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United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-30711
____________ FILED
August 1, 2024
Bilal Hankins, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
Kevin Wheeler, in his individual and official capacity; Ramon
Pierre, in his individual and official capacity; Carl Perilloux, in his
individual and official capacity; Housing Authority of New
Orleans; Hurtsville Security and Neighborhood
Improvement District; Doe Insurance Companies 1-10;
Kerry Najolia; Southeast Louisiana Flood Protection
Authority - East; Michael Brenckle; Darnell Laurent;
Thaddeus Petit; Jamel Brown; Tyrone Martin;
Demetruis Jackson; Tommy Mercadal; Leontine
Mullins,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-1129
______________________________
Before Higginbotham, Stewart, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Bilal Hankins alleges that he was a passenger in a car with two other
youths driving slowly at night looking for a neighbor’s lost dog when he asked
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defendant Officer Kevin Wheeler, on patrol for a local private security
district, for assistance in finding the dog. Hankins contends that Officer
Wheeler and another officer, Officer Pierre, later stopped the car he was in
without reasonable suspicion and exercised excessive, unlawful force when
they approached the car with guns drawn. Hankins brought unreasonable
seizure, excessive force, constitutional conspiracy, supervisory liability, and
Monell claims under Sections 1983, in addition to related state-law claims.
After limiting discovery to the issue of qualified immunity, the district
court concluded that there was no question of material fact as to whether
there was an underlying constitutional violation of either Hankins’ right to
be free from an unlawful seizure or his right to be free from excessive,
unlawful force. The district court granted summary judgment to defendants
on all federal claims because each federal claim relied on an underlying
constitutional violation.
Because questions of material fact preclude summary judgment on the
seizure claim, we REVERSE the summary judgment on that claim,
VACATE the summary judgment on the other federal claims, and
REMAND for further proceedings.
I
On the evening of June 13, 2020, Hankins was socializing with friends
and neighbors at his family’s home in Uptown New Orleans, where he helped
his mother care for his grandmother. Hankins had invited over his friend who
was visiting from college. With them were Hankins’ neighbor and her
twelve-year-old nephew. At some point, they realized that the neighbor’s
chihuahua had escaped. At approximately 11:30 PM, the three youths went
to look for the dog, with the college student driving the BMW that his mother
gave him for his high school graduation. The twelve-year-old sat in the front
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passenger seat and Hankins sat in the back. The residential street had many
potholes, and they drove slowly while looking for the chihuahua.
They drove up to Officer Wheeler, who was on a private security
detail for the Hurstville Security and Neighborhood Improvement District,
in his marked, Orleans Levee District Police Department car and asked for
help finding the lost dog. Officer Wheeler testified that he had observed
three people “hanging out” of the car’s windows, which was directly
contradicted by Hankins’ testimony that no one was leaning out of the car’s
windows. The parties agree that Hankins engaged Officer Wheeler first to
ask if he had seen a lost dog. Officer Wheeler responded that he had not seen
a lost dog, and the parties agree that Hankins replied that they were looking
for one and asked for help finding it. Hankins testified that he then gave
Officer Wheeler his address, pointed in the direction of his house two blocks
away, and described the dog as a small, white chihuahua with brown spots.
Officer Wheeler disputes that Hankins provided his address and testified that
Hankins instead said, “if you see it, call us.”
The car that Hankins was in continued to drive on slowly. Officer
Wheeler testified that he ran the car’s plates. He found that it was not
reported stolen. It was registered to a woman at an address in a different
neighborhood of the city, New Orleans East. He then radioed Officer Ramon
Pierre, an off-duty officer for the Housing Authority of New Orleans Police
Department who was working the same private security patrol in his
unmarked, personal car. Officer Wheeler testified that he relayed “what [he]
saw,” the exchange about the lost dog, and that the car was registered to an
address in New Orleans East. Officer Wheeler testified that they decided to
conduct a stop after Officer Pierre “said something’s not right.” Officer
Wheeler did not follow the car. Officer Pierre then came across the car and
started driving at a distance behind it.
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Officer Wheeler came upon the car again and testified that both he and
Officer Pierre then flashed their lights and the car briefly continued to drive
slowly before stopping when Officer Wheeler activated a siren tone.
