The grant of qualified immunity to the officer shooting defendant during execution of a warrant was not contrary to clearly established law. Comparing cases that show the use of deadly force was reasonable; however, isn’t helpful where excessive force is the issue. Escalera-Salgado v. United States, 2018 U.S. App. LEXIS 35564 (1st Cir. Dec. 19, 2018):
In the briefing and at oral argument, Escalera attempted to distinguish cases in which circuit courts have held that an officer’s use of deadly force was reasonable. See Carnaby v. City of Houston, 636 F.3d 183 (5th Cir. 2011) (use of force was reasonable); Ontiveros v. City of Rosenberg, 564 F.3d 379 (5th Cir. 2009) (same); Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991) (same); Young v. City of Killeen, 775 F.2d 1349 (5th Cir. 1985) (same); Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001) (same). But Escalera failed to compare his shooting to the facts of a single case in which an officer’s use of force was held to be constitutionally excessive. Nor is this a case in which the HSI officers’ conduct was self-evidently unlawful. The officers had ample reason to suspect danger: (1) They had been warned that Escalera was a gang leader and had guns in the apartment; (2) No one answered the door when beckoned; (3) Escalera did not comply with police commands to show his hands and to remain still; and (4) Escalera “lifted his shirt, reached for his waistband, and moved for cover behind a bedroom wall.” Escalera’s best point is that the officers did not actually see a weapon or the “bulge” of an apparent weapon. But he cites no case law clearly establishing that actually seeing a weapon is the sine qua non of reasonableness in circumstances such as those presented here — where the officers were forewarned that Escalera might well be armed and dangerous, and where Escalera’s behavior would lead almost anyone to believe he was reaching for a weapon. The district court therefore did not err in dismissing Escalera’s claim on the clearly-established step of qualified immunity analysis.