, telling the officer to take his hands off his mother. Id. at 1864. The officer then fired three shots at Tolan, with one bullet entering his chest, causing life-altering injuries. Id.
The Fifth Circuit affirmed summary judgment for the officer, relying on the purportedly “undisputed” fact that Tolan was “moving to intervene” and that the officer therefore could reasonably have feared for his life. Id. at 1865. The Fifth Circuit also stated that the officer feared that Tolan “was reaching towards his waistband for a weapon.” Tolan v. Cotton, 713 F.3d 299, 303 (5th Cir. 2013).
This Court unanimously reversed, explaining that the Fifth Circuit “failed to view the evidence at summary judgment in the light most favorable to Tolan with respect to the central facts of this case.” 134 S. Ct. at 1865. These facts included disputes regarding the officer’s claims that the area was “dimly lit,” that Tolan’s mother was “very agitated,” that Tolan was “verbally threatening,” and that Tolan was “moving to intervene.” Id. at 1866–67. This Court explained that it granted review because the “opinion below reflects a clear misapprehension of summary judgment standards in light of our precedents.” Id. at 1868. As the Court reminded the Fifth Circuit, “genuine disputes are generally resolved by juries in our adversarial system.” Id.
The Fifth Circuit has again failed to heed this lesson, and another unarmed person has been shot by police without the opportunity for a jury to decide what facts actually occurred. This Court’s intervention is again warranted. Cf. White v. Wheeler, 136 S. Ct. 456, 462 (2015) (reversing court of appeals on grounds it had been previously reversed on and stating that “this Court again advises the Court of Appeals” of the established legal principles at issue).
III. The precedent set by the lower court is dangerous and raises an important federal question.
The public perception of the right to trial and the judicial system as a whole are at the forefront of national discourse, especially in the context of police shootings. When an unarmed 25 year old with no criminal history ends up paralyzed from a bullet to the spine after being pulled over for speeding, has no weapon whatsoever (let alone in his waistband), and testifies that he was shot while simply walking away, he is entitled to a trial—even if the officer says he reached for his waistband. The public understands this, and so do the other circuits. Unless this Court grants certiorari, the basic principle that facts are determined by a jury will be undermined, and it will leave the odious perception—accurate or not—that police play by different rules.
This Court is symbolic of our entire judicial system. This case presents the opportunity for the Court to show that in times of visible strain between communities and police, our fundamental principles—including the Seventh Amendment right to have disputed facts decided by a jury—remain unbowed.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
David E. Mills
Counsel of Record
The Mills Law Office LLC
1300 West Ninth St., Ste. 636
Cleveland, OH 44113
(216) 929-4747
dm@MillsFederalAppeals.com
Sean M. Palavan
TALABI & ASSOC., P.C.
2909 Hillcroft Ave., Ste. 200
Houston, TX77057
(713) 266-0529
Counsel for Petitioner
October 13, 2016
[1]Based on Thompson’s version of the events, Salazar was later charged with two misdemeanors: driving while intoxicated and resisting arrest. The charging instrument alleged that Salazar had pushed Officer Thompson with his hand. Salazar ultimately pled nolo contendere to both charges; his punishment was limited to paying a fine.
[2] The other circuits recognize that similar factual disputes regarding officers’ claimed perception of imminent harm must be resolved by a jury. See, e.g., Whitfield v. Melendez-Rivera, 431 F.3d 1, 7–8 (1st Cir. 2005) (“Specifically disputed was whether [the plaintiff] was running away, or whether he had stopped running and had turned toward the officers with a metal object in his hand.”); Aczel v. Labonia, 92 F. App’x 17, 19 (2d Cir. 2004) (denial of summary judgment proper where officers claimed plaintiff was resisting arrest and possibly grabbing for weapons but plaintiff testified that he offered no resistance); Lamont v. New Jersey, 637 F.3d 177, 184 (3d Cir. 2011) (reversing summary judgment for officers who used deadly force on unarmed person who reached for waistband and many bullets struck person in the back); Cooper v. Sheehan, 735 F.3d 153, 159 (4th Cir. 2013) (reversing summary judgment for officers who shot armed person because there was a dispute whether the person actually threatened them); Bing v. City of Whitehall, 456 F.3d 555, 571–72 (6th Cir. 2006) (denying qualified immunity to an officer who shot a person in the back, even though police responded to “shots fired” and knew he had a gun, because he did not pose threat to anyone at that point); Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (denying qualified immunity where officer shot person in back “without any indication that he had committed a violent felony or was dangerous”); Capps v. Olson, 780 F.3d 879, 885 (8th Cir. 2015) (“Whether [plaintiff] was moving towards [the officer when the officer] fired the first shot is a disputed material fact that bears on the reasonableness of the use of force.”); Carr v. Castle, 337 F.3d 1221, 1227–28 (10th Cir. 2003) (denying qualified immunity to officers who shot an unarmed person who was not advancing on them, even though he previously threw a concrete block at them, noting that “all [11] shots that hit [the person] entered his back side”); Perez v. Suszczynski, 809 F.3d 1213, 1216 (11th Cir. 2016) (denial of summary judgment proper where officer shot person in the back and evidence indicated person was not resisting); Flythe v. Dist. of Columbia, 791 F.3d 13, 22 (D.C. Cir. 2015) (reversing summary judgment for officer who shot a person whom he claimed attacked him with a knife because a reasonable jury could conclude that person did not actually threaten him).
[3] In contrast to cases such as Cruz, Salazar’s case is particularly egregious because Thompson would have no basis to believe Salazar was armed or dangerous even if Salazar did move his hands toward his waistband as Thompson claimed. See Smith v. Ray, 781 F.3d 95, 104–05 (4th Cir. 2015) (denying qualified immunity and explaining that “while an officer of course may legitimately be concerned that a suspect is holding a weapon any time the officer cannot see the suspect’s hands, [the officer] offered no reason for actually believing [the suspect] had a weapon other than the fact that [the suspect] refused to submit to him [the suspect’s] hands”) (court’s emphasis); AKH v. City of Tustin, No. 14-55184, 2016 U.S. App. LEXIS 16961, at * 4 (9th Cir. Sept. 16, 2016) (“The officers had little, if any, reason to believe that [the person] was armed,” where person had right hand in his sweater pocket, was mostly facing away from the officer while walking and running, and never displayed a weapon); Calderin v. Miami-Dade Police Dep’t, 600 F. App’x 691, 695 (11th Cir. 2015) (“[S]peculation about erratic moves [the person] may have made or other weapons he may have had on his person are insufficient to justify the force applied here when [the person] was merely holding the knife.”)