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United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 21, 2021 No. 20-50425 Lyle W. Cayce Clerk Inessa G. Batyukova, Plaintiff—Appellant, versus Brandon Lee Doege, #1282, Defendant—Appellee. Appeal from the United States District Court for the Western District of Texas USDC No. 5:19-CV-391 Before Davis, Southwick, and Costa, Circuit Judges. Leslie H. Southwick, Circuit Judge: Inessa Batyukova appeals from the district court’s grant of qualified immunity and summary judgment to an off-duty sheriff’s deputy on her Section 1983 claims. The deputy had been driving his own vehicle when he encountered another vehicle stopped in a traffic lane of a four-lane divided highway. Batyukova emerged from the stopped vehicle and would not follow the deputy’s commands. She brought suit for the deputy’s use of deadly force when he perceived she might be reaching for a weapon, and for his alleged failure to provide her medical assistance for the injuries she sustained. We AFFIRM the grant of qualified immunity and summary judgment. Case: 20-50425 Document: 00515830276 Page: 2 Date Filed: 04/21/2021 No. 20-50425 FACTUAL AND PROCEDURAL BACKGROUND 1 Brandon Doege was a deputy of the Bexar County, Texas Sheriff’s Office who worked in the county’s adult-detention center. He was not a patrol officer and had not undergone the same training as patrol officers. He was, though, commissioned as a peace officer and had received basic training for that role. Shortly before midnight on June 28, 2018, Deputy Doege was driving westbound on U.S. Highway 90 on his way home from a shift. He was in his uniform and driving his personal vehicle, which was equipped with red and blue police-style lights. After he crossed the line from Bexar County into Medina County, Deputy Doege encountered Batyukova’s vehicle stopped in the left-hand lane of the highway. Deputy Doege activated his red and blue lights and parked behind her so he could render aid. At that time, he called 911 and informed the Medina County dispatcher that he was an off-duty deputy, that he had encountered a vehicle in the middle of the road with its hazard lights on, that he was in his personal vehicle with red and blue lights, and that he had not yet approached the vehicle. Batyukova then began to exit her vehicle. Deputy Doege opened his door and yelled out to Batyukova, “let me see your hands” and “get out of the vehicle.” She stepped out of the vehicle, which prompted Deputy Doege to yell “put your hands on the hood.” Instead of complying with the commands, Batyukova gave Deputy Doege the middle finger, shouted “f**k Case: 20-50425 Document: 00515830276 Page: 3 Date Filed: 04/21/2021

No. 20-50425 you,” and said that she hated America. Still on the line with 911, Deputy Doege asked the dispatcher to send a police unit. It is undisputed that, over the course of the short encounter, Batyukova yelled “f**k you,” “f**k America,” and “I hate America.” The parties dispute whether Batyukova also said “death to America” and “you’re going to f**king die tonight.” Deputy Doege testified that Batyukova made those statements and that they contributed to his fearing for his life, but Batyukova denies doing so. After requesting a police unit, Deputy Doege again yelled “put your hands on the hood.” He also asked her “what is going on” as she continued to shout expletives. After ignoring almost every command Deputy Doege gave, Batyukova began to walk towards Deputy Doege’s vehicle. Deputy Doege quickly put his vehicle in reverse and backed up to maintain distance. Batyukova stopped her approach when Deputy Doege exited his vehicle and drew his weapon. Standing behind his door, Deputy Doege yelled “get down now” and “let me see your hands.” At that point, with a cigarette in one hand, Batyukova reached her other hand towards the waistband of her pants. Her hand went behind her back and disappeared from Deputy Doege’s view. An instant later, Deputy Doege fired five shots. Bullets struck her wrist, leg, and abdomen. The video evidence shows that, immediately after shooting, Deputy Doege told the dispatcher “shots fired, shots fired . . . she reached behind her back.” In his deposition, he testified that it was the combination of her saying “you’re going to f**king die tonight” and her hand reaching behind her back towards her waistband that made him fear for his life. According to his statement to the Medina County Sheriff’s Office, when Batyukova “reached behind her towards her waistband,” Deputy Doege “thought she was reaching for a weapon to kill [him]” and “was in fear for [his] life.”

