Case: 21-20256 Document: 00516289861 Page: 1 Date Filed: 04/21/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 21, 2022
No. 21-20256 Lyle W. Cayce
Clerk
Jessica Lorraine Solis,
Plaintiff—Appellee,
versus
Samuel A. Serrett; Teddy F. Sims,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-4865
Before Davis, Smith, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Foundational to our qualified immunity doctrine is the concept that
we must view an officer’s actions from that officer’s point of view without
the benefit of hindsight. From the comfort of a courtroom or chambers, it is
often possible for judges to muse on how an officer could have handled a
situation better. But that does not mean the officer is not entitled to qualified
immunity. In this case, we cannot say that the officers violated clearly
established law when we view the events from the officers’ point of view at
the very moment they acted. Accordingly, we reverse and remand.
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No. 21-20256
I.
On May 27, 2019, Officer Samuel Serrett pulled over Timothy
Robinson and his girlfriend Jessica Solis in Baytown, Texas near a self-storage
center. 1 Serrett told Robinson, the driver, that he had been pulled over for
failing to properly signal and driving outside of his lane. Serrett posed a series
of questions to Robinson, but Solis interjected and answered the questions
before Robinson could respond. Eventually, Serrett had to clarify to Solis
that unless he was directing a question specifically to her, he wanted a
response from Robinson as he was the driver. Serrett requested Robinson’s
license and registration. Solis informed Officer Serrett that she owned the
vehicle. The couple further informed Serrett that they lived in an apartment
unit in the storage unit building across the street. Because Serrett believed
that either Robinson or Solis (or both) may have been intoxicated, he
requested the assistance of a backup officer.
Serrett ordered Robinson to exit the vehicle. Serrett then asked
Robinson a variety of questions, and the exchange became tense. Eventually,
Serrett began a field sobriety test of Robinson. Robinson objected, stating “I
am not intoxicated.” Serrett viewed this as refusing the field sobriety test.
He arrested Robinson and placed him into the police vehicle.
When Serrett asked Robinson to exit the vehicle, Solis began
1
The incidents described here were captured, at least in part, on four videos.
These videos are available at:
https://www.ca5.uscourts.gov/opinions/pub/21/21-20256_Body_Cam.mp4
https://www.ca5.uscourts.gov/opinions/pub/21/21-20256_Dash_Cam.mp4
https://www.ca5.uscourts.gov/opinions/pub/21/21-20256_Plaintiff_Recording.mp4
https://www.ca5.uscourts.gov/opinions/pub/21/21-
20256_Storage_Facility_Video.mp4
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recording the encounter on her cell phone and stepped out of the vehicle
herself. Shortly afterward, Officer Teddy Sims arrived on the scene and
asked Solis to step over to a grassy area near the storage facility. While
Serrett and Robinson spoke, Solis spoke with Sims. Sims asked Solis how
much she had to drink that evening, and Solis responded, “literally none.”
This was false, as Solis later testified in her deposition that she had been
drinking. Solis also emphasized that she did “not appreciate this” and stated
repeatedly that the couple was pulled over only when her “black boyfriend is
driving [her] car.”
When Serrett arrested Robinson for refusing the field sobriety test,
Solis objected, and Sims informed her that Robinson “refused, so he’s taking
him in.” Solis stepped closer to Serrett and Robinson, and Sims asked her to
step back to the grassy area because he did not “want to put [Solis] in cuffs
for interference.” Solis began to narrate the events, and Sims interjected
stating “well actually, he gave him multiple opportunities, I’m gonna say it
for the camera . . . multiple opportunities, and he refused.”
Once Robinson was in Serrett’s vehicle, Serrett walked over to where
Solis and Sims stood. Serrett informed Sims that Robinson’s license was
“ineligible.” Sims responded, “Oh that’s why they were acting like that.”
