PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 18-1432
                      ____________

 ARLANE JAMES, In Re: WILLIE GIBBONS; J. R. G., a
minor, by his mother and legal guardian, Ikeya Crawford; D.
  K. L., a minor, by his mother and legal guardian, Angel
   Stephens; L. M. G., a minor, by her mother and legal
                 guardian, Angel Stephens

                            v.

   NEW JERSEY STATE POLICE; STATE OF NEW
  JERSEY; JOHN DOES 1-10; NOAH BARTELT, State
   Trooper; PHILLIP CONZA, State Trooper; DANIEL
  HIDDER, State Trooper; MICHAEL KORIEJKO, State
Trooper; JAMES MCGOWAN, Sergeant, in their individual
                 and official capacities

                   NOAH BARTELT,
                              Appellant
                    ____________

     On Appeal from the United States District Court
               for the District of New Jersey
             (D.C. Civil No. 1-13-cv-03530)
     District Judge: Honorable Joseph H. Rodriguez
                       ____________

                Argued: January 14, 2020

      Before: HARDIMAN, PORTER, and PHIPPS,
                   Circuit Judges

            (Opinion Filed: April 21, 2020)
_________________________________________________
Yvette C. Sterling [Argued]
Sterling Law Firm
400 High Street
Burlington City, NJ 08016

Ronald C. Hunt
Hunt Hamlin & Ridley
60 Park Place
Suite 1602
Newark, NJ 07102

              Counsel for Appellees

Gurbir S. Grewal, Attorney General of New Jersey
Melissa H. Raksa, Assistant Attorney General
Marvin L. Freeman, Deputy Attorney General [Argued]
Office of Attorney General of New Jersey
Department of Law & Public Safety
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625

              Counsel for Appellant Noah Bartelt

                         ____________

                 OPINION OF THE COURT
                      ____________

PORTER, Circuit Judge.

       Qualified immunity protects government officials from
being held liable for damages when their conduct does not
violate a citizen’s clearly established rights. As the Supreme
Court has noted, qualified immunity advances a policy of
“shield[ing] officials from harassment, distraction, and liability
when they perform their duties reasonably.” Pearson v.
Callahan, 

, 231 (2009).

      The issue here is whether New Jersey State Trooper
Noah Bartelt is entitled to qualified immunity after using
deadly force against Willie Gibbons, a suspect who refused to
drop his gun when Trooper Bartelt ordered him to do so.


                                2
Gibbons’s mother (Arlane James) and minor children (J. R. G.,
D. K. L., and L. M. G.) (collectively, “James”) filed an action
under 42 U.S.C. § 1983 against Trooper Bartelt and other state
actors alleging constitutional violations arising from Trooper
Bartelt’s use of force against Gibbons. All individual
defendants moved for summary judgment based on qualified
immunity. The District Court granted qualified immunity to all
individual defendants except Trooper Bartelt. The District
Court then denied James’s and Trooper Bartelt’s cross-motions
for reconsideration.

       Trooper Bartelt is entitled to qualified immunity
because he did not violate Gibbons’s clearly established rights.
Thus, we will reverse the District Court’s denial of qualified
immunity to Trooper Bartelt and remand with instructions to
grant judgment in his favor.

                                I

       Trooper Bartelt appeals the District Court’s order
denying summary judgment based on qualified immunity
under the “collateral-order doctrine.” See E. D. v. Sharkey, 

, 305 (3d Cir. 2019).1 Under this doctrine, our review
is plenary and “strictly limited to the legal questions involved.”
In re Montgomery Cty., 

, 372 (3d Cir. 2000). We
lack jurisdiction to review the District Court’s determination
that a factual dispute is genuine, but we have jurisdiction to
consider whether the disputed fact is material to the issue on
which a party sought summary judgment. See Davenport v.
Borough of Homestead, 

, 278 (3d Cir. 2017); see
also Fed. R. Civ. P. 56(a). Thus, we accept the District Court’s
facts as true for purposes of this appeal, see

will
review “the record to determine what [other] facts the [D]istrict
[C]ourt . . . likely assumed,” Johnson v. Jones, 

,
319 (1995).




