Tusa et al v. Weems

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Jennifer Tusa et al.,
Plaintiffs,
v.
Robert Weems,
Defendant.
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Civil Action H-25-1149
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 25. Pending
before the court is Defendant’s Motion for Summary Judgment,
ECF 	No. 14. 	The 	court 	recommends 	that 	the 	Motion 	be
GRANTED.
1. Background
On 	September 	12, 	2024, 	Montgomery 	County 	Sheriff’s
Deputy Robert Weems fatally shot Charles Krumm, Jr. (Krumm).
Compl., 	ECF 	No. 	1 	at 	2. 	Plaintiffs 	Charles 	Krumm, 	Sr. 	and
Jennifer Tusa individually and on behalf of the Estate of Charles
Krumm, Jr. sued under 42 U.S.C. § 1983 and the Texas wrongful
death 	statute, 	alleging 	that 	Weems 	used 	excessive 	force 	in
violation of Krumm’s Fourth Amendment rights. Id. at 6– 11.
The relevant events of September 12, 2024 are recorded in
multiple videos and audio recordings. The parties both rely on the
audio and video evidence and do not object to its authenticity, so
the court considers it here. The court turns to the events as they
appear in the evidence.
Police responded to a 911 call wherein a bystander reported
that a man pointed a gun at two children. Weems Ex. 1, 911 Call,
ECF No. 14-1. It is not clear that Weems knew the contents of the
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911 call. Dispatch informed the responding officer, Officer 2221,
that Krumm was likely the suspect and that officers had interacted
with Krumm earlier in the day and found him “very difficult to
deal with.” Weems Ex. 3, Radio Call, ECF No. 14-3 at 0:00–0:10.1
Officer 2221 arrived and began attempting to engage with
Krumm. Weems Ex. 2, Call Detail Report, ECF No. 14-2 at 3–4.
Officer 2221 asked dispatch where the closest unit was; then, after
dispatch asked Officer 2221 multiple times if she was secure
without a response, Officer 2221 stated that she deployed her
taser. Id. at 4; ECF No. 14-3 at 0:36–0:46. The officer then stated
that she needed more units and asked for any available agent from
any agency. ECF No. 14-2 at 4; ECF No. 14-3 at 0:50–1:13. Again,
it is not clear whether Weems was privy to any of that radio traffic.
Weems appears to have been the second officer on the scene.
The dashboard camera (dashcam) in Weems’s car shows that, as
Weems pulled up to the scene, Krumm was struggling with what
appears to be Officer 2221. Weems Ex. 4, Dashcam Video, ECF
No. 14-4. Krumm was resisting the officer’s attempts to grab him.
Id. Krumm then broke away from the officer and began running.
Id. Weems pulled into the parking lot where the officer was
chasing Krumm, and Krumm ran directly in front of Weems’s car
as Weems parked. Id.
Plaintiffs submitted a bystander video of the events that was
posted on Instagram by “grizzyshoodnews.” Bystander Video, ECF
No. 20-1. The video shows that, as Weems parked and Krumm ran
in front of Weems’s car, Krumm appeared to pick up what turned
out to be a gun from the ground nearby. Id. at 0:00–0:04.
1 To cite specific portions of the video and audio recordings, the court includes the
minutes and seconds from the time stamp on the video. For example, ECF No. 14-3
at 0:00–0:10, refers to the first ten seconds of the radio call audio recording.
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The footage from Weems’s body camera (bodycam) begins
when Weems exited his car. Weems Ex. 6, Bodycam, ECF No. 14-
6. The whole video, from exiting the vehicle to firing at Krumm, is
seventeen seconds long. Weems exited his car and began running
after Krumm with a taser in his hand. Id. at 0:00–0:09. The
bodycam shows that Krumm stopped traffic as he ran across an
intersection and the officers chased him. Id. at 0:06–0:10. Weems
yelled “Stop!” and deployed his taser. Id. at 0:09–0:12. Krumm
continued to run.
Krumm continued running through a parking lot toward a
building. ECF No. 14-6 at 0:11–0:16. The video shows at least two
cars driving within yards of Krumm as he ran through the parking
lot. Id. Many other cars are parked in the lot. Id.
ECF No. 14-6 at 0:12 (taser being
deployed and moving car nearby).
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As 	Krumm 	ran, 	he 	looked 	backward 	over 	his 	shoulder
multiple times. ECF No. 14-6 at 0:12–16. Visible in Krumm’s hand
is what appears to be a gun wrapped in cloth or a bag.2 Id. Weems
yelled “Drop the gun now! Drop the gun now! Drop it!” 0:14–0:17.