Hankins, though, testified that he was unsure whether any lights or sirens
were activated. Hankins testified that Officer Wheeler announced over an
intercom, “[d]river, get the f--- out the car,” and Officer Pierre emerged
from an unmarked car with “his gun drawn, raised above his shoulders,” and
“pointed” “directly through the car[.]” Hankins testified that he then
showed his hands “[b]ecause his mom taught [him] at a young age to comply
with police officers and especially given the fact that [he is] a young, AfricanAmerican male.” Officer Wheeler testified that he did not shout profanities
and only pointed a flashlight. Officer Wheeler testified that, though unable
to see Officer Pierre’s right side, Officer Pierre also did not have his gun
drawn because Officer Wheeler did not see him extend his arm or hear him
draw his gun.
There was an exchange about where the car’s occupants lived, the
officers checked the driver’s ID, and the group was allowed to leave, though
there is some dispute about what Officer Wheeler said when doing so. Officer
Wheeler testified that he apologized, said that “[i]t just didn’t add up,”
explained there had been car burglaries with people “leaning out pulling on
car door handles,” and told the group to “[h]ave a great day.” Hankins
testified that, as the group was leaving, Officer Wheeler instead said “you
know, three young men, in a nice car, in this neighborhood,” but mentioned
no other reasons for stopping the youths.
II
Hankins filed citizen complaints with the various law enforcement
entities involved, stating that he “no longer fe[lt] protected” because this
incident occurred “when [he] tr[ied] to ask police for assistance.” He later
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explained that “[a]s a young Black male who was just eighteen years old,”
that this occurred “after [he] had asked [Officer Wheeler] for help has had a
lasting impact on [his] sense of self and self-worth.” He eventually filed this
lawsuit.
Hankins sued Officers Wheeler and Pierre in their individual
capacities under Section 1983 for unreasonable seizure and excessive force in
violation of the Fourth and Fourteenth Amendments and under Section 1983
and Section 1985 for conspiracy to deprive him of the same. He sued various
law enforcement entities and officials under Section 1983, arguing that they
were liable for the unreasonable seizure and excessive force under a theory of
Monell liability. He also brought state-law claims for negligent
hiring/supervision. Finally, Hankins brought state-law claims for aggravated
assault, assault, intentional infliction of emotional distress, and negligent
infliction of emotional distress against Officers Wheeler and Pierre.
Discovery was then limited to the issue of qualified immunity.
Defendants moved for summary judgment on qualified immunity. We
discuss the district court’s reasoning in greater depth below. On the seizure
claim, it concluded that there was no constitutional violation because there
was no question of material fact as to whether there was reasonable suspicion
for the stop. On the excessive force claim, it concluded that there was no
constitutional violation because there was no question of material fact as to
whether the use of force was objectively reasonable. The district court
therefore did not consider whether, on either claim, any violation would have
been of clearly established law. It also granted summary judgment on
Hankins’ constitutional conspiracy, supervisory liability, and Monell claims
because each required an underlying constitutional violation. It declined
supplemental jurisdiction over the state-law claims and dismissed those
without prejudice. This timely appeal followed.
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III
A summary judgment is reviewed de novo. Nickell v. Beau View of
Biloxi, LLC, 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is proper
“if 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.”
Fed. R. Civ. P. 56(a). “[W]here the non-movant bears the burden of
proof at trial, the movant may merely point to an absence of evidence,” which
“shift[s] to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact warranting
trial.” Lindsey v. Sears Roebuck and Co.,
16 F.3d 616, 618 (5th Cir. 1994).
“The nonmovant cannot satisfy this burden merely by denying the
allegations in the opponent’s pleadings but can do so by tendering
depositions, affidavits, and other competent evidence to buttress its claim.”
Donaghey v. Ocean Drilling & Expl. Co.,
974 F.2d 646, 649 (5th Cir. 1992).
“When assessing whether a dispute to any material fact exists, we consider
all of the evidence in the record but refrain from making credibility
determinations or weighing the evidence.” Turner v. Baylor Richardson Med.
