Case: 21-10303     Document: 00516753974         Page: 1     Date Filed: 05/17/2023




           United States Court of Appeals
                for the Fifth Circuit
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                         May 17, 2023
                                  No. 21-10303                          Lyle W. Cayce
                                                                             Clerk

   Ira Darlina Baker, individually, as the administratrix
   of the Estate of Darion Dev'on Baker, and on behalf of
   all wrongful death beneficiaries of Darion Dev'on
   Baker; Mario Baker; Arlandra Williford,

                                                           Plaintiffs—Appellants,

                                      versus

   Richard Keith Coburn; Michael Joseph McHugh; City
   of Stratford, Texas,

                                                        Defendants—Appellees.


                  Appeal from the United States District Court
                         for Northern District of Texas
                             USDC No. 2:19-CV-77


   Before Graves, Willett, and Engelhardt, Circuit Judges.
   James E. Graves, Jr., Circuit Judge:
          This qualified immunity case arises from the death of Darion Baker,
   who was shot and killed by officers of the Stratford Police Department after
   he attempted to evade arrest while fleeing in a stolen car. The plaintiffs,
   Baker’s minor child and his estate, appeal the district court’s grant of sum-
   mary judgment to the defendants. Because there are still genuine disputes of
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                                       No. 21-10303


   material fact, we AFFIRM in part, REVERSE in part, and REMAND to
   the district court.
                                            I.
          Darion Baker and his friend Gregory Dees ran out of money while on
   vacation in Los Angeles. Without the funds required to return home to Mem-
   phis, Tennessee, the men decided to steal an unoccupied Infiniti sedan out-
   side of a Walgreens. Shortly after doing so, the duo headed home.
          Dees and Baker approached the town of Stratford, Texas, around 7:00
   p.m. on February 21, 2018. At the same time, officers Richard Coborn 1 and
   Michael McHugh were in their patrol SUV, watching the traffic on the out-
   skirts of town. The officers then observed the sedan press hard on its brakes.
   Perceiving this action to be suspicious, the officers followed the men to a Pilot
   Travel Center, a gas station with an adjacent convenience store near High-
   way 54.
          After Baker and Dees entered the convenience store, the officers
   drove past the parked sedan, recorded its license plate, and relayed this in-
   formation to police dispatch. After dispatch verified that the sedan was, in
   fact, stolen, the officers decided to investigate further.
          The officers parked near the convenience store, and Coborn went in-
   side, where Baker and Dees were still shopping. Upon entry, three young
   men approached Coborn and informed him that Baker and Dees were asking
   suspicious questions about how to get to Memphis through backroads in or-
   der to evade police checkpoints. Baker, Dees, and Coborn then exited the
   convenience store together (with Coborn holding the door open for them).
   Baker got into the driver’s side while Dees began to pump gas; at the same




          1
             Officer Richard Coborn’s name is misspelled as “Richard Coburn” in the case
   caption, likely by a scrivener’s error.




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                                       No. 21-10303


   time, Coborn climbed back into the SUV. What happened next was captured
   on three different video cameras. 2
          The officers then drove directly behind the sedan and activated their
   police lights. Coborn and McHugh exited their SUV and approached the se-
   dan with their guns drawn. Coborn ran to the driver-side door; McHugh po-
   sitioned himself on the passenger side of the sedan. Upon seeing the officers,
   Dees dropped the gas pump and climbed into the front passenger seat.
          The footage then shows the officers shouting commands at Baker and
   Dees, including “let me see your hands” and “roll the window down!” The
   sedan’s side windows were darkly tinted, obstructing the officers’ view in-
   side. To get a better look, Coborn began striking the driver-side window with
   his firearm. Unable to break the window, Coborn moved directly in front of
   the sedan.
          The videos then show the sedan’s brake lights turn on, but the car re-
   mains stationary. At this moment, McHugh can be heard yelling, “you go
   forward . . . ,” but was interrupted by Coborn discharging his firearm into the
   windshield.
           There is a disagreement between the parties regarding whether
   Coborn initiated firing his weapon before or after the sedan started moving. 3
   They also disagree about what led up to and what actually took place during
   the shooting. According to the defendants, Baker dipped down below the


