Ramirez v. Killian

Case: 22-10401       Document: 120-1         Page: 1   Date Filed: 08/15/2024




        United States Court of Appeals
             for the Fifth Circuit
                            _____________
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                             No. 22-10401
                         consolidated with                               FILED
                             No. 22-11060                          August 15, 2024
                           _____________                            Lyle W. Cayce
                                                                         Clerk
Rubicela Ramirez; Francisco Gonzales,

                                                        Plaintiffs—Appellants,

                                    versus

James Killian,

                                         Defendant—Appellee.
               ______________________________

               Appeals from the United States District Court
                    for the Northern District of Texas
                          USDC No. 2:18-CV-107
               ______________________________

Before Higginbotham, Smith, and Elrod, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
       Responding to a domestic disturbance call, Deputy James Killian,
without a warrant, entered the home that Rubicela Ramirez shared with her
boyfriend, Francisco Gonzales. In the first minute after he entered, Killian
pepper sprayed both Ramirez and Gonzales and killed two of their dogs.
Ramirez and Gonzales filed this lawsuit against Killian asserting claims under

. Killian raised qualified immunity as a defense. The district
court dismissed Ramirez’s and Gonzales’s claims for warrantless entry and
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excessive force at summary judgment but permitted their claim for seizure of
one of their dogs to proceed to a jury trial. The jury found Killian liable, but
the district court overturned the jury verdict.        As to that claim, we
REVERSE the judgment as a matter of law and RENDER judgment on the
verdict. As to the excessive-force claims, we REVERSE and REMAND.
But as to the warrantless-entry claim, we AFFIRM.
                                       I
         On the afternoon of June 20, 2016, Deputy James Killian responded
to a domestic disturbance call reporting a “big fight going on” between
“Rubicela [Ramirez] and her dude” at Ramirez’s and Gonzales’s home in
Wellington, Texas. After arriving at the home, Killian told dispatch that he
heard what sounded like someone “getting beat” and stated that he was
about to enter the home. Two minutes after arriving, he turned on his body
camera and entered the home through the living room, shouting “Polícia!”
with his gun and pepper spray drawn.
         The next thirty-eight seconds of video show what happened from
there.    From the living room, Killian entered the kitchen, where he
encountered Ramirez entering from another door. Killian ordered her to
“come here, get over here, get over here and face that wall.” Ramirez
approached Killian. Killian then ordered: “get over there and face that g—
d—n wall, b—h,” simultaneously pepper spraying Ramirez’s face. While
this was happening, Gonzales entered the kitchen from the same door as had
Ramirez. At the same time, a pit bull entered the kitchen from another door
and walked up to Gonzales, wagging his tail. Killian ordered Gonzales to “get
over here” and said “I’ll shoot your dog.” The dog—Bruno—began to walk
towards Killian, and Killian shot him three times.
         Killian then ordered Ramirez and Gonzales to get onto the ground and
continued to pepper spray them. Neither Ramirez nor Gonzales immediately




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complied, but Gonzales put his hands onto his head. Then, a German
Shepherd appeared in the kitchen and walked toward Killian, who
immediately shot it four times as he backed into the living room. Killian
briefly exited the house from the door that he had entered and radioed for
help. He then returned to the living room and continued to order Ramirez
and Gonzales to get onto the ground. Ramirez and Gonzales went to their
knees. Killian continued to pepper spray them. For the next few minutes,
the three shouted profanities at each other as Killian unsuccessfully tried to
get Ramirez and Gonzales to lie down on the ground. 1 About eleven minutes
after Killian first entered the home, Ramirez and Gonzales agreed to be
handcuffed and Killian seated them on a couch in the living room.
        Soon thereafter, Sheriff Kent Riley arrived at the home. Upon his
entry, Ramirez stood up from the couch and called out Riley’s first name,
asking him to help her. Killian immediately grabbed her by the hair and
wrestled her to the ground. As he did so, his body camera fell off briefly and
went black. Ramirez and Gonzales maintain that immediately after Killian
took Ramirez to the ground, he slammed her head against the floor, though
the video was still black at this point and does not show it.
        Ramirez and Gonzales filed a lawsuit under 

 against
Killian in the Northern District of Texas. 2 Relevant to this appeal, they
claimed that Killian had violated their constitutional rights by conducting an



        _____________________
        1
         The video makes it disturbingly clear that the kitchen floor, onto which Killian
was ordering Ramirez and Gonzales to lie down, was covered by this point in their dogs’
blood.
        2
          Ramirez and Gonzales also named Riley as a defendant, but all claims against
Riley were dismissed at summary judgment. Ramirez and Gonzales do not appeal the
dismissal of their claims against Riley.