At this point, Solis stopped filming but continued to hold her cell phone. She
twice requested Serrett’s badge number. Serrett reached out and said, “Can
I see your phone for a second please?” Solis jerked the phone away from
Serrett’s hand and responded, “No you can’t.” Serrett continued to reach
for the phone stating, “Well I don’t want you to drop it when I arrest you.”
Solis let her left hand fall to her side and exclaimed, “Drop it? Excuse me!”
Sims came up behind Solis and quickly pulled her left arm behind her back.
Serrett reached for Solis’s other arm. Solis fell to the ground, either from the
officers forcing her down or from the momentum as she struggled. Sims then
held his knee on Solis’s back as Serrett handcuffed her. Officer Serrett
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informed Solis that she was being arrested for public intoxication, stood her
up, and walked her over to the police car. Serrett took Solis and Robinson to
jail.
Solis sued Serrett and Sims, asserting various § 1983 claims including
excessive force, unreasonable seizure due to an arrest without probable
cause, malicious prosecution, violation of her First Amendment rights for
arresting her in retaliation for filming the officers, and violation of her
Fourteenth Amendment rights. Serrett and Sims answered and asserted the
defense of qualified immunity.
The officers later moved for summary judgment, arguing they were
entitled to qualified immunity on all of Solis’s claims. The district court
granted summary judgment on all of Solis’s claims except her excessive force
§ 1983 claim. 2 The district court held that disputed issues of material fact
barred summary judgment on the excessive force claim and that, viewing the
facts in Solis’s favor, the officers violated a clearly established right. Serrett
and Sims promptly appealed.
II.
“Qualified immunity shields public officials sued in their individual
capacities 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.” Kokesh v. Curlee, 14 F.4th 382, 391
(5th Cir. 2021) (cleaned up). “This court reviews de novo the district court’s
resolution of legal issues on a motion for summary judgment on the basis of
qualified immunity.” Hanks v. Rogers,
853 F.3d 738, 743 (5th Cir. 2017)
(quoting Griggs v. Brewer,
841 F.3d 308, 311 (5th Cir. 2016)). “Summary
2
The dismissal of Solis’s other claims is not the subject of this appeal.
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judgment must be granted ‘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.’” Trammell v. Fruge, 868 F.3d 332, 338 (5th Cir. 2017)
(quoting FED. R. CIV. P. 56(a)). “In reviewing an appeal from summary
judgment, we ‘view the facts in the light most favorable to the non-moving
party and draw all reasonable inferences in its favor.’” Hanks,
853 F.3d at
743 (quoting Deville v. Marcantel,
567 F.3d 156, 163–64 (5th Cir. 2009)). “A
qualified immunity defense alters the usual summary judgment burden of
proof. Once an official pleads the defense, the burden then shifts to the
plaintiff, who must rebut the defense by establishing a genuine fact issue as
to whether the official’s allegedly wrongful conduct violated clearly
established law.”
Id. at 744 (quoting Brown v. Callahan,
623 F.3d 249, 253
(5th Cir. 2010)).
Importantly, appellate review of an interlocutory appeal is
circumscribed. “District court orders denying summary judgment on the
basis of qualified immunity are immediately appealable and reviewed de novo
only if they are predicated on conclusions of law and not genuine issues of
material fact.” Kokesh, 14 F.4th at 390. Put another way, “a defendant,
entitled to invoke a qualified immunity defense, may not appeal a district
court’s summary judgment order insofar as that order determines whether or
not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson
v. Jones,
515 U.S. 304, 319–20 (1995). “But we do have jurisdiction to decide
whether the district court erred in concluding as a matter of law that officials
are not entitled to qualified immunity on a given set of facts. In other words,
this court can review whether any factual dispute found by the district court
is material for summary judgment purposes.” Whittington v. Maxwell,
455 F.
App’x 450, 454 (5th Cir. 2011) (cleaned up). Accordingly, “[t]his Court is
essentially reviewing the district court’s decision that a ‘certain course of
conduct would, as a matter of law, be objectively unreasonable in light of
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clearly established law.’” Kokesh, 14 F.4th at 391 (quoting Kinney v. Weaver,
367 F.3d 337, 346 (5th Cir. 2004) (en banc)). “To make this determination,
the court applies an objective standard based on the viewpoint of a reasonable
official in light of the information then available to the defendant and the law
that was clearly established at the time of the defendant’s actions.”
