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inquiry is the act that led the officer to shooting to justify deadly force. (emphasis
discharge his weapon.” (“The excessive force by author).
inquiry is confined to whether the Trooper At the time of this incident, the law was
was in danger at the moment of the threat clearly established such that a reasonable
that resulted in the Trooper’s shooting.”). The officer would have known that the use of
factual scenario here is substantially deadly force, absent a substantial and
different, in terms of the imminence and immediate threat, violated the Fourth
immediacy of the risk of harm, from Amendment. Because on this record, the
situations where we have granted qualified immediacy of the risk posed by Leija cannot
immunity to officers who shot an armed be resolved as a matter of law at the
suspect, or a suspect believed to be armed. summary judgment stage, we affirm the
(suspect stopped by the side of the road after district court’s denial of qualified immunity.
a brief chase displayed a gun, repeatedly Luna v. Mullenix, 2014 WL 4251122, 5th
ignored police commands, was located yards Cir., Aug. 28th, 2014.
from police officers, and brought his hands
together in a manner that indicated he may CHILD NEGLECT, CHILD ABUSE.
have been reaching for the gun, prompting SUFFICIENCY OF EVIDENCE
officer to shoot him); (mentally disturbed Appellant, Nilda Rodriguez, was charged
suspect “refused to put down his rifle, with felony murder for the death of her two-
discharged the rifle into the air several times month-old son. She was convicted and
while near officers, and pointed it in the sentenced to 30 years in prison. The Court
general direction of law enforcement of Appeals ruled that the evidence was
officers”); (suspect stopped after a high- sufficient to support the conviction and the
speed chase refused to exit the car, refused to Court of Criminal Appeals reversed.
follow police commands, repeatedly raised On October 8, 2008, Appellant gave birth
and lowered his hands, turned away from the to twins, one male and one female. Seven
officer and reached lower toward the weeks later, EMS was called to Appellant’s
floorboard, prompting the officer to shoot home when she found the male twin
him); compare (fact issue precluded unconscious and unresponsive. He was
qualified immunity where suspect was taken to the hospital where he was
armed with a knife, but made no threatening pronounced dead. An autopsy indicated that
gesture or motion), with (qualified immunity the infant died from malnutrition and
granted to officer where video confirmed that dehydration. He had gained only ten ounces
suspect “was standing up out of bed and had since birth and was described by a medical
raised the knife above his head at the time expert as having wrinkled, tenting skin, no
the shots were fired”). We discuss these cases subcutaneous fat, and no fluid in his body
not because we hold that an officer must that could be drawn for testing. The expert
actually see a weapon before taking action to also explained that this condition was not
protect himself or others from the suspect, normal and would be one that progressed
but because they illustrate that, even when a over time, possibly after the child’s being
weapon is present, the threat must be provided with small, but not adequate,
sufficiently imminent at the moment of the amounts of food. Appellant was the only
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