As Weems yelled “Drop the gun now!” for the second time, Krumm
pulled both his hands in front of his body, obstructing Weems’s
view of the gun and Krumm’s hands. Id. As Krumm pulled his
hands in front of his body, he also turned his head to the left as if
to look toward the officers behind him. Id. At least two moving cars
2 Plaintiffs state that the gun was in a bag many times. ECF No. 20 at 3, 10–14.
Plaintiffs also state that the gun was “inside of a case or bag” on a few occasions. Id.
at 3 (emphasis added). It is not clear from the evidence which representation is correct.
ECF No. 14-6 at 0:13 (gun inside
bag/case and cars in parking lot).
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were in the parking lot near Krumm and the officers at this time.
Id.
As Weems yelled “Drop it!”—the third such command—he
fired two shots at Krumm, hitting him both times. ECF No. 14-6
at 0:16–0:17. Krumm fell to the ground and the bodycam video
ends. 	The 	timestamp 	on 	the 	bodycam 	footage 	indicates 	that
Weems shot Krumm at approximately 18:23:51. Id. at 0:16–0:17.
At 18:24:06, the other officer reported shots fired to dispatch. ECF
No. 14-2 at 5.
The bystander Instagram video aligns with the bodycam
video, but it is blurry and does not depict all the events that
transpired.
Weems filed a Motion for Summary Judgment arguing that
he is entitled to qualified immunity. ECF No. 14. Plaintiffs argue
ECF No. 14-6 at 0:16 (Krumm’s hands obstructed from view,
turning his head to the left, and a moving car in the background).
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that multiple facts are disputed, including whether Weems knew
the contents of the 911 call upon arriving on the scene, whether
Krumm’s gun was readily available for use, and whether Krumm
brought his hands together prior to Weems’s use of deadly force.
ECF No. 20 at 2–3.
2. Summary Judgment Standard
“Summary judgment is appropriate 	only if, 	viewing the
evidence in the light most favorable to the nonmovant, ‘the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Davenport
v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018)
(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact
exists if a rational jury could not find for the nonmoving party
based on the complete record. McMichael v. Transocean Offshore
Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
Initially, “[t]he movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of a
genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401
F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant
must then “go beyond the pleadings,” using competent summary
judgment evidence to cite “specific facts” showing a genuine issue
for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357
(5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)).
The court reviews all evidence and reasonable inferences in
the light most favorable to the nonmoving party. See Tolan v.
Cotton, 572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). The court, however, does not have
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a duty “to search the record for material fact issues.” RSR Corp. v.
Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (“Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
supports [the] claim.”). Although the court needs to consider only
the cited evidence, it is allowed to consider other materials in the
summary judgment record. Fed. R. Civ. P. 56(c)(3).
3. Qualified Immunity Standard
Weems argues that he is entitled to qualified immunity. ECF
No. 11 at 9. Section 1983 provides redress for those who have been
injured 	or 	deprived 	of 	their 	rights 	under 	color 	of 	state 	law.
42 U.S.C. § 1983; Moody v. Farrell, 868 F.3d 348, 351 (5th Cir.
2017). However, in a lawsuit under Section 1983, “[q]ualified
immunity 	shields 	from 	civil 	liability 	‘all 	but 	the 	plainly
incompetent or those who knowingly violate the law.’” Manis v.
Lawson, 585 F.3d 839, 845 (5th Cir. 2009) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). State officials are entitled to
qualified immunity unless (1) the evidence demonstrates that the
official’s conduct violated a statutory or constitutional right and
(2) that right was “clearly established” at the time of the violation.
McVae v. Perez, 120 F.4th 487, 492 (5th Cir. 2024).
A 	right 	is 	clearly 	established 	when 	it 	“is 	one 	that 	is
sufficiently 	clear 	that 	every 	reasonable 	official 	would 	have
understood that what he is doing violates that right.” Melton v.
Phillips, 875 F.3d 256, 265 (5th Cir. 2017) (en banc). “This is a
‘demanding standard.’” Degenhardt v. Bintliff, 117 F.4th 747, 753
(5th Cir. 2024). Courts “can analyze the prongs [of the qualified
immunity test] in either order or resolve the case on a single
prong.” Perry v. Mendoza, 83 F.4th 313, 317 (5th Cir. 2023).