Id.
(quoting Freeman v. Gore,
483 F.3d 404, 411 (5th Cir. 2007)). 3
III.
“The qualified immunity inquiry includes two parts. In the first we
ask whether the officer’s alleged conduct has violated a federal right; in the
second we ask whether the right in question was ‘clearly established’ at the
time of the alleged violation, such that the officer was on notice of the
unlawfulness of his or her conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th
Cir. 2019) (en banc). The court need not decide the first question before the
second, and it may decide the case solely on the basis that the right was not
clearly established. Pearson v. Callahan,
555 U.S. 223, 236–37 (2009). We
address each question in turn.
A. Constitutional Violation
Solis’s sole outstanding § 1983 claim is one for excessive force under
the Fourth Amendment. “To establish a claim of excessive force under the
Fourth Amendment, plaintiffs must demonstrate: ‘(1) injury, (2) which
resulted directly and only from a use of force that was clearly excessive, and
(3) the excessiveness of which was clearly unreasonable.’” Trammell, 868
F.3d at 340 (quoting Deville,
567 F.3d at 167). At bottom, “the touchstone of
3
Notably, although our review is circumscribed as described above, we do have
jurisdiction. The court may look at the evidence in the light most favorable to Solis and
determine if the district court erred in finding that evidence established a constitutional
violation under clearly established law. Solis’s motion to dismiss this appeal for lack of
jurisdiction, which was carried with the case, is therefore denied.
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our inquiry is simply the reasonableness of the force employed.” Buehler v.
Dear, 27 F.4th 969, 981 (5th Cir. 2022). “Excessive force claims are
necessarily fact-intensive; whether the force used is ‘excessive’ or
‘unreasonable’ depends on ‘the facts and circumstances of each particular
case.’” Deville,
567 F.3d at 167 (quoting Graham v. Connor,
490 U.S. 386,
396 (1989)). We examine each officer’s actions independently to determine
whether he is entitled to qualified immunity. Meadours v. Ermel,
483 F.3d
417, 421–22 (5th Cir. 2007).
We first consider Solis’s injury. At her deposition, Solis testified that
her back and her wrists were hurt and that she still has problems with her
right wrist, which she said “feels like a nerve thing” and described as “a
pulled pain.” Solis also claims that she suffered mental anguish because of
the officers’ actions.
Generally, to maintain a claim for excessive force, a plaintiff need not
demonstrate a significant injury, but the injury must be more than de minimis.
See Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005). Recently, this
circuit has characterized the injury requirement as “a sliding scale, not a hard
cutoff.” Buehler,
27 F.4th at 982. This approach treats the degree of injury—
even if minor—as interrelated to the reasonableness and excessiveness of the
officer’s force. “[A]lthough a de minimis injury is not cognizable, the extent
of injury necessary to satisfy the injury requirement is ‘directly related to the
amount of force that is constitutionally permissible under the
circumstances.’” Alexander v. City of Round Rock,
854 F.3d 298, 309 (5th
Cir. 2017) (alternation in original) (quoting Brown v. Lynch,
524 F. App’x 67,
79 (5th Cir. 2013)). Accordingly, “[a]ny force found to be objectively
unreasonable necessarily exceeds the de minimis threshold, and, conversely,
objectively reasonable force will result in de minimis injuries only.”
Id.
(quoting Brown,
524 F. App’x at 79). In other words, “as long as a plaintiff
has suffered ‘some injury,’ even relatively insignificant injuries and purely
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psychological injuries will prove cognizable when resulting from an officer’s
unreasonably excessive force.” Id. (quoting Brown,
524 F. App’x at 79). This
means that if the officer’s force was unreasonably excessive, Solis need only
show “some injury”—a bar which she clears here.
