Bullet holes can be seen in the windshield of a car at the scene of a police-involved shooting Feb. 24, 2016, in the parking lot of Roma’s Ristorante and Lounge in East Troy.

A federal appeals court has dismissed the qualified immunity claim filed on behalf of a Walworth County sheriff’s deputy who shot into a moving car more than five years ago, killing a passenger.

The U.S. 7th District Court of Appeals in Chicago issued a mandate Monday that will send the lawsuit brought by the family of Christopher J. Davis back to U.S. District Court in Milwaukee. That court previously denied the claim of qualified immunity from the deputy who shot Davis, 21.

The appellate court decided Feb. 5 that it did not have jurisdiction to say Juan Ortiz fit under the qualified immunity doctrine because disputes over factual issues still needed to be resolved.

Specifically, the decision cited the differing assertions about whether Ortiz meant to shoot only the driver of the vehicle or if he was shooting generally at the car, in which Davis was a passenger.

Jose G. Lara in February 2016 was driving away from the parking lot of Roma’s Ristorante and Lounge in East Troy, where police had set up a drug buy using a confidential informant. Lara later pleaded guilty to drug and fleeing charges.

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Ortiz’s lawyers cannot successfully argue that the appeals court has jurisdiction to take on this case because he has not “fully accepted” the plaintiff’s version of facts as needed for the qualified immunity question, the appellate court decision states.

The appeals court judges wrote that Ortiz was wrong in saying that everyone “unequivocally” agreed that he did not intend to shoot Davis and that his focus was solely on Lara.

“That is not what the record shows,” the decision states.

Qualified immunity is a Supreme Court doctrine that shields police officers from liability—even if an officer violates someone’s rights—unless there is “clearly established” law from a prior case with the same circumstances.

Activists and politicians from different ideological backgrounds have called for an end to qualified immunity as one measure of criminal justice reform in the year that saw police officers kill George Floyd, Breonna Taylor and others.

Local police leaders, however, have said they oppose ending the doctrine. They said getting rid of qualified immunity would open up officers to too much liability for complicated and split-second decisions.

Months after the shooting, Dan Necci, the Walworth County district attorney at the time, decided the shooting was justified. Ortiz later became a detective with the sheriff’s office.

In late 2018, Doretha Lock-Davis, Christopher Davis’ mother, sued Ortiz and other law enforcement officials and jurisdictions over “deliberate indifference and negligence” leading to her son’s death. She also alleged that some officers destroyed squad-car camera video recordings.

Samuel Hall, an attorney representing Ortiz, declined comment when asked if he planned to ask the U.S. Supreme Court to weigh in on the case because he said that question was about strategy on a pending case.

For now, the mandate filed Monday effectively returned the case to federal court in Wisconsin, where it could see a settlement or go to trial.

“At trial, Ortiz will have an opportunity to convince the jury that his actions were objectively reasonable, but we cannot resolve that question at this stage,” the appeals court decision states.