          2
            The footage from the dashcam, McHugh’s body camera, and the Pilot video can
   be viewed at the following links:
          https://www.ca5.uscourts.gov/opinions/pub/21/21-10303_BodyCam.mp4

          https://www.ca5.uscourts.gov/opinions/pub/21/21-10303_Dash-Video.mp4

          https://www.ca5.uscourts.gov/opinions/pub/21/21-10303_Pilot-Station.mp4
          3
             Coborn says that he began shooting because the car began moving toward him,
   but the dashcam video shows that the car did not move until after he began shooting.




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                                          No. 21-10303


   dashboard at the same time Coborn began firing his weapon. They also con-
   tend that Baker revved the engine as Coborn stood in front of the sedan. They
   stress that they feared Baker was going to either shoot or run over Coborn.
           Plaintiffs’ account differs. They claim that Baker ducked because
   Coborn began discharging his firearm to get out of the line of fire.
           What happened next is also disputed. Shortly after the initial shots
   rang out, Baker turned the wheels hard away from Coborn and began to ac-
   celerate toward the left. The plaintiffs argue that the sedan moved away from
   Coborn in an effort to avoid him. The officers claim the sedan moved straight
   ahead toward Coborn before moving left.
           The sedan then moved past Coborn, who continued to fire. McHugh
   discharged his firearm moments later. According to McHugh, he delayed fir-
   ing for two reasons: (1) to avoid shooting Dees in the passenger seat, and (2)
   to avoid shooting through the front passenger side window.
           Baker was hit from behind by two gunshots and died at the scene. One
   traveled through soft tissue in his left shoulder, from back to front, right to
   left, stopping in the upper bone in his left arm. This shot was not fatal. The
   fatal shot traveled through the middle of Baker’s upper back and exited on
   the front left side of his chest. Its path was from the back to the front and from
   right to left and upward. Dees was not injured.
           Coborn does not recall how many shots were fired, but the videos
   show that he fired at least eight shots before the car moved. McHugh believes
   he fired his weapon five times. The Texas Ranger’s investigation was unable
   to reveal whether it was officer Coborn’s gun or officer McHugh’s gun that
   fired the fatal bullet.4



           4
             McHugh testified that he believes that he fired the shot that ultimately killed
   Baker. Nevertheless, it is otherwise unclear from the evidence which officer fired the fatal
   shot or the shots that struck the car from the rear.




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                                         No. 21-10303


           Baker’s family sued Coborn and McHugh under 

,
   alleging the shooting constituted excessive force in violation of the Fourth
   and Fourteenth Amendments. 5 The officers invoked qualified immunity and
   moved for summary judgment.
           The motion was referred to a magistrate judge, who recommended
   that the district court deny the officers’ summary judgment motion. In re-
   sponse, the officers filed objections. The district court sustained their objec-
   tions and granted the officers’ motion in its entirety on two grounds. First,
   the court concluded that the plaintiffs failed to establish that Coborn’s ac-
   tions violated clearly established law with respect to the first round of shots
   before the sedan had moved. Second, it found that the gunshots after the se-
   dan had moved were objectively reasonable and therefore did not violate the
   Fourth Amendment. In doing so, the court did not reach the clearly estab-
   lished law analysis as to the second round of shots. This appeal followed.
                                               II.
           The applicable standard of review is well-established. Summary judg-
   ment is appropriate when the moving party “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 fact is material if it could “affect
   the outcome of the suit under the governing law[.]” Anderson v. Liberty
   Lobby, 

 (1986). A dispute is genuine “if the evidence is such
   that a reasonable jury could return a verdict for the nonmoving party.” 

