Case: 21-50858 Document: 00516427300 Page: 1 Date Filed: 08/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 10, 2022
No. 21-50858
Lyle W. Cayce
Clerk
Maria Ramirez, as Representative of the Estate and Statutory Death
Beneficiary of Daniel Antonio Ramirez; Pedro Ramirez, as Representative
of the Estate and Statutory Death Beneficiary of Daniel Antonio Ramirez,
Plaintiffs—Appellees,
versus
Ruben Escajeda, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:17-CV-193
Before Jones, Stewart, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Rushing to the scene of an ongoing suicide, El Paso Police Officer
Ruben Escajeda, Jr., found Daniel Ramirez in the process of hanging himself
from a basketball hoop. But it was dark, Escajeda was afraid Daniel might
have a weapon, and Daniel did not respond to Escajeda’s orders to show his
hands. So Escajeda tased Daniel once, took down his body, and performed
CPR. To no avail. Daniel soon after died in the emergency room from the
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hanging. His parents sued Escajeda for using excessive force, the district
court denied qualified immunity, and Escajeda appealed.
The evidence is conflicting on whether the tasing contributed to
Daniel’s death. We therefore lack jurisdiction to weigh Escajeda’s argument
that the sole expert medical opinion ruled out tasing as a cause of death. We
do have jurisdiction, however, to consider whether Escajeda’s conduct
violated clearly established law. It did not. The district court and the plaintiffs
rely on our cases holding that officers may not use force against arrestees who
are already subdued and in police custody. This case is markedly different.
The reason Escajeda tased Daniel was that he was not in custody and Escajeda
was afraid he might have a weapon. Even if that fear turned out to be
groundless—something we cannot decide here—Escajeda still did not
transgress any clearly established law.
We therefore reverse the district court’s decision and render
judgment granting Escajeda qualified immunity.
I.
Around 10:36 p.m. on June 23, 2015, Maria Ramirez called 9-1-1 to
report that her 30-year-old son Daniel was preparing to hang himself from
the basketball hoop in their back yard. Dispatch informed the El Paso Police
Department of a suicide in progress. Neither Maria’s call nor the dispatch
stated that Daniel had a weapon. El Paso Police Officer Ruben Escajeda, Jr.,
received the dispatch and rushed to the house.
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When Escajeda arrived minutes later, at 10:40 p.m., he found the
lights off. 1 He became concerned, asking himself “Why [was] the house so
dark, inside and . . . outside?” Without announcing his presence, he
proceeded to the back yard, gun drawn. He decided not to wait for other
officers because he felt “urgency to prevent a suicide.” Scanning with his
flashlight, Escajeda saw Daniel standing on his tiptoes with a rope around his
neck connected to a basketball hoop. Daniel was staring forward with his
hands clenching the rope around his neck.
Concerned he could be walking into an “ambush,” Escajeda
repeatedly ordered Daniel to show his hands to ensure he had no weapon.
Daniel’s hands stayed around the rope. So, Escajeda holstered his gun,
moved closer, and tased Daniel in the abdomen for five seconds. 2 Daniel’s
body tensed and Escajeda saw Daniel’s fists squeeze harder and heard a
“crunch” or “gargle.” Escajeda then removed the rope from around
Daniel’s neck and lowered him to the ground. He administered CPR on
Daniel and felt a faint pulse in his neck. Other officers arrived seconds later
and assisted Escajeda with CPR. Paramedics arrived soon after and took
Daniel to a nearby emergency room where he was pronounced dead at 11:24
p.m. An autopsy concluded Daniel’s death was caused by hanging.
Daniel’s parents sued Escajeda under 42 U.S.C. § 1983 alleging the
tasing constituted excessive force in violation of their son’s Fourth and
1
The plaintiffs contend there was “sufficient lighting conditions for Escajeda to
observe Daniel” but do not otherwise dispute that the lights were off and that Escajeda had
to use a flashlight.
2
Escajeda maintains he did not wait the full five-second taser cycle before
attempting to rescue Daniel. For purposes of this appeal, however, we accept the plaintiffs’
claim that Daniel was tased for five seconds.