Where a defendant asserts qualified immunity as a defense
to a claim, “the plaintiff bears the burden of pleading facts that
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demonstrate liability and defeat immunity.” Shaw v. Villanueva,
918 F.3d 414, 416–17 (5th Cir. 2019). “Once an officer pleads
qualified immunity, it is the plaintiff’s burden to establish that the
officer violated the plaintiff’s clearly established federal rights.”
Argueta v. Jaradi, 86 F.4th 1084, 1088 (5th Cir. 2023). At the
summary judgment stage, a plaintiff bears the burden of showing
a genuine and material dispute. Perry, 83 F.4th at 320. “A disputed
fact is material if it could affect the outcome of the lawsuit.” Id.
4. Analysis
The court recognizes the gravity of the events at issue in this
case. Krumm’s death is a tragedy. Even so, the court must continue
its 	analysis 	as 	binding 	precedent 	from 	the 	Fifth 	Circuit 	and
Supreme Court dictate.
Plaintiffs plead excessive force, a cause of action derived
from the Fourth Amendment. ECF No. 1 at 6. “An excessive-force
claim requires (1) an injury, (2) resulting directly and only from
excessive force, (3) that was objectively unreasonable.” Argueta, 86
F.4th at 1089.
At issue here is whether Weems’s use of deadly force was
excessive and unreasonable. To determine whether a use of force
was reasonable, the court considers the facts and circumstances of
the case, including (1) the severity of the crime at issue, (2)
whether the suspect posed an immediate threat to the safety of the
officers 	or 	others, 	and 	(3) 	whether 	the 	suspect 	was 	actively
resisting arrest or attempting to evade arrest by flight. Trammell
v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017) (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)).
“Claims that law enforcement unreasonably utilized deadly
force are treated as a special subset of excessive force claims.”
Aguirre v. City of San Antonio, 995 F.3d 395, 412 (5th Cir. 2021).
The Fifth Circuit has long held that, “[w]hen an officer uses deadly
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force, that force is considered excessive and unreasonable ‘unless
the officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to others.’”
Roque 	v. 	Harvel, 	993 	F.3d 	325, 	333 	(5th 	Cir. 	2021). 	The
reasonableness 	of 	the 	use 	of 	deadly 	force 	is 	based 	on 	the
perspective of a reasonable officer on the scene, not with the 20/20
vision of hindsight. Argueta, 86 F.4th at 1089.
“[W]hether the suspect’s flight posed a threat to the officers
or onlookers is a question of law left to the court.” Argueta, 86 F.4th
at 1092–93. “Whether the suspect is armed is often the key factor
in determining if a threat to the officer justifies the use of deadly
force.” Poole v. City of Shreveport, 13 F.4th 420, 425 (5th Cir. 2021)
(citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)). But even when
a suspect is armed, a warning must be given, when feasible, before
the use of deadly force. Cole v. Carson, 935 F.3d 444, 453 (5th Cir.
2019), as revised (Aug. 21, 2019). “Common sense, and the law,
tells us that a suspect is less of a threat when he is turning or
moving away from the officer.” Poole, 13 F.4th at 425; see also
Roque, 993 F.3d at 333. The force an officer uses should be
proportional to the threat, and an officer must use lesser force if
an officer could reasonably do so. Allen v. Hays, 65 F.4th 736, 744
(5th Cir. 2023).
In “furtive gesture” cases, the Fifth Circuit has held that an
officer’s use of deadly force is not unreasonable or excessive where
a suspect “moves out of the officer’s line of sight such that the
officer could reasonably believe the suspect was reaching for a
weapon.” Argueta, 86 F.4th at 1091 (citing Manis v. Lawson, 585
F.3d 839, 844 (5th Cir. 2009)). In Argueta, the suspect held a high-
capacity semiautomatic weapon in his right hand, which he held
out of view of the officers chasing him by “keeping his right arm
purposefully and unnaturally pressed along his right side and out
of sight as he ran away.” Id. at 1092. The officer could not see that
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the suspect was armed before using deadly force. Id. at 1090. The
court held that “[the suspect’s] clutching his right arm to his side
as he fled at top speed was tantamount to ‘mov[ing his arm] out of
the officer’s line of sight such that the officer could reasonably
believe the suspect was reaching for a weapon.’” Id. at 1092. Thus,
the suspect “engaged in a furtive gesture justifying deadly force.”
Id. at 1092–93.
In another case, the suspect was armed and fled in an
attempt to evade arrest. Wilson v. City of Bastrop, 26 F.4th 709,
714 (5th Cir. 2022). There, the Fifth Circuit explained that when
the suspect ran, “armed and disobeying [the officer’s] commands to
drop the gun despite the presence of onlookers, [the officer’s] use
of deadly force became justified.” Id.