Ctr.,
476 F.3d 337, 343 (5th Cir. 2007).
“The doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The qualified
immunity inquiry has two prongs, which we take in either order. Id. at 236.
“The first asks whether the facts, ‘[t]aken in the light most favorable to the
party asserting the injury, . . . show the officer’s conduct violated a [federal]
right [.]’” Tolan v. Cotton,
572 U.S. 650, 655–56 (2014) (quoting Saucier v.
Katz,
533 U.S. 194, 201 (2001)). “The second prong of the qualifiedimmunity analysis asks whether the right in question was ‘clearly
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established’ at the time of the violation.” Id. at 656 (quoting Hope v. Pelzer,
536 U.S. 730, 739 (2002)). To be clearly established, “[t]he contours of the
right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Anderson v. Creighton,
483 U.S.
635, 640 (1987). Hankins “has the burden to point out the clearly established
law.” Clarkston v. White,
943 F.3d 988, 993 (5th Cir. 2019).
Hankins argues that qualified immunity should be unavailable as a
defense to a Section 1983 action or, at a minimum, should not bar full
discovery. He points to the recent revelation that Section 1983 as originally
enacted contained a “Notwithstanding Clause” that appears to abrogate
common-law immunities. See Alexander Reinert, Qualified Immunity’s
Flawed Foundation, 111 Calif. L. Rev. 201, 207–08 (2023). As Judge
Willett has explained, “[t]he Reviser of Federal Statutes made an
unauthorized alteration to [that] language,” which “was compounded when
the various revised statutes were later published in the first United States
Code” and “has never been corrected.” Rogers v. Jarrett,
63 F.4th 971, 980
(5th Cir. 2023) (Willett, J., concurring). Whatever its merit, the argument is
foreclosed because “[o]nly th[e] [Supreme] Court can definitively grapple
with § 1983’s enacted text and decide whether it means what it says—and
what, if anything, that means for § 1983 immunity jurisprudence,” id. at 981,
and the Court has not done so.
IV
We now consider Hankins’ unlawful seizure claim, first addressing
the violation and then the clearly established law. We next explain why our
conclusion on this claim requires vacating the summary judgment on the
remaining federal claims, including the excessive force claim, and remanding
for further consideration in light of our holding.
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A
“Warrantless searches and seizures are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and welldelineated exceptions.” United States v. Hill, 752 F.3d 1029, 1033 (5th Cir.
2014) (internal quotation marks and citation omitted). One such exception
is that “police officers may stop and briefly detain an individual for
investigative purposes if they have reasonable suspicion that criminal activity
is afoot.” Goodson v. City of Corpus Christi,
202 F.3d 730, 736 (5th Cir. 2000)
(citing Terry v. Ohio,
392 U.S. 1, 30 (1968)). Reasonable suspicion requires
“more than an inchoate and unparticularized suspicion or hunch.” Illinois v.
Wardlow,
528 U.S. 119, 123–24 (2000) (internal quotation marks and citation
omitted). Instead, the officer must “point to specific and articulable facts
that lead him to reasonably suspect that a particular person is committing, or
is about to commit, a crime.” Hill,
752 F.3d at 1033 (internal quotation marks
and citation omitted). The inquiry turns on the “totality of the
circumstances.” Tennessee v. Garner,
471 U.S. 1, 9 (1985).
Defendants concede the stop was a seizure. They do not argue that
there was any traffic violation or other infraction to separately justify the stop.
The only question, then, is whether there was reasonable suspicion of
criminal activity. We hold that material fact disputes preclude answering this
question at summary judgment.
The district court concluded that there was no genuine question of
material fact as to whether there was reasonable suspicion of criminal activity
for the stop. First, it stated that there was a “history of vehicle break-ins in
the neighborhood,” Officer Wheeler had “personal experience seeing car
burglars drive slowly along residential streets and hang out of car windows
pulling on door handles of parked cars,” and Officer Wheeler testified that
he observed the car’s occupants leaning out of the windows though not
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pulling on handles or otherwise doing anything to parked cars. Second, the
officers knew the car was registered in a woman’s name to an address in New
Orleans East, though the officers confirmed that it was not reported stolen.
