Full opinion text
Evaluating the qualified immunity defense is thus a two-step process. The first is to determine whether the Fourth Amendment has been violated by conduct that, viewed from the officer's perspective and information at the time, is objectively unreasonable. The second step assesses the objective legal reasonableness of the action, that is, whether every reasonable officer would have known that the conduct in question was illegal. See Pearson , 555 U.S. at 232, 129 S. Ct. at 815-16. The illegality must have been apparent, as held in cases that are factually similar to the situation confronting the officer. White, 137 S. Ct. at 552. Immunity must be granted to all but the plainly incompetent or those who knowingly violate the law. The Supreme Court has enforced immunity where officers acted negligently, Anderson , 483 U.S. at 641, 107 S. Ct. at 3039-40 ; or when they could have used another method to subdue a suspect, Mullenix , 136 S. Ct at 310 ; or when the law governing their behavior in particular circumstances is unclear. White , 137 S. Ct. at 552. The Court emphasizes that the specificity of the applicable "clearly established" rule is especially important in Fourth Amendment cases. Mullenix, 136 S. Ct. at 308. By denying plaintiffs their "day in court" at a preliminary stage, qualified immunity operates as a counterintuitive, albeit vital, defense. Thus, the Supreme Court has regularly reversed denials of qualified immunity where lower courts misapplied the standards. See Wesby v. District of Columbia , 816 F.3d 96, 102 (D.C. Cir. 2016) (Kavanaugh, J., dissenting) (citing eleven Supreme Court cases in five years reversing lower courts in the qualified immunity context including Mullenix v. Luna , --- U.S. ----, 136 S. Ct. 305, 193 L.Ed.2d 255 (2015), Taylor v. Barkes , --- U.S. ----, 135 S. Ct. 2042, 192 L.Ed.2d 78 (2015) ; City and County of San Francisco, Calif. v. Sheehan , --- U.S. ----, 135 S. Ct. 1765, 191 L.Ed.2d 856 (2015) ; Carroll v. Carman , 574 U.S. 13, 135 S. Ct. 348, 190 L.Ed.2d 311 (2014) ; Plumhoff v. Rickard , 572 U.S. 765, 134 S. Ct. 2012, 188 L.Ed.2d 1056 (2014) ; Wood v. Moss , 572 U.S. 744, 134 S. Ct. 2056, 188 L.Ed.2d 1039 (2014) ; Stanton v. Sims , 571 U.S. 3, 134 S. Ct. 3, 187 L.Ed.2d 341 (2013) ; Reichle v. Howards , 566 U.S. 658, 132 S. Ct. 2088, 182 L.Ed.2d 985 (2012) ; Ryburn v. Huff , 565 U.S. 469, 132 S. Ct. 987, 181 L.Ed.2d 966 (2012) ; Messerschmidt v. Millender , 565 U.S. 535, 132 S. Ct. 1235, 182 L.Ed.2d 47 (2012) ; Ashcroft v. al-Kidd , 563 U.S. 731, 131 S. Ct. 2074, 179 L.Ed.2d 1149 (2011) ). Unfortunately, the majority here has fallen into the trap of "letting the jury sort out the truth" despite the gravity of the situation these officers faced. As explained above, it is undisputed that the two officers confronted and then shot at Cole as he emerged from dense bushes ten to twenty feet from Officer Hunter, unaware of their presence, and began to turn in their direction. This all happened within three to five seconds. While he turned, Cole held a loaded 9mm semiautomatic pistol, finger on the trigger, pointed in the direction of his own head. The officers knew he was mentally distraught, had ignored other police commands to disarm, had issued threats, and proceeded walking in the direction of nearby schools. For immunity purposes, the question phrased one way is whether any reasonable officers could have believed that Cole's split-second turning toward them posed a life-threatening danger such that lethal force was necessary. Alternatively, what "clearly established law" held as of October 2010 that under all of the relevant circumstances, deadly force was not justified unless either a warning was given and the suspect allowed a chance to react, or the suspect actually turned his loaded pistol on the officer? The answer here directly parallels the Supreme Court's reasoning in Mullenix , which the majority seriously shortchanged. In Mullenix , this court had denied qualified immunity to a trooper whose shot fatally wounded a suspect fleeing police in a high-speed chase. The Supreme Court's basic criticism of the panel decision was this: "In this case, the Fifth Circuit held that Mullenix violated the clearly established rule that a police officer may not use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others. Yet this Court has previously considered-and rejected-almost that exact formulation of the qualified immunity question in the Fourth Amendment context." Mullenix , 136 S. Ct. at 308-09 (internal quotation marks and citation omitted). The majority here posit as clearly established law, indeed an "obvious case," that a police officer may not use deadly force-without prior warning-against an armed, distraught suspect who, with finger in the pistol's trigger, posed "no threat" while turning toward an officer ten to twenty feet away. But in Mullenix, the Supreme Court reversed this court because "[t]he general principle that deadly force requires a sufficient threat hardly settles this matter." Id . at 309. Likewise, here, the majority's "no threat" and "obvious case" conclusions do not settle the matter of clearly established law. That the majority here purport to extract clearly established law from Tennessee v. Garner was rebuked in Mullenix . The Supreme Court corrected this court by summary reversal because the Court itself had summarily rejected applying the general standard of Tennessee v. Garner to deny qualified immunity. Mullenix, 136 S. Ct. at 309 (citing Brosseau v. Haugen , 543 U.S. 194, 199, 125 S. Ct. 596, 599, 160 L.Ed.2d 583 (2004) ). Instead, the "correct inquiry" was whether it was clearly established that the Fourth Amendment prohibited the officer's conduct in the precise situation she confronted. Id . Including Mullenix and Brosseau , a series of Supreme Court cases has held that Tennessee v. Garner does not state "clearly established law" governing the use of deadly force other than in Garner 's precise factual context, the shooting of an unarmed burglary suspect fleeing away from an officer. The confrontation in this case with an armed, ready-to-fire suspect is "obviously" different. We fail to understand how the denial of qualified immunity to Officers Hunter and Cassidy can be rescued simply by intoning that this is an "obvious case" under Garner . Garner affirmed the constitutionality of deadly force against suspects when necessary to protect the life of officers or others "if, where feasible, some warning has been given." 471 U.S. at 11-12, 105 S. Ct. at 1701. But Garner in no way renders "clearly established" a requirement to give a warning, and await the suspect's response, before shooting. Nor does it mandate that the suspect's weapon be trained on the officer or others. Like the rest of the calculus surrounding Fourth Amendment reasonableness, the "feasibility" of any such potentially deadly delay or factual nuance must be subjected to case-specific balancing with deference paid to the officer's reasonable perceptions in the midst of a tense situation. Graham, 490 U.S. at 396, 109 S. Ct. at 1872. Indeed, in describing its holding at the outset, Garner states only that "[deadly] force may not be used unless it is necessary to prevent the escape [of an apparently unarmed suspected felon] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." 