Material Fact Disputes Defeat Interlocutory Qualified-Immunity Review; Deadly Force Against a Visibly Unarmed Suspect Moving Away Is Clearly Established as Unconstitutional

I. Introduction

In Tippitt v. Iversen (5th Cir. Aug. 5, 2026) (per curiam) (unpublished), Wendy Tippitt—administrator of Timothy Michael Randall’s estate—brought claims under 42 U.S.C. § 1983 alleging Sergeant Shane Iversen violated Randall’s Fourth Amendment right to be free from unreasonable seizures by using deadly force during a traffic stop in Rusk County, Texas. The district court denied Iversen’s motion for summary judgment based on qualified immunity. Iversen filed an interlocutory appeal.

The key issues on appeal were procedural and substantive: (1) whether the Fifth Circuit had jurisdiction to review the denial of qualified immunity at the summary-judgment stage given disputed facts, and (2) whether, under the plaintiff’s version of events, the law was clearly established that shooting Randall violated the Fourth Amendment.

II. Summary of the Opinion

The Fifth Circuit dismissed the appeal for want of jurisdiction. The court held that the record contains a genuine dispute of fact material to qualified immunity—most importantly whether Randall was moving away/fleeing (as the estate contends) or rushing the officer (as Iversen contends) at the moment he was shot.

Applying the required summary-judgment lens (crediting the nonmovant and drawing reasonable inferences in its favor), the panel concluded a jury could find that Iversen used deadly force against a visibly empty-handed suspect who was turning/moving away, posed no immediate threat to the officer or others, and had at most non-violent resistance amid rapidly evolving commands. Under that version, the court stated that such conduct would violate a clearly established Fourth Amendment right. Because those disputed facts were material, the court lacked interlocutory jurisdiction to revisit the district court’s fact-bound denial of summary judgment.

III. Analysis

A. Precedents Cited

1. Fourth Amendment excessive-force framework

  • Graham v. Connor, 490 U.S. 386 (1989): The opinion anchors the governing standard—objective reasonableness—and the familiar factors (severity of the crime, immediate threat, active resistance/flight). The panel uses Graham both substantively (what “reasonableness” requires) and methodologically (evaluate from the perspective of a reasonable officer on the scene, not hindsight).
  • Tennessee v. Garner, 471 U.S. 1 (1985): Provides the foundational deadly-force principle: where the suspect poses no immediate threat to the officer and no threat to others, deadly force to prevent escape is not justified. The court also references Garner for the proposition that a warning should be given “where feasible.”
  • Windham v. Harris County, 875 F.3d 229 (5th Cir. 2017) (quoting Hamilton v. Kindred, 845 F.3d 659 (5th Cir. 2017)): Supplies the Fifth Circuit’s three-part articulation for excessive-force claims.

2. “Totality of the circumstances” including pre-shooting conduct

  • Barnes v. Felix, 605 U.S. 73 (2025): The panel emphasizes the Supreme Court’s directive to consider the facts and events leading up to the climactic moment, rejecting a freeze-frame approach. This supports the court’s focus on the sequence of commands, the pat-down, the takedowns, and the evolving physical struggle.
  • Scott v. Harris, 550 U.S. 372 (2007): Cited both for the “blatantly contradicted” principle and for the idea that courts may view the facts “in the light depicted by the videotape.” The panel treats video as powerful evidence but not automatically dispositive where it fails to conclusively resolve the critical moment.
  • Harper v. Perkins, 459 F. App’x 822 (11th Cir. 2012) (unpublished): Used to support considering conflicting commands as part of the totality of the circumstances in an excessive-force analysis.