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unreasonable search and seizure and using excessive force in violation of the
Fourth Amendment.
       Killian moved for summary judgment, asserting qualified immunity as
a defense. Killian also raised objections to several exhibits that Ramirez and
Gonzales presented in their response to his summary judgment motion. The
district court granted Killian’s objections to all but one of the exhibits. The
court also granted Killian’s motion for summary judgment as to all of
Ramirez’s and Gonzales’s claims except for the unreasonable seizure claim
for Killian’s shooting of Bruno.
       The unreasonable-seizure claim proceeded to trial. Before beginning
his case-in-chief, Killian moved for judgment as a matter of law, arguing that
Ramirez and Gonzales had failed to present evidence sufficient to overcome
Killian’s qualified immunity defense. The district court denied the motion.
The case then went to the jury, which was charged consistent with Fifth
Circuit Pattern Jury Instruction 10.3. The jury found that Killian had “acted
in an objectively unreasonable manner” and that “no reasonable officer
could have believed that shooting the dog was lawful,” awarding Ramirez and
Gonzales $100,300 in compensatory and punitive damages.
       Killian then filed another motion for judgment as a matter of law. This
time, the district court granted the motion, finding that because “Plaintiffs
still fail to identify evidence that no reasonable officer would have shot the
pit bull,” they had “failed to satisfy the burden they bear” to overcome
Killian’s qualified immunity defense. The district court denied Ramirez’s
and Gonzales’s subsequent Rule 59(e) motion to amend the judgment.
       Ramirez and Gonzales now appeal the district court’s summary
judgment dismissal of their warrantless-entry and excessive-force claims and
its post-verdict judgment as a matter of law in favor of Killian.




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                                        II
       We review the district court’s ruling on a motion for summary
judgment de novo, viewing the evidence in the light most favorable to the non-
moving party. Deville v. Marcantel, 

, 163–64 (5th Cir. 2009).
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). When a defendant pleads qualified
immunity as a defense, the plaintiff “must rebut the defense by establishing
a genuine fact issue as to whether the official’s allegedly wrongful conduct
violated clearly established law.” Brown v. Callahan, 

 (5th
Cir. 2010) (citation omitted).
       We apply the same standard of review to the district court’s ruling on
a motion for judgment as a matter of law under Federal Rule of Civil
Procedure 50. James v. Harris County, 

 (5th Cir. 2009);
Reeves v. Sanderson Plumbing Prods., Inc., 

 (2000) (“[T]he
standard for granting summary judgment mirrors the standard for judgment
as a matter of law . . . .” (internal quotation marks and citation omitted)).
Judgment as a matter of law is appropriate “[i]f a party has been fully heard
on an issue during a jury trial and the court finds that a reasonable jury would
not have a legally sufficient evidentiary basis to find for the party on that
issue.” Fed. R. Civ. P. 50(a).
       Although here we construe all facts in favor of Ramirez and Gonzales
as the nonmoving parties, “we assign greater weight, even at the summary
judgment stage, to the facts evident from video recordings taken at the
scene.” Poole v. City of Shreveport, 

 (5th Cir. 2012) (quoting
Carnaby v. City of Houston, 

 (5th Cir.2011)); see Scott v.
Harris, 

, 380–81 (2007).




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                                       III
       Ramirez’s and Gonzales’s three claims all turn on Killian’s assertion
of qualified immunity.     Qualified immunity protects government officials
from liability for damages when they violate the law, but nonetheless
reasonably could have believed that they were acting lawfully. It balances two
competing values: first, “the importance of a damages remedy to protect the
rights of citizens”; and second, the need for officials to be free from “undue
interference with their duties” and “potentially disabling threats of
liability.” Harlow v. Fitzgerald, 

, 806–07 (1982).
       Therefore, the qualified immunity defense protects “all but the
plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 

 (1986). To overcome the defense, a plaintiff must
show “(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.”
Ashcroft v. al-Kidd, 

, 735 (2011) (internal quotation marks and
citation omitted). Courts have flexibility as to the order in which they
evaluate these two requirements. Pearson v. Callahan, 

(2009).
       A right is “clearly established” when its “contours” are “sufficiently
clear that a reasonable official would understand that what he is doing violates
that right.” Anderson v. Creighton, 

 (1987). The Supreme
Court has enunciated three ways that a constitutional right, defined with
adequate particularity, can be “clearly established” for purposes of qualified
immunity: (1) where it is provided by controlling authority; (2) where it is
provided by “a robust ‘consensus of persuasive authority,’” al-Kidd, 563
U.S. at 742 (quoting Wilson v. Layne, 

, (1999)); and (3)
where its violation is “obvious,” Hope v. Pelzer, 

(2002).