471 U.S. at 3, 105 S. Ct. at 1697. No mention of a warning appears in this introduction, and "probable cause," not a fact-specific test, is the measure of the threat of harm. Characterizing this case as a "no threat" or "obvious" Fourth Amendment violation is wrong for additional reasons. Whether, under the material undisputed facts, Cole presented "no threat" to a reasonable police officer is the relevant issue to assess a Fourth Amendment violation. But the immunity question, which the majority elides, is whether every reasonable officer in this factual context would have known he could not use deadly force. See Pearson, 555 U.S. at 232, 129 S. Ct. at 815-816. The majority's analysis conflates these inquiries. Second, the importance of grounding the inquiry in a specific factual context cannot be overstated. In this case, if Officer Hunter had stood a hundred feet away from Cole, or Cole had not been turning toward the officers, or Cole had put the handgun in his pocket and wasn't touching it, the analysis of qualified immunity could be quite different. Third, describing a situation as posing "no threat" is a conclusion, not an explanation or, as the majority seems to think, an exception to defining clearly established law in a specific context. No doubt there are rare "obvious" cases of Fourth Amendment violations committed by officers who are plainly incompetent or who knowingly violate the law. In the wide gap between acceptable and excessive uses of force, however, immunity serves its important purpose of encouraging officers to enforce the law, in "tense, uncertain and rapidly evolving" split-second situations, rather than stand down and jeopardize community safety. In their sole, erroneous dependence on Garner, the majority, "can cite no case from [the Supreme] Court denying qualified immunity because officers [entitled to apprehend Cole] selected one dangerous alternative over another." Mullenix, 136 S. Ct. at 310. The Mullenix Court showed that if anything, "clearly established law" was contrary to the plaintiff's position. The Court cited two prior Supreme Court car chase cases that resulted in immunity even though the fugitives-unlike the suspect in Mullenix -had not verbally threatened to kill any officers in their path. Id . at 310 (citing Scott, 550 U.S. at 384, 127 S. Ct. at 1778 ; Plumhoff , 572 U.S. at 777, 134 S. Ct at 2022 ). And in Mullenix itself, as here, the trooper had not warned the fugitive before shooting at his speeding car. These cases "reveal[ed] the hazy legal backdrop against which Mullenix acted," Id. at 309. Accordingly, the Court admonished, "[w]hatever can be said of the wisdom of Mullenix's choice, this Court's precedents do not place the conclusion that he acted unreasonably in these circumstances beyond debate." Id . at 311 (internal quotation marks omitted). Not only do the majority cite "no case" in which the Supreme Court denied qualified immunity to an officer who used deadly force against a mentally distraught individual in circumstances like the present case, but to the contrary, the Court required qualified immunity in two somewhat similar cases. In Sheehan , officers used deadly force to subdue a mentally ill woman during an armed confrontation. The Court restated that the Fourth Amendment is not violated even if police officers, with the benefit of hindsight, may have made some mistakes, because "[t]he Constitution is not blind to 'the fact that police officers are often forced to make split-second judgments.' " Sheehan, 135 S. Ct. at 1775 (quoting Plumhoff , 572 U.S. at 775, 134 S. Ct. at 2020 ). Even closer to this case is White v. Pauly , where an officer arriving at the scene of an armed confrontation shot and killed a suspect without knowing whether his earlier-arrived colleagues had identified themselves as police. 137 S. Ct. at 550-51. In White , the Court chastised the lower court for "misunderst[anding]" the "clearly established" analysis by relying on the generalized pronouncements in Graham and Garner . Id. at 552. Whether Officer White should have second-guessed the preceding conduct of fellow officers hardly presented an "obvious case" pursuant to Garner. The Court speculated that perhaps, given the three-minute delay between when he arrived and when shots rang out, Officer White "should have realized that [a warning about police presence] was necessary before using deadly force." Id . There is a world of difference between three minutes and three seconds, which Officer Hunter had here, and between Officer White's securing himself behind a stone wall fifty feet from the suspect and Officer Hunter's standing fully exposed only ten to twenty feet away from Cole. The majority cannot reconcile the Supreme Court's insistence upon qualified immunity in White with their denial of the defense to Officers Hunter and Cassidy. Kisela v. Hughes, cited in support of the majority, in no way articulates clearly established law concerning the necessity of a warning. First, the Court in Kisela overturned the Ninth Circuit's denial of qualified immunity without addressing the preliminary Fourth Amendment violation. 138 S. Ct. at 1152. A decision holding only that there was no "clearly established law" cannot itself have defined "clearly established law." The Court also criticized the Ninth Circuit for failing to implement correctly the rule that an officer has not "violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Id. at 1153 (internal quotation marks omitted). The Court catalogued all the relevant circumstances of the confrontation that provoked the shooting: a knife-armed, threatening suspect, whose bizarre behavior had been called in to 911, disobeyed officers' commands to disarm for up to one minute before they felt compelled to shoot. Id . The Court concluded, "[t]his is far from an obvious case in which any competent officer would have known that shooting Hughes to protect [the third party] would violate the Fourth Amendment." Id . Also "far from obvious" is the case before us, in which the officers had five seconds, not a whole minute, in which to decide whether to shoot at Cole. Finally, the Supreme Court's decision in Tolan v. Cotton adds nothing to the substance of the qualified immunity discussion. In Tolan, the Court enumerated four critical, disputed evidentiary contentions relating to the officer's perception of danger to himself and thus to qualified immunity. 572 U.S. 650, 657-59, 134 S. Ct. 1861, 1866-67, 188 L.Ed.2d 895 (2014). Because this court had failed to credit the plaintiff's disputed version of these facts, the Court vacated summary judgment for the officer and remanded without deciding any merits issue. Id. at 657, 134 S. Ct. at 1866. In contrast, this dissent credits only undisputed material facts and plaintiffs' version of disputable facts. Like this court's panel in Mullenix , the majority here offer no controlling Supreme Court precedent, including Garner, to support that "clearly established law" mandated that the officers hold their fire until they had both warned Cole and given him a chance to drop his gun or until he pointed the loaded weapon directly at them. For good measure, the Mullenix Court also considered the potential similarity of lower court decisions that dealt with qualified immunity. 