Solis’s injuries are properly characterized as minor. Courts have
found similar or worse injuries to be minor. See, e.g., Westfall v. Luna, 903
F.3d 534, 549–50 (5th Cir. 2018) (holding that abrasions, bruises, bloody
urine and high blood pressure were de minimis injuries); Buehler,
27 F.4th at
982 (holding that abrasions to the face, head and tricep bruises, and mental
trauma were minor injuries). Moreover, Solis never sought medical
treatment. See Buehler,
27 F.4th at 983 (noting that a plaintiff’s failure to seek
medical treatment suggested the injury was minor). Nor do we place much
weight on Solis’s supposed psychological injury, as “we have rejected similar
attempts by excessive-force plaintiffs to parlay their minimal injuries into
more serious ones by tacking on allegations of psychological suffering.”
Id.
Accordingly, the limited extent of Solis’s injuries tends to support a
conclusion that the officers acted reasonably.
We next consider the amount of force used and the reasonableness of
resorting to such force. Courts generally consider these factors together, as
“officers must assess not only the need for force, but also ‘the relationship
between the need and the amount of force used.’” Deville, 567 F.3d at 167
(quoting Gomez v. Chandler,
163 F.3d 921, 923 (5th Cir. 1999)). In Graham v.
Connor, the Supreme Court enumerated three non-exclusive considerations
for courts to examine when analyzing the reasonableness of the force used,
including “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.”
490 U.S. at
396.
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The severity of the crime at issue here weighs against the officers.
Robinson, not Solis, was pulled over for a traffic violation. See Newman v.
Guedry, 703 F.3d 757, 762 (5th Cir. 2012). The officers ultimately arrested
Solis for public intoxication, a Class C misdemeanor in Texas. Tex. Penal
Code § 49.02(c); see also Trammell,
868 F.3d at 340 (holding that public
intoxication in Texas is a “minor offense” for the purposes of the Graham
factors). Indeed, the officers do not dispute this factor. We next consider
whether Solis posed an immediate threat to the safety of the officers or
others. Solis, who was wearing an evening dress with laced sandals and
armed only with her cell phone, did not pose an immediate threat to the safety
of the officers or others. This factor therefore also weighs against the officers.
The third factor—whether Solis was resisting arrest—cuts in favor of
the officers. Case law distinguishes between active and passive resistance.
“[W]here an individual’s conduct amounts to mere ‘passive resistance,’ use
of force is not justified.” Trammell, 868 F.3d at 341. Here, Solis was
generally hostile to the officers from the beginning of the traffic stop. She
emphasized that she and Robinson were near their home, argued with the
officers, repeatedly implied that Robinson was pulled over only because of
his race, pulled away when Serrett asked for her phone, and stepped back and
exclaimed “Drop it? Excuse me!” when Serrett told her she was being
arrested. This court has also acknowledged that “a suspect who backs away
from the arresting officers is actively resisting arrest—albeit mildly.”
Buehler,
27 F.4th at 984 (cleaned up). Solis also seemed to struggle against
the officers as they grabbed her arms, which viewed from the officers’
perspective could be “another form of resistance.”
Id. Accordingly, it may
have been reasonable for the officers to perceive Solis as actively resisting
arrest, and this factor weighs in the officers’ favor.
Although not listed in the Graham factors, courts also consider the
speed with which officers resort to force. See, e.g., Trammell, 868 F.3d at 342
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(“[T]he quickness with which the officers resorted to tackling Trammel [sic]
to the ground militates against a finding of reasonableness.”). This is because
“an officer must use force with measured and ascending actions that
correspond to a suspect’s escalating verbal and physical resistance.” Joseph
ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 332–33 (5th Cir. 2020)
(cleaned up). Here, Sims grabbed Solis’s arm seconds after Serrett told her
that she would be arrested, and Serrett joined him immediately after.