   We view all evidence “in the light most favorable to the nonmoving party and
   draw[ ] all reasonable inferences in that party’s favor.” Kariuki v. Tarango,
   

 (5th Cir. 2013). However, “we assign greater weight, even
   at the summary judgment stage, to the . . . video recording[s] taken at the


           5
            They also sued the City of Stratford for municipal liability, but those claims are
   not before us.




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                                      No. 21-10303


   scene.” Betts v. Brennan, 

, 582 (5th Cir. 2022) (quoting Carnaby
   v. City of Houston, 

 (5th Cir. 2011)).
          A qualified immunity case, however, changes the usual summary judg-
   ment burden of proof. Brown v. Callahan, 

 (5th Cir. 2010).
   “Once an official pleads the [qualified immunity] defense, the burden then
   shifts to the plaintiff, who must rebut the defense by establishing a genuine
   fact issue as to whether the official’s allegedly wrongful conduct violated
   clearly established law.” 

 We review the district court’s grant of summary
   judgment de novo, applying the same standard as the district court. Caldwell
   v. KHOU-TV, 

 (5th Cir. 2017).
                                          III.
          The plaintiffs challenge the district court’s entry of summary judg-
   ment on two grounds. First, we address whether the doctrine of qualified im-
   munity shields officer Coborn with respect to the first round of shots—while
   Coborn was standing in front of the stationary vehicle. We then turn to
   whether officers Coborn and McHugh violated Baker’s Fourth Amendment
   rights in firing the second round of shots—when the sedan began to move
   away from Coborn. 6
                                           A.
          Plaintiffs first challenge the district court’s conclusion that officer
   Coborn was entitled to qualified immunity as to the first round of shots.
          Qualified immunity protects government officials “from liability for
   civil damages insofar as their conduct does not violate clearly established stat-
   utory or constitutional rights of which a reasonable person would have
   known.” Harlow v. Fitzgerald, 

 (1982). To determine
   whether qualified immunity applies, courts generally engage in a two-part


          6
             The Government concedes that the shots were fired by Coborn and McHugh in
   two distinct episodes instead of one continuous volley.




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                                       No. 21-10303


   inquiry asking: (1) whether an official’s conduct violated a statutory or con-
   stitutional right of the plaintiff; and (2) whether the right was “clearly estab-
   lished” at the time of the violation. Saucier v. Katz, 

, 200–01
   (2001).
           The district court found that there are genuine disputes of material
   fact as to whether Coborn violated Baker’s constitutional rights but held that
   the plaintiffs did not identify an analogous case from the Supreme Court or
   Fifth Circuit clearly establishing that “Coborn’s actions violated clearly es-
   tablished law.” Thus, our focus on appeal is whether those rights were clearly
   established.
           “The clearly established inquiry is demanding, especially in claims for
   excessive force.” Harmon v. City of Arlington, 

 (5th Cir.
   2021) (citing Morrow v. Meachum, 

 (5th Cir. 2019)). Such
   claims often involve officers’ “mak[ing] split-second decisions” and “[t]he
   results depend ‘very much on the facts of each case.’” 

 at 1166 (quoting
   Kisela v. Hughes, 

 (2018)). This means existing precedent
   must “squarely govern[ ] the specific facts at issue, such that only someone
   who is plainly incompetent or who knowingly violates the law would have
   behaved as the official did.” Joseph ex rel. Est. of Joseph v. Bartlett, 

 (5th Cir. 2020) (citation omitted) (internal quotation marks omit-
   ted).
           When conducting this inquiry, courts must “frame the constitutional
   question with specificity and granularity,” Morrow, 917 F.3d at 874–75, rather
   than “at a high level of generality,” Ashcroft v. al-Kidd, 

, 742
   (2011). In other words, controlling authority or a robust consensus of persua-
   sive authority must have placed the question “beyond debate,” with “the
   right’s contours . . . sufficiently definite that any reasonable official in the [of-
   ficer’s] shoes would have understood that he was violating it.” Plumhoff v.
   Rickard, 

 (2014) (citation omitted).