136 S. Ct. at 311. Fifth Circuit case law, the Court noted, did not "clearly dictate the conclusion that Mullenix was unjustified in perceiving grave danger and responding accordingly." Id . at 311 (citing Lytle v. Bexar County , 560 F.3d 404, 412 (5th Cir. 2009) ). But the Court quoted with approval an Eleventh Circuit case that granted immunity to a sheriff's deputy who fatally shot a mentally unstable individual "who was attempting to flee in the deputy's car, even though at the time of the shooting the individual had not yet operated the cruiser dangerously. The court explained that 'the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect...' " Id . at 311 (quoting Long v. Slaton , 508 F.3d 576, 581-82 (11th Cir. 2007) ). Here, too, the thrust of Mullenix contradicts the majority's logic and holding. Moreover, to the extent it is relevant , Fifth Circuit law does not support denying qualified immunity to Officers Hunter and Cassidy. The district court and, inferentially, the majority demand that qualified immunity be granted only if the suspect either disobeys immediate commands to disarm or points his weapon at the officers. The district court described such threatening actions as a Manis act. It is true that in previous deadly force cases, this court approved qualified immunity for officers who reasonably believed that a non-compliant suspect was reaching toward where he could retrieve a weapon. See Manis, 585 F.3d at 842 ; see also Reese v. Anderson, 926 F.2d 494, 500-01 (5th Cir. 1991) ; Young v. City of Killeen, Tx., 775 F.2d 1349, 1352 (5th Cir. 1985). The hitch in these particular cases is that there wasn't actually a weapon, yet the officer's objectively reasonable perception was determinative as a matter of law. In another such officer shooting case, this court upheld qualified immunity where the suspect, who was being interrogated for drunk driving at the side of a freeway, turned to walk away from the officer, then appeared to turn around toward him while reaching under his shirttail for what the officer thought could be a concealed weapon. Salazar-Limon v. City of Houston, 826 F.3d 272, 278 (5th Cir. 2016). This court added, "[f]urthermore, ...in the context of this case, it is immaterial whether Salazar turned left, right, or at all before being shot. Specifically, we have never required officers to wait until a defendant turns toward them, with weapon in hand, before applying deadly force to ensure their safety." 826 F.3d at 279 n. 6. While a " Manis act" can sustain qualified immunity even where no weapon is visible, it is not logical for an additional "act" to be mandated where the officers confront a suspect armed, ready to shoot his pistol, and turning toward them. An officer may be forced into shooting an unarmed suspect by a Manis act, and thus obtain qualified immunity. But it is perverse and inconsistent with Fifth Circuit law to hold that the officer has no qualified immunity because she is constitutionally forbidden to shoot an armed suspect in close quarters without either looking down the barrel of the weapon or awaiting his response to her command. In fact, that is exactly what this court has not held. In Ramirez v. Knoulton, 542 F.3d 124, 127 (5th Cir. 2008), police shot a suspect they believed to be suicidal as he stood in profile to them, with a handgun in his right hand, and "brought his hands together in front of his waist." He "never raised his weapon nor aimed it at the officers." Id. at 129. The court held that based on the officers' reasonable perception, no Fourth Amendment violation occurred, because the Constitution "does not require police officers to wait until a suspect shoots to confirm that a serious threat of harm exists." Id. at 130. See also Colston, 130 F.3d at 100 ; Ontiveros , 564 F.3d at 385 (holding no constitutional violation where officer thought suspect was reaching into his boot for a weapon during confrontation in a mobile home). As the Supreme Court put it in Mullenix, "the mere fact that courts have approved deadly force in more extreme circumstances says little, if anything, about whether such force was reasonable in the circumstances here." 136 S. Ct. at 312. The majority describe only one Fifth Circuit police shooting case, out of dozens this court has decided, as an "obvious case." Baker v. Putnal, 75 F.3d 190 (5th Cir. 1996). Whether that characterization applies to the claimed Fourth Amendment violation in Baker , to qualified immunity analysis, or simply to this court's decision to remand for trial is unclear in the majority opinion. Baker, however, says nothing about the merits of the case or about clearly established law, holding instead that "[t]here are simply too many factual issues to permit the Bakers' § 1983 claims to be disposed of on summary judgment." Baker, 75 F.3d at 198. Hence, like Kisela , Baker cannot support any rule of clearly established law, much less explain what law is "obvious." Significantly, in Baker, whether the suspect was holding a gun visible to the officer was an important hotly contested issue, with eyewitnesses contradicting the officer's account of the incident. Baker , 75 F.3d at 198. Cole's case, in contrast, does not involve a "chaos on the beach" incident. The undisputed facts are starkly different here. It is undisputed, at a minimum, that Cole was holding a loaded weapon, his finger in the trigger, as he emerged from the woods; he was turning toward the officers; and they had five seconds to react. Baker does not show that the officers' conduct in Cole violated clearly established law. To sum up, the majority opinion here repeats every error identified by the Supreme Court when it granted summary reversal in Mullenix and sent the instant case back for reconsideration. The majority's "clearly established" rule has changed, but not its errors. Tennessee v. Garner does not formulate "clearly established law" with the degree of specificity required by the Supreme Court's decisions on qualified immunity. The majority's "no threat" and "obvious case" statements pose the issues here at an excessive level of generality. The majority has no Supreme Court case law demonstrating that Officers Hunter and Cassidy were either plainly incompetent or had to know that shooting at Cole was unconstitutional under the circumstances before them and with the knowledge they possessed-he was mentally distraught; he was armed with his finger in the pistol's trigger; he was very close to Hunter; he had been walking in the direction of schools for which extra police protection had been ordered; and he had ignored other officers' commands to stop and drop his weapon. And they had three to five seconds to decide how dangerous he could be to them. The majority cites not one case from this court denying qualified immunity under similar circumstances. Mullenix aptly summed it up for our purposes: "qualified immunity protects actions in the hazy border between excessive and acceptable force." 