Fifth Circuit precedent dictates that Weems had at least
probable cause to believe that Krumm posed a threat of serious
physical harm. Thus, there is no material fact dispute 	as to
whether 	Weems’s 	use 	of 	deadly 	force 	was 	excessive 	or
unreasonable. As the court described above, the bodycam video
plainly shows that Krumm was actively attempting to evade arrest
by flight. Weems’s dashcam video shows that, as Weems arrived,
Krumm appeared to be resisting arrest by dodging the officer on
the scene. ECF No. 14-4. As Weems gave chase, Krumm ran across
an intersection and parking lot where multiple cars were driving
within feet of Krumm. ECF No. 14-6 at 0:00–0:16. As Krumm ran,
he looked over his shoulder multiple times. Id. at 0:11, 0:13, 0:15,
0:16. In his right hand, Krumm was carrying a gun that appeared
to be wrapped in something or inside a gun-shaped case. Id.
at 0:11–0:14. Krumm’s index finger was on or near the trigger. Id.
Weems deployed his taser to stop Krumm, but it did not stop
Krumm. Id. at 0:12. Weems warned Krumm to stop and drop the
gun multiple times. Then, both of Krumm’s hands disappeared
from Weems’s view. Id. at 0:16. Krumm ran, armed and disobeying
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Weems’s commands to stop and drop the gun, despite the presence
of bystanders in the area. Weems had probable cause to believe
that Krumm posed a threat of serious physical harm to himself and
those in the area.
Plaintiffs 	argue 	that 	there 	are 	at 	least 	three 	genuine
disputes of material fact that prevent the court from granting
summary judgment in Weems’s favor. First, Plaintiffs argue that
there is a fact dispute as to what details, if any, Weems knew from
the 911 call. ECF No. 20 at 2. The court finds that even if Weems
did not know any details of the 911 call reporting Krumm, that fact
is 	immaterial. 	See 	Salazar-Limon 	v. 	City 	of 	Houston, 	826
F.3d 272, 278 	(5th 	Cir. 	2016) 	(“Unless 	Salazar 	has 	presented
competent summary judgment evidence that he did not reach
toward his waistband (for what Officer Thompson perceived to be
a weapon), Officer Thompson’s decision to shoot was not a use of
unreasonable or excessive deadly force.”). Weems’s knowledge of
what Krumm was doing before Weems arrived does not change the
court’s analysis. Weems knew that Krumm was fleeing, armed,
and disobeying commands. As the Fifth Circuit has explained, by
suspiciously 	concealing 	his 	hands 	as 	he 	fled 	in 	a 	way 	that
objectively suggested he was armed and dangerous, he engaged in
a furtive gesture justifying deadly force. See Argueta, 86 F.4th at
1093; Wilson, 26 F.4th at 714.
Second, Plaintiffs argue that there is a fact dispute as to
whether Krumm’s gun was clearly visible in Krumm’s hand as he
ran. ECF No. 20 at 2–3. Plaintiffs argue that the gun was inside a
bag or case and not readily available to Krumm. Id. As the court
explained above, even assuming in Plaintiffs’ favor that the gun
was in a case, Weems’s use of force was still justified based on the
furtive gesture analysis above. The Fifth Circuit has repeatedly
cautioned against “second-guessing a police officer’s assessment,
made 	on 	the 	scene, 	of 	the 	danger 	presented 	by 	a 	particular
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situation.” Wilson, 26 F.4th at 713. The court “[has] never required
officers to wait until a defendant turns towards them, with weapon
in hand, before applying deadly force to ensure their safety.”
Salazar-Limon, 826 F.3d at 279 n.6 (5th Cir. 2016) (collecting
cases). Officers also need not wait until a fleeing suspect turns his
weapon toward bystanders before using deadly force to protect
them. Wilson, 26 F.4th at 714. In any event, the video plainly
shows what looks like a gun and Weems obviously believed it was
a gun because he was yelling for Krumm to “drop the gun.”
Third, Plaintiffs argue that there is a material fact dispute
as to whether “Mr. Krumm brought his hands together in front of
his body and removed the bag that was covering the muzzle of the
pistol.” ECF No. 20 at 3. The bodycam video plainly shows that
Krumm’s hands were not visible to Weems when Weems shot
Krumm. Thus, to the extent that Plaintiffs argue that there is a
fact dispute about whether Krumm brought his hands together,
that argument is unsupported by the evidence.