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       Ramirez and Gonzales first argue that the district court erroneously
granted Killian’s motion for summary judgment as to their warrantless-entry
claim. We disagree.
       Although searches inside a home without a warrant are presumptively
unreasonable, “law enforcement officers may enter a home without a warrant
to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” Brigham City v. Stuart, 

(2006) (citations omitted); see also United States v. Menchaca-Castruita, 

 (5th Cir. 2009) (“As a general rule, exigent circumstances exist
when there is a genuine risk that officers or innocent bystanders will be
endangered . . . .”). Such searches must be “strictly circumscribed by the
exigencies which justify [their] initiation[.]” Mincey v. Arizona, 

 (1978) (quoting Terry v. Ohio, 

, 25–26 (1968)). This is the so-
called exigent-circumstances exception to the Fourth Amendment’s warrant
requirement. United States v. Morales, 

 (5th Cir. 1999).
       Even if exigent circumstances were at one point present, there is, of
course, no longer any exigency if the emergency has dissipated. For example,
in United States v. Davis, several FBI agents retrieved a handgun from the
curtilage of a home more than three hours after a police-involved shooting
had taken place there. 

 (5th Cir. 1970). We held that this
search was not reasonable because an “emergency situation cannot be relied
on to justify a search occurring three and one-half hours after the emergency
ended.” 

.
       Reviewing the summary judgment evidence, exigent circumstances
were present when Killian first arrived at Ramirez’s and Gonzales’s home.
He was responding to a tip from a neighbor that there was a domestic
disturbance. See United States v. Kehoe, 

 (4th Cir. 2018)
(“[C]ourts generally presume that a citizen-informant or a victim who




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discloses his or her identity and basis of knowledge to the police is both
reliable and credible.” (citations omitted)); cf. Reitz v. Woods, 

 (5th Cir. 2023) (neither party disputing that an anonymous call
describing a supposed hostage situation indicated exigent circumstances).
And according to his affidavit, when Killian arrived at the home, he heard the
sounds of a fight that corroborated this tip.
       Ramirez and Gonzales argue that Killian’s affidavit was “directly
contradict[ed]” by the audio and video footage from his body camera, in
which there were no sounds of ongoing violence. Therefore, the district
court was “required to disregard” Killian’s characterization of events given
this supposed contradiction. But there is no direct contradiction here. Even
construing the evidence in Ramirez’s and Gonzales’s favor, as we must at
summary judgment, it is entirely consistent with the evidence Killian
produced that he may have heard a fight during the two minutes before he
turned on his body camera and that such sounds had stopped by the time he
did so. Nor is the fact that Killian waited for two minutes before entering the
home particularly relevant. See United States v. De Jesus-Batres, 

,
158–59 (5th Cir. 2005) (exigent circumstances even though officers did not
search garage until 45 minutes after they entered the house); United States v.
Reyes-Bosque, 

 (9th Cir. 2010) (exigent circumstances
even though officers waited 15 to 20 minutes for backup before entering).
       The video shows only that there were no sounds of fighting at the
instant that Killian entered. Accordingly, Ramirez and Gonzales argue
alternatively that, even if exigent circumstances were at one point present,
they had dissipated. They argue that no reasonable officer could have
believed that such entry was justified by exigent circumstances.
       We need not reach the more difficult question, reading the evidence
in the light most favorable to Ramirez and Gonzales, whether exigent




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circumstances had in fact dissipated. See Pearson, 

. That
is because, regardless, the putative legal rule that Ramirez and Gonzales
urge—that dissipation can occur mere minutes after the sounds of an
emergency are last heard—was not clearly established at the time.
       The cases that Ramirez and Gonzales cite where courts have found
that exigent circumstances had dissipated are readily distinguishable. Take
Davis for example. The search in that case occurred after a delay of three-
and-a-half hours. 

. Here, there was a delay of only two
minutes. In United States v. Brown, meanwhile, an officer returned to a room
in a house to inspect a box of contraband after a sweep of the house for injured
or dangerous persons had already occurred. 

 (M.D.
La. 2017). Here, there may well have been a person inside the house in
imminent danger. Ramirez and Gonzales also cite Hannon v. State from the
Nevada Supreme Court. Though closer to the mark, that case involved an
officer who arrived—as neither party disputed—at a quiet apartment “45
minutes . . . since the argument had dissipated.” 