3. Qualified immunity: clearly established law and specificity

  • Saucier v. Katz, 533 U.S. 194 (2001), overruled in part on other grounds by, Pearson v. Callahan, 555 U.S. 223 (2009): Supplies the two-step qualified-immunity structure (constitutional violation and clearly established law), while acknowledging courts have discretion in sequencing after Pearson.
  • Mullenix v. Luna, 577 U.S. 7 (2015); Ashcroft v. al-Kidd, 563 U.S. 731 (2011); White v. Pauly, 580 U.S. 73 (2017) (quoting Brosseau v. Hagen, 543 U.S. 194 (2004)); Plumhoff v. Rickard, 572 U.S. 765 (2014): These cases collectively enforce the Supreme Court’s insistence that clearly established law not be defined at a “high level of generality” and that the dispositive inquiry is what a reasonable officer would have understood in the situation confronted.
  • Bush v. Strain, 513 F.3d 492 (5th Cir. 2008): Used for the Fifth Circuit’s caution that although the general right to be free from excessive force is clearly established, the right to be free from a particular degree of force in a specific situation may not be.
  • Poole v. City of Shreveport, 13 F.4th 420 (5th Cir. 2021): Central to the panel’s clearly-established holding. The opinion quotes Poole for two propositions: (i) a suspect is less of a threat when turning or moving away; and (ii) an officer violates clearly established law if he shoots a visibly unarmed suspect moving away from everyone present.
  • Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009): Reinforces that no constitutional violation occurs when the officer reasonably believes the suspect poses a threat of serious harm—highlighting that the dispute here is largely about what was reasonably perceived at the time.
  • Hernandez v. Mesa, 582 U.S. 548 (2017): Supports the rule that facts learned after the incident ends are irrelevant to qualified immunity and Fourth Amendment reasonableness (e.g., the later discovery that Randall was unarmed).

4. Summary judgment standards and interlocutory appellate jurisdiction

  • Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Tolan v. Cotton, 572 U.S. 650 (2014): Establish the summary-judgment posture—credit the nonmovant and draw inferences in that party’s favor—applied with special force in qualified-immunity cases.
  • Poole v. City of Shreveport, 13 F.4th 420 (5th Cir. 2021): Also used for the Fifth Circuit’s limited scope of review in interlocutory qualified-immunity appeals: the court reviews materiality, not genuineness, of fact disputes identified by the district court.
  • Lytle v. Bexar County, 560 F.3d 404 (5th Cir. 2009), abrogated on other grounds by, Mullenix v. Luna, 577 U.S. 7 (2015): Cited for adopting the plaintiff’s version of facts for purposes of an interlocutory appeal narrowed to legal issues.
  • Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012): Provides the jurisdictional punchline: the Fifth Circuit lacks jurisdiction to review a district court’s determination of genuine disputes of material fact once the appellate court concludes those disputes are material to qualified immunity.
  • Shumpert v. City of Toledo, 905 F.3d 310 (5th Cir. 2018): Cited for the burden shift: once qualified immunity is raised, the plaintiff bears the burden to negate it (while still benefiting from summary-judgment inferences).
  • Lampkin v. City of Nacogdoches, 7 F.3d 430 (5th Cir. 1993): Reinforces that credibility disputes require a fact-finder.

5. Resistance, proportionality, and deadly force

  • Darden v. City of Fort Worth, 880 F.3d 722 (5th Cir. 2018): Supports the proposition that permissible force decreases when an arrestee is not actively resisting.
  • Cantu v. City of Dothan, 974 F.3d 1217 (11th Cir. 2020): Cited by analogy for the principle that resisting arrest alone—especially non-violent resistance—does not justify deadly force.
  • Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (quoting Tennessee v. Garner, 471 U.S. 1 (1985)): Used to frame the “warning where feasible” component of deadly-force reasonableness.

B. Legal Reasoning

1. The court’s jurisdictional holding: why the appeal was dismissed

The Fifth Circuit treated the appeal primarily as a jurisdiction problem. In interlocutory qualified-immunity appeals, the court may address purely legal questions (e.g., whether assumed facts show a violation of clearly established law), but it generally may not reweigh evidence or decide which side’s version of disputed facts is correct. Here, the dispositive dispute—whether Randall was moving away versus rushing the officer—went to the heart of both (i) whether deadly force was objectively reasonable and (ii) whether the law clearly prohibited the shooting.

The panel explained that video evidence can sometimes eliminate disputes, but it did not do so here: Randall briefly left the dashcam frame, and when he reappeared he seemed to be moving down the road away from the officer while at least partially facing him. Autopsy trajectory evidence (entry on the right chest, traveling across) could support the estate’s version. Because a reasonable jury could find Randall was fleeing, the court could not treat Iversen’s account as established for summary judgment. Under Newman v. Guedry, that meant no interlocutory jurisdiction.