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No. 20-50425 After the incident, Batyukova told news reporters that she was attempting to “moon” Deputy Doege. Similarly, she told Medina County investigators that she was attempting to show Deputy Doege her “beautiful a**.” In her deposition nearly two years later, she contradicted her previous accounts and claimed that she never attempted to moon Deputy Doege. Regardless, it is conclusively established by deemed admission that Batyukova “reached toward[s] [her] waistband because [she] intended to lower [her] pants in order to display [her] buttocks to Deputy Doege.” Other undisputed facts are that after Deputy Doege shot Batyukova, he immediately informed the dispatcher that shots had been fired, that Batyukova was injured, and that he needed assistance. He told the dispatcher “I need someone now” and “she is not moving.” The dispatcher responded that “units are on their way.” A few seconds later, Batyukova’s vehicle horn began to blare, which caused Deputy Doege to believe someone else was in the vehicle. Deputy Doege approached her vehicle to check for others but did not see anyone inside the vehicle or in the nearby median. Deputy Doege returned to his vehicle to search for a first aid kit but soon remembered that he did not have one with him. While he was behind his vehicle, Batyukova began to move slightly. Her movements prompted Deputy Doege to order her again to show her hands. A few moments later, officers from the Medina County Sheriff’s Office and the Castroville Police Department arrived. Deputy Doege told them he had not fully cleared the vehicle, the surrounding area, or Batyukova. Other officers apparently handled traffic control, and Deputy Doege and a Medina County deputy proceeded to check Batyukova’s vehicle again but found nobody else. The Medina County deputy then approached Batyukova, determined that she was breathing and responsive, and stayed with her until EMS arrived. EMS Case: 20-50425 Document: 00515830276 Page: 5 Date Filed: 04/21/2021

No. 20-50425 arrived about 15 minutes after she was shot. Batyukova had several gunshot wounds, a fractured wrist, and an exposed bone. She had also lost approximately 1,500 mL of blood. She survived her wounds. Batyukova brought suit against Deputy Doege under 42 U.S.C. § 1983. She then amended her complaint to add several defendants — including both Bexar and Medina Counties and their sheriff departments — and new factual allegations and claims. The district court eventually dismissed her claims against every other defendant, which left only Deputy Doege. Her claims against Deputy Doege included: (1) Fourth Amendment excessive force based on pointing his weapon at her; (2) Fourth Amendment excessive force based on shooting her; (3) First Amendment retaliation for shooting her in response to her engagement in protected activity; and (4) Fourteenth Amendment deliberate indifference for failing to render adequate medical assistance. During discovery, Batyukova failed to respond to Deputy Doege’s first set of requests for admission within the 30-day deadline set by Federal Rule of Civil Procedure 36(a)(3). After discovery closed, Deputy Doege filed a motion for summary judgment that asserted qualified immunity. His motion relied on many of the facts deemed admitted by Batyukova’s failure to respond to the admission requests in a timely manner. The next day, Batyukova filed her own motion for summary judgment on one of her excessive-force claims and finally produced responses to Deputy Doege’s discovery requests. Two weeks later, Batyukova moved for leave to amend her discovery responses, i.e., to withdraw her deemed admissions. The magistrate denied the motion. The district court granted Deputy Doege’s motion for summary judgment. Relying in large part on the deemed-admitted facts, the court Case: 20-50425 Document: 00515830276 Page: 6 Date Filed: 04/21/2021