(2009).
       None of these opinions would have put a reasonable officer on notice
that entering a home after a few minutes of silence following the sounds of a
fight, which corroborated an earlier tip, violated the Fourth Amendment.
Accordingly, the district court correctly held that Killian was entitled to
qualified immunity on the warrantless-entry claim at summary judgment.
                                      IV
       Ramirez and Gonzales further argue that the district court
erroneously granted Killian’s motion for summary judgment as to their




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excessive-force claim. Here, we agree with them. 3
        “To establish a claim of excessive force under the Fourth
Amendment, plaintiffs must demonstrate: (1) injury, (2) which resulted
directly and only from a use of force that was clearly excessive, and (3) the
excessiveness of which was clearly unreasonable.” Deville, 

(internal quotation marks and citation omitted). “The second and third
elements collapse into a single objective-reasonableness inquiry.” Pena v.
City of Rio Grande City, 

 (5th Cir. 2018). This inquiry is
“fact-intensive,” and turns on the following so-called Graham factors: “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.” Deville, 

 (citing
Graham v. Connor, 

 (1989)). Although we review the facts
in the light most favorable to Ramirez and Gonzales, we “must evaluate an
officer’s use of force ‘from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’” Poole, 

 (quoting Graham, 

).
        Ramirez and Gonzales point to two distinct uses of force: (1) Killian’s
use of pepper spray; and (2) his taking Ramirez to the ground and banging
her head against the floor. We examine each in turn.
        Killian pepper sprayed Ramirez as he told her to “get over there and
face [the] wall,” and after he had already told her to “get over here.” Killian

        _____________________
        3
         Ramirez and Gonzales also argue that the district court abused its discretion in
excluding one of the pieces of evidence that they submitted at summary judgment: a report
written by the Texas Rangers following an investigation into Killian’s actions against
Ramirez and Gonzales. Because we find the other evidence admitted at the summary
judgment stage sufficient to have created a triable issue of fact, we do not reach the question
of whether the district court abused its discretion in making its evidentiary rulings.




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pepper sprayed Gonzales as soon as Gonzales walked into the room, while
ordering him to “get over here.” A reasonable jury could find that Ramirez
and Gonzales were attempting to comply with Killian’s orders, or that there
were no consistent orders with which they could comply in the first place.
Killian’s subsequent uses of pepper spray occurred as he tried to get Ramirez
and Gonzales—who were kneeling—to fully lie down on the ground. A jury
could likewise find that Ramirez and Gonzales were partially complying
during these subsequent uses of pepper spray.
       Starting with the first step in the qualified immunity analysis, we
conclude that, reading the evidence in the light most favorable to Ramirez
and Gonzales, a genuine fact issue remains as to whether Killian’s use of
pepper spray constituted excessive force. The Graham factors weigh in
Ramirez’s and Gonzales’s favor here. While it is true that Killian was
investigating a possible assault—a serious crime, see Poole, 

(Elrod, J., concurring in part and dissenting in part)—Ramirez and Gonzales
were not actively resisting arrest. Killian’s contention that his first orders
were not contradictory, and that Ramirez and Gonzales did not comply, are
flatly refuted by the video evidence. Killian’s order to “come here” was the
exact opposite of his order to “get over there.”        Nor were there any
indications that either Ramirez or Gonzales posed a threat to Killian.
       Having found that the summary judgment evidence would permit a
reasonable jury to conclude that Killian violated Ramirez’s and Gonzales’s
constitutional rights, we now proceed to the second step of the qualified
immunity analysis. We conclude that such a violation would have been
unlawful under clearly established law. An officer may not constitutionally
use force on a non-threatening subject offering no resistance or merely
“passive” resistance. Ramirez v. Martinez, 

, 378–79 (5th Cir.
2013) (no qualified immunity at summary judgment where officer tased
plaintiff when plaintiff pulled his arm away from officer). Put differently, an



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officer may not use force against someone who has “committed no crime,
posed no threat to anyone’s safety, and did not resist the officers or fail to
comply with a command.” Newman v. Guedry, 

 (5th Cir.
2012); see Bagley v. Guillen, 

, 802–03 (5th Cir. 2024). 4
        Moving now to Ramirez’s and Gonzales’s head-banging claim, we
likewise find that they have satisfied both steps of the qualified immunity
inquiry at the summary judgment stage. This is an even easier determination.
Ramirez and Gonzales allege that, after Killian took Ramirez to the ground
and was firmly on top of her, he slammed her head against the floor. There
was summary judgment evidence that Ramirez suffered injury in the form of
a black eye. And evaluating the evidence in Ramirez’s and Gonzales’s favor,
Ramirez gave no indication that she was attempting to escape when she stood
from the couch, as she was simply begging Sheriff Riley for help. Nor is it
particularly plausible, especially once another officer arrived on-scene, that a
handcuffed, pepper-sprayed subject could have posed much of a threat to
Killian, either when she was standing or after Killian took her to the ground.
        In dismissing the head-banging claim, the district court relied on cases
holding that an officer’s “measured and ascending” use of force in response
to a plaintiff’s “escalating verbal and physical resistance” is not excessive.
But in those cases, the challenged use of force occurred quickly as part of a
single, continuous effort to handcuff the plaintiff. Poole, 