1
 The District Court had subject-matter jurisdiction under 28
U.S.C. §§ 1331 and 1343. We have jurisdiction over this
appeal under 28 U.S.C. § 1291 and the collateral-order
doctrine. See E. 

.

                                3
                               II

       Willie Gibbons lived with Angel Stephens in Bridgeton,
New Jersey. After the two had a domestic argument on May
24, 2011, Stephens called 911 and reported that “[Gibbons] hit
her” and that Gibbons had a “gun in his truck.” A12–13. The
police drove to Stephens’s house, and Stephens and Gibbons
each completed written statements describing the incident.
Stephens then obtained a temporary restraining order from
Fairfield/Downe Joint Municipal Court against Gibbons. The
order prohibited Gibbons from possessing firearms and from
returning to Stephens’s house.

        The next day, on May 25, 2011, Gibbons requested a
police escort to retrieve possessions from Stephens’s house,
but the police informed him that he needed judicial approval
for the visit. Gibbons went to Stephens’s house alone anyway,
in violation of the court’s temporary restraining order. Another
argument followed between Gibbons and Stephens. Stephens
was speaking with a friend on the phone at the time, so the
friend called the police to report that Gibbons had violated the
restraining order. Gibbons then left Stephens’s house.

       Trooper Philip Conza soon arrived at the house and
Stephens told him that Gibbons had waved a gun throughout
their argument. Trooper Conza told Stephens to make a
complaint against Gibbons at the police barracks and reported
over the police radio that Gibbons had brandished a firearm.
Trooper Conza, joined by Troopers Bartelt and Michael
Korejko, then searched for Gibbons at the nearby home of
Gibbons’s mother, Arlane James. James told the Troopers that
she did not know where Gibbons was and that he may be off
his medication.2

       While Stephens was driving to the barracks, she saw
Gibbons walking alongside the road. She called 911 and
reported Gibbons’s location. Troopers Bartelt, Conza, and
Korejko, along with Trooper Daniel Hidder responded to the
location.

2
 Gibbons was diagnosed with schizophrenia and had been
prescribed medication to treat this condition.


                               4
       When Trooper Bartelt pursued Gibbons, he knew that
Gibbons: (1) had violated a restraining order; (2) was in
possession of a firearm that he had brandished within the last
hour; and (3) was reportedly mentally ill and may not have
been taking his medication.3

       Trooper Bartelt was the first officer to engage Gibbons.
As Trooper Bartelt approached Gibbons by car (with his
window down), he heard Gibbons say, “stay away from me.”
A16. Trooper Bartelt then parked his car and, while exiting,
observed that Gibbons was holding a gun in his left hand and
pointing it at his own head. Trooper Bartelt drew his weapon,
stood behind his car door, twice told Gibbons to drop his
weapon, and ordered him to “come over here.”

not comply with the commands and may have repeated, “stay
away from me.”

seven to fifteen yards,
Trooper Bartelt then shot Gibbons twice. Trooper Bartelt shot
Gibbons within seconds of stopping his car. Trooper Conza
arrived on the scene before Trooper Bartelt fired the shots.
Troopers Korejko and Hidder arrived shortly after. Gibbons
was flown to the hospital but died that night.

                               III

        Trooper Bartelt challenges the District Court’s ruling
denying him qualified immunity. Qualified immunity has two
prongs. “First, a court must decide ‘whether the facts that a
plaintiff has . . . shown make out a violation of a constitutional
right.’” Spady v. Bethlehem Area Sch. Dist., 

, 637
(3d Cir. 2015) (alteration in original) (quoting 

). “And second, the court must determine ‘whether
the right at issue was “clearly established” at the time of
defendant’s alleged misconduct.’”

begin with
either prong.

Court held that Trooper Bartelt failed to
satisfy both prongs, so he was not entitled to qualified

3
  The District Court did not specifically find these three facts.
But because these facts are undisputed by the parties, we find
that they are among the facts that the District Court “likely
assumed.” See 

.

                                5
immunity. On appeal, Trooper Bartelt argues that the District
Court erred by finding that he may have violated one of
Gibbons’s constitutional rights and by concluding that the
constitutional right was clearly established.