However, we are mindful that the “focus is on the officers’ reasonable
perception of the events at issue, as they happened, without the aid of
hindsight.” Tucker v. City of Shreveport,
998 F.3d 165, 176 (5th Cir. 2021).
Solis’s adverse course of conduct leading up to the arrest—including
indignant remarks, asking for Serrett’s badge number, refusing to provide
him her phone, and stepping back—may have indicated to the officers that
she would not submit to arrest. Indeed, such a belief would be well-founded.
Solis confirmed in her deposition that she would not have submitted to arrest
unless the officers explained to her why was being arrested. Accordingly, to
the extent this factor tilts against the officers, it does so only slightly.
Taking these considerations together, we conclude that the actions of
Serrett and Sims were not so objectively unreasonable as to violate Solis’s
constitutional rights. First, Solis’s essentially de minimis injuries weigh
strongly in favor of a finding of qualified immunity. Second, while two of the
Graham factors weigh against the officers, qualified immunity can apply even
when only one factor weighs against the plaintiff. See Betts v. Brennan, 22
F.4th 577, 582 (5th Cir. 2022). And we have held that the two Graham factors
that favor Solis “are less salient.”
Id. Moreover, “‘[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a judge’s
chambers,’ violates the Fourth Amendment.” Buehler,
27 F.4th at 981
(quoting Graham, 490 U.S. at 396–97). The use of force demonstrated on
the video evidence was relatively limited, involving only the officers’
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restraint of Solis’s arms, a brief takedown, the force necessary to restrict her
while she was handcuffed, and she was promptly brought to her feet. Finally,
as we have stressed, “the ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. It was
reasonable of Sims and Serrett to believe that, in light of Solis’s interjections,
her comments toward them, her resistance, and her indignation on being told
she would be arrested, some degree of force would be necessary to subdue her.
In sum, even viewing the facts in the light most favorable to Solis, we cannot
say that the officers violated her constitutional right to be free from excessive
force. Accordingly, we conclude that the district court erred in denying the
officers’ motion for summary judgment.
B. Clearly Established
We further hold that even had Serrett and Sims violated Solis’s
constitutional rights, such a right was not clearly established at the time of
the supposed constitutional violation. 4 To determine that a right is clearly
established “we must be able to point to controlling authority—or a robust
consensus of persuasive authority—that defines the contours of the right in
question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d
359, 371–72 (5th Cir. 2011) (en banc) (cleaned up). “Although this does not
mean that ‘a case directly on point’ is required, ‘existing precedent must
have placed the statutory or constitutional question beyond debate.’”
Trammell,
868 F.3d at 339 (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741
4
Appellee briefly states that the Fifth Circuit should reconsider its jurisprudence
on what constitutes “clearly established law.” This argument is meritless as the panel is
bound by the rule of orderliness. See, e.g., United States v. Traxler, 764 F.3d 486, 489 (5th
Cir. 2014).
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(2011)). 5 The precedent must also be at “a sufficiently high level of
specificity to put a reasonable official on notice that his conduct is definitively
unlawful.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015).
The most similar Fifth Circuit cases that Solis cites are Trammell v.
Fruge, 868 F.3d 332 (5th Cir. 2017), and Hanks v. Rogers,
853 F.3d 738 (5th
Cir. 2017), each of which we consider in turn. Trammell was the case that the
district court held clearly established that the officers’ conduct violated
Solis’s Fourth Amendment rights. In that case, George Trammell, the
plaintiff, was suspected of driving his motorcycle while intoxicated.
Trammell,
868 F.3d at 336. Four officers, including Officer Fruge, arrived on
the scene and asked Trammell a series of questions.
Id. at 336–37. Trammell
calmly refused to tell Fruge how much he had been drinking, declined to walk
toward Fruge, and refused to put his hands above his head.
Id. at 337. He
also told Fruge “I’m not going to jail.”
Id.
Fruge then grabbed Trammell’s right arm. Id. Trammell pulled back
and told Fruge that it hurt and not to grab him there.
Id. Another officer
grabbed Trammel’s left arm, but Trammell pulled away.
