Jeffrey Jones v. Alex Shivers, et al
UNPUBLISHED OPINION FILED. [16-41347 Affirmed] Judge: TMR , Judge: LHS , Judge: CH. Mandate pull date is 09/27/2017 [16-41347]
Date Filed: 09/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
September 6, 2017
Lyle W. Cayce
Plaintiff - Appellant
OFFICER ALEX SHIVERS, Individual and Official Capacity; CORPORAL
NICK EMMONS, Individual and Official Capacity,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-CV-354
Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
This is a qualified immunity case. While executing an arrest warrant,
the defendant, Officer Alex Shivers, was posted at the rear of the suspect’s
house. The plaintiff, Jeffrey Jones (a firefighter, bounty hunter, and licensed
peace officer), believed himself to be assisting in the operation and thought
that he was supposed to “watch the rear.” While Shivers held his position,
Jones came up from behind. Dressed in plain clothes, Jones entered the back
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Date Filed: 09/06/2017
yard by stumbling over a fence, rising with a weapon in hand. The weapon
was a Taser, but Shivers did not know that. And Shivers did not know that
Jones was a friend; he perceived an armed man who had just crossed over a
back yard fence to interfere with the execution of a warrant. Reacting to Jones’
unanticipated arrival, Shivers took a spill of his own, falling behind a
doghouse. Upon rising, Shivers shot Jones twice.
There is a factual dispute over whether Jones was aiming the Taser at
Shivers, but not over whether the weapon was unholstered and in his hand. A
police officer does not have to permit a suspect to aim his weapon before
answering the threat. See Salazar-Limon v. City of Houston, 826 F.3d 272, 279
n.6 (5th Cir. 2016), as revised (June 16, 2016). There is a factual dispute over
whether the officer in charge at the scene had told Shivers about Jones being
there or instructed Jones to assist by moving to the rear of the home, but there
is no genuine dispute as to whether Shivers was expecting Jones to help him
guard the backyard. He was not. While facts are viewed in the light most
favorable to the nonmovant, we must consider “only the facts that were
knowable to” Shivers. White v. Pauly, 137 S.Ct. 548, 550 (2017). Finally, on
these particular facts, Shivers’ failure to issue a verbal warning prior to
shooting is no bar to the grant of qualified immunity. Id. at 551–52.
Ultimately, this case involves a highly unusual fact pattern—multiple
miscommunications and mistakes of fact that led to a friendly-fire incident.
Under the circumstance, whether or not the shooting represented a Fourth
Amendment violation, Shivers is entitled to qualified immunity. AFFIRMED.
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