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                                     No. 21-10303


           Plaintiffs argue that clearly established law prohibited Coborn’s initial
   shots because Fifth Circuit caselaw has long held that the “police cannot
   shoot a driver in a stationary car when the driver has not otherwise made sus-
   picious movements.” To support this proposition, plaintiffs point to Edmond
   v. City of New Orleans, 

 (5th Cir. 1994), Ougel v. Amite City Police
   Dep’t, 

 (5th Cir. 2009), and Baker v. Putnal, 

 (5th
   Cir. 1996). However, these cases are not factually similar enough to the situ-
   ation Coborn faced to have placed the lawfulness of his actions beyond de-
   bate.
           In Edmond, plainclothes police officers driving an unmarked police car
   cut off a vehicle driven by the plaintiffs. Edmond, 

. The officers
   then got out of their car after blocking the plaintiffs’ car in place. 

 Past
   victims of a robbery, the plaintiffs believed that they were about to be robbed
   and attempted to drive away. 

 Without identifying themselves, the officers
   shot at the plaintiffs, claiming that the driver drove directly at one of the of-
   ficers and struck an officer. 

 We held that denying summary judgment is
   appropriate when “fact[ual] issues existed about whether a police officer’s
   use of force was justified or was unreasonably created when [the officer]
   stepped in front of a moving car.” 

           Unlike in Edmond, Coborn’s clothing and the flashing lights from the
   police SUV plainly identified him as law enforcement. Contrary to the plain-
   tiffs’ assertion, the district court did not erroneously rely on this fact, as the
   plaintiffs in Edmond expressly argued that “they would not have tried to get
   away if the police officers had identified themselves.” 

 Further, the video
   evidence shows that Coborn stepped in front of the sedan before it began to
   move.
           Accordingly, because the circumstances of the instant case are mate-
   rially different from the circumstances of Edmond, we cannot conclude that
   the established law, in that case, would have put Coborn on notice that his




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                                          No. 21-10303


   conduct was clearly unlawful. See Kinney v. Weaver, 

 (5th
   Cir. 2004) (stating that the focus of qualified immunity is whether the officer
   had “fair warning” that his conduct was unlawful).
           In Ougel, 7 a suspect stole a car from a Porsche dealership and led law
   enforcement officials on a high-speed chase through Mississippi and Louisi-
   ana. Ougel, 

. Eventually, several officers surrounded and
   stopped the vehicle. 

 Police ultimately shot and killed the suspect after one
   of the officers broke the car window and began trying to remove him. 

 We
   denied qualified immunity because “[f]iring a shot at an unarmed suspect
   whose left arm was restrained by a wrist lock and whose right arm was in the
   air would constitute an objectively unreasonable exercise of excessive force.”
   

.
           Again, we cannot say under the facts of this case, Coborn would have
   been put on notice that his conduct violated Baker’s constitutional rights.
   Baker was not partially restrained by an officer. Moreover, in Ougel, there
   was no concern about the car itself being used as a weapon, as the suspect, in
   that case, did not start the car and illuminate his brake lights directly in front
   of the officer. See Fraire v. City of Arlington, 

 (5th Cir.
   1992) (observing that a vehicle can be used as a deadly weapon and if an of-
   ficer believes he or others around him are in danger from the vehicle, it can
   be reasonable to use deadly force). Thus, this case is unhelpful.
           In Putnal, officers found and shot a suspect sitting inside a vehicle af-
   ter gunfire caused panic and confusion on a crowded beach. Putnal, 

. We held that it violated the Fourth Amendment to shoot someone


           7
             Ougel is a nonprecedential case. It is well settled that unpublished opinions “can-
   not clearly establish the law,” but they can illustrate or “guide us to such authority” by
   “restating what was clearly established in precedents they cite or elsewhere.” Marks v.
   Hudson, 

 (5th Cir. 2019). To the extent we examine Ougel, we do so for
   this purpose.