Third, it was late at night. The district court concluded that these three
factors, when taken together, rose to the level of reasonable suspicion. It
acknowledged two factors that undermined this conclusion but provided no
further explanation beyond that acknowledgment: It noted the parties’
agreement that Hankins asked Officer Wheeler for help but stated that this
“does not alter the other facts with which Officers Wheeler and Pierre were
confronted when they chose to conduct the stop,” and, in its recitation of the
facts, Hankins’ testimony that Officer Wheeler said, “you know, three young
men, in a nice car, in this neighborhood.”
We now address the factors that the district court relied on, mindful
that our reasonable suspicion inquiry requires considering each in light of the
“totality of the circumstances.” Garner, 471 U.S. at 9 (1985).
The district court repeated the assertion made by defendants in their
summary judgment motions that there was a “history of vehicle break-ins in
the neighborhood.” The only record evidence cited by defendants in their
summary judgment motions that supports this assertion is Officer Wheeler’s
testimony that he told Hankins “what happens in the area, how we have
encountered people driving down the street in a car leaning out pulling on car
door handles, stopping, burglarizing the car, getting in and driving down the
street.” 1 Setting aside that Hankins testified that Officer Wheeler never said
this, we consider the broad assertion that there had been car burglaries, at
_____________________
1
The other record evidence that defendants cited at summary judgment has no
bearing on whether there had been car burglaries in the area. That evidence was Officer
Wheeler’s disputed testimony that the occupants of the car were leaning out the windows,
which does not go to whether there had been car burglaries in the area.
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some unspecified point in time and at an unknown time of day, in “the area,”
though how broadly defined that area is we do not know.
Even in cases where—unlike this one—there is a description of recent
criminal activity in a specific location, we have required a particular
connection between the crime suspected in the area and the individual
stopped. In United States v. Jaquez, for example, we held that an officer did
not have reasonable suspicion to stop a red vehicle driving away from “the
area of the [intersection of] 10th and Pine Streets,” a “high crime area,”
despite receiving a dispatch that “gun shots had been fired in the area of 10th
and Pine Streets” and that a “‘red vehicle’ was involved in the incident.”
421 F.3d 338, 341–42 (5th Cir. 2005). So too in United States v. McKinney,
980 F.3d 485 (5th Cir. 2020). There, we explained officers patrolling a
stretch of sidewalk “within seconds” of a business that “in recent days had
been the location of multiple gang-related shootings” did not have reasonable
suspicion to stop a group on the sidewalk after a member of the group started
to walk away when the officers approached because the officers lacked an
“articulable suspicion about a connection between the person and those
crimes.”
Id. at 492. This was so even though an individual was wearing
colors affiliated with a particular gang and a jacket despite it being “quite
warm and humid out” and another “turned and appeared to drop something
very small.”
Id. at 490 (internal quotation marks omitted).
Here, whether there was the requisite connection between the crime
suspected in the area—burglarizing parked cars—and Hankins turns on a
dispute of material fact. To establish the particularized suspicion linking the
purported history of car burglaries in “the area” and the occupants of the car
that Hankins was in, the district court relied on Officer Wheeler’s testimony
that the car’s occupants were leaning out of the windows. But the district
court did not address the fact that Hankins testified that the car’s occupants
were not leaning out of its windows, which Hankins testified that he would
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have known because the car had a very sensitive seatbelt indicator that did
not go off at that time. 2 Because “[a]ny credibility determination made
between [Officer Wheeler’s] and [Hankins’] version of events is
inappropriate for summary judgment,” Tarver v. City of Edna, 410 F.3d 745,
753 (5th Cir. 2005), we may not consider this testimony that the district court
relied on from Officer Wheeler.
We next ask whether the remaining evidence that we may rely on at
summary judgment, when considered in its totality, amounts to “more than
an inchoate and unparticularized suspicion or hunch.” Wardlow, 528 U.S. at
123–24 (internal quotation marks and citation omitted). We are left with: A
college-aged male in a car registered to a woman’s name in a different
neighborhood of the same city, driving slowly on a residential street at night
after approaching an officer to ask for assistance finding a lost chihuahua.
