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Click here for the full text of this decision FACTS:Officer Wilbert Kalina sought to detain Erika Flores because she was parked on the wrong side of the road and because, when he shined a spotlight on her car, several people fled from the vicinity. Flores did not respond to Kalina’s repeated commands that she stop and instead drove away. Kalina shot her car to prevent her escape, and the bullet lodged in the muffler. When Flores stopped, Kalina arrested her for evading detention, but the charge was later dismissed. Flores sued Kalina and the City of Palacios pursuant to 42 U.S.C. �1983. She claimed Kalina subjected her to an excessive use of force, unlawful arrest, and malicious prosecution in violation of the Fourth Amendment. Flores also claimed that Kalina’s conduct violated the Fourteenth Amendment by depriving her of her good name, reputation, and personal property without due process of law. The district court found there were genuine issues of material fact as to each of the Fourth Amendment claims and therefore denied Kalina’s motion for summary judgment on those claims. The district court dismissed the Fourteenth Amendment substantive due process claims because it found those claims were properly brought under the Fourth Amendment. Kalina timely appealed the partial denial of summary judgment on the Fourth Amendment claims. HOLDING:Affirmed in part, and reversed and rendered in part. The 5th Circuit finds the district court properly denied summary judgment on the Fourth Amendment excessive force claim, but erred in denying summary judgment on Flores’ Fourth Amendment unlawful arrest and malicious prosecution claims. The denial of a motion for summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine “to the extent that it turns on an issue of law.” Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). In reviewing a government official’s motion for summary judgment based on qualified immunity, the court undertakes a two-step analysis: 1. whether a statutory or constitutional right would have been violated on the facts alleged; and 2. whether the defendant’s actions violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” The court first addresses the excessive force claim. The court first undertakes step one in the above two-step analysis, whether the facts allege constitute a violation of a right. To bring a �1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that she was seized. Next she must show that she suffered 1. an injury; that 2. resulted directly and only from the use of force that was excessive to the need; and that 3. the force used was objectively unreasonable. Goodson v. City of Corpus Christi , 202 F.3d 730, 740 (5th Cir. 2000). The court finds that Kalina seized Flores when he shot her car: “We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Next, the court finds that 1. psychological injuries may suffice to constitute an excessive force claim; 2. the district court did not err in finding that Flores’ injuries resulted directly and only from her seizure; and 3. the district court correctly held that genuine issues of fact exist as to whether Kalina used deadly force and whether he reasonably believed Flores was a threat. The court notes that “it is objectively unreasonable to use deadly force �unless it is necessary to prevent [a suspect's] escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’ [Tennessee v.] Garner , 471 U.S. at 3.” There was a genuine issue of material fact as to whether Kalina had an objectively reasonable belief that Flores posed a significant threat to anyone. For all these reasons, the court finds, under the first step of the two-step governmental immunity analysis, that Flores did allege a constitutional violation on the facts alleged regarding her excessive force claim. The second step in the two-step analysis asks whether the defendant’s actions violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Kalina argues that the following legal principles were not clearly established: 1. that a suspect is seized when her car is shot and she stops without realizing what has happened; 2. that excessive force that does not result in physical harm violates the Fourth Amendment; 3. that shooting at the tires of a moving vehicle is deadly force; and 4. that shooting at the tires of a moving vehicle in circumstances such as these constitutes an objectively unreasonable use of excessive force in violation of the Fourth Amendment. The 5th Circuit finds that the law was clearly established as to the first and second issues. But it finds it cannot resolve the third and fourth issues without reference to disputed questions of material fact, so it affirms the district court’s denial of Kalina’s summary judgment motion as to the excessive force claim. The court then turns to Flores’ unlawful arrest claim and undertakes the same two-step analysis. The court reverses the district court’s denial of Kalina’s motion for summary judgment because the court finds that Flores did not allege a constitutional violation. Kalina did have probable cause to arrest Flores, based on her attempt to evade detention despite his orders to stop and her commission of the traffic violation of parking on the wrong side of the street. Additionally, Flores’ unlawful arrest claim is based on the same allegations as her excessive force claim, so she cannot raise the unlawful arrest claim. Thus the 5th Circuit upholds the district court’s grant of Kalina’s summary judgment motion on this issue. Due to an en banc decision issued after the district court’s ruling, the 5th Circuit also finds that Kalina is entitled to summary judgment on Flores’ malicious prosecution claim. OPINION:Benavides, J.; King, CJ, Benavides and Clement, JJ.

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