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                                     No. 21-10303


   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 of-
   ficer] fired his gun.” Id. at 198. We further explained, “[c]haos on the beach
   and [the plaintiff’s] mere motion to turn and face [the officer] are not com-
   pelling reasons” to justify deadly force. Id.
          This case is clearly distinguishable from ours. Baker was clearly aware
   of Coborn as he stood directly in front of the car. Further, Baker ignored mul-
   tiple commands from the officers, and there was no concern in Putnal about
   the car being used as a weapon.
          In sum, plaintiffs have not pointed to sufficient authority clearly es-
   tablishing that Coborn’s conduct violated the law under the specific circum-
   stances he was facing, and thus he is entitled to qualified immunity.
                                          B.
          We now turn to the constitutionality of the officers’ second round of
   shots. The Fourth Amendment confers the right to be free from unreasonable
   searches and seizures. U.S. Const. amend. IV. A seizure is unreasonable
   if it involves excessive force. Graham v. Connor, 

, 394–95 (1989).
   To prevail on an excessive-force claim, a plaintiff must prove he suffered (1)
   an injury (2) resulting directly and only from (3) an officer’s use of objectively
   unreasonable force. Ikerd v. Blair, 

, 433–34 (5th Cir. 1996). Ex-
   cessive force claims are “evaluated for objective reasonableness based on the
   information the officers had when the conduct occurred.” Katz, 533 U.S. at
   207.
          Whether the force used is excessive depends on the facts and circum-
   stances of each case. Lombardo v. City of St. Louis, Missouri, 

 (2021). This determination requires us to balance the individual’s in-
   terest against the government’s, weighing the Graham factors: (1) “the se-
   verity of the crime at issue,” (2) “whether the suspect poses an immediate
   threat to the safety of the officers or others,” and (3) “whether [the suspect]




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                                       No. 21-10303


   is actively resisting arrest or attempting to evade arrest by flight.” Graham,
   

; see also Hogan v. Cunningham, 

 (5th Cir.
   2013).
            Considering the first and third Graham factors, Baker was suspected
   of committing car theft. When discovered by the officers, he actively resisted
   by refusing to comply with officers’ commands and attempted to evade arrest
   by flight. These factors weigh in favor of the use of significant force. See
   Ramirez v. Martin, No. 22-10011, 

, at *2 (5th Cir. Oct. 31,
   2022); see also United States v. Harrimon, 

 (5th Cir. 2009)
   (noting that under Texas law, fleeing in a vehicle constitutes a “purposeful,
   violent, and aggressive” felony).
            However, the second factor—whether there is an immediate threat to
   safety—is generally the most important factor in determining the objective
   reasonableness of an officer’s use of deadly force. See Harmon, 

 (stating this factor “typically predominates the analysis when deadly
   force has been deployed”).
            In granting summary judgment, the district court found the use of
   deadly force objectively reasonable because “Baker’s actions posed a threat
   of serious physical harm to Officer Coborn, who was standing in front of
   Baker’s vehicle.” The court also reasoned that the officers were entitled to
   qualified immunity because “once the officers perceived the car safely passed
   Officer Coborn, they ceased firing and began to pursue Baker on foot.” We
   disagree.
            At the outset, the district court erroneously failed to consider the facts
   in the light most favorable to Baker. At the summary judgment stage, the
   court should “not make credibility determinations or weigh the evidence.”
   Reeves v. Sanderson Plumbing Prods., Inc., 

 (2000). “The rel-
   evant question is whether, taking [Baker’s] version of the facts as true, the




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                                        No. 21-10303


   force used . . . was both excessive to the need and objectively unreasonable.”
   Autin v. City of Baytown, 

 (5th Cir. 2005).
          In this case, there is summary judgment evidence to support plaintiffs’
   claim that Baker was hit by shots after the car safely passed the officers. First,
   Baker was shot twice in the back. “Common sense, and the law, tells us that
   a suspect is less of a threat when he is turning or moving away from the of-
   ficer.” See Poole v. City of Shreveport, 