        We will not review the District Court’s holding that
Trooper Bartelt may have violated a constitutional right—the
first prong of qualified immunity. The District Court based this
holding on its conclusion that “genuine issues of disputed fact”
existed, but it did not identify these disputed facts. See A30. To
the extent that the District Court is correct that these unstated
facts are material to the inquiry, we lack jurisdiction under the
collateral-order doctrine to review its holding on this prong.
See 

; see also 

. Thus, we will assume without deciding that Trooper
Bartelt violated one of Gibbons’s constitutional rights and
proceed to qualified immunity’s second prong.4

                               IV

        Qualified immunity’s second prong “shields officials
from civil liability so long as their conduct ‘does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna, 

, 308 (2015) (quoting 

).



4
  To aid our review in qualified immunity cases, we announced
a supervisory rule in Forbes v. Township of Lower Merion for
all cases “in which a summary judgment motion based on
qualified immunity is denied on the ground that material facts
are subject to genuine dispute.” 

, 146 (3d Cir.
2002). Under Forbes’s supervisory rule, district courts must
“specify those material facts that are and are not subject to
genuine dispute and explain their materiality.”

District Court found that genuine disputes of
material fact precluded it from concluding whether Trooper
Bartelt violated one of Gibbons’s constitutional rights. But it
did not specify which material facts were in dispute or explain
their materiality. We reiterate that Forbes’s supervisory rule
remains in effect. See E. 

–11 (Smith, C.J.,
concurring).

                                6
       “Clearly established means that, at the time of the
officer’s conduct, the law was sufficiently clear that every
reasonable official would understand that what he is doing is
unlawful.” District of Columbia v. Wesby, 

, 589
(2018) (internal quotation marks and citation omitted). The
inquiry is an “objective (albeit fact-specific) question,” under
which “[an officer]’s subjective beliefs . . . are irrelevant.”
Anderson v. Creighton, 

, 641 (1987). Because the
inquiry is from the perspective of a reasonable officer, we
“consider[] only the facts that were knowable to the defendant
officer[].” White v. Pauly, 

, 550 (2017) (citation
omitted).

        In rare cases, a plaintiff may show that a right is clearly
established if the “violation [is] ‘obvious.’” See Brosseau v.
Haugen, 

, 199 (2004) (quoting Hope v. Pelzer,

, 738 (2002)). In the excessive-force context,
“obvious cases” are those that obviously violate Graham v.
Connor, 

(1989), and Tennessee v. Garner, 

(1985). See 

. “[Graham]
clearly establishes the general proposition that use of force is
contrary to the Fourth Amendment if it is excessive under
objective standards of reasonableness.”

(citation
omitted). And Garner held that “[deadly] force may not be
used unless it is necessary to prevent . . . 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 

.

        But in most cases, a plaintiff must show that a right is
clearly established because “the violative nature of particular
conduct [was] clearly established.’” Ziglar v. Abbasi, 137 S.
Ct. 1843, 1866 (2017) (quoting 

). In
other words, “settled law,” 

, must
“‘squarely govern[]’ the specific facts at issue,” see Kisela v.
Hughes, 

, 1152 (2018) (quoting 

). The Supreme Court has explained that a plaintiff
may satisfy this standard by “identify[ing] a case where an
officer acting under similar circumstances as [the defendant
officer] was held to have violated the [constitutional provision
at issue].” 

.




                                7
        For qualified-immunity purposes, “clearly established
rights are derived either from binding Supreme Court and
Third Circuit precedent or from a ‘robust consensus of cases of
persuasive authority in the Courts of Appeals.’” Bland v. City
of Newark, 

, 84 (3d Cir. 2018) (citation omitted);
see 

–90 (“To be clearly established, a
legal principle must . . . [be] dictated by controlling authority
or a robust consensus of cases of persuasive authority[.]”
(citations and internal quotation marks omitted)). So we first
look to factually analogous precedents of the Supreme Court
and the Third Circuit. See L.R. v. Sch. Dist. of Phila., 

, 247–48 (3d Cir. 2016). Then, we examine persuasive
authorities, such as our nonprecedential opinions and decisions
from other Courts of Appeals. See

consider all
relevant cases under this inquiry, not just those cited by the
parties. See Elder v. Holloway, 

, 516 (1994).