Id. Fruge then
performed a knee strike on Trammell’s thighs, and another officer put
Trammell in a headlock.
Id. Three officers pulled Trammell to the ground,
where his face landed on the pavement.
Id. While Trammell was on the
ground, the officers administered knee strikes to Trammell’s arms, thighs,
and ribs to subdue him.
Id. at 337–38. Trammell was eventually diagnosed
with “mildly displaced right L1, L2, and L3 transverse process fractures.”
Id. at 338. He was forced to give up recreational activities and claimed he had
5
The law does not always require an on-point authority: if an officer commits a
patently obvious violation of the Constitution, he is not entitled to qualified immunity. See
Hope v. Pelzer, 536 U.S. 730, 738–41 (2002). But this is not an obvious case.
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“very limited mobility” as a result of his injuries. Id.
The court analyzed the Graham factors and held either that they all
weighed against the officers or that disputed issues of material fact existed.
Specifically, it found that: (1) Trammell’s offense was minor; (2) a fact
question existed as to whether Trammell posed a threat to himself or others;
(3) a fact question existed as to whether Trammell was actively resisting; and
(4) the quickness with which the officers resorted to force weighed against
finding the officers’ actions reasonable. Id. at 340–42. Importantly, the court
also held that “Trammell has independently presented a question of material
fact as to whether the force used to gain control of his arms was excessive to
the need.” Id. at 342. The court emphasized the harsh nature of the officers’
actions and the degree of force used. Id.
The degree of force used sets Trammell apart from the case at hand.
Unlike here, three officers “tackled” Trammell to the ground, where he
landed face first on pavement. Id. at 337–38. They “pummeled” him with
their knees and fists. Id. at 342. They did so after Trammell shouted that his
arm was fused. Id. The court held that “a jury could reasonably infer that
the officers heard Trammel’s plea but nevertheless continued to beat him
without consideration for his limited mobility and strength.” Id. And unlike
Solis’s minor injuries, Trammell incurred bone fractures that significantly
affected his life. Id. at 338. In short, the use of force in Trammell was clearly
disproportionate to the need for it. Accordingly, no officer reading that case
would reasonably understand it to govern here, where the officers only
yanked Solis’s arms behind her back and—at most—briefly pulled her to the
ground.
Hanks involved a similar factual scenario that is also distinguishable.
In that case, Marcus Hanks was pulled over by Officer Randall Rogers for
driving too slowly. Hanks, 853 F.3d at 741. Rogers asked Hanks to exit the
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vehicle and step to the back. Id. at 741–72. Rogers gave Hanks additional
orders, including to keep his hands out of his pockets, to place his hands on
the vehicle, and then to place his hands on his head. Id. at 42. Although
Hanks at times questioned why he was being asked to do so, he complied with
the officer’s orders. Id. During these exchanges, Rogers’s pulled out a taser
and trained it on Hanks. Id. Rogers then asked Hanks to go to his knees. Id.
Hanks did not immediately comply, and Rogers repeated his request. Id.
Hanks, with his hands still behind his head and with Rogers taser still aimed
at him, took a small sidestep. Id. Simultaneously with this step, Rogers
rushed forward and “administered a blow to Hanks’s upper back or neck,”
which “forced Hanks’s upper body onto the trunk of his vehicle.” Id. at 743.
“Rogers maintained contact with Hanks as Hanks shifted onto the ground.
Once on the ground, Hanks laid face-down and placed his hands behind his
back.” Id. He was arrested. Id. He later sought medical care, and was
diagnosed with a contusion, strain, and acute myofascial strain. Id. He later
claimed the blow caused him continuous pain in his upper back, neck, head,
and ribs, as well as psychological fear. Id.
The court analyzed the Graham factors and, as in Trammell, found
that (1) Hanks’s violation was minor; (2) Hanks offered no immediate safety
threat; (3) Hanks was at most passively resisting; and (4) Rogers “abrupt
application of physical force rather than continued verbal negotiating” was
unreasonable. Id. at 745–49. But again, the court noted the extreme degree
of physical force used. See id. at 747 (finding a Fourth Amendment violation
when the officer resorts to “overwhelming physical force” rather than
continuing verbal negotiations).