No. 20-50425 found no Fourth, First, or Fourteenth Amendment violations. ^[2] It did not analyze whether the law was clearly established for any of her claims. Batyukova timely appealed. DISCUSSION “We review a grant of summary judgment de novo, applying the same standard as the district court.” Valderas v. City of Lubbock, 937 F.3d 384, 388 (5th Cir. 2019). 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). “A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Dyer v. Houston, 964 F.3d 374, 379 (5th Cir. 2020). “A fact is material if its resolution could affect the outcome of the action.” Id. at 379 (quotation marks omitted). On appeal from summary judgment, we view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Joseph v. Bartlett, 981 F.3d 319, 325 (5th Cir. 2020). “Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation” will not survive summary judgment. Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016). Whenever possible, we will “give greater weight . . . to the facts evident from video recordings.” Valderas, 937 F.3d at 388. However, the facts deemed admitted by Batyukova’s failure to respond in a timely manner “are Case: 20-50425 Document: 00515830276 Page: 7 Date Filed: 04/21/2021

No. 20-50425 conclusive as to the matters admitted.” In re Carney, 258 F.3d 415, 420 (5th Cir. 2001). Those facts “cannot be overcome” at the summary-judgment stage by pointing to contradictory evidence. Id. The defense of qualified immunity “alters the usual summary judgment burden of proof.” Valderas, 937 F.3d at 389. Once a defendant properly raises the defense, the burden shifts to the plaintiff to demonstrate that the defendant is not entitled to the defense’s protection. Garza v. Briones, 943 F.3d 740, 744 (5th Cir. 2019). An officer is entitled to qualified immunity if the officer’s conduct either did not violate a federal right of the plaintiff or that right was not clearly established at the time of the relevant events. Dyer, 964 F.3d at 380. We can base a decision to allow the immunity on either part of the analysis alone. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019). The district court reached only the issue of whether any constitutional violation occurred. Because we review the grant of a summary judgment using the same standards as the district court, Valderas, 937 F.3d at 388, we can and do resolve the appeal of Batyukova’s excessive-force claim based on the other qualified-immunity consideration: whether the law was clearly established that the deputy’s actions violated Batyukova’s Fourth Amendment right to be free from excessive force. ^[3] I. Fourth Amendment excessive force Batyukova’s excessive-force claim “is governed by the Fourth Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 572 U.S. 765, 774 (2014). An officer violates the right to be free from excessive force Case: 20-50425 Document: 00515830276 Page: 8 Date Filed: 04/21/2021

No. 20-50425 “when a seized person suffers an injury that results directly and only from a clearly excessive and objectively unreasonable use of force.” Joseph, 981 F.3d at 332. We conduct a “‘necessarily fact-intensive’ and case-specific inquiry.” Id. (quoting Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)). The reasonableness of an officer’s use of force “requires careful attention to the facts and circumstances of each particular case.” Graham v. Connor, 490 U.S. 386, 396 (1989). This usually includes consideration of “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.” Id. In cases involving the use of deadly force, though, “our ‘objective reasonableness’ balancing test is constrained.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004). “The use of deadly force violates the Fourth Amendment unless ‘the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’” Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Tennessee v. Garner, 471 U.S. ^[1], 11 (1985)). Stated differently, “[a]n officer’s use of deadly force is not excessive, and thus no constitutional violation occurs, when the officer reasonably believes that the suspect poses a threat of serious harm.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). “[W]e are careful to avoid ‘second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.’” Garza, 943 F.3d at 745 (quoting Ryburn v. Huff, 565 U.S. 469, 477 (2012)). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396–97.

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No. 20-50425 In this case, Batyukova’s deemed admissions conclusively establish the following facts. She ignored Deputy Doege’s commands to show her hands and to place her hands on the hood of her vehicle. Instead, she gave him the middle finger and shouted expletives at him. She then started walking towards Deputy Doege, which prompted him to reverse his vehicle to maintain distance. She failed to comply with his subsequent command to “get down.” Then, Batyukova reached for her waistband. Other uncontroverted summary-judgment evidence shows that Deputy Doege observed Batyukova reach behind her back, that her hand disappeared from view, and that Deputy Doege feared that she was reaching for a weapon. ^[4] The district court determined that “a reasonable officer in Doege’s position would have believed Batyukova posed an immediate threat to his safety” and that his “decision to use deadly force was objectively reasonable under the circumstances.” The court concluded that Batyukova failed to demonstrate a Fourth Amendment violation, a conclusion that resulted in the grant of qualified immunity without needing to consider whether the law supporting a violation was clearly established. We resolve the appeal of Batyukova’s excessive-force claim on whether the right she claims was clearly established at the time of the alleged misconduct. See Dyer, 964 F.3d at 380. Batyukova must show that the law was “sufficiently clear” at that time “that every reasonable official would Case: 20-50425 Document: 00515830276 Page: 10 Date Filed: 04/21/2021