                               V

       On appeal, Trooper Bartelt argues that he did not violate
a clearly established right. We agree because, at the time, no
Supreme Court precedent, Third Circuit precedent, or robust
consensus of persuasive authority had held that “an officer
acting under similar circumstances as [Trooper Bartelt] . . .
violated the Fourth Amendment.” See 

.
Because the events here occurred on May 25, 2011, we will
consider only precedents that clearly established rights as of
that date. See Bryan v. United States, 

, 363 (3d
Cir. 2019).




                               8
                                A

        First, we consider whether Trooper Bartelt violated a
right that was clearly established by Supreme Court precedent.5
He did not.

        The closest factually analogous Supreme Court
precedent, Kisela v. Hughes, 

, is instructive.
Kisela involved a May 2010 police standoff bearing some
similarity to the standoff between Trooper Bartelt and
Gibbons.

In Kisela, the Supreme Court held
that an officer did not violate a clearly established right by
shooting a suspect who was armed with a knife.

55. The suspect had not responded to at least two police
commands to drop the knife and “had been acting erratically”
before the police arrived.

And the officer “had mere
seconds to assess the potential danger to [a bystander who was
less than six feet away].”

5
  The District Court identified the clearly established right that
Trooper Bartelt may have violated as follows: “an officer may
not use deadly force against a suspect unless the officer
reasonably believes that the suspect poses a threat of serious
bodily injury to the officer or others.” A28 (quoting Lamont v.
New Jersey, 

, 185 (3d Cir. 2011) (citing 

, 11)). We disagree because the District Court
viewed the “right” at too “high [a] level of generality.” See City
of Escondido v. Emmons, 

, 503 (2019). As the
Supreme Court has explained, “Garner . . . do[es] not by
[itself] create clearly established law outside ‘an obvious
case.’” 

(citation omitted).
        This is not an obvious case. The facts here show that a
reasonable officer could have perceived that Gibbons posed “a
serious threat of immediate harm to others.” 

(collecting cases and observing that “courts have
found ‘obvious’ cases [based on Garner] only in the absence
of a serious threat of immediate harm to others”); cf. Kane v.
Barger, 

, 195 (3d Cir. 2018) (finding that a
violation was “obvious” because “it seem[ed] absurd to
analyze whether the right . . . was clearly established by case
law at the time of [the defendant’s] conduct”). We thus reject
the District Court’s clearly established analysis.

                                9
       The Supreme Court distinguished “the specific facts at
issue” in Kisela from the facts in precedents that a lower court
had relied on to find that the defendant had violated a clearly
established right.

Court assumed that the
defendant had violated a right but held that neither Supreme
Court nor circuit precedent was factually analogous enough to
clearly establish the right.

It identified several
facts that distinguished the scenario it considered from the
factual scenarios of earlier precedents: (1) “[the suspect] was
armed with a large knife”; (2) the suspect “ignored officers’
orders to drop the weapon”; (3) the suspect “was within
striking distance of [a bystander]”; and (4) “the situation
unfolded in less than a minute.”

It concluded that
these factual differences “leap[ed] from the page” and that the
unlawfulness of the “new set of facts” in Kisela was not clearly
established by Supreme Court or circuit caselaw.

        Many of the same distinguishing facts are present here:
(1) Gibbons was armed with a gun; (2) Gibbons ignored
Trooper Bartelt’s orders to drop his gun; (3) Gibbons was
easily within range to shoot Troopers Bartelt or Conza; and (4)
the situation unfolded in “seconds.” See A16–18.

       In sum, Trooper Bartelt did not violate a right that had
been clearly established by Supreme Court precedent.

                                B

        Next, we consider whether Trooper Bartelt violated a
right that had been clearly established by Third Circuit
precedent. None of our relevant precedents present a
sufficiently similar factual scenario at the “high ‘degree of
specificity’” that Supreme Court precedent requires. See

(citations omitted). So we conclude
that he did not.