 (arm

        _____________________
        4
          This does not change when the force used takes the form of administering pepper
spray. See Massey v. Wharton, 

, 257–58 (5th Cir. 2012) (unpublished) (no
qualified immunity at summary judgment where officer tased and pepper sprayed plaintiff
while giving plaintiff contradictory orders); Solis v. Serrett, 

 (5th Cir. 2022)
(“[A]s long as a plaintiff has suffered ‘some injury,’ even relatively insignificant injuries
and purely psychological injuries will prove cognizable when resulting from an officer’s
unreasonable excessive force.” (quoting Alexander v. City of Round Rock, 

(5th Cir. 2017))); Brown v. Lynch, 

 (5th Cir. 2013) (unpublished).




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manipulation, then a taser, then further arm manipulation); Galvan v. City of
San Antonio, 

 (5th Cir. 2010) (unpublished) (“verbal
warnings, pepper spray, hand- and arm-manipulation techniques, and then
the use of a Taser”). By contrast, and as the district court acknowledged,
Killian had already “gained Plaintiff Ramirez’s compliance, successfully
handcuffed her, [and] seated her on the living room couch” before she stood
up in supposed violation of his order to stay seated. Killian’s use of force
here was in response to a different incident of noncompliance that occurred
many minutes after he had gained Ramirez’s compliance with his initial
orders. It was not part of an “escalating” effort to gain compliance.
       Killian, for his part, cites Griggs v. Brewer, 

 (5th Cir.
2016), for the proposition that his use of force against a handcuffed plaintiff
who continued to resist arrest was not excessive. But in Griggs, the officer
punched the plaintiff in direct response to the plaintiff’s kicking the officer
in the chest as the plaintiff was being loaded into a vehicle. 

 at 315–16.
Here, Ramirez had not touched Killian at all. Griggs is inapposite. Again, a
genuine fact issue remains as to whether Killian violated Ramirez’s and
Gonzales’s constitutional rights.
       The use of force that Ramirez and Gonzales allege that Killian
engaged in here was unlawful under clearly established law. See Carroll v.
Ellington, 

 (5th Cir. 2015) (“The law was clearly established
at the time of the deputies’ conduct that, once a suspect has been handcuffed
and subdued, and is no longer resisting, an officer’s subsequent use of force
is excessive.”); Bush v. Strain, 

 (5th Cir. 2008) (“[Plaintiff]
was not resisting arrest or attempting to flee when [the officer] forcefully
slammed her face into a nearby vehicle during her arrest . . .”). The
excessive-force claims should not have been dismissed at summary
judgment. They should have gone to trial.




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                                        V
       Finally, Ramirez and Gonzales argue that the district court
erroneously granted Killian’s post-verdict motion for judgment as a matter
of law on their unreasonable-seizure claim, even though the jury had found
in their favor. Again, we agree.
       This claim, based on Killian’s shooting Bruno, was tried. The district
court submitted the question of qualified immunity to the jury, tasking it with
determining whether “a reasonable officer with the same information could
not have believed [Killian’s] actions were lawful” in light of “clearly
established law.” Mirroring Fifth Circuit Pattern Jury Instruction 10.3, the
court instructed the jury that “[i]n this case, the clearly established law at the
time was that an officer may use deadly force against a dog if the officer
reasonably believes the dog poses a threat and he was in imminent danger of
being attacked by the dog.” In other words, the court itself gave the jury the
legal rule it needed to then determine, by construing the facts in dispute,
whether qualified immunity applied.
                                        A
       We must first examine the threshold question of whether the legal rule
cited by the district court and given to the jury was clearly established for the
purpose of qualified immunity.
       At the outset, we note that neither the parties nor the district court
has cited a controlling case from our circuit. They instead cite cases where
we have, in unpublished opinions, addressed dog shootings by police. Two
of these predate June 20, 2016, when the events at issue here transpired. See
Grant v. City of Houston, 

 (5th Cir. 2015) (unpublished) (it
was “beyond dispute” that an officer “seized” plaintiff’s dog by shooting it,

, but such seizure was reasonable because the dog “backed [the
officer] into a corner, biting at [his] legs,” 

); Stephenson v.