136 S. Ct. at 312 (internal quotation marks omitted). "[T]he constitutional rule applied by the Fifth Circuit was not 'beyond debate.' " Id . It is not "clearly established" that police officers confronting armed, mentally disturbed suspects in close quarters must invariably stand down until they have issued a warning and awaited the suspects' reaction or are facing the barrel of a gun. "This was not a belief in possible harm, but a belief in certain harm. The fact that they would later discover this to be a mistaken belief does not alter the fact that it was objectively reasonable for them to believe in the certainty of that risk at that time." Carnaby v. City of Houston, 636 F.3d 183, 188 n.4 (5th Cir. 2011). That is the law in the Fifth Circuit, and the majority has pointed to no clearly established law otherwise. Shooting at Cole may not have been the wisest choice under these pressing circumstances, but the officers' decision, even if assailable, was at most negligent. Hunter and Cassidy were neither plainly incompetent nor themselves lawbreakers. While we are confident a jury will vindicate their actions, they deserved qualified immunity as a matter of law. We dissent. Corbitt v. Vickers , 929 F.3d 1304, 1307-08 (11th Cir. 2019). Id. at 1323. Zadeh , 928 F.3d at 479-80 (Willett, J., concurring in part, dissenting in part). Four sitting Justices "have authored or joined opinions expressing sympathy" with assorted critiques of qualified immunity. Joanna C. Schwartz, The Case Against Qualified Immunity , 93 Notre Dame L. Rev. 1797, 1800 (2018) (including Justices Thomas, Ginsburg, Breyer, and Sotomayor, plus recently retired Justice Kennedy); see, e.g. , Ziglar v. Abbasi , --- U.S. ----, 137 S. Ct. 1843, 1872, 198 L.Ed.2d 290 (2017) (Thomas, J., concurring in part and concurring in the judgment) ("In an appropriate case, we should reconsider our qualified immunity jurisprudence."); see also Kisela v. Hughes , --- U.S. ----, 138 S. Ct. 1148, 1162, 200 L.Ed.2d 449 (2018) (per curiam). Doe v. Woodard , 912 F.3d 1278 (10th Cir. 2019), cert. denied , --- U.S. ----, 139 S.Ct. 2616, ----, 204 L.Ed.2d 265 (2019). As for congressional reform, Congress's refusal to revisit § 1983 suggests Article I acquiescence. 555 U.S. at 236, 129 S.Ct. 808. As observers have cautioned, unfettered Pearson discretion contributes to "constitutional stagnation" by impeding the development of precedent. Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity , 89 S. Cal. L. Rev. 1, 23-24 (2015). Id. at 7.
JERRY E. SMITH, Circuit Judge, dissenting: This is a "red flag" case if ever there was one. The en banc majority commits grave error, as carefully explained in the dissents by Judge Jones, Judge Willett, Judges Ho and Oldham (jointly), and Judge Duncan. Yet eleven judges join the majority. Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace officers with only a few seconds to react to dangerous confrontations with threatening and well-armed potential killers. In light of today's ruling and the raw count of judges, there is little chance that, any time soon, the Fifth Circuit will confer the qualified-immunity protection that heretofore-settled Supreme Court and Fifth Circuit caselaw requires. Red flags abound. Judge Duncan cogently details the "rich vein of facts" describing this plaintiff's undisputed actions in the hours leading up to the shooting. • Red flag: a 9mm semi-automatic handgun and ammunition. • Red flag: a double-barrel shotgun with shells. • Red flag: a .44 magnum revolver. • Red flag: a .38 revolver. • Red flag: a suspect who had broken into a gun safe and stolen an unknown quantity of weapons and ammunition. • Red flag: a police visit the night before to the suspect's house because of a disturbance with his parents. • Red flag: a suspect with a dangerous knife at his parents' house. • Red flag: a suspect who had a wild look in his eye and was smoking K2. • Red flag: a suspect, distraught over breaking up with his girlfriend, moving toward the school where she was a student. • Red flag: a suspect near an elementary school. • Red flag: a suspect with personal issues including drug abuse. • Red flag: a suspect seen running through the woods with at least three weapons. • Red flag: a suspect irate and distraught. • Red flag: a suspect who said he would shoot anyone who came near him. • Red flag: a suspect armed with at least one handgun and possibly three. • Red flag: a suspect who had refused police demands to drop his weapon. • Red flag: a suspect who deposited a cache of weapons and ammunition at a friend's house after arguing with his parents. • Red flag: a suspect who yelled obscenities at an officer. • Red flag: a suspect who had threatened to kill his girlfriend and himself. • Red flag: a suspect whom the district court described as troubled. • Red flag: a suspect described in his complaint as suffering from obsessive compulsive disorder, treated with medications from numerous medical professionals, and having poor judgment and impaired impulse control. * * * * * Normally we expect police officers to recognize such red flags and to respond appropriately. Instead of protecting these officers from obvious danger to themselves and the public, however, the en banc majority orders them to stand down. What is the hapless officer to do in the face of today's decision? What indeed is the "clearly established law" that the majority now announces? The judges in the majority do not say. The law of qualified immunity was poignantly summarized in 2019 by a dissenting judge who is now in the majority. Today's en banc ruling turns those words to dust. I respectfully dissent. See, e.g., Kingsley v. Hendrickson , --- U.S. ----, 135 S. Ct. 2466, 2474, 192 L.Ed.2d 416 (2015) (courts "must judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer"); Tennessee v. Garner , 471 U.S. 1, 9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (whether a "particular" seizure was justified depends on "the totality of the circumstances"). All of these facts come from reports and transcriptions of radio transmissions made within a day or two of the incident. None come from affidavits submitted by the officers years later. And, as explained below, none of these pre-encounter facts was disputed by Cole or analyzed by the district court. See, e.g., Mullenix v. Luna , --- U.S. ----, 136 S. Ct. 305, 306, 193 L.Ed.2d 255 (2015) (assessing officer's shooting of suspect during car chase beginning with events preceding the "18-minute chase"); Plumhoff v. Rickard , 572 U.S. 765, 768-70, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (assessing officer's shooting of suspects in Memphis, Tennessee after lengthy car chase beginning with traffic stop in "West Memphis, Arkansas"); Brosseau v. Haugen , 543 U.S. 194, 195, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (evaluating officer's shooting of fleeing suspect beginning with events "[o]n the day before the fracas"); Colston , 130 F.3d at 100 (determining officer's failure to warn was not objectively unreasonable "[i]n light of the totality of the circumstances facing [the officer]") (citing Garner , 471 U.S. at 10, 105 S.Ct. 1694 ).