      We begin by examining our closest factually analogous
precedential opinion, Bennett v. Murphy, 

(3d Cir.
2002). In Bennett, we held that a police officer violated the
Fourth Amendment by shooting an armed, suicidal suspect
during a prolonged police standoff. See

We



                               10
recounted the facts in Bennett by quoting the district court’s
factual summary:

       The state police were called to the courtyard of a
       group of apartment buildings on the evening of
       January 4, 1994 to confront [the suspect], who
       they soon learned was distraught at being unable
       to see his girlfriend. He was armed with a single
       shot shotgun that he held vertically in front of
       him, with the barrel pointed up at his head, and
       the stock facing down. He was “very deliberate
       in holding the gun toward himself or in the air,”
       and did not point the gun at anyone, including
       state troopers. He stated that he wanted to kill
       himself. As the troopers took up positions
       surrounding him in the open area between the
       apartment buildings, he became agitated and
       began moving toward a group of them[] but
       stopped for perhaps four seconds before he was
       shot. [The police officer defendant] was
       positioned 80 yards behind [the suspect] when he
       fired. Almost an hour passed between the time
       the state troopers first arrived on the scene, and
       the time [the suspect] was shot.

       [The suspect] admittedly was angry and defiant
       in the face of a group of determined, armed state
       troopers.

n.2 (alterations in original omitted) (quoting Bennett
v. Murphy, 

, 690–91 (W.D. Pa. 2000)). The
Bennett district court also noted that the suspect was around
twenty-seven yards from the nearest group of police officers
when the defendant shot him. 

(describing the suspect as “one third” of eighty yards from the
nearest group of officers). And in a later nonprecedential
opinion, we observed that the suspect had refused commands
to drop his firearm but obeyed other commands. See Bennett v.
Murphy, 120 F. App’x 914, 917–18 & 918 n.1 (3d Cir. 2005).

        Viewing the evidence in the light most favorable to the
plaintiff, we opined that the suspect “did not pose a threat to
anyone but himself.” 

. Thus, we held


                               11
that the defendant police officer’s deadly force was
“objectively excessive” in violation of the Fourth Amendment.

differences lead us to conclude that
Trooper Bartelt did not violate a clearly established right. First,
Trooper Bartelt’s pre-standoff knowledge of Gibbons differs
from the Bennett officer’s pre-standoff knowledge of the
suspect. Trooper Bartelt was aware of several facts from which
he could reasonably conclude that Gibbons posed a threat to
others: Gibbons had violated a restraining order; Gibbons was
carrying and earlier that evening had brandished a firearm; and
Gibbons was reportedly mentally ill and may not have been
taking his medication. Each of these facts would lead a
reasonable officer entering an encounter with Gibbons to
perceive that Gibbons presented an increased risk of harm
compared with the suspect in Bennett.

       Second, Gibbons was much closer to and less compliant
with Trooper Bartelt than the suspect in Bennett. Gibbons was
just seven to fifteen yards from Trooper Bartelt, unlike the
suspect in Bennett who was eighty yards away from the
defendant officer. Trooper Bartelt could not rely on closer
officers to give commands to Gibbons and evaluate his
compliance. See Bennett, 120 F. App’x at 918 n.1 (noting that
the suspect was complying with commands from closer
officers when the defendant officer shot him). Instead, Trooper
Bartelt was the closest officer to Gibbons. So when Gibbons
ignored Trooper Bartelt’s orders to drop his gun, Trooper
Bartelt was the officer with the best opportunity to evaluate
whether Gibbons posed a threat to others. A reasonable officer
would have difficulty concluding that using force against the
distant, comparatively compliant, and unknown suspect in
Bennett was clearly factually analogous to using force against
the much-closer, noncompliant Gibbons, whose recent
behavior was known to Trooper Bartelt.