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McClelland, 

 (5th Cir. 2015) (unpublished) (“This
court has held that the killing of a dog can constitute a seizure within the
meaning of the Fourth Amendment . . . . [which] requires that a seizure be
objectively reasonable.”).
        Nevertheless, while these cases all announce the relevant legal rule,
our unpublished opinions cannot themselves establish binding law for this
circuit. See Marks v. Hudson, 

 (5th Cir. 2019). While they
can still serve as “persuasive authority,” 5 Ramirez v. Guadarrama, 

, 135 (5th Cir. 2021), we must look elsewhere to determine whether the
legal rule given to the jury was clearly established.
        “[I]n the absence of directly controlling authority, a consensus of
cases of persuasive authority might, under some circumstances, be sufficient
to compel the conclusion that no reasonable officer could have believed that
his or her actions were lawful.” McClendon v. City of Columbia, 

 (5th Cir. 2002) (en banc) (internal quotation marks omitted); see also
Wilson, 

; al-Kidd, 563 U.S. at 742; District of Columbia v.
Wesby, 

, 63 (2018); Plumhoff v. Rickard, 

 (2014);
Jimerson v. Lewis, 

 (5th Cir. 2024); Morrow v. Meachum, 

 (5th Cir. 2019). Where no directly controlling authority
applies, “we look to the law of other jurisdictions ‘in assessing whether a

        _____________________
        5
          Multiple district courts within our circuit have likewise applied the legal rule that
we articulated in those unpublished opinions. E.g., Romero v. Bexar County, 

, 661 n.3 (W.D. Tex. 2014) (“Circuit courts routinely find that the killing of an
individual’s pet can constitute a seizure within the meaning of the Fourth Amendment.”);
Kincheloe v. Caudle, No. A-09-CA-010 LY, 

, at *8 (W.D. Tex. Oct. 16,
2009), report and recommendation adopted, No. A-09-CA-010-LY, 

(W.D. Tex. Dec. 7, 2009) (holding plaintiffs “alleged a violation of a clearly established
constitutional right,” 

, and denying summary judgment on qualified immunity
because “[b]ased upon Plaintiffs’ allegations . . . [the dog] did not pose an immediate
danger to the public or [the officer],” 

).




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reasonable [official] would have known . . . that his conduct was unlawful.’”
Morgan v. Swanson, 

, 372 n.26 (5th Cir. 2011) (en banc)
(Benavides, J.) (quoting McClendon, 

); see also 

 at 412–13
(Elrod, J.) (“We need only consider other circuits ‘in the absence of directly
controlling authority.’” (quoting McClendon, 

)); Crittindon v.
LeBlanc, 

 (5th Cir. 2022) (“When there is no direct
controlling authority, ‘this [C]ourt may rely on decisions from other circuits
to the extent that they constitute a robust consensus of cases of persuasive
authority.’” (alteration in original) (quoting Shumpert v. City of Tupelo, 

 (5th Cir. 2018))).
       Looking, therefore, to the other circuits, we find a robust consensus
that an officer may not, consistent with the Fourth Amendment, kill a pet dog
unless he reasonably believes that the dog poses a threat and that he is in
imminent danger of being attacked. We are far from the first to recognize and
apply this rule—in fact, we are almost the last.
       Each of our sister circuits save for the Eleventh Circuit has addressed,
in published opinions, the applicability of the Fourth Amendment to state
officials’ killing pet dogs. 6 Eight of those opinions were published before
June 20, 2016. The legal rule that they announce is clear: killing a pet dog
constitutes a seizure of property under the Fourth Amendment, which must
then be evaluated for reasonableness to determine whether the killing ran
afoul of the Constitution. Maldonado v. Fontanes, 

 (1st Cir.
2009); Carroll v. County of Monroe, 

 (2d Cir. 2013); Brown
v. Muhlenberg Township, 

, 210–11 (3d Cir. 2001); Altman v. City
of High Point, 

 (4th Cir. 2003); Brown v. Battle Creek Police

       _____________________
       6
         Stafford v. City of Argo, 

, 1363 (N.D. Ala. 2021) (“[T]he
Eleventh Circuit is not among the circuit courts that have addressed the issue. . . .”).