Taken together and mindful that we must construe all disputed facts in
Hankins’ favor, we cannot say that these are “specific and articulable facts
which, taken together with rational inferences from those facts,” allow us to
decide there was reasonable suspicion. United States v. Rodriguez, 564 F.3d
735, 741 (5th Cir. 2009) (citation omitted).
The vehicle registration information, taken together with those other
factors, does not rise to the level of reasonable suspicion. In our reasonable
suspicion analysis, we must consider “rational inferences from . . . facts”
that the officers point us to. Id. From these facts, they do not argue that they
had particularized suspicion that the car they stopped had been stolen.
Importantly, they were able to check before the stop to confirm that the car
was not reported as stolen. They instead argue that these facts support the
_____________________
2
The officers testified that none of the car’s occupants tried to open car doors or
otherwise touched other cars.
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inference that the occupants of the car might be attempting to burglarize cars
in this neighborhood, but they point to no caselaw in which any court has
concluded that this vehicle registration information can contribute to finding
reasonable suspicion nor do they offer any explanation otherwise for why this
inference could be drawn. In unpublished authority, we have explained that
“an out-of-state driver’s license and license plates” may not, when
considered alongside other factors, “suffice to create reasonable suspicion of
criminal activity.” United States v. Davis, 620 F. App’x 295, 298 (5th Cir.
2015). So too with “use of another’s vehicle,”
id., as people living in the
same household drive one another’s cars, whether that of a spouse or a
parent. And we think this observation about the limited inferential value of a
car driving in a different state applies at least equally to a car driving in a
different neighborhood. Mindful that, “[a]ny analysis of reasonable suspicion
is necessarily fact-specific, and factors which by themselves may appear
innocent, may in the aggregate rise to the level of reasonable
suspicion,” United States v. Ibarra-Sanchez,
199 F.3d 753, 759 (5th Cir. 1999),
we cannot consider the registration information in isolation from the fact that
it was 11:30 PM and the car was driving slowly down a residential street with
potholes. But here, where officers cannot articulate a connection between
the registration information of a car not reported as stolen and the suspected
criminal activity of attempting to burglarize parked cars, we conclude that
this factor counts for little in our analysis of the totality of the circumstances.
Next, Hankins agrees that the car that he was in was driving slowly on
this residential street, and he testified that this street was one on which “cars
do drive slow[ly] . . . given all the potholes,” which defendants do not
dispute. Defendants point to no caselaw in which driving slowly, let alone
driving slowly on a residential street, was a factor supporting reasonable
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suspicion. 3 We may, of course, look to “rational inferences” that were
drawn, Rodriguez, 564 F.3d at 741, but the officers provide no explanation for
why driving slowly on a residential street would support a particularized
suspicion that the car’s occupants were attempting to burglarize cars. And
that they continued to drive slowly in full view of the police officer they asked
for assistance is inconsistent with the inference that their slow driving was
part of criminal activity.
Rather than explain how the slow driving supports a particularized
suspicion that the car’s occupants were attempting to burglarize cars, the
officers rely entirely on the disputed testimony that the car’s occupants were
also leaning out of the car as they drove slowly, which we cannot consider at
this stage. Even setting that aside, the ability to draw a rational inference
from the slow driving supporting reasonable suspicion is undermined by the
information that the officers concede that they had: Officer Wheeler testified
that Hankins approached him before the challenged stop for assistance
finding a chihuahua that had just been lost in the neighborhood. Hankins
testified that he gave Officer Wheeler his address, pointed in the direction of
his house two blocks away, and described the dog as a small, white chihuahua
with brown spots. Though Officer Wheeler disputes that Hankins provided
his address and testified that Hankins instead said, “if you see it, call us,” we
are required to credit Hankins’ description, as nonmovant, of what
information he provided, see Naquin v. Elevating Boats, L.L.C., 817 F.3d 235,
238 (5th Cir. 2016).
_____________________
3
Nor did Officer Wheeler testify that the car decelerated upon encountering his
marked police vehicle, distinguishing these facts from those cases in which we have held
that decelerating upon “the approach of a patrol car . . . may be one factor contributing to
the reasonable suspicion justifying a stop.” United States v. Villalobos, 161 F.3d 285, 291
(5th Cir. 1998). Indeed, as we have discussed, Officer Wheeler testified that the car
approached him instead.