The court agrees, however, that there is no evidence showing
that Krumm removed the bag covering the gun. It is not clear to
the court whether Krumm could have used the gun while it was
still inside the bag. However, that evidence is immaterial. As the
court stated above, officers need not wait until the suspect turns
toward them with a gun before applying deadly force. Plaintiffs do
not cite any cases showing how, or otherwise explain why, the gun
must have been removed from its bag or case before a reasonable
officer could have probable cause to believe that Krumm’s armed
flight posed a threat to the officers or others.
Plaintiffs also generally assert that Krumm never “turned
toward 	Defendant 	Weems 	or 	any 	other 	officer 	chasing 	Mr.
Krumm” nor did Krumm make any furtive gestures or hide his
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hands.3 ECF No. 20 at 3–4. The evidence blatantly contradicts
these arguments. Krumm looks behind himself multiple times as
he runs, with gun in hand. ECF No. 14-6 at 0:11, 0:13, 0:15, 0:16.
As the court has stated, and as the bodycam video shows, Krumm
brought his hands together in front of him and out of Weems’s view
right before the shots were fired. Id. at 0:16.
The cases Plaintiffs rely on to support their arguments are
all distinguishable. In Poole, the court found that “a jury could
conclude Poole was visibly unarmed,” and there was a fact question
about whether the officer warned Poole prior to firing. 13 F.4th
at 425. In Cole, officers “found themselves in a search for a suicidal
teenager[,]” and there was a material fact question as to whether
the officers warned the teen before using deadly force. 935 F.3d
at 456–57. In Allen, which was at the motion to dismiss stage, the
court found that Plaintiffs plausibly alleged that the officer knew
that the suspect was unarmed and not aggressive and that the
suspect never reached outside the officer’s line of sight. 65 F.4th
at 745. The circumstances here are materially different from each
of these cases because Krumm was visibly armed,4 he was fleeing
through a public parking lot with occupied and moving cars,
Weems attempted to use non-lethal means before firing his gun,
Weems warned Krumm to stop and drop the weapon, and Krumm’s
hands were not visible to Weems at the time Weems fired.
Under the first prong of the qualified immunity analysis,
there is no evidence or material fact dispute that Weems violated
3 Plaintiffs cite to “ECF 15-1” on multiple occasions. See ECF No. 20 at 3–4, 10. The
court notes that ECF No. 15-1 is a Proposed Order granting a Motion for Extension of
Time filed by Plaintiffs. The court refers to Plaintiffs’ only exhibit, the Instagram
Bystander Video, as ECF No. 20-1.
4 The Fifth Circuit has also distinguished Tennessee v. Garner, 471 U.S. 1 (1985),
which Plaintiffs attempt to rely on to support their arguments, from cases where the
suspect was armed. Wilson, 26 F.4th at 714.
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Krumm’s Fourth Amendment rights. As the court stated above,
Fifth Circuit precedent dictates that, under these circumstances,
Weems had probable cause to believe that Krumm posed a threat
of serious physical harm to himself and those in the area. Weems
had 	more 	information 	about 	the 	dangerous 	circumstances
surrounding Krumm’s flight and ability to cause serious physical
harm than the officers in Salazar-Limon and Argueta, who were
found to be entitled to qualified immunity. Weems’s use of deadly
force was not constitutionally excessive nor was it unreasonable.
Even if the evidence demonstrated that Weems’s conduct
violated a statutory or constitutional right, which it does not,
Plaintiffs have not met their burden as to the second prong of the
qualified immunity test. The court does “not deny immunity unless
‘existing 	precedent 	must 	have 	placed 	the 	statutory 	or
constitutional question beyond debate.’” Morgan v. Swanson, 659
F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011)). Here, the cases that Plaintiffs offer are factually
inapposite and did not provide Weems with any “fair notice that
his conduct was unlawful.” See Elizondo et al. v. Hinote, No. 25-
40007, 2026 WL 311958, at *2 (5th Cir. Feb. 5, 2026). Plaintiffs do
not 	provide 	any 	evidence 	or 	case 	law 	showing 	that 	any
constitutional question was “beyond debate.” Also for the reasons
stated in the court’s analysis as to prong one above, there is no
material fact dispute about whether Weems violated a right that
was “clearly established” when he used deadly force. Accordingly,
summary judgment should be granted as to Plaintiffs’ excessive
force claim.
5. Conclusion
The 	court 	recommends 	that 	Defendant’s 	Motion 	for
Summary Judgment, ECF No. 14, be GRANTED.
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The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on February 23, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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