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Dep’t, 

 (6th Cir. 2016); Lesher v. Reed, 

 (8th
Cir. 1994); Viilo v. Eyre, 

 (7th Cir. 2008); Robinson v. Pezzat,

 (D.C. Cir. 2016); San Jose Charter of Hells Angels Motorcycle Club
v. City of San Jose, 

, 977–78 (9th Cir. 2005); Fuller v. Vines, 

 (9th Cir. 1994), overruled on other grounds by Robinson v. Solano
County, 

 (9th Cir. 2002); Mayfield v. Bethards, 

 (10th Cir. 2016). “No circuit court has held otherwise.” Maldonado,

; see Stafford, 514 F. Supp. 3d at 1362–63 (collecting cases).
       Where the killing is done by a police officer while on-duty, the Fourth
Amendment analysis centers on whether the pet dog posed an immediate
danger and whether killing it was unavoidable. See, e.g., Robinson, 

 (“[D]eadly force against a household pet is reasonable only if the pet
poses an immediate danger and the use of force is unavoidable.”); Carroll,

 (“[A]t least in some circumstances, it is reasonable for an
officer to shoot a dog that he believes poses a threat to his safety or the safety
of the community.”); Brown v. Muhlenberg Township, 269 F.3d at 210–11
(“[An officer cannot] lawfully destroy a pet who posed no imminent danger
and whose owners were known, available, and desirous of assuming
custody.”); Battle Creek, 

 (the question is whether the dogs
“posed imminent threats to the officers.”); Viilo, 

 (“[T]he
use of deadly force against a household pet is reasonable only if the pet poses
an immediate danger and the use of force is unavoidable.”); San Jose Charter
of Hells Angels, 402 F.3d at 977–78 (“[T]he Fourth Amendment forbids the
killing of a person’s dog, or the destruction of a person’s property, when that
destruction is unnecessary.”)
       The “factual context” in the several of these cases is very “similar to
that of the instant case.” See McClendon, 

. In at least four,
the court held against defendant officers’ assertions of qualified immunity for
shooting pet dogs on or adjacent to their owners’ property because those dogs



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                                   22-10401
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either were nonaggressive or could have been dealt with through nonlethal
means. Robinson, 818 F.3d at 4–5, 13 (reversing grant of qualified immunity
in favor of officer who, during the execution of a search warrant, opened a
bathroom door and shot a dog that was secured inside); Brown v. Muhlenberg
Township, 

 (reversing grant of qualified immunity in favor
of officer who shot nonaggressive dog in parking lot next to owner’s house
and against the owner’s protestations); Viilo, 

 (dismissing
appeal from denial of qualified immunity against officers who shot dog that
emerged from behind owner’s house and approached officers); San Jose
Charter of Hells Angels, 402 F.3d at 977–78 (affirming denial of qualified
immunity against officers who executed search warrant knowing dogs were
present but formed no alternative plan and intended instead to kill them).
       On the other hand, where courts have held in the defendant officers’
favor, pet dogs were displaying signs of aggression such that the officers
reasonably feared for their safety.     Carroll, 

 (dog was
“growling, barking, and quickly and aggressively approaching” officers);
Altman, 

 (officers were “confronted” by dogs that had already
attacked them and other persons in the neighborhood, and by a dog that had
behaved aggressively); Battle Creek, 

 (“[D]ogs [were] barking
aggressively, ‘digging and pawing,’ and ‘jumping’ at the window.”).
       In light of the clear delineation that these cases draw between
constitutionally permissible and impermissible officer conduct in factually
similar circumstances, the potential unlawfulness of Killian’s shooting of
Bruno was “‘apparent’ in light of pre-existing law.” McClendon, 

 (quoting Anderson, 

).
       We acknowledge that it is difficult for persuasive authority, rather
than controlling authority, to clearly establish a legal rule. See 

 at 331–32
(finding no consensus on the “state-created-danger theory” where circuits




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                                   c/w No. 22-11060

disagreed over, inter alia, the requisite mental state to impose liability on state
actors, and where “no court” had applied the theory “to a factual context
similar to that of the instant case.”). But if ever a robust consensus of
persuasive authority existed, it exists here. 7              Crucially, there is no
disagreement that we can discern over the contours of this legal rule. Almost
every other circuit applies it. District courts in our circuit regularly apply it.
And we ourselves have applied it, simply choosing not to publish the opinions
that did so. Jones v. Lopez, 

 (5th Cir. 2017) (unpublished);
Grant, 

; Stephenson, 

. It should
come as no surprise to an officer that he may not go around shooting citizens’
nonaggressive dogs. Indeed, it is a matter of “common sense.” Viilo, 

.
        Therefore, “consistent with [] every other circuit court to have
addressed the issue,” we recognize that the “killing of a pet dog can be a
seizure.” Jones, 

; see also Robinson, 

(collecting cases). Such a seizure is reasonable only if the dog “poses an
immediate danger and the use of force in unavoidable.” Viilo, 

; Robinson, 

. This law was clearly established when Killian
entered Ramirez’s and Gonzales’s home and killed their dogs.
                                            B
        Having already been given the applicable law, the jury had ample
evidence before it to find that qualified immunity did not apply. The jury,
        _____________________
        7
          We are not even the first court to hold that a robust consensus of persuasive
authority clearly establishes this exact legal proposition. The First Circuit in Maldonado
“reject[ed]” the defendant state official’s argument that the “law was not clearly
established because this court had not earlier addressed” whether killing a pet dog could
constitute an unreasonable seizure. 