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Given the little work the factors we have discussed above do in the
reasonable suspicion analysis, we turn to the final factor offered by the
officers and relied on by the district court—that the stop occurred at
approximately 11:30 PM—and ask whether, in combination with those
factors, they “in the aggregate rise to the level of reasonable suspicion.”
Ibarra-Sanchez, 199 F.3d at 759. Defendants have never offered any
information about when car burglaries in the area occurred, let alone that they
occurred at night, but the lateness of the hour may still go to reasonable
suspicion if it is in combination with other factors. See, e.g., United States v.
Rideau,
969 F.2d 1572, 1575 (5th Cir. 1992) (holding that the lateness of a stop
went to reasonable suspicion where an individual backed away from police
and moved as if drawing a weapon on a street with frequent drug sales).
United States v. Hill is illustrative. There we concluded that there was
no reasonable suspicion to stop a man “without a driver’s license, at 11:00
p.m. on a Saturday night, in an apartment complex that has a drug reputation
and is in a high-crime county, [who] was sitting in the driver’s seat of a car
that was backed into a parking spot, and, when the police arrived, [the man’s]
passenger exited from the car and took a few steps away.” 752 F.3d at 1034.
The passenger’s exit was “quick,” and the car was “backed into the parking
space” which the officers testified is how people sometimes “hide their
tags.”
Id. at 1036. That nighttime conduct which could be consistent with a
drug sale—sitting in a car without the license required to drive the car, with
another person who quickly walked away when police arrived—was
insufficient even alongside the fact that the individual who was stopped was
in front of an apartment complex in which drug activity frequently occurred.
If this conduct and this specific information about crime in the apartment
complex in Hill did not amount to reasonable suspicion when considered
alongside the fact that it was 11 PM, then the conduct observed in the instant
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case and the description of past car burglaries alongside the fact that it was
just half-an-hour later do not rise to reasonable suspicion here.
Furthermore, we concluded in Hill that “[r]easonable officers in such
circumstances would have very little cause to suspect criminal activity rather
than, say, a couple who just arrived home on a weekend night and were
preparing to go inside.” Id. at 1038. Unlike in Hill, we do not need to
hypothesize about what might explain why Hankins was out at 11:30 PM
because Officer Wheeler testified that, minutes before the challenged stop,
Hankins approached him for help finding a chihuahua that had just gotten
out. And this affirmative explanation offered to Officer Wheeler makes this
case clearer than the cases above in which we analyzed the same factors and
concluded that those did not amount to reasonable suspicion without an
affirmative explanation given to the officers for conduct that might otherwise
appear unusual. Officer Wheeler was not required to credit what Hankins
said but we may not ignore it in this totality-of-the-circumstances analysis as
we consider all of the factors.
Finally, we examine a factor not considered by the district court in its
reasonable suspicion analysis: Hankins’ testimony that, at the end of the
stop, Officer Wheeler said, “you know, three young men, in a nice car, in this
neighborhood.” Officer Wheeler testified that he did not say this. But in this
posture, we must “constru[e] all facts and inferences in the light most
favorable to [Hankins as] the nonmoving party.” Naquin, 817 F.3d at 238. If
a factfinder was to credit Hankins’ testimony over Officer Wheeler’s on this
point, a factfinder would be faced with the officer’s own, contemporaneous
explanation for why the stop occurred directly contradicting the explanation
that the officers now offer that the stop was premised on a particularized
suspicion that the occupants of the car were attempting to burglarize cars.
This fact dispute goes directly to the key question of whether there was
“more than an inchoate and unparticularized suspicion or hunch,” Wardlow,
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528 U.S. at 123–24 (internal quotation marks and citation omitted), for the
stop and thus, when taken together with the other factors discussed,
precludes summary judgment.