2. The assumed fact pattern and the Fourth Amendment analysis

Taking the plaintiff-favorable version, the opinion constructs a coherent scenario: the stop escalated rapidly after Iversen felt an object in Randall’s pants; Randall was empty-handed and had his palms open at chest height; he resisted commands in a way a jury could view as non-violent amid rapidly changing directives; and he was moving away when shot. Under Tennessee v. Garner and Graham v. Connor, a jury could conclude Randall posed no immediate threat to the officer or others, making the use of deadly force unconstitutional.

Consistent with Barnes v. Felix, the panel emphasizes that reasonableness must be evaluated using the entire chain of events, including the officer’s escalating tactics and the suspect’s opportunity (or lack thereof) to comply with “rapidly-evolving commands.”

3. Clearly established law

The opinion candidly acknowledges the Supreme Court’s specificity requirements: Garner and Graham generally do not suffice outside an “obvious case” (per White v. Pauly). The panel therefore relies on Fifth Circuit precedent—especially Poole v. City of Shreveport—to articulate the clearly established rule applicable to the plaintiff’s version: shooting a visibly unarmed suspect moving away violates clearly established law.

Notably, the opinion treats the officer’s later discovery that Randall was unarmed as irrelevant (Hernandez v. Mesa), while still leaving room for a defense based on reasonable perception at the time (Manis v. Lawson)—a defense that cannot be resolved on the present record due to credibility disputes (including whether the felt object could reasonably be believed to be a gun).

C. Impact

1. Practical effect in litigation posture

Even though the decision is “not designated for publication,” it illustrates a recurring Fifth Circuit practice point: defendants seeking interlocutory review of qualified-immunity denials face dismissal when the appeal depends on contesting the plaintiff’s facts rather than presenting a clean legal question. The opinion underscores that where video is incomplete or ambiguous, it may not rescue an interlocutory appeal.

2. Substantive guidance on deadly force

The decision reinforces—through Poole v. City of Shreveport—a clear operational boundary: if a suspect is visibly unarmed and moving away from the officer and others, deadly force is constitutionally perilous and, under the plaintiff’s version, clearly established as unlawful. The panel’s focus on open hands, direction of movement, and threat assessment signals what facts will be pivotal at trial and in future summary-judgment records.

3. The “mistaken weapon” narrative and evidentiary burdens

The opinion also highlights that an officer’s asserted mistake (e.g., thinking a meth pipe is a gun) is not automatically dispositive; its reasonableness can present credibility questions for a jury unless video or other objective evidence conclusively resolves it. That framing may influence how parties develop expert testimony, training evidence, and demonstratives regarding pat-down perception and weapon identification.

IV. Complex Concepts Simplified

  • Qualified immunity: A doctrine shielding officials from civil damages unless (1) they violated the Constitution and (2) the unlawfulness was “clearly established” at the time—meaning existing precedent put the answer beyond debate for a reasonable officer.
  • Interlocutory appeal: An appeal taken before final judgment. In qualified-immunity cases, defendants may often appeal a denial immediately, but appellate courts cannot use that appeal to decide “who is telling the truth” when facts are genuinely disputed.
  • Summary judgment: A pretrial ruling granted only when no genuine dispute of material fact exists. Courts must credit the nonmoving party’s evidence and reasonable inferences.
  • Material vs. genuine disputes: A dispute is “genuine” if a reasonable jury could decide it either way; it is “material” if it would change the legal outcome. In this case, whether Randall was fleeing or rushing is both.
  • Objective reasonableness (Fourth Amendment): The question is not what the officer intended, but whether the force used was reasonable from the perspective of a reasonable officer at the scene, given what was known at the time.
  • “Clearly established” specificity: Broad principles (“don’t use excessive force”) are usually not enough; plaintiffs typically must point to precedent with similar facts, unless the case is so extreme it is “obvious.”

V. Conclusion

Tippitt v. Iversen delivers two interlocking lessons. First, as a matter of appellate procedure, the Fifth Circuit will dismiss an interlocutory qualified-immunity appeal where resolution depends on contested, material facts not conclusively settled by video or other objective evidence. Second, on the merits assumed at summary judgment, the court reaffirms that it is clearly established—particularly under Poole v. City of Shreveport—that an officer may not shoot a visibly unarmed suspect who is moving away and poses no immediate threat. The opinion thus narrows the appeal to its proper function, preserves the jury’s role on credibility and perception, and clarifies the factual pivots that determine deadly-force reasonableness under the Fourth Amendment.