As with Trammell, the degree of force Rogers used under the
circumstances sets Hanks apart from this case. Rather than just grabbing the
plaintiff’s arms, Rogers “administered a blow to Hanks’s upper back or
neck” which forced his body down and which caused a contusion and an
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acute myofascial strain. Rogers did this while pointing a taser at Hanks, who
had largely complied with his orders. This differs in kind from a brief struggle
that yielded “a nerve thing” for which Solis tellingly never sought treatment.
Accordingly, Hanks would not make Sims or Serrett aware that their actions
could give rise to an excessive force claim.
The remaining cases cited by the district court and Solis are even
further afield from the facts here. In Deville v. Marcantel, an officer pulled
over a 45-year-old nurse for speeding. 567 F.3d 156, 161 (5th Cir. 2009). In
response to her passive resistance, the officers broke her window, pulled her
out of her car, and threw her up against the vehicle, resulting in a blow to her
abdominal area.
Id. at 162. The next day, the plaintiff visited a doctor who
observed “contusions to both wrists, neuropathy of her hands, right shoulder
strain, left shoulder bruising (with handprints), and multiple cuts caused by
broken glass (with one to her forehead).”
Id. The plaintiff required four
surgeries and missed thirteen to fifteen weeks of work as a result of her
injuries.
Id. As with the cases discussed above, the court discussed the
Graham factors and reasoned they favored a finding the police acted
unreasonably and took issue with the fact the officers engaged in “little, if
any negotiation” with the plaintiff before resorting to force.
Id. at 167–68.
But the court also focused on the “the severity of Deville’s injuries” in
determining whether there was excessive force under these circumstances.
Id. at 168. Finding that the “facts [were] sufficiently egregious,” the court
denied qualified immunity.
Id. at 169. As above, although there are parallels
to the instant case, Deville dealt with a use of force and an injury far greater
than here.
Similarly, Newman v. Guedry was a traffic-stop case where all of the
Graham factors weighed against the officers and the court expressed a
concern about how quickly the officers resorted to force. 703 F.3d 757, 762–
63 (5th Cir. 2012). In that case, in response to a plaintiff’s passive resistance,
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officers struck the plaintiff with a baton thirteen times and tased him three
times. Id. at 760. Again, the degree of force in that case was significantly
greater than that here and was obviously disproportionate to the plaintiff’s
actions. Likewise, in Goodson v. City of Corpus Christi, two officers tackled a
plaintiff to the ground, broke his shoulder, jerked his arm back, and cuffed
him even after he complained his arm was broken.
202 F.3d 730, 734 (5th
Cir. 2000). The plaintiff spent eight days in the hospital and needed a plate
and screws implanted. Id. Further, the plaintiff’s retelling of the incident
indicated he complied completely with the officers’ orders. Id. at 733–34.
Accordingly, the degree of force and injury in Goodson is readily
distinguishable from the facts here.
Finally, Solis argues that Joseph ex rel. Estate of Joseph v. Bartlett
supports her argument that the officers violated a clearly established right.
981 F.3d 319 (5th Cir. 2020). That case (which was issued over a year after
the incident at issue here), involved police officers beating and tasing a
schizophrenic man to death while he was on the ground, not resisting, and
calling out for his mother.
Id. at 326–27. Joseph’s facts are so far afield from
the instant case that even were it published before May 2019, it could not
establish that the Appellants’ actions here were unconstitutional.
Since May 2019, we have decided numerous cases with facts even
more like this case than Trammell or Hanks, and we have repeatedly found no
constitutional violation. Consider Tucker v. City of Shreveport, which dealt
with a plaintiff who was pulled over for a broken brake light. 998 F.3d 165.