DON R. WILLETT, Circuit Judge, dissenting: I repeat what I said last month: The entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal. Qualified immunity strikes an uneasy, cost-benefit balance between two competing deterrence concerns: "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." By insulating incaution, the doctrine formalizes a rights-remedies gap through which untold constitutional violations slip unchecked. The real-world functioning of modern immunity practice-essentially "heads government wins, tails plaintiff loses"-leaves many victims violated but not vindicated. More to the point, the "clearly established law" prong, which is outcome-determinative in most cases, makes qualified immunity sometimes seem like unqualified impunity: "letting public officials duck consequences for bad behavior-no matter how palpably unreasonable-as long as they were the first to behave badly." That said, as a middle-management circuit judge, I take direction from the Supreme Court. And the Court's direction on qualified immunity is increasingly unsubtle. We must respect the Court's exacting instructions-even as it is proper, in my judgment, to respectfully voice unease with them. I Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." While this bar is not insurmountable, it is sky-high. And it is raised higher when courts leapfrog prong one (deciding whether the challenged behavior violates the Constitution) to reach simpler prong two: no factually analogous precedent. Merely proving unconstitutional misconduct isn't enough. A plaintiff must cite functionally identical authority that puts the unlawfulness "beyond debate" to "every" reasonable officer. Last month, for example, the Eleventh Circuit, noting no "materially similar case" (thus no "clearly established law"), granted immunity to a police officer who fired at a family's dog but instead shot a 10-year-old child lying face-down 18 inches from the officer. Not only that, the court "expressly [took] no position" as to "whether a constitutional violation occurred in the first place." Translation: If the same officer tomorrow shoots the same child while aiming at the same dog, he'd receive the same immunity. Ad infinitum . The Supreme Court demands precedential specificity. But it's all a bit recursive. There's no earlier similar case declaring a constitutional violation because no earlier plaintiff could find an earlier similar case declaring a constitutional violation. " Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one's answered them before. Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell." II In recent years, individual Justices have raised concerns with the Court's immunity caselaw. Even so, the doctrine enjoys resounding, even hardening favor at the Court. Just three months ago, in a case involving the warrantless strip search of a four-year-old preschooler, a strange-bedfellows array of scholars and advocacy groups-perhaps the most ideologically diverse amici ever assembled-implored the Court to push reset. To no avail. This much is certain: Qualified immunity, whatever its success at achieving its intended policy goals, thwarts the righting of many constitutional wrongs. Perhaps the growing left-right consensus urging reform will one day win out. There are several "mend it, don't end it" options. The Court could revisit Pearson and nudge courts to address the threshold constitutional merits rather than leave the law undeveloped. Even if a particular plaintiff cannot benefit (due to the "clearly established law" prong), this would provide moving-forward guidance as to what the law prescribes and proscribes. Short of that, the Court could require lower courts to explain why they are side-stepping the constitutional merits question. Or the Court could confront the widespread inter-circuit confusion on what constitutes "clearly established law." One concrete proposal: clarifying the degree of factual similarity required in cases involving split-second decisions versus cases involving less-exigent situations. The Court could also, short of undoing Harlow and reinstating the bad-faith prong, permit plaintiffs to overcome immunity by presenting objective evidence of an official's bad faith. Not subjective evidence of bad faith, which Harlow , worried about "peculiarly disruptive" and "broad-ranging discovery," forbids. And not unadorned allegations of bad faith. But objective evidence that the official actually realized that he was violating the Constitution. Prudent refinements abound. But until then, as Judge Jones explains in today's principal dissent, the Supreme Court's unflinching, increasingly emphatic application of "clearly established law" compels dismissal. III I remain convinced that contemporary immunity jurisprudence merits "a refined procedural approach that more smartly-and fairly-serves its intended objectives." Yet I also remain convinced that a majority of the Supreme Court disagrees. My misgivings, I believe, are well advised. But we would be ill advised to treat the reform of immunity doctrine as something for this court rather than that Court. For these reasons, I respectfully dissent. JAMES C. HO and ANDREW S. OLDHAM, Circuit Judges, joined by JERRY E. SMITH, Circuit Judge, dissenting: Apparently SUMREVs mean nothing. In Luna v. Mullenix , 773 F.3d 712 (5th Cir. 2014), we sent a state trooper to a jury "in defiance" of "the concept and precedents of qualified immunity." 777 F.3d 221, 222 (5th Cir. 2014) (Jolly, J., dissenting from denial of rehearing en banc). The Supreme Court summarily reversed us. Mullenix v. Luna , --- U.S. ----, 136 S. Ct. 305, 193 L.Ed.2d 255 (2015) (per curiam). Then they GVR'd us in this case and ordered us to reconsider our obvious error in light of Mullenix . The en banc majority instead doubles down. That is wrong for all the reasons Judge Jones gives in her powerful dissent, which we join in full. We write to emphasize the en banc majority's unmistakable message: Four years after Mullenix , nothing has changed in our circuit. I. The Supreme Court has not hesitated to redress similar intransigence from our sister circuits-often through the "extraordinary remedy of a summary reversal." Kisela v. Hughes , --- U.S. ----, 138 S. Ct. 1148, 1162, 200 L.Ed.2d 449 (2018) (Sotomayor, J., dissenting) (quotation omitted). See , e.g. , City of Escondido v. Emmons , --- U.S. ----, 139 S. Ct. 500, 202 L.Ed.2d 455 (2019) (per curiam) (summarily reversing the Ninth Circuit); Kisela , --- U.S. ----, 138 S. Ct. 1148, 200 L.Ed.2d 449 (per curiam) (same); District of Columbia v. Wesby , --- U.S. ----, 138 S. Ct. 577, 199 L.Ed.2d 453 (2018) (reversing the D.C. Circuit); White v. Pauly , --- U.S. ----, 137 S. Ct. 548, 196 L.Ed.2d 463 (2017) (per curiam) (summarily reversing the Tenth Circuit); City and County of San Francisco v. Sheehan , --- U.S. ----, 135 S. Ct. 1765, 191 L.Ed.2d 856 (2015) (reversing the Ninth Circuit); Carroll v. Carman , 574 U.S. 13, 135 S.Ct. 348, 