 (5th Cir. 2021). The
   fatal and second bullet entered his upper back and exited the left side of his
   chest, which supports the plaintiffs’ claim that Baker was shot from the rear
   while he sat facing forward.
          Video, photo, and testimonial evidence in the record also support this
   conclusion. 8 The dashcam footage shows Coborn continuing to fire his
   weapon at the sedan after it had moved past him and continued toward the
   highway. Coborn’s actions, apparent from the Pilot video, in running after
   the sedan and continuing to fire also support this view. Coborn himself testi-
   fied that he continued to shoot as the sedan was driving away. Moreover, the
   bullet holes in the rear window, spoiler, trunk, rear seat, and the number of
   bullets fired at the car could also lead a jury to conclude that the officers vio-
   lated Baker’s rights.
          This evidence, if credited by the jury, could contradict the officers’
   claims that they only fired at Baker when there was a threat of imminent dan-
   ger. This is especially true since it is unclear which officer fired the shot that
   killed Baker, and it is clear that both officers shot at the rear of the sedan.
          The officers argue that summary judgment should be affirmed be-
   cause Coborn and McHugh’s actions were objectively reasonable. However,
   several factual disputes preclude this determination.


          8
            At oral argument, counsel for defendants also conceded that Coborn shot at the
   car more than “2 or 3 seconds” after the car had passed Baker.




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                                     No. 21-10303


          According to the officers’ version of events, Coborn began shooting
   because Baker was reaching under the dash for what Coborn feared was a gun.
   The officers further claim that Baker revved his engine as Coborn stood in
   front of the sedan. Plaintiffs, however, have produced evidence, through
   Dees, that Baker ducked only to avoid the shots fired by Coborn. Plaintiffs
   further argue that the contention that Baker revved the engine is flatly con-
   tradicted by the audio track on McHugh’s body camera.
          Dees’ account brings into question whether any force was justified in
   the first instance. The videos show that Coborn began firing before the car
   began to move. If Baker ducked down to avoid being shot instead of reaching
   for a gun as Coborn feared, it does not appear that the use of deadly force, or
   the continued use of it as the car drove away, would have been required.
   Coborn concedes that deadly force was not necessary before the car moved,
   because “there was no threat of immediate bodily harm or injury.” Thus,
   crediting plaintiffs’ evidence, a reasonable fact finder could determine that a
   constitutional violation occurred. See Flores v. City of Palacios, 

 (5th Cir. 2004) (noting that the existence of a material fact in dispute
   would determine whether shooting into the suspect’s tires from behind was
   reasonable).
          The officers further argue that Baker posed an immediate threat, al-
   leging that Baker drove toward Coborn, missed, and then fled toward a public
   highway. However, viewing the facts in the light most favorable to Baker, it
   is not clear that a reasonable officer would have perceived such a danger.
          Plaintiffs posit through video evidence that the sedan never moved to-
   ward Coborn because the wheels were turned sharply to the left as the sedan
   moved slowly away from the pumps. They further argue that the video evi-
   dence shows that the fatal shot was fired from behind after Baker safely drove
   past both officers. And there were no other bystanders in the sedan’s path.




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                                     No. 21-10303


          The evidence in the record does not resolve this dispute. The video
   evidence shows Baker turning the wheels hard to the left and accelerating
   while Coborn stood at the sedan’s midpoint. The sedan then accelerated past
   Coborn, who continued to fire as he trailed the sedan from behind. Seconds
   later, McHugh is seen firing his weapon.
          Thus, the objective reasonableness of the officers’ fear of Baker is de-
   pendent upon the acceptance of their account of the shooting. If the facts are
   taken in the light most favorable to the plaintiffs, the danger presented by
   Baker was not so grave as to justify the use of deadly force. Even assuming
   Coborn was in front of the sedan and was in danger at some point, a jury could
   find that the officers fired at Baker when it was no longer objectively reason-
   able for them to believe that they were in peril.
          The officers respond by arguing that, even if Baker had safely passed
   them and was no longer an immediate threat, they were permitted to con-
   tinue shooting at the car until it was disabled. Not so. Although our precedent
   gives an officer’s decision to shoot an unarmed suspect in a speeding car con-
   siderable latitude, the officer must have cause to believe that the car poses an
   immediate threat. See, e.g., Harmon, 

