In the early morning hours of May 28, 2013, Jerry Waller (born October 23, 1940)[1] heard possible trespassers outside his house in a suburban neighborhood of Fort Worth, Texas, United States.

Courts have held that it is a genuine question of fact as to whether Waller was armed when fired on; if it were found that he was not, the officers would not be entitled to qualified immunity.

The Wallers had cooked a barbecue meal outside that day in their home abutting a golf course in eastern Fort Worth's Woodhaven neighborhood.

[4] Almost two hours later, about 12:45 a.m. May 28, a neighbor who lived across the street from the Wallers, who was recovering from recent surgery and was chronically ill, was showing her home care aide how to set her burglar alarm.

[4] ADT's representative called the Fort Worth Police Department (FWPD), who dispatched officers Benjamin Hanlon and Richard Hoeppner at 12:52 a.m.

[4] Seeing the house they believed they had been dispatched to was dark, they considered the possibility they were coming upon a burglary in progress and decided to approach without putting their flashlights on out of concern for their safety.

Believing it was most likely a false alarm from the Wallers' car, which had happened before, he put on jeans, picked up his five-shot .38-caliber snubnosed revolver and headed out through the garage door.

In his interview, Hoeppner initially said he was 7 yards (6.4 m) away; during his later walk-through, he said he was no closer than the 13 feet (4.0 m) measured between his position when he said Waller picked his gun up again, leading him to fire.

[5] The FWPD's report on the shooting concluded that the disparity between where Hoeppner and Hanlon said the former was standing relative to Waller as he fired likely resulted from the two officers' focus on the gun.

It also pointed to what other police officers have described as the "tunnel vision", or selective attention, particularly in their perception of time around an event such as a shooting, and cited several academic studies in support of that notion.

[a] The report concluded that since Hanlon and Kathy Waller both heard Hoeppner shouting, he was giving loud verbal commands, that due to the light from the garage the officers' uniforms were clearly visible where they were standing, and that thus "there was a significant amount of time and opportunity for Waller to recognize [them] as police officers and comply with [their] command to drop the gun.

[9] In October, Hanlon was fired over an unrelated incident, where the department concluded he had falsified an affidavit resulting from a traffic stop in August,[10] claiming he had found drugs on the man when in fact officers at the city jail made the discovery.

[11] At the end of January 2014, a Tarrant County grand jury declined to indict Hanlon and Hoeppner, after considering the matter in a 25-hour session over four days.

Their complaint, filed in federal court for the Northern District of Texas, alleged that Hanlon and Hoeppner's actions that night reflected poor training and management on the city's part.

Hanlon, they said, could not have knocked on the front door as he claimed he had since that would have led the dogs, already awake and barking, to run to that side of the house from the rear.

He had shortly after the shooting told the dispatcher over the radio that Waller would not put his gun down, but when interviewed by detectives four hours later said he had, briefly, consistent with Hoeppner's account.

[4][14] The family maintained that contrary to Hoeppner's account Waller had never left the garage, since it took ten seconds for the door to completely open and Kathy had made sure it was closed before going to bed.

Lastly, they said that the pattern of wounds in the autopsy report, the position of Waller's gun and lack of blood or evidence that any bullet had hit it, indicated that he had been unarmed when Hoeppner fired.

[4] Waller's body was also moved, the family alleged, many times in violation of Texas law that allows that only with the permission of the medical examiner.

[2] Kathy Waller died in 2017;[16] her daughter continued the lawsuit as executrix of her mother's estate in addition to her individual capacity as a plaintiff, along with her brother.

The following year Pittman, calling the case "undeniably tragic", held for the city on the Wallers' claims, as the training issues they complained of were "too attentuated" to have had an effect on the shooting, particularly given Fifth Circuit precedent that limited the time period courts could examine in excessive force cases to the moments, nor could a direct relationship be shown between the city's police policies and the shooting: "Although the officers' errors and the City's failure to have a policy aimed at reducing such errors are clear and worthy of blame, they did not contribute to Hoeppner's use of excessive force ... when Hoeppner met Waller in the garage, one-on-one, early in the morning, both armed with guns, there was no time for additional training."

In September 2022 a panel consisting of the circuit's chief judge, Priscilla Richman, Edith Brown Clement and Kurt D. Engelhardt handed down a per curiam opinion, which they ordered not be published, upholding Pittman's grant of summary judgement to the city and the earlier denial of qualified immunity to Hoeppner, and finding they had no jurisdiction to consider the Fourth Amendment claim because it had earlier been dismissed.