190 L.Ed.2d 311 (2014) (per curiam) (summarily reversing the Third Circuit); Wood v. Moss , 572 U.S. 744, 134 S.Ct. 2056, 188 L.Ed.2d 1039 (2014) (reversing the Ninth Circuit); Plumhoff v. Rickard , 572 U.S. 765, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (reversing the Sixth Circuit); Stanton v. Sims , 571 U.S. 3, 134 S.Ct. 3, 187 L.Ed.2d 341 (2013) (per curiam) (summarily reversing the Ninth Circuit); Reichle v. Howards , 566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (reversing the Tenth Circuit); Ryburn v. Huff , 565 U.S. 469, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (per curiam) (summarily reversing the Ninth Circuit); Ashcroft v. al-Kidd , 563 U.S. 731, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (same); Brosseau v. Haugen , 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (same). In each of these cases, the Supreme Court reminded lower courts that qualified immunity requires us not only to identify a clearly established rule of law, but to do so with great specificity. Everyone agrees, of course, that Ryan Cole has a constitutional right not to be seized unreasonably. But "that is not enough" to subject a police officer to the burdens of our civil litigation system. Saucier v. Katz , 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Supreme Court has "repeatedly told courts ... not to define clearly established law at [that] high level of generality." al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074. Rather, "[t]he dispositive question is whether the violative nature of particular conduct is clearly established." Mullenix , 136 S. Ct. at 308 (citation omitted). Only by identifying a specific and clearly established rule of law do we ensure that the officer had "fair notice"-"in light of the specific context of the case, not as a broad general proposition"-that his or her particular conduct was unlawful. Brosseau , 543 U.S. at 198, 125 S.Ct. 596 (citation omitted). See also , e.g. , Sheehan , 135 S. Ct. at 1776 ("Qualified immunity is no immunity at all if 'clearly established' law can simply be defined as the right to be free from unreasonable searches and seizures."); Wilson v. Layne , 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (same); Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (same). So where is our clearly established law at issue here? Unbelievably, the en banc majority says we don't need any. That's so, they say, because "[t]his is an obvious case." Ante , at 453. That's obviously wrong for three reasons. First, the Supreme Court to date has never identified an "obvious" case in the excessive force context. And the majority thinks this is the first? A case where a mentally disturbed teenager-who has a loaded gun in his hand with his finger on the trigger; who has repeatedly refused to be disarmed; who has threatened to kill anyone who tries to disarm him; who poses such a deadly threat that police have been deployed to protect innocent students and teachers at his nearby high school-turns toward the officers just ten to twenty feet away, giving them only seconds to decide what to do in response. Really? Second, the Supreme Court has granted qualified immunity in much tougher cases than this one. In Plumhoff , for example, officers fired 15 shots and killed two unarmed men who fled a traffic stop. In Brosseau , an officer shot an unarmed man who refused to open his truck window. In Kisela , officers shot a woman who was hacking a tree with a kitchen knife. In Sheehan , officers shot an old woman holding a kitchen knife in an assisted-living facility. In all of these cases, the Court held the officers were entitled to qualified immunity. Third, this is Mullenix all over again. There our court relied on clearly established law as articulated in Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Garner involved an unarmed man who fled from police after stealing $ 10. An officer fatally shot Garner in the back of the head as he attempted to climb a fence. Our court then extended Garner to Mullenix's case-which involved a man who led police on a high-speed car chase after violating his probation. A state trooper attempted to end the chase by shooting the speeding car's engine block-but he missed the engine, hit the driver in the face, and killed him. See Luna , 773 F.3d at 719-20 (discussing Garner ). The Supreme Court summarily reversed us because-as should be painfully obvious from the Court's serial reversals in this area-that's not how qualified immunity works. See Mullenix , 136 S. Ct. at 308-09 (holding our court erred in our extrapolation of Garner to new facts). And they GVR'd us in this very case to fix our mistakes in light of Mullenix . The Supreme Court's message could not be clearer. Still, somehow, today's majority does not get it. Here, as in Mullenix , the majority attempts to rely on Garner to establish the governing rule of law. From Garner , the majority somehow divines a rule that an officer cannot shoot a mentally disturbed teenager holding a gun near his school. This is demonstrably erroneous. In fact, one thing that unites the Supreme Court's recent reversals in cases involving qualified immunity and excessive force is the attempt by lower courts to extrapolate Garner to new facts. See Mullenix , 136 S. Ct. at 308-09 ; Scott v. Harris , 550 U.S. 372, 381-82, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (same); Allen v. City of West Memphis , 509 F. App'x 388, 392 (6th Cir. 2012) (extrapolating Garner ), rev'd by Plumhoff , supra . Moreover, there are additional parallels between Mullenix and this case. Consider the supposed requirement that an officer take some sort of non-lethal measure before using lethal force. In Mullenix , our court used the power of 20-20 hindsight to say that a reasonable officer should have used spike strips to stop the chase. See 773 F.3d at 720-21. The Supreme Court emphatically rebuked us. See 136 S. Ct. at 310. They told us that an officer does not have to expose himself or other officers to harm when the suspect has already refused to be disarmed. That meant Trooper Mullenix did not have to wait to see if the fleeing felon would shoot or run over the officer manning the spike strips. See id. at 310-11. So too here. In this case, the majority complains that the officers did not provide sufficient warning. But there was no clearly established law requiring Officers Cassidy and Hunter to announce themselves-while caught in an open and defenseless position-and hope not to get shot. That is particularly true here because officers previously ordered Cole to put down his gun, he refused, and he threatened to kill anyone who attempted to disarm him. And in Mullenix , as here, we accused the police officers of being cowboys. Earlier on the day of the shooting, Trooper Mullenix received a negative performance review for "not being proactive enough as a Trooper"; so in the aftermath of the shooting, Mullenix said to his supervisor, "How's that for proactive?" 