B
Defendants argue that “[i]n the event that this [c]ourt finds a genuine
dispute of material fact as to the alleged constitutional violation[], it should
exercise its discretion to determine whether the alleged constitutional right
was clearly established at the time of the challenged conduct.” They urge
this because, “[e]ven assuming there was a factual issue as to whether any
constitutional violation occurred, the [o]fficers are nonetheless entitled to
qualified immunity because Hankins cannot show a violation of clearly
established law.” We therefore ask whether, given the genuine disputes of
material fact that we have identified above, any violation would be of clearly
established law.
“[T]he question must be ‘frame[d] . . . with specificity and
granularity,” Garcia v. Bevins, 957 F.3d 596, 600 (5th Cir. 2020) (citation
omitted), though there may be “notable factual distinctions between the
precedents relied on and the cases then before the Court, so long as the prior
decisions gave reasonable warning that the conduct then at issue violated
constitutional rights,” Kinney v. Weaver,
367 F.3d 337, 350 (5th Cir. 2004)
(en banc) (quoting Hope,
536 U.S. at 740).
We agree with Hankins that his reliance on Hill satisfied his burden to
point to clearly established law at summary judgment. As we explained
above, we held that officers unconstitutionally seized a man without
reasonable suspicion when the only factors that the officers could point to
were that he was “without a driver’s license, at 11:00 p.m. on a Saturday
night, in an apartment complex that has a drug reputation and is in a high-crime county,” Hill, 752 F.3d at 1034, the car was “backed into the parking
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No. 23-30711
space” which the officers testified is how people sometimes “hide their
tags,” id. at 1036, and the exiting passenger left “quick[ly]” when police
arrived,
id. Defendants, in attempting to distinguish Hill, ignore that Hill
also occurred “late at night” (separated by perhaps thirty minutes) and the
Hill officers’ testimony that the fact that the car was backed into its parking
space suggested that the car’s driver may be attempting to obscure
identifying information. Defendants also mistakenly describe Hill as
involving only an “elevated incidence of crime spann[ing] an entire county,
not a single neighborhood, as in the instant matter,” when the officers in Hill
described the “apartment complex” itself, and not merely the county, as “a
‘hotspot’ for crime,” Hill,
752 F.3d at 1031; see also
id. at 1034 (describing
location as “an apartment complex that has a drug reputation”). The facts
before us on the issue of recent criminal activity are, as we have described
above, much farther from reasonable suspicion than the description offered
by the officers in Hill. So too of the more incriminating conduct in Hill.
Officers Wheeler and Pierre were thus on notice that these facts did not
amount to a particularized suspicion of criminal activity permitting a stop.
Hankins also points to Alexander v. City of Round Rock, 854 F.3d 298
(5th Cir. 2017). In that case, we concluded that “the lack of reasonable
suspicion was clearly established” where “the factors we laid out as relevant
in,” among other cases, Hill and “the Supreme Court’s decision in
Wardlow” did “not support reasonable suspicion.”
Id. at 305. A police
officer observed a man get out of his car and look around the grass near a
parking lot at 9:15 PM and, then, seemingly upon spotting the officer, the man
got back into his car and started to drive away from the officer.
Id. at 301.
We underscored that we were “not suggest[ing] that the officers in this
circuit ha[d] faced this precise situation before,” which “is not a condition
precedent to denying qualified immunity [because] ‘officials can still be on
notice that their conduct violates established law even in novel factual
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circumstances.’” Id. (quoting Hope,
536 U.S. at 741). Instead, we looked to
the relevant factors from the cases we identified. In concluding that the law
was clearly established that there was no reasonable suspicion, we
emphasized the absence of “[n]ervous, evasive behavior,” id. at 304, and
that, unlike the woman walking quickly away from the parked car in Hill, this
man did not “actively alter[] h[is] behavior to move away from police officers
when they got near,” though he did drive away from them, id. at 305. We
think that these points are especially salient here where Hankins affirmatively
approached Officer Wheeler for help, had a conversation with him, and then
the car that he was in continued driving slowly as it had been doing before
Hankins asked for help. 4
To distinguish from these cases, defendants, again, chiefly rely on the
disputed material fact that the car’s occupants were “leaning out of the open
windows of the vehicle.” But, as we have discussed, this is impermissible at
the summary judgment stage. Defendants also point to post-stop conduct—
continuing to drive slowly without immediately pulling over after the first
indication to stop, over which there is a fact dispute—but that is irrelevant to
whether there was reasonable suspicion to initiate the stop in the first place,
as “reasonable suspicion must be [present] . . . at the time of the decision to
stop a person.” United States v. Silva, 957 F.2d 157, 160 (5th Cir. 1992).