 (finding that a vehicle
   was a threat as it sped off with an officer holding on to its edge); Hathaway v.
   Bazany, 

 (5th Cir. 2007) (holding that a police officer was justi-
   fied in using deadly force against a car accelerating toward him). But see Lytle
   v. Bexar County, 

, 413–14 (5th Cir. 2009) (stating that “Scott[ v.
   Harris, 

 (2007)] did not declare open season on whether the flee-
   ing suspect posed such a threat that the use of deadly force was justifiable”).
          In Lytle v. Bexar County, 

 (5th Cir. 2009), we denied qual-
   ified immunity to an officer who had fired his weapon repeatedly at a car that
   was three or four houses down the street and driving away from him. 

. In reaching our holding, we recognized that while the officer may have
   been in significant danger earlier in the encounter, “an exercise of force that




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                                           No. 21-10303


   is reasonable at one moment can become unreasonable in the next if the jus-
   tification for the use of force has ceased.” 

. The relevant inquiry,
   therefore, is whether the officer used a justifiable level of force in light of the
   continuing threat of harm that a reasonable officer could perceive.
           While the facts of this case vary somewhat, like in Lytle, continuing to
   shoot at Baker’s vehicle as he drove away could support a finding that the
   force used was unreasonable. 

 at 412–13.
           Finally, the officers contend, and the district court agreed, that Hath-
   away v. Bazany, 

 (5th Cir. 2007), establishes that their actions
   were objectively reasonable. 9 In Hathaway, a police officer stopped a vehicle
   in order to investigate a gang-related altercation. 

. When the
   officer, who was on foot, was approximately eight-to-ten feet from the front
   of the car, it suddenly accelerated towards him. 

. He attempted to
   get out of the way, but when he realized that he would not be able to do so,
   he decided to fire his weapon. 

 The shot hit the driver of the vehicle and
   killed him. 

            On these facts, we held that the officer’s use of deadly force was jus-
   tified even though he could not specifically recall when he fired his weapon.


           9
              In reaching this conclusion, the court relied on its view that “Coborn appears to
   take several hurried, stumbling steps backwards to avoid being hit.” The court draws this
   conclusion from its reading of the dashcam footage stating: “[I]f one watches the top of
   Officer Coborn’s head as the car moves and one can observe that his weight has shifted
   backwards as he pivots after the car.” Again, the district court erred by not viewing the
   evidence in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc.,
   

 (1986). As the plaintiffs correctly point out, the top of Coborn’s head
   remains visible throughout the video, which suggests that he did not stumble. Further, as
   the district court concedes, the video is difficult to see. At this stage, “a court should not
   discount the nonmoving party’s story unless the video evidence provides so much clarity
   that a reasonable jury could not believe his account.” Darden v. City of Fort Worth, 

 (5th Cir. 2018). That standard is not met here. Based on the videos and the evi-
   dence in the record, a reasonable juror could believe that Coborn was actually getting into
   a shooting stance without ever moving backward as the plaintiffs suggest.




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                                      No. 21-10303


   

 at 321–22. In doing so, we emphasized two factors in determining that the
   officer’s use of deadly force was reasonable: (1) the limited time the officer
   had to respond, and (2) the officer’s proximity to the path of the vehicle. 