773 F.3d at 717 ; see also 136 S. Ct. at 316 (Sotomayor, J., dissenting). The panel opinions and en banc majority opinion in this case likewise seethe with innuendo that Officers Hunter and Cassidy were wannabe cowboys looking for a gunfight. We are in no position to make such accusations. No member of this court has stared down a fleeing felon on the interstate or confronted a mentally disturbed teenager who is brandishing a loaded gun near his school. And the Mullenix Court held that the qualified-immunity standard gives us no basis for sneering at cops on the beat from the safety of our chambers. See 136 S. Ct. at 310-11 (majority op.) (citing Brief for National Association of Police Organizations et al. as Amici Curiae ). Yet here we are. Again. II. The majority cannot dodge responsibility for today's decision by pointing to the limits of appellate jurisdiction. See ante , at 452-53 (majority op.); ante , at 457 (Elrod, J., concurring). We obviously lack interlocutory appellate jurisdiction to review the genuineness of an officer's fact dispute. See , e.g. , Johnson v. Jones , 515 U.S. 304, 313-14, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ; Kinney v. Weaver , 367 F.3d 337, 346-47 (5th Cir. 2004) (en banc) (applying Johnson v. Jones ). But that does nothing to defeat jurisdiction where, as here, the factual disputes are immaterial . That is why the Supreme Court repeatedly has rejected such no-jurisdiction pleas from those who wish to deny qualified immunity. See, e.g. , Plumhoff , 572 U.S. at 771-73, 134 S.Ct. 2012 ; id. at 773, 134 S. Ct. 2012 (noting existence of genuine fact dispute did not defeat appellate jurisdiction in Scott v. Harris ). All the fact disputes in the world do nothing to insulate this legal question: Is this an "obvious case" under Garner -notwithstanding a mountain of SUMREVs, GVRs, and pointed admonitions from the Supreme Court? The majority says yes. Ante , at 453. They obviously must have jurisdiction to say so. With respect, it makes no sense to say we lack jurisdiction to disagree with them. III. What explains our circuit's war with the Supreme Court's qualified-immunity jurisprudence? Two themes appear to be at play. First, the majority suggests we should be less than enthused about Supreme Court precedent in this area, because it conflicts with plaintiffs' jury rights. To quote the panel: "Qualified immunity is a judicially created doctrine calculated to protect an officer from trial before a jury of his or her peers. At bottom lies a perception that the jury brings a risk and cost that law-enforcement officers should not face, that judges are preferred for the task-a judgment made by appellate judges." Cole v. Carson , 905 F.3d 334, 336 (5th Cir. 2018). Or in the words of today's majority: "The Supreme Court over several years has developed protection from civil liability for persons going about their tasks as government workers" (a rather curious way to describe the men and women who swear an oath to protect our lives and communities). Ante , at 446. But "the worker's defense" must yield, in cases like this, "in obeisance to [the] constitutional mandate" of a jury trial. Id. We appreciate the majority's candor. But inferior court judges may not prefer juries to the Justices. Second, some have criticized the doctrine of qualified immunity as a historical and contrary to the Founders' Constitution. Ante at 446 (suggesting denial of qualified immunity is commanded by "the Founders"); compare William Baude, Is Qualified Immunity Unlawful? , 106 CALIF. L. REV. 45, 49-61 (2018), with Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity , 93 NOTRE DAME L. REV. 1853, 1856-63 (2018) ; see also Zadeh v. Robinson , 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring dubitante), revised on petition for reh'g en banc , 928 F.3d 457, 473 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part). As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial. The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines. See Crawford-El v. Britton , 523 U.S. 574, 611-12, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (Scalia, J., joined by Thomas, J., dissenting). A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand , as well as limit, § 1983 liability: [O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted .... [But] [t]he § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape , 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which converted an 1871 statute covering constitutional violations committed "under color of any statute, ordinance, regulation, custom, or usage of any State," Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law. Id. at 611, 118 S.Ct. 1584. Justices Scalia and Thomas ultimately concluded that it is better to leave things alone than to reconfigure established law in a one-sided manner. If we're not willing to re-evaluate all § 1983 precedents in a balanced and principled way, then it "is perhaps just as well" that "[w]e find ourselves engaged ... in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented-rather than applying the common law embodied in the statute that Congress wrote." Id. at 611-12, 118 S.Ct. 1584. Translation: If we're not going to do it right, then perhaps we shouldn't do it at all. Subjecting these officers to trial on originalist grounds is precisely the unprincipled practice of originalism that Justices Scalia and Thomas railed against. And not just for the procedural reasons they identified in Crawford-El . What about the original understanding of the Fourth Amendment, which the plaintiffs here invoke as their purported substantive theory of liability in this case? Does the majority seriously believe that it is an "unreasonable seizure," as those words were originally understood at the Founding , for a police officer to stop an armed and mentally unstable teenager from shooting innocent officers, students, and teachers? And make no mistake: Principled originalism is not just a matter of intellectual precision and purity. There are profound practical consequences here as well, given the important and delicate balance that qualified immunity is supposed to strike. As the Supreme Court has explained, qualified immunity ensures that liability reaches only "the plainly incompetent or those who knowingly violate the law." Mullenix , 136 S. Ct. at 308 (quotation omitted). And absent plain incompetence or intentional violations, qualified immunity must attach, because the "social costs" of any other rule are too high: [I]t cannot be disputed seriously that claims frequently run against the innocent as well as the guilty-at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties. Harlow v. Fitzgerald , 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (alterations and quotations omitted); see also , e.g. , Sheehan , 135 S. Ct. at 1774 n.3 (noting "the importance of qualified immunity to society as a whole"). For those who have expressed concerns about a "one-sided approach to qualified immunity," Kisela , 138 S. Ct. at 1162 (Sotomayor, J., dissenting); see also Zadeh , 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting Kisela , 138 S. Ct. at 1162 (Sotomayor, J., dissenting)); 928 F.3d at 480 & n.61 (Willett, J., concurring in part and dissenting in part) (same), look no further than the majority opinion. The majority undoes the careful balance of interests embodied in our doctrine of qualified immunity, stripping the officers' defenses without regard to the attendant social costs. Now that is a one-sided approach to qualified immunity as a practical matter. And as Justices Scalia and Thomas have observed, it's also a one-sided approach to qualified immunity as an originalist matter: It abandons the defense without also reconsidering the source and scope of officers' liability in the first place. See Crawford-El , 523 U.S. at 611-12, 118 S.Ct. 1584 (Scalia, J., joined by Thomas, J., dissenting). To quote Justice Alito: "We will not engage in this halfway originalism." Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council 31 , --- U.S. ----, 138 S. Ct. 2448, 2470, 201 L.Ed.2d 924 (2018). See also id. (criticizing litigants for "apply[ing] the Constitution's supposed original meaning only when it suits them"); Gundy v. United States , --- U.S. ----, 139 S. Ct. 2116, 2131, 204 L.Ed.2d 522 (2019) (Alito, J., concurring in the judgment) ("[I]t would be freakish to single out the provision at issue here for special treatment."). * * * Our circuit, like too many others, has been summarily reversed for ignoring the Supreme Court's repeated admonitions regarding qualified immunity. There's no excuse for ignoring the Supreme Court again today. And certainly none based on a principled commitment to originalism. Originalism for plaintiffs, but not for police officers, is not principled judging. Originalism for me, but not for thee, is not originalism at all. We respectfully dissent. STUART KYLE DUNCAN, Circuit Judge, joined by SMITH, OWEN, HO, and OLDHAM, Circuit Judges, dissenting: The majority opinion overlooks or omits undisputed material facts showing that any reasonable officer would have viewed Ryan Cole as a severe threat. Before the shooting, the defendant officers: (1) were tracking a distraught suspect wandering through the woods armed with a loaded 9mm semi-automatic handgun; (2) who had earlier that morning off-loaded a cache of weapons and ammunition at a friend's house; (3) who had already refused to give up his pistol when confronted by the police; and (4) who had threatened to "shoot anyone who came near him." Cole did not dispute those facts and, indeed, convinced the district court they were irrelevant. Joining Judge Jones' dissent in full, I respectfully dissent on the additional grounds provided by these pre-encounter facts. No one doubts some of the events on October 25, 2010-when the officers violently encountered Cole in the woods near Garland, Texas-are disputed. The question is whether those disputes are material . See, e.g., Bazan ex rel. Bazan v. Hidalgo Cty. , 246 F.3d 481, 483 (5th Cir. 2001) ("threshold issue" on qualified immunity appeal "is whether the facts the district judge concluded are genuinely disputed are also material "). Judge Jones' dissent compellingly shows they are not: Resolving all disputes in Cole's favor, the undisputed facts still show the officers violated no clearly established law. Jones Dissent at 458-59, 436-69. The majority thus errs by concluding that "competing factual narratives" bar it from deciding qualified immunity. Maj. at 446-47. I write separately to emphasize what led up to the shooting, and also to explain why those undisputed events provide further reasons to reverse. The majority and Judge Jones focus on the shooting itself, as did the district court. But the prelude to the shooting gives unavoidable context for evaluating the officers' actions. Surprisingly, the district court did not even analyze those stage-setting facts, which it mistakenly deemed irrelevant. See Cole v. Hunter, No. 3:13-CV-02719-O, 2014 WL 266501, at *13 n.5 (N.D. Tex. Jan. 24, 2014) ; Cole v. Hunter , 68 F. Supp. 3d 628, 642-43 (N.D. Tex. 2014). So, to assess their impact, we must "undertake a cumbersome review of the record." Johnson v. Jones , 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). That extra work is sometimes imperative, as here, "to ensure that the defendant's right to an immediate appeal on the issue of materiality is not defeated solely on account of the district court's failure to articulate its reasons for denying summary judgment." Colston v. Barnhart , 146 F.3d 282, 285 (5th Cir. 1998), denying reh'g in 130 F.3d 96 (5th Cir. 1997). This detailed record review (see Part I) compels two conclusions (see Part II). First, the district court erred by excluding the undisputed events before the shooting. That error-based on a misreading of our precedent-truncated the qualified immunity analysis. That alone requires reversing the summary judgment denial. Second, in light of those pre-encounter facts, the majority's insistence that this is an "obvious case" collapses. Maj. at 453-54. Given what confronted the officers, the majority cannot say what they did was "obviously" unlawful. The only thing obvious is that no case told the officers, clearly or otherwise, how to respond when they met Cole that morning, emerging from the woods with his finger on the trigger of a loaded gun. By denying qualified immunity and making the officers run the gauntlet of trial, the majority sets a precedent that "seriously undermines officers' ability to trust their judgment during those split seconds when they must decide whether to use lethal force." Winzer v. Kaufman Cty. , 916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting). I. The majority begins "around 10:30 a.m.," less than an hour before the shooting. Maj. at 447-48. But events began to unfold much earlier. Around 2 a.m. that morning, Cole knocked on the door of his friend, Eric Reed Jr., to show him "a 44 magnum revolver." Awakened by the knocking, Eric Jr.'s father (Eric Sr.) left his room, saw Cole with the gun, and told him to leave. Eric Jr. convinced Cole to leave the revolver because "he [did not] need to be carrying a weapon around." Around 8 a.m., Eric Jr. gave his father Cole's gun. Eric Sr., a retired Sachse police officer, then notified Officer Vernon Doggett, who came to the Reeds'. Eric Jr. told his father and Doggett that "[Cole] told him there were more guns on the side of the house." There, they found "a double barrel shot gun with some shot gun shells and what appeared to be a plastic bag with 9mm bullets," which Doggett secured. Eric Jr. also explained Cole "had broken up with his girlfriend and was going to kill himself and his girlfriend." Doggett was a resource officer for Sachse High School, where Cole and his girlfriend attended. He contacted Sergeant Garry Jordan, told him about the guns, and asked to meet at the school. Doggett reported that Cole "may be at school with a 9mm handgun." Another officer checked whether Cole was in class, and Jordan searched the parking areas for Cole. Not finding him, Jordan went to Coles' and spoke to his parents. He learned that, the previous evening, officers had responded to a disturbance there. Officers had found Cole's father "holding Ryan down" because "he did not want [Cole] to leave the residence with the pocket knife that he had." He said "his son had a wild l