3
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Fourteenth Amendment rights. 3 Escajeda invoked qualified immunity 4 and
moved for summary judgment. 5
The district court denied his motion. As to the first qualified immunity
prong, the court found two material fact disputes that precluded it from
deciding whether Escajeda used constitutionally excessive force, namely
(1) whether the tasing contributed to Daniel’s death, and (2) whether the
tasing was unreasonable under the circumstances. As to the second prong,
the court concluded it was clearly established at the time of the incident that
“officers may not use a taser against a subdued person who neither
committed any crime nor who resisted the officers’ authority.” Escajeda
timely appealed.
II.
We review the district court’s denial of summary judgment based on
qualified immunity de novo. Walsh v. Hodge, 975 F.3d 475, 481 (5th Cir. 2020).
3
They also sued the City of El Paso for municipal liability, but those claims are not
before us.
4
We disagree with the plaintiffs that Escajeda failed to properly raise qualified
immunity in the district court. Escajeda first raised qualified immunity in a motion to
dismiss. Having done so, the burden shifted to the plaintiffs to “show that the defense is
not available.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (internal quotation marks
and citation omitted). So it is of no moment that Escajeda also raised the defense in his
reply in support of summary judgment. And, in any event, the district court reached and
decided qualified immunity. The issue has therefore been preserved. See Keelan v. Majesco
Software, Inc.,
407 F.3d 332, 339–40 (5th Cir. 2005) (“An argument must be raised to such
a degree that the district court has an opportunity to rule on it.”) (internal quotation marks
and citation omitted)).
5
Escajeda previously moved to dismiss under Rule 12(b)(6), invoking qualified
immunity and arguing the plaintiffs had failed to state a plausible claim. The district court
denied his motion. Escajeda appealed but did not brief his qualified immunity arguments.
Our court dismissed the appeal for lack of jurisdiction. Ramirez v. Escajeda, 921 F.3d 497,
500–01 (5th Cir. 2019).
4
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Summary judgment is warranted when “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). “However, a good-faith
assertion of qualified immunity alters the usual summary judgment burden of
proof, shifting it to the plaintiff to show that the defense is not available.”
Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020) (quotation omitted).
On an interlocutory appeal invoking qualified immunity, we consider
“only whether the district court erred in assessing the legal significance of
the conduct that [it] deemed sufficiently supported for purposes of summary
judgment.” Keller v. Fleming, 952 F.3d 216, 220 (5th Cir. 2020) (quoting
Kinney v. Weaver,
367 F.3d 337, 348 (5th Cir. 2004) (en banc)). “[W]e lack
jurisdiction to review the district court’s decision that a genuine issue of fact
exists.” Ramirez v. Martinez,
716 F.3d 369, 373 (5th Cir. 2013). “[W]e accept
the [plaintiff’s] version of the facts as true.” Juarez v. Aguilar,
666 F.3d 325,
332 (5th Cir. 2011) (quoting Kinney,
367 F.3d at 348).
III.
Qualified immunity shields an officer from liability if his “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)). To
overcome qualified immunity, the plaintiffs must show that Escajeda
(1) violated a constitutional right and (2) that “the right at issue was ‘clearly
established’ at the time of [the] alleged misconduct.” Id. at 232 (quotation
omitted). Courts have discretion to address either or both prongs. Id. at 236.
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A.
Escajeda argues for reversal on prong one because the plaintiffs failed
to show the tasing caused Daniel’s death. We lack jurisdiction to consider
this issue, however, because the district court found causation subject to a
genuine fact dispute.
“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.’” Solis v. Serrett, 31 F.4th
975, 981 (5th Cir. 2022) (quoting Trammell v. Fruge,
868 F.3d 332, 340 (5th
Cir. 2017)). The district court found conflicting evidence as to the second
part of this test. 6 In the opinion of Escajeda’s medical expert, Dr. Mario
Rascon, 7 Daniel died solely by hanging and the tasing did not contribute to
his injuries. But the plaintiffs’ expert in biomechanical engineering, Dr.
Victoria Ngai, 8 opined that the taser “set off forces and motions” that could
have caused the kinds of neck injuries Daniel suffered. The court thus found
a “genuine dispute of material fact as to whether Escajeda’s use of force
caused [Daniel’s] death.”
6
The court also found a fact dispute as to the third part, namely whether Escajeda
reasonably believed Daniel posed a threat given Escajeda’s “misapprehension of the
dispatch that there was ‘a suicidal suspect with a weapon.’” Escajeda does not contest that
issue on appeal and has therefore abandoned it. Cinel v. Connick, 15 F.3d 1338, 1345 (5th
Cir. 1994).