No. 20-50425 have understood that what he [was] doing violate[d] that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015). There are two ways to demonstrate clearly established law. Under the first approach, the plaintiff may “identify a case” or “body of relevant case law” in which “an officer acting under similar circumstances . . . was held to have violated the [Constitution].” Joseph, 981 F.3d at 330 (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)). This approach “do[es] not require a case directly on point,” but “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In the excessive-force context, “officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix, 577 U.S. at 13). Under the second approach, “there can be the rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Wesby, 138 S. Ct. at 590 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). As for the potential for an obvious violation of rights, Batyukova argues that all reasonable officers would have known they could not use deadly force against someone who clearly posed no threat. Because that does not describe the facts of this case, we will say no more about the category of an obvious constitutional violation. To overcome qualified immunity in this case, Batyukova must show that clearly established law prohibited using deadly force against a person who (1) repeatedly ignored commands, such as to show her hands, to place her hands on the hood of her vehicle, or to get down; and then (2) reached her hand behind her back towards her waistband, which the officer perceived to be a reach for a weapon to use against him.

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No. 20-50425 Batyukova discusses quite a few precedents. We will discuss the significant ones in groups of somewhat-similar fact patterns. ^[1]. Force against suspects not resisting or attempting to flee Our first group of precedents includes those in which this court recognized that officers violate the Fourth Amendment when they tase, slam, or strike suspects or arrestees who are not actively resisting arrest or attempting to flee. In one, officers executing an arrest warrant threw a suspect to the ground, tased him twice, choked him, punched and kicked him, pressed his face into the ground, and pulled his hands behind his back to handcuff him. Darden v. City of Fort Worth, 880 F.3d 722, 725 (5th Cir. 2018). The evidence was that the suspect had complied with the officers’ orders and never resisted arrest. Id. at 731. We held that “it was clearly established that violently slamming or striking a suspect who is not actively resisting arrest constitutes excessive use of force.” Id. at 733. Similarly, in the precedent on which the Darden court relied, we held that it violated clearly established law to “forcefully slam [an arrestee’s] face into a vehicle while she was restrained and subdued.” Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008). The evidence viewed in the light most favorable to the plaintiff in Bush showed that “she was not resisting arrest or attempting to flee.” Id. Neither Darden nor Bush clearly establish a constitutional violation in this case. Those cases did not involve, as this case does, an adversarial and non-compliant person’s reach for what might have been a weapon. ^[2]. Deadly force against someone not posing an imminent threat Batyukova also asserts substantial similarity of the facts here with a precedent in which, after a 12-minute encounter, deputies shot and killed a knife-wielding suspect who was 30 feet away from everyone and standing in a surrender pose. Amador v. Vasquez, 961 F.3d 721, 724–26 (5th Cir. 2020). We held that at the time of the 2015 encounter, “[e]very reasonable officer Case: 20-50425 Document: 00515830276 Page: 12 Date Filed: 04/21/2021