          Despite some similarities, there are stark differences between this case
   and Hathaway. In Hathaway, there was no question that the life of the officer
   was endangered by the suspect throughout the interaction. The suspect
   demonstrated multiple times that he was willing to injure the officer “accel-
   erat[ing] towards [the officer], turning first to the right, then back to the left,
   and then finally back towards the center of the roadway as [the officer] at-
   tempted to get out of the way.” Id. at 316. The officers reacted with deadly
   force only after he “realized that he was not going to be able to get out of the
   [car’s] path.” Id.
          Our analysis in Hathaway also relied heavily on a Fourth Circuit case,
   Waterman v. Batton, 

 (4th Cir. 2005). There, the plaintiff was a
   driver involved in a high-speed chase. 

. After officers yelled at him
   to stop, plaintiff accelerated toward officers, and they began firing their weap-
   ons as soon as the car accelerated toward them. 

. The vehicle then
   passed the officers, avoiding them by several feet, but “they continued to fire
   their weapons at [plaintiff] from the passenger side of the vehicle and from
   behind.” 

          The Fourth Circuit held that the officers were entitled to qualified im-
   munity for the initial group of shots because a reasonable officer could have
   believed that plaintiff “presented a threat of serious physical harm.” 

. However, viewing the record in the light most favorable to the plaintiff,
   “once [his] vehicle passed the officers, the threat to their safety was elimi-
   nated and thus could not justify the subsequent shots.” 

.
          In Hathaway, we explained that the officer’s conduct at issue, in that
   case, was “not an instance, as in Waterman, where an officer fired after the




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                                          No. 21-10303


   perception of new information indicating the threat was past.” Hathaway,
   

.
           Here, there are significant factual disputes about the manner in which
   the incident took place. If the facts are as the officers alleged them—that
   Baker drove straight at Coborn and missed, deadly force may well be reason-
   able. However, at the summary stage, the court must draw all inferences in
   favor of plaintiffs’ version of facts. Tarango, 

. The facts here—
   viewed in the light most favorable to plaintiffs—show that Baker attempted
   to drive away from Coborn, and when Baker safely did so, Coborn and
   McHugh continued to fire in an attempt to capture Dees and Baker. Given
   these facts, a reasonable factfinder could determine that the officers acted
   unreasonably when they fired the second round of shots.
           Consequently, we are not convinced that the degree of force used was
   objectively reasonable. Graham, 

. Instead, a jury could rea-
   sonably find that McHugh and Coborn violated Baker’s Fourth Amendment
   right to be free from excessive force. “By failing to credit evidence that con-
   tradicted some of its key factual conclusions, the court improperly weighed
   the evidence and resolved disputed issues in favor of the moving party.” To-
   lan v. Cotton, 

 (2014). The plaintiffs have established genu-
   ine disputes of material fact regarding whether the officers’ use of force was
   excessive and objectively unreasonable. 10
           The district court did not address whether Baker’s rights with respect
   to the second round of shots were clearly established. This court will gener-
   ally not address arguments that are not properly raised below. See Kelly v.


           10
             To be clear, the objective reasonableness of the defendant officers’ conduct goes
   to the question of whether Baker’s constitutional right against excessive force was violated,
   not the question of whether that right was clearly established under these particular cir-
   cumstances. See Katz, 533 U.S. at 201–04. We are not adding a standalone “objective rea-
   sonableness” element to the Supreme Court’s two-pronged test for qualified immunity.




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                                         No. 21-10303


   Foti, 

 (5th Cir. 1996). We decline to do so here. We therefore
   reverse the district court’s opinion granting summary judgment as to the sec-
   ond round of shots and remand to the district court. 11
                                             ***
           For the foregoing reasons, we AFFIRM in part, REVERSE in part,
   and REMAND to the district court for further proceedings consistent with
   this opinion.




           11
              Further discovery may suggest revisiting the issue of qualified immunity. More-
   over, qualified immunity remains a possible defense and a question to be determined by the
   jury. See Fifth Circuit Pattern Jury Instructions (Civil Cases) § 10.3
   (2020).




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