. Rather, because four other circuits
had already held as much, “the law was sufficiently recognized by courts to be clearly
established.” 

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properly instructed, found Killian liable for violating Ramirez’s and
Gonzales’s constitutional rights and awarded them damages. Our own
review of the body camera video gives us no reason to disagree. Here, Bruno
had displayed no signs of aggression prior to approaching Killian. Mere
seconds before Killian opened fire, Bruno had walked up to Gonzales wagging
his tail.
        However, throughout trial, the district court had demanded that
Ramirez and Gonzales produce “reasonable officer evidence.” Despite
allowing the question to go to the jury, the court subsequently granted
Killian’s post-verdict motion for judgment as a matter of law because
Ramirez and Gonzales “still faile[ed] to identify evidence indicating that no
reasonable officer could have believed shooting the Plaintiffs’ pit bull to be
lawful.”
        This reasoning was erroneous. Although the qualified immunity
defense is often decided long before trial, “if . . . there remain disputed issues
of material fact relative to immunity, the jury, properly instructed, may decide
the question.” Snyder v. Trepagnier, 

 (5th Cir. 1998)
(internal citation and quotation marks omitted) (emphasis added). The jury
decides the factual question of whether the officer violated the plaintiff’s
rights—the first step of the qualified immunity analysis. It does not decide
the purely legal question of whether the officer’s actions were objectively
reasonable in light of clearly established law—the second step. See Brown v.
Callahan, 

 (“Whether an official’s conduct was objectively
reasonable is a question of law for the court, not a matter of fact for the
jury.”); see also Williams v. Bramer, 

 (5th Cir. 1999);
Mangieri v. Clifton, 

 (5th Cir. 1994).
        There is therefore no requirement that plaintiffs present “evidence”
to overcome the second prong of qualified immunity, or specifically produce




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officer testimony as to what a reasonable officer would regard as lawful. 8 To
the extent that the district court was evoking some form of “three-step”
qualified immunity framework, it was likewise incorrect.                  See Hicks v.
LeBlanc, 

, 503 n.14 (5th Cir. 2023) (“[T]here is no ‘standalone
“objective reasonableness” element to the Supreme Court’s two-pronged
test for qualified immunity.’” (quoting Baker v. Coburn, 

, 251
n.10 (5th Cir. 2023), as revised (May 19, 2023)); Trent v. Wade, 

 (5th Cir. 2015).
        Nor would the district court’s requirement make much sense as a
logical matter. In denying a motion for summary judgment on qualified
immunity grounds, as happened here, “the trial court makes two
determinations. First, it decides that a certain course of conduct would, as a
matter of law, be objectively unreasonable in light of clearly established law.
Second, the court decides that a genuine issue of fact exists regarding
whether the defendant(s) did, in fact, engage in such conduct.” Brothers v.
Zoss, 

 (5th Cir. 2016) (internal citation and quotation marks
omitted). In other words, when a plaintiff’s claim survives the defendant’s
qualified immunity defense at summary judgment and proceeds to trial, there
has already been, necessarily, a judicial determination as to the second
qualified immunity step. In this situation the trial court has held that,
assuming that the plaintiff’s version of the facts is true, the defendant would
not be entitled to qualified immunity. The question at trial is then solely one
of fact. The jury requires no additional “reasonable officer evidence” to
deny qualified immunity.

        _____________________
        8
          McCoy v. Hernandez, which the parties brief in some detail, does not impose such
a requirement. 

 (5th Cir. 2000). In that case we held only that a jury could
properly decide whether qualified immunity applies, not what evidence it would require to
be able to do so. 

 at 376 (citing Snyder, 

).




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                                22-10401
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      The unreasonable-seizure claim made it to the jury.      The jury
delivered a verdict in favor of Ramirez and Gonzales. That should have
ended the matter.
                             *     *       *
      Accordingly, while we AFFIRM the summary judgment on the
warrantless-entry claim, we REVERSE the summary judgment on the
excessive-force claims and REMAND those claims for further proceedings
consistent with this opinion. We REVERSE the judgment as a matter of law
on the unreasonable-seizure claim and RENDER judgment on the verdict.




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