7
Dr. Rascon was the coroner who performed Daniel’s autopsy.
8
The district court allowed Dr. Ngai to testify as a biomechanical engineer
regarding whether “the energy, forces, and motions” involved in the tasing were
“sufficient to have caused the type of injuries” Daniel suffered. But the court did not allow
Dr. Ngai to testify that the tasing caused Daniel’s “specific diagnosed injuries” because
she was “not a qualified medical doctor.”
6
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On interlocutory appeal of the denial of qualified immunity, “we lack
the authority to review the district court’s decision that a genuine factual
dispute exists.” Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013)
(citing Kinney,
367 F.3d at 348); see, e.g., Maldonado v. Rodriguez,
932 F.3d
388, 396–97 (5th Cir. 2019). To be sure, we may review whether fact disputes
are material to the underlying constitutional issue. See Melton v. Phillips,
875
F.3d 256, 261 (5th Cir. 2017) (en banc) (citation omitted). But Escajeda does
not challenge the materiality of any fact dispute, instead arguing “the entirety
of the issue in this matter is whether [Daniel] was already dead or whether
Officer Escajeda killed him by deploying his taser.” We therefore lack
jurisdiction to review the district court’s prong one decision.
B.
Escajeda next argues that, fact disputes aside, he is still entitled to
qualified immunity because his use of force did not violate any clearly
established constitutional right. We agree.
“The clearly established inquiry is demanding, especially in claims for
excessive force.” Harmon v. City of Arlington, 16 F.4th 1159, 1167 (5th Cir.
2021) (citing Morrow v. Meachum,
917 F.3d 870, 874 (5th Cir. 2019)).
Excessive force cases often involve officers’ “mak[ing] split-second
decisions” and “[t]he results depend ‘very much on the facts of each case.’”
Id. at 1166 (quoting Kisela v. Hughes,
138 S. Ct. 1148, 1153 (2018) (per
curiam)); see Plumhoff v. Rickard,
572 U.S. 765, 774 (2014) (observing
“officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation” (quoting Graham v. Connor,
490
U.S. 386, 396–97 (1989))). This means existing precedent must “squarely
govern the specific facts at issue, such that only someone who is plainly
incompetent or who knowingly violates the law would have behaved as the
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official did.” Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir.
2020) (cleaned up). For the same reason, courts must “frame the
constitutional question with specificity and granularity,” Morrow, 917 F.3d at
874–75, rather than “at a high level of generality,” Ashcroft v. al-Kidd,
563
U.S. 731, 742 (2011). An officer can be stripped of qualified immunity only
when “the violative nature of the particular conduct is clearly
established . . . in light of the specific context of the case, not as a broad
general proposition.” Mullenix v. Luna,
577 U.S. 7, 12 (2015) (per curiam)
(internal quotation marks and citations omitted). In sum, controlling
precedent must have placed the question “beyond debate,” with “the right’s
contours . . . sufficiently definite that any reasonable official in the [officer’s]
shoes would have understood that he was violating it.” Plumhoff, 572 U.S. at
778–79 (quoting al-Kidd, 563 U.S. at 741).
In denying Escajeda qualified immunity, the district court reasoned it
was clearly established “that officers may not use a taser against a subdued
person who neither committed any crime nor who resisted the officers’
authority.” The court relied on three of our cases, which the plaintiffs also
advance on appeal: Bush v. Strain, 513 F.3d 492 (5th Cir. 2008); Newman v.
Guedry,
703 F.3d 757 (5th Cir. 2012); and Ramirez v. Martinez,
716 F.3d 369
(5th Cir. 2013).
At the outset, we note that “[b]y citing no factually similar Supreme
Court cases, [the plaintiffs] effectively concede[] that Supreme Court
precedent offers [them] no help.” Salazar v. Molina, 37 F.4th 278, 286 (5th
Cir. 2022). Additionally, the plaintiffs’ argument requires us to assume that
Fifth Circuit precedent alone can clearly establish the law for qualified
immunity purposes, something the Supreme Court has left open. See Rivas-Villegas v. Cortesluna,
142 S. Ct. 4, 7 (2021) (per curiam) (“assuming” the
proposition that “controlling Circuit precedent clearly establishes law for
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purposes of § 1983”). 9 Those caveats aside, the three circuit cases cited by
the plaintiffs are not factually similar enough to the situation Escajeda faced
to have placed the lawfulness of his taser use beyond debate.