      Third, Trooper Bartelt’s standoff with Gibbons lasted
only moments, unlike the nearly hour-long standoff in Bennett.
Trooper Bartelt’s interaction with Gibbons was over within
seconds of his arrival on the scene. He necessarily “had mere
seconds to assess the potential danger” posed by the armed and
non-compliant Gibbons. See 

. The


                                12
Supreme Court stressed the importance of this kind of temporal
difference when conducting the clearly established inquiry. See

(distinguishing a case involving a standoff that
lasted “roughly 40 minutes” and a case involving a standoff
that “unfolded in less than a minute,” finding that a
constitutional violation in the former did not clearly establish
a right that was applicable to the latter). So the substantially
shorter duration of Trooper Bartelt’s standoff with Gibbons
further distinguishes the facts here from those in Bennett.

       For these reasons, although Bennett may be the most
analogous precedent from our Court, its holding does not
“‘squarely govern[]’ the specific facts at issue” here. See

(citation omitted). And because no other Third Circuit
precedent is factually analogous to this case, we conclude that
Trooper Bartelt did not violate a clearly established right under
our precedent.6

                               C

        Finally, we consider whether Trooper Bartelt violated a
right that had been clearly established by a robust consensus of
persuasive authority in the Courts of Appeals. The caselaw of

6
  Our decision in Lamont supports our conclusion that Trooper
Bartelt did not violate a clearly established right under our
precedent. 

. There, police officers did not violate
the Fourth Amendment by using deadly force against a suspect
who made abrupt movements that a reasonable officer could
perceive as drawing a firearm.

Lamont shows
that if Gibbons had been unarmed but made abrupt movements
that an officer could perceive as drawing a firearm, Trooper
Bartelt would not have violated clearly established law by
using deadly force against him.
        Gibbons had already drawn a firearm when Trooper
Bartelt shot him. As we explained in Lamont, “[p]olice officers
do not enter into a suicide pact when they take an oath to
uphold the Constitution.”

Given Lamont, we cannot
say that Bennett “move[s this] case beyond the otherwise ‘hazy
border between excessive and acceptable force.’” See 

(citation omitted).




                               13
our sister circuits prohibits the use of deadly force against non-
threatening suspects, even when they are armed and suicidal. 7
But none of the cases that stand for this general principle
involve the “high ‘degree of specificity’” required to clearly
establish a right under the circumstances Trooper Bartelt faced.
See 

(citation omitted).

        James argues that several cases from our sister circuits
are factually analogous enough to show that Trooper Bartelt
violated a clearly established right. See Weinmann v. McClone,

(7th Cir. 2015) (denying qualified immunity
when an officer used deadly force against an armed suspect);
Cooper v. Sheehan, 

(4th Cir. 2013) (same); see
also Connors v. Thompson, 647 F. App’x 231 (4th Cir. 2016)
(same); Glenn v. Washington Cty., 

(9th Cir.
2011) (same). Even if these cases bear some factual similarity
to the scenario Trooper Bartelt faced, we do not agree that they
create a clearly established right. And in any event, they were
all decided after the events here (i.e., after May 25, 2011).
Thus, they “‘could not have given fair notice to [Trooper
Bartelt]’ because a reasonable officer is not required to foresee
judicial decisions that do not yet exist.” See 

(quoting 

n.4).

        Thus, we conclude that Trooper Bartelt did not violate
a right that had been clearly established by a robust consensus
of persuasive authority in the Courts of Appeals.

                               VI

       For these reasons, Trooper Bartelt did not violate a
clearly established right by using deadly force against Gibbons.
“When properly applied, [qualified immunity] protects ‘all but
the plainly incompetent or those who knowingly violate the
law.’ [Trooper Bartelt] deserves neither label[.]” See Ashcroft

7
  See, e.g., Walker v. City of Orem, 

, 1159–61
(10th Cir. 2006) (holding that using deadly force against a
suicidal, knife-wielding, and non-threatening suspect violated
one of the suspect’s constitutional rights); Mercado v. City of
Orlando, 

, 1157–58 (11th Cir. 2005) (same);
Sova v. City of Mt. Pleasant, 

, 903 (6th Cir. 1998)
(same).

                               14
v. al-Kidd, 

, 743 (2011) (citations omitted). The
District Court erred by concluding otherwise and denying him
qualified immunity.

       We will reverse the District Court’s orders as to Trooper
Bartelt and remand this case with instructions to grant
judgment to him based on qualified immunity.




                              15