Baker v. Coburn ( 2023 )


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  • 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.
    2
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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.
    3
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    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.
    4
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    Baker’s family sued Coborn and McHugh under 
    42 U.S.C. § 1983
    ,
    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, 
    477 U.S. 242
    , 248 (1986). A dispute is genuine “if the evidence is such
    that a reasonable jury could return a verdict for the nonmoving party.” 
    Id.
    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,
    
    709 F.3d 495
    , 501 (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.
    5
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    scene.” Betts v. Brennan, 
    22 F.4th 577
    , 582 (5th Cir. 2022) (quoting Carnaby
    v. City of Houston, 
    636 F.3d 183
    , 187 (5th Cir. 2011)).
    A qualified immunity case, however, changes the usual summary judg-
    ment burden of proof. Brown v. Callahan, 
    623 F.3d 249
    , 253 (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.” 
    Id.
     We review the district court’s grant of summary
    judgment de novo, applying the same standard as the district court. Caldwell
    v. KHOU-TV, 
    850 F.3d 237
    , 241 (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, 
    457 U.S. 800
    , 818 (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.
    6
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    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, 
    533 U.S. 194
    , 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, 
    16 F.4th 1159
    , 1167 (5th Cir.
    2021) (citing Morrow v. Meachum, 
    917 F.3d 870
    , 874 (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.’” Id. at 1166 (quoting
    Kisela v. Hughes, 
    138 S. Ct. 1148
    , 1153 (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, 
    981 F.3d 319
    , 332 (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, 
    563 U.S. 731
    , 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, 
    572 U.S. 765
    , 779 (2014) (citation omitted).
    7
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    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, 
    20 F.3d 1170
     (5th Cir. 1994), Ougel v. Amite City Police
    Dep’t, 
    352 F. App’x 941
     (5th Cir. 2009), and Baker v. Putnal, 
    75 F.3d 190
     (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, 
    20 F.3d at 1170
    . The officers
    then got out of their car after blocking the plaintiffs’ car in place. 
    Id.
     Past
    victims of a robbery, the plaintiffs believed that they were about to be robbed
    and attempted to drive away. 
    Id.
     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. 
    Id.
     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.” 
    Id.
    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.” 
    Id.
     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
    8
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    conduct was clearly unlawful. See Kinney v. Weaver, 
    367 F.3d 337
    , 350 (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, 352 F. App’x at 942. Eventually, several officers surrounded and
    stopped the vehicle. Id. Police ultimately shot and killed the suspect after one
    of the officers broke the car window and began trying to remove him. Id. 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.”
    Id. at 943.
    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, 
    957 F.2d 1268
    , 1277 (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, 
    75 F.3d at 193
    . 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, 
    933 F.3d 481
    , 486 (5th Cir. 2019). To the extent we examine Ougel, we do so for
    this purpose.
    9
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    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, 
    490 U.S. 386
    , 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, 
    101 F.3d 430
    , 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, 
    141 S. Ct. 2239
    ,
    2241 (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]
    10
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    is actively resisting arrest or attempting to evade arrest by flight.” Graham,
    
    490 U.S. at 396
    ; see also Hogan v. Cunningham, 
    722 F.3d 725
    , 734 (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, 
    2022 WL 16548053
    , at *2 (5th Cir. Oct. 31,
    2022); see also United States v. Harrimon, 
    568 F.3d 531
    , 534 (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, 16 F.4th at
    1167 (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., 
    530 U.S. 133
    , 150 (2000). “The rel-
    evant question is whether, taking [Baker’s] version of the facts as true, the
    11
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    force used . . . was both excessive to the need and objectively unreasonable.”
    Autin v. City of Baytown, 
    174 F. App’x 183
    , 185 (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, 
    13 F.4th 420
    , 425 (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.
    12
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    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, 
    381 F.3d 391
    ,
    400 (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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    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, 16 F.4th at 1164 (finding that a vehicle
    was a threat as it sped off with an officer holding on to its edge); Hathaway v.
    Bazany, 
    507 F.3d 312
     (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, 
    560 F.3d 404
    , 413–14 (5th Cir. 2009) (stating that “Scott[ v.
    Harris, 
    550 U.S. 372
     (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, 
    560 F.3d 404
     (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. 
    560 F.3d at 414
    . 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
    14
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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.” 
    Id. at 414
    . 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. 
    Id.
     at 412–13.
    Finally, the officers contend, and the district court agreed, that Hath-
    away v. Bazany, 
    507 F.3d 312
     (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. 
    507 F.3d at 315
    . When the
    officer, who was on foot, was approximately eight-to-ten feet from the front
    of the car, it suddenly accelerated towards him. 
    Id. at 316
    . 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. 
    Id.
     The shot hit the driver of the vehicle and
    killed him. 
    Id.
    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.,
    
    477 U.S. 242
    , 248 (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, 
    880 F.3d 722
    , 727 (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.
    15
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    No. 21-10303
    
    Id.
     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. 
    Id.
    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, 
    393 F.3d 471
     (4th Cir. 2005). There, the plaintiff was a
    driver involved in a high-speed chase. 
    Id. at 474
    . 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. 
    Id. at 475
    . 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.” 
    Id.
    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.” 
    Id. at 480
    . 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.” 
    Id. at 482
    .
    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,
    
    507 F.3d at 322
    .
    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, 
    709 F.3d at 501
    . 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, 
    490 U.S. at 396
    . 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, 
    572 U.S. 650
    , 657 (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.
    17
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    No. 21-10303
    Foti, 
    77 F.3d 819
    , 822 (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).
    18