No. 20-50425 would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment.” Id. at 730. Amador does not clearly establish a constitutional violation in this case, either. It is distinguishable in two material respects. First, the suspect was wielding a knife while standing too far away to be an immediate danger. See id. Second, by the time the deputies in Amador shot, the suspect “had his hands in the air in a surrender position; and stood stationary in the officers’ line of sight.” Id. at 729. Surrender diminished, if not dispelled, the threat the suspect posed. Those facts are not comparable to the situation of Deputy Doege, who believed that Batyukova was reaching for a weapon that could endanger him, and there was no evidence of surrender. More factually comparable are two precedents in which the use of deadly force was held to be reasonable because the officer had reason to perceive a threat of serious harm. In one, it was reasonable to use deadly force when the officer perceived a suspect’s sudden reach towards his waistband “to be consistent with a suspect retrieving a weapon.” Salazar- Limon v. City of Hous., 826 F.3d 272, 275, 278 (5th Cir. 2016). We have also held that the use of deadly force is reasonable when a person, “in defiance of the officers’ contrary orders, reached under the seat of his vehicle and appeared to retrieve an object that [one officer] reasonably believed to be a weapon.” Manis, 585 F.3d at 845. Similarly to the facts of this case, the person in Manis was not suspected of criminal activity but, rather, was approached because his vehicle was idling on railroad tracks at an intersection. Id. at 841. Though there are factual distinctions to be made, both Salazar-Limon and Manis involved the use of deadly force following a person’s reach for what reasonably could have been a weapon. In both, the use of deadly force was held to be reasonable.

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No. 20-50425 That decision relied on a 1996 decision of this court. Baker v. Putnal, 75 F.3d 190 (5th Cir. 1996). There, after gunfire caused chaos on a crowded beach, officers found and shot a suspect sitting inside a vehicle. Id. at 193. We held that it violated the Fourth Amendment to shoot someone four times who took no threatening action, was not holding a gun, was not warned, and who “may have barely had an opportunity to see [the officer] before [the officer] fired his gun.” Id. at 198. As the court explained, “[c]haos on the beach and [the suspect’s] mere motion to turn and face [the officer] are not compelling reasons” to justify deadly force. Id. The court also explained that “[t]he number of shots and the nature of the wounds raise[d] a serious question as to the reasonableness of [the officer’s] conduct.” Id. The suspect received four gunshot wounds in areas of his body that indicated that he was not facing the officer at the time he was shot. Id. Both Cole and Baker are distinguishable. Batyukova was undoubtedly aware of Deputy Doege’s presence. She repeatedly ignored his commands, walked towards him, was actually facing him, and then made a movement towards her waistband as if she was reaching for a weapon to use against Deputy Doege. Batyukova argues that no reasonable officer could have believed that it was constitutional to “us[e] deadly force, five gunshots, against an individual not suspected of a crime, who posed little to no threat to the officer or others, was not fleeing or resisting arrest, and was holding a cigarette.” That is not a fair characterization of the facts. Deputy Doege made a split- second decision to use deadly force against a non-compliant person who made a movement consistent with reaching for a weapon. We cannot say that Batyukova posed “little to no threat” to Deputy Doege.

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No. 20-50425 We conclude that Batyukova failed to identify clearly established law prohibiting Deputy Doege’s use of deadly force. The district court’s grant of summary judgment on her excessive-force claim is affirmed. II. First Amendment retaliation Batyukova claims that Deputy Doege shot her in retaliation for her engagement in activity protected by the First Amendment. The district court determined that Batyukova failed to show a constitutional violation. “‘[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions’ for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). “If an official takes adverse action against someone based on that forbidden motive, and ‘non-retaliatory grounds are in fact insufficient to provoke the adverse consequences,’ the injured person may generally seek relief by bringing a First Amendment claim.” Id. (quoting Hartman, 547 U.S. at 256). There is some uncertainty as to whether Graham v. Connor, 490 U.S. 386 (1989), precludes a First Amendment retaliation claim based on an officer’s use of excessive force during a seizure. ^[5] In Graham, the Supreme Case: 20-50425 Document: 00515830276 Page: 17 Date Filed: 04/21/2021 Case: 20-50425 Document: 00515830276 Page: 18 Date Filed: 04/21/2021 Case: 20-50425 Document: 00515830276 Page: 19 Date Filed: 04/21/2021 Case: 20-50425 Document: 00515830276 Page: 20 Date Filed: 04/21/2021 Case: 20-50425 Document: 00515830276 Page: 21 Date Filed: 04/21/2021 Case: 20-50425 Document: 00515830276 Page: 22 Date Filed: 04/21/2021 Case: 20-50425 Document: 00515830276 Page: 23 Date Filed: 04/21/2021