Man shot by police after disarming shooter asks Fifth Circuit to restore suit

(CN) — A Texas man who was shot by a police officer after disarming a gunman who broke into his home is challenging a federal judge’s ruling that the officer’s actions were objectively reasonable.

Jorge Martinez asked a U.S. Fifth Circuit Court of Appeals panel Monday to reverse the judge’s ruling and send the case back to the lower court for a trial.

His attorney, David Flores, told the panel U.S. District Judge John Kazen wrongly discounted evidence Martinez had presented showing that Laredo Police Officer David Hinojosa should have been able to hear him saying he wasn’t the shooter as he exited the house holding the disarmed rifle.

He pointed to testimony from Martinez’s neighbors, including one who was inside her home, that they could hear what he was shouting.

In the early morning hours of Nov. 26, 2019, police responded to a domestic disturbance in Laredo, Texas, where they were met with gunfire by an armed suspect. The officers exchanged fire with the gunman, who at some point during the shootout entered Martinez’s home, where Martinez, along with his mother and sister, was able to overpower and disarm him.

Martinez, who was naked, took the gun and exited the house. He claims that as he walked toward the street he shouted “I am not the shooter," only to be shot in the abdomen by Hinojosa.

Martinez survived the shooting and filed a lawsuit against Hinojosa and the city of Laredo, arguing the shooting constituted excessive force and violated his constitutional rights. Hinojosa testified that he didn’t hear Martinez say he wasn’t the shooter.

Kazen granted summary judgment to Hinojosa and the city, finding Hinojosa acted reasonably under the circumstances he was faced with and therefore was entitled to qualified immunity.

“Officer Hinojosa’s decision to shoot a person who he saw emerging from a house with an automatic rifle in the context of that night’s events was sufficiently reasonable to justify the use of deadly force,” Kazen, a Joe Biden appointee, wrote.

On Monday, Lindsey Hale, an attorney representing Hinojosa and the city, pointed out that both sides agree Martinez’s shouting is unintelligible in the footage from Hinojosa’s bodycam. She argued this proves that what Martinez was saying could not be made out from Hinojosa’s position, regardless of what witnesses say they could hear from other locations.

U.S. Circuit Judge Leslie Southwick, a George W. Bush appointee, pushed back on this argument.

“Is there any evidence that that is necessarily going to reflect what he actually heard?” Southwick asked. “I mean, recordings can be less precise, less clear than what somebody’s actually hearing.”

Hale said that even if Hinojosa could hear Martinez say he wasn’t the shooter, it wouldn’t have been unreasonable for him to believe that Martinez was in fact the shooter and was lying in order to evade police.

Flores argued that even if Hinojosa reasonably believed Martinez was the shooter, he still should have warned him to drop the gun before firing, but Hale argued a warning wasn’t feasible given the immediacy of the perceived threat.

U.S. Circuit Judge Stephen Higginson asked Hale what a person like Martinez, who “heroically” saved his family from an armed intruder, should do in that circumstance.

“He gets the gun. He knows there are police outside. What does he do, other than say, ‘don’t shoot me?’” Higginson, a Barack Obama appointee, asked.

Hale said it was a “tragic case,” but she said Martinez could have put the gun down immediately upon exiting the house rather than walking out holding it. She pushed back on Martinez’s argument that he was obviously surrendering.

“I don’t understand how carrying a weapon is an act of surrender,” she said.

U.S. Circuit Judge Cory Wilson, a Donald Trump appointee, joined Southwick and Higginson on the panel.