_____________________
4
Hankins additionally cites Gonzalez v. Huerta, 826 F.3d 854 (5th Cir. 2016). We
do not rely on it as clearly established law because we did not “explicitly rul[e] on” whether
there was a violation.
Id. at 857 n.4. That was because the plaintiff argued solely that the
officer’s “demand for identification constitute[d] a seizure under the Fourth Amendment
and must be based on reasonable suspicion,”
id. at 857, and we concluded there was no
clearly established law on that narrow, demand-for-identification point given “the
Supreme Court has routinely reconsidered the scope of individual constitutional rights in
[the] school setting” in which that encounter occurred and the officer detained the man
“at least in part” because he believed the man “was required to identify himself pursuant
to” a state education law,
id. at 858.
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We do not otherwise see salient features of the cases we have
identified as setting out clearly established law that would favor defendants
but, to the extent there are any, they would be outweighed by two features of
this case. First, the undisputed fact that Hankins approached Wheeler to ask
for help finding a lost chihuahua. In the Hill and Alexander cases cited by
Hankins, there were—unlike an affirmative approach for assistance here—
elements of evasion such as quickly exiting a car upon observing police (Hill)
and looking around, seeing police, and driving away (Alexander). That we
concluded there was no reasonable suspicion in those cases despite what
could be considered furtive evasiveness makes the impermissibility of a stop
based on the factors here even more stark. Second, Hankins’ disputed
testimony that Officer Wheeler said the group was stopped because they
were “three young men, in a nice car, in this neighborhood.” In the cases
cited by Hankins, we concluded there was no reasonable suspicion even
without a contemporaneous explanation from the officer performing the stop
that amounted to no more than an impermissible hunch. And the
throughline—the quintessential clearly established law—of our highly factintensive jurisprudence is that such stops, based on “inchoate and
unparticularized suspicion,” are unlawful. Wardlow, 528 U.S. at 123–24.
C
We vacate the district court’s summary judgment to defendants on
the excessive force claim following the seizure and remand for the district
court to consider the implication of our holding on the seizure claim.
Excessive force analysis requires determining whether an alleged
injury resulting from force was “excessive to the need” and that “the force
used was objectively unreasonable.” Sam v. Richard, 887 F.3d 710, 713 (5th
Cir. 2018) (citations omitted). Those two inquiries “collapse into a single
objective-reasonableness inquiry,” Peña v. City of Rio Grande City,
879 F.3d
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No. 23-30711
613, 619 (5th Cir. 2018), in which courts “examine the totality of the
circumstances to determine whether an officer’s actions were objectively
unreasonable,” Roque v. Harvel, 993 F.3d 325, 333 (5th Cir. 2021) (internal
quotation marks and citation omitted). Those circumstances include the
“severity of the crime,” “whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is . . . attempting to evade
arrest by flight.” Darden v. City of Fort Worth,
880 F.3d 722, 728–29 (5th
Cir. 2018) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)).
Our conclusion as to reasonable suspicion for the seizure directly
implicates the crime-severity and officer-safety factors, as defendants’
counsel acknowledged at oral argument. And, as discussed above, there is a
fact dispute as to how far the car that Hankins was a passenger in continued,
if at all, after an indication to pull over, which goes to the arrest-evasion
factor. Therefore, we think it is inappropriate to address the excessive force
claim in the first instance and remand for the district court to conduct its own
analysis in light of our holding on the seizure claim.
D
Finally, because the district court granted summary judgment on the
remaining federal claims on the ground that each lacked a requisite
underlying constitutional violation, we vacate the summary judgment on
those claims so that the district court may address them on remand.
…
For the foregoing reasons, we REVERSE the summary judgment on
the seizure claim, VACATE the summary judgment on the other federal
claims, and REMAND for further proceedings.
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