FORT WORTH (CBSDFW.COM) – An order and opinion from two federal courts have pushed forward a family’s claim that a Fort Worth man may have been unarmed when a police officer shot and killed him in his own garage.

The family of Jerry Waller can now move ahead with claims of excessive force against the officer involved, more than six years after police ended up at the wrong house during a burglary call.

Jerry Waller (courtesy: Waller family)

An opinion in April from the U.S. Court of Appeals for the Fifth Circuit, affirmed a district court’s finding that it is plausible Waller had no gun in his hand during the May 2013 incident.

Much of the argument stems from autopsy evidence showing Waller had bullet wounds to fingers on his left hand, that could not have happened if he was holding a gun. There was also blood on his right hand, that attorneys argue also would not have happened if he was holding a gun.

The court found the arguments plausible enough to deny Officer Richard Hoeppner’s argument that he should receive qualified immunity in the case.

Officer Richard Hoeppner (Fort Worth Police)

He was one of two officers dispatched to a burglar alarm that night. However, they ended up at the Waller house, across the street from where they should have been.

When Waller went outside to check on the lights he saw in his backyard, he encountered Hoeppner outside his garage.

The police version of what happened next is Hoeppner shined a light in Waller’s eyes, and ordered him to drop a small hand gun. They said Waller put the gun down on the back of a car, only to lunge for it, and point it at the officer, which is when Hoeppner fired.

Fort Worth City Council members were scheduled to be briefed on the case in a closed door executive session Tuesday.

City attorney Sarah Fullenwider pointed out in a written statement Tuesday that the city did not represent the officers involved and had no comment on the case.

The court did throw out an argument that Hoeppner and two other officers had conspired to come up with a story to cover up what happened.

However, it is possible they may be able to make that claim again if the excessive force claim falls through.