In Bush, an officer bashed the plaintiff’s face into a car, breaking two
of her teeth, even though her hands were cuffed behind her back. 513 F.3d at
496. Denying qualified immunity, we held the officer “should have known
that he could not forcefully slam [the plaintiff’s] face into a vehicle while she
was restrained and subdued.”
Id. at 502.
In Newman, an officer was frisking the plaintiff during a traffic stop
when he made a suggestive comment to the officer. 703 F.3d at 760. Officers
beat the plaintiff with batons, tased him twice, and tased him again after he
fell to the ground.
Ibid. We denied qualified immunity because “the officers
immediately resorted to taser and nightstick without attempting to use
physical skill, negotiation, or even commands” when the plaintiff was in
custody, “committed no crime, posed no threat to anyone’s safety, and did
not resist the officers or fail to comply with a command.”
Id. at 763–64.
Finally, in Martinez, the plaintiff confronted officers who were at his
business executing a warrant for his sister-in-law’s arrest. 716 F.3d at 372.
When the plaintiff refused to put his hands behind his back and batted an
officer’s hand away, the officer tased him and other officers forced him face-down on the ground and handcuffed him.
Id. at 373. The plaintiff stopped
resisting, but the officer tased him again.
Id. at 372–73. We relied on Bush and
Newman to deny qualified immunity, reasoning the plaintiff allegedly “posed
9
See, e.g., Betts v. Brennan, 22 F.4th 577, 584–85 n.6 (5th Cir. 2022) (assuming
without deciding that circuit precedent can clearly establish the law); Crittindon v. LeBlanc,
37 F.4th 177, 199 n.4 (5th Cir. 2022) (Oldham, J., dissenting) (“The Supreme Court has
never said that we can hold . . . officers liable under § 1983 for violating the commands of
our precedent (as opposed to theirs).”).
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no threat to the officers and yet was tased twice, including once after he was
handcuffed and subdued while lying face down on the ground, in violation of
clearly established law.” Id. at 379.
These cases do not clearly establish Escajeda’s conduct was unlawful.
All three involved plaintiffs already under police control (either handcuffed
or submitting to a frisk) who were nevertheless subjected to gratuitous
violence (face slammed into a car, beaten with batons, tased). Those cases
are not this one. Contrary to the plaintiffs’ arguments, Escajeda did not have
Daniel “subdued” and under his control when he used the taser. To the
contrary, Escajeda faced a “tense, uncertain, and rapidly evolving” situation,
Plumhoff, 572 U.S. at 774, wholly unlike those faced by the officers in Bush,
Newman, and Martinez.
Escajeda used the taser precisely because Daniel was not in custody
and Escajeda was unsure whether the strange scenario he faced posed a threat
to his safety. Perhaps his fear that he might be walking into an “ambush” was
unfounded; in that event, the tasing could be excessive under prong one of
the analysis. See supra. But even so, no authority cited by the plaintiffs
remotely addresses the situation Escajeda faced. It follows, then, that
Escajeda could not have been on notice that his single use of the taser was
clearly unlawful. See, e.g., Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(explaining “the focus [of qualified immunity] is on whether the officer had
fair notice that her conduct was unlawful”).
Furthermore, the district court did not “frame the constitutional
question with specificity and granularity.” Morrow, 917 F.3d at 874–75. The
court asked about the proper use of tasers “against a subdued person.” That
is too general. It is one thing to ask whether police may tase someone after
they have handcuffed him and put him face-down on the ground. Cf.
Martinez, 716 F.3d at 372. It is quite another to ask whether an officer may
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tase someone who may be hanging himself, who may or may not have a
weapon, who does not respond to the officer’s commands—all when the
officer approaches him rapidly, alone, and in the dark.
“These multiple factual distinctions matter.” Betts, 22 F.4th at 586.
Even viewing the facts most favorably to the plaintiffs, as we must, the
unusual setting separates this case from routine pat-downs and arrests gone
wrong where officers pointlessly or sadistically use force. Existing precedent
did not put the lawfulness of Escajeda’s actions “beyond debate,” al-Kidd,
563 U.S. at 741, and so his use of a taser under these unique circumstances
did not violate clearly established law.
…
Accordingly, we REVERSE the district court’s judgment and
RENDER judgment granting Officer Escajeda qualified immunity.
11
