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cho[se] not to act.” Deputy Sims’s principal argument is that he did not have a reasonable
opportunity to prevent the harm because he was not present when his fellow deputies continued
to strike Barnes—he had left the house. If this is true, then Deputy Sims would be entitled to
qualified immunity on this claim.

For the foregoing reasons, we REVERSE the district court’s decision denying qualified
immunity to Deputy Viruette. We also REVERSE and hold that Deputy Celestial and Deputy
Ellington are entitled to qualified immunity for their efforts to get Barnes restrained and on the
ground. Because we conclude that deputies Celestial’s, Ellington’s, Carter’s, Evans’s, Hulsey’s,
and Sims’s qualified-immunity appeals—arising from their use of force after Barnes had been
restrained and handcuffed—turn on questions of fact the district court found disputed, we
DISMISS these interlocutory appeals for lack of jurisdiction and REMAND for proceedings
consistent with this opinion.

th
Carroll v. Ellington, et. al., 5 th Cir., No. 13-20388, Aug. 26 , 2015.

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CIVIL CLAIM -- DEADLY FORCE – QUALIFIED IMMUNITY

Officer Chris Smith, a detective with the Abilene Police Department (APD), fatally shot Marcus
Cass during the execution of a warrant to collect certain business records of Abilene Gold
Exchange, where Cass worked. Cass’s surviving family members (Appellants) sued the City of
Abilene, along with Smith and Chief of Police Stan Standridge in their individual capacities,
alleging retaliation in violation of the First Amendment and various Fourth Amendment
violations. Appellants appeal the district court’s summary judgment order dismissing their
excessive force and retaliation claims against Smith and Standridge on the basis of qualified
immunity. Because Appellants produced no summary judgment evidence that Standridge was
involved with the execution of the warrant or Cass’s death, we AFFIRM summary judgment on
all claims against him. Although a reasonable jury could find that the manner in which Smith
executed the warrant was unconstitutional and neither the district court nor the parties has
addressed whether the violation was clearly established in the law, we AFFIRM summary
judgment on Appellants’ Fourth Amendment claim as it relates to the execution of the warrant
because Appellants have not shown that Smith violated clearly established law. We AFFIRM
summary judgment on Appellants’ remaining claims against Smith because Appellants have not
raised fact issues to support constitutional claims for retaliation or for excessive force as it relates
to Smith’s shooting of Cass.

Until his death on December 13, 2012, Marcus Cass—together with Charles Camp—managed
Abilene Gold Exchange, one of about eight similar businesses in Abilene, Texas that purchased
jewelry and precious metals for cash. Cass and Camp maintained firearms at several easily
accessible locations in the store, and signs on the front door warned that the employees were
armed. Although Camp had a thirty-year-old felony conviction for possessing marijuana, Cass
had no criminal record and could legally possess firearms. Abilene Gold Exchange had

A Peace Officer’s Guide to Texas Law 147 2017 Edition