An officer asked him to come to the back of the car, where he searched him
and found a small knife. See Tucker v. City of Shreveport, No. 17-1485,
2019
WL 961993, at *1 (W.D. La. Feb. 27, 2019). Although the plaintiff was
agitated, he was compliant.
Id. He was never told that he was under arrest.
Id. The plaintiff denied that he ever pulled away from the officers, but they
claimed that he jerked his arm when they tried to arrest him, and the video
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evidence showed his arm moving. Tucker, 998 F.3d at 178. The officers
performed a takedown and brought the plaintiff to the ground.
Id. at 175. He
sued, and the district court denied qualified immunity to the officers. After
an exhaustive review of the evidence and an emphasis on viewing the events
from the point of view of the officers at the time, the Fifth Circuit reversed,
finding no constitutional violation and that the law was not clearly
established.
Id. at 176–81. If there is no constitutional violation where the
officers perform a takedown on a mostly compliant plaintiff who was never
told he was under arrest and whose form of active resistance was jerking his
arm away, it is difficult to say that there was a “clearly established” violation
here.
Or consider Craig v. Martin, 26 F.4th 699 (5th Cir. 2022). There,
Jacqueline Craig called the police after a neighbor grabbed her son’s neck for
littering.
Id. at 702. Officer Martin responded, and Craig and Martin had a
dispute.
Id. at 702–03. One of Craig’s daughters, J.H., grabbed her mother’s
arms during the dispute, and Martin pulled her aside.
Id. at 703. Another of
Craig’s daughters, K.H., pushed into Martin, and Martin told the family to
get on the ground, shoved Craig into the ground, and pulled Craig’s arms
behind her back.
Id. Martin handcuffed Craig and walked over to J.H.,
grabbed her arm and the back of her neck, and put her on the ground.
Id.
When he tried to take Craig and J.H. to his vehicle, K.H. appeared and
attempted to block access to the vehicle.
Id. Martin struck the fourteen-year-old K.H. in the throat.
Id. He also kicked J.H.’s leg as he placed her in the
vehicle.
Id. Finally, Martin went to arrest another of Craig’s daughters, Brea
Hymond, who had been filming the altercation.
Id. Martin handcuffed
Hymond and put her against his vehicle.
Id. When she refused to answer his
questions, Martin pulled her arms behind her back to force compliance, a
maneuver Hymond claimed caused excruciating pain.
Id.
This court held that Martin was entitled to qualified immunity.
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Specifically, it held that Martin did not use excessive force because the
plaintiffs’ injuries were not significant, and the use of force was proportionate
to the need given the resistance that Martin faced throughout the incident.
Moreover, the court also found that even had Martin violated a constitutional
right, such a right was not clearly established. If there was no constitutional
violation on those facts, including the initial takedown of Craig and the
compliance maneuver performed on Hymond, it is difficult to see how a
clearly established violation could exist here.
Finally, consider Betts v. Brennan, 22 F.4th 577 (5th Cir. 2022). In
that case, a police officer tased a plaintiff who was highly agitated but had
mostly complied with the officer’s orders.
Id. at 580–81. The plaintiff in
Betts offered more resistance than Solis, but the use of force was also greater.
The district court denied qualified immunity but this court reversed, holding
that the plaintiff’s actions rose to active resistance and that Hanks was not
sufficiently on-point to illustrate a constitutional violation.
Id. at 583–86.
Although Tucker, Craig, and Betts were decided after the incident at
issue here, they demonstrate that as of May 2019 the constitutional question
at issue here was far from “beyond debate.” Trammell, 868 F.3d at 339.
Moreover, it is telling that in none of these cases did the court find a “clearly
established” right. If the law was not sufficiently clear to deny qualified
immunity in these factual similarly cases, it follows that no “clearly
established” right exists here.
IV.
For the foregoing reasons, we DENY Appellee’s motion to dismiss
this appeal, REVERSE the district court’s order denying Appellant’s
motion for summary judgment, and REMAND with instructions that
Solis’s claims against Appellants be dismissed.
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