Officer that utilized deadly force in response to “furtive gesture” entitled to qualified immunity


Close-up of police body camera

By: Cara M. Wright

Video evidence has become more prevalent in §1983 cases as law enforcement agencies have increased the use of dash cameras and body-worn cameras. Frequently, video recordings are used by litigants to refute testimony of an opposing party and, when a party’s testimony is blatantly contradicted by a video recording, the recording prevails.   

The opposite was true in Argueta v. Jaradi, — F.4th–, 5th Cir. No. 22-40781 (5th Cir. 2023), a case that arose from the use of deadly force following a traffic stop in Southern Texas. The video recording at issue in that case confirmed the existence of a disputed fact – whether or not the officer could see the suspect’s handgun prior to the use of deadly force. Indeed, both the dash camera and the body camera recordings were inconclusive to this issue and only documents that the suspect, who was fleeing following a traffic stop, had ran with his right arm and hand pressed against his side, concealed from the defendant officer.   

The district court denied summary judgment in favor of the officer, finding that the recording established that genuine issues of material facts existed regarding: 1) whether the officer had seen the handgun prior to the use of force, 2) whether the suspect’s flight posed any risk to the officer, 3) whether the suspect raised the gun or otherwise made a threatening motion towards the officer and 4) whether either officer warned the suspect prior to firing.   

The Fifth Circuit agreed with the district court that factual questions existed, but found that none of those factual questions were material to the question of whether the officer’s use of deadly force was objectively reasonable. The Fifth Circuit found that the suspect’s act of clutching his right arm to his side was “a furtive gesture akin to reaching for a waistband” and that this action, therefore, made the use of deadly force objectively reasonable because the gesture created a reasonable fear that the suspect was “about to pull a gun from a… hidden location.” The Fifth Circuit further found that the suspect did not need to raise or even show his gun or make a threatening motion towards the officer because “by suspiciously concealing his right arm as he fled in a way that objectively suggested he was armed and dangerous, he engaged in a furtive gesture justifying deadly force.”   

The Fifth Circuit, as a result, found that the plaintiff had failed to establish beyond debate that the defendant officer had violated a clearly established right and entered summary judgment in favor of the officer.   

For more information, please contact Cara Wright at or your local FMG attorney.