Makani v. Brewer

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RAHOOL MAKANI, §

§

Plaintiff, §

§

v. § Civil Action No. 3:21-CV-00118-E

§

COREY BREWER §

§

Defendant. §

ORDER AND MEMORANDUM OPINION

Plaintiff Rahool Makani filed this suit against Defendant Officer Corey Brewer of the

Carrollton, Texas Police Department in his individual capacity under 42 U.S.C. § 1983, asserting

that Defendant Brewer violated his constitutional rights under the Fourth and Fourteenth

Amendment to the United States Constitution. Specifically, Plaintiff Makani asserts claims for

excessive force and illegal entry. On October 7, 2021, Defendant filed a Motion for Summary

Judgment, (Doc. 19), seeking dismissal of both claims under the doctrine of qualified immunity.

On September 26, 2022, this Court issued a separate Order, (Doc. 35), granting Defendant’s

Motion for Summary Judgment. The Order stated that “[a]n opinion containing the grounds for

the Court’s decision is forthcoming.” (Doc. 35). Hereunder, the Court explains its reasoning for

granting Defendant’s Motion for Summary Judgment, thereby dismissing all of Plaintiff’s claims.

I. BACKGROUND

This case arises out of the arrest of Plaintiff Rahool Makani (“Makani”) in the early

morning hours of June 9, 2019. At 1:05 a.m. on June 9, 2019, Makani’s sister-in-law, Fouzia

Rahman (“Ms. Rahman”), called 911 from Makani’s residence in Carrollton, Texas regarding

Makani’s behavior. Ms. Rahman informed the 911 dispatcher that Makani had assaulted his sister

and mother, that his siter told Ms. Rahman to call 911, and that Ms. Rahman was hiding in a

bedroom upstairs out of fear of continued violence. (Doc. 21, 8: 911 call at 0:35-1:30; 3:54-4:04).

Ms. Rahman informed 911 that Makani was intoxicated, had broken a door in the residence,

threatened his mother, and was hurting people in the residence—including Makani’s mother and

sister. Ms. Rahman called 911 from an upstairs bedroom, indicated to the 911 operator that she

was afraid to be downstairs with Makani, and was unsure whether Makani had any weapons or

whether there were weapons in the home.

Based on the contents of the 911 call, officers from the Carrollton Police Department

(“CPD”)—including Defendant Corey Brewer (“Brewer”)—were dispatched to the Makani

residence. The call was coded as “Priority 1”—the second highest priority level for the Carrollton

Police Department—meaning that officers would be responding to an “[o]ffense against persons,

in progress, happening now.” (Doc 21, pg. 16: Event Report; Doc. 21, pg. 37: CPD Standard

Operating Procedure). From 1:05:51 a.m. until 1:10:13 a.m., dispatchers conveyed the following

information to officers on patrol, including Brewer: (1) a female caller, who is out of breath,

advised that a male at the location is drunk and hurting people; (2) the caller did not know whether

the individual head weapons; (3) caller advised that the individual is pulling people’s hair; (4) the

individual is Rahool Makani—a 27 year old Asian male; (5) the individual had broken a door; (6)

the location was the individual’s own home; (7) the individual had been violent with his sister and

mother and had pushed them; (8) the individual was looking for his car keys, and others in the

residence would not give them to him because he is intoxicated; (9) the individual held his mother

down, saying “give me the keys;” (10) the individual is downstairs and the caller is upstairs in a

bedroom because she is afraid to be downstairs; and (11) the caller advised that there may be

weapons in the home, but she is not sure. (Doc. 21, pg. 22: Event Report, pg. 7).

Officer Brewer was on patrol in the early morning hours of June 9, 2019. He received the

“Priority 1” call and testifies that he understood the code to mean that there was a “major

disturbance” occurring at the Makani residence. (Doc. 21, pg. 47: Brewer Aff. ¶ 3). Brewer

proceeded to the residence in his squad car and, while en route, received the dispatch notes above.

Brewer testifies that—based on the dispatch notes—he “was aware that someone in the house had

called 911 to report that an intoxicated man in his mid-twenties was fighting with people in the

residence, hurting family members, had broken a door, . . . was trying to get car key[,] [and] that

weapons might be present in the house.” (Doc. 21, pg. 47: Brewer Aff. ¶ 8). Brewer also testifies

that—based on the dispatch notes and his experience in the Carrollton Police Department—he

“believed that this dispatch call reflected a serious situation involving family violence.” (Doc. 21,

pg. 47: Brewer Aff. ¶ 9).

At approximately 1:11 a.m., Brewer arrived in his squad car to the Makani residence; he

was the first officer to arrive. The facts as to what occurred when Brewer pulled up to the residence

are disputed. According to Brewer’s sworn testimony and deposition, he heard loud screaming

outside of the home as he pulled up. (Doc. 21, pg. 49: Brewer Aff. ¶ 11). Brewer contends that this

is corroborated by the dispatcher’s notes in the event report, which indicate that Brewer told

dispatch that he could “hear loud screaming” and said, “Units set it up.” (Doc. 21, pg. 22: Event

Report, pg. 7). According to Brewer, “set it up” is a term that law enforcement officers use to

“indicate that they are facing an active altercation and that they are in need of immediate backup.”

(Doc. 21, pg. 49: Brewer Aff. ¶ 13). Makani contests Brewer’s assertion that there was loud

screaming when Brewer arrived at the residence, testifying that “[i]n the minutes leading up to

Officer Brewer entering [the] home, no one at [the] house had been yelling, screaming, or loudly

arguing.” (Doc. 29, pg. 65: Makani Decl., ¶ 4).

Brewer testifies that he activated the recording feature on his body camera after he heard

loud screaming and told dispatch to have units “set it up.” (Doc. 21, pgs. 48-49: Brewer Aff. ¶ 10-

12). Both parties have submitted into evidence the recording captured by Brewer’s body camera.

The video recording begins as Brewer pulls up to the Makani residence in his squad car. However,

the video is silent for the first thirty seconds. According to Brewer, even though the body camera

is always on, it does not record video unless the feature is activated by the officer. The recording

feature retains the video feed beginning approximately thirty seconds before the feature is

activated, but it only retains audio from the moment the feature is activated. Because the video is

silent for the first thirty seconds, it does not corroborate either Brewer or Makani’s contention as

to whether there was a loud argument occurring when Brewer arrived at the residence.

The rest of the events of that morning, however, are clearly depicted by both the audio and

video recording. Brewer, upon exiting his squad car, walked up to the front door of the Makani

residence, which was slightly ajar as Brewer approached it. With his flashlight in his left hand,

Brewer pushed the door fully open with his right hand without knocking or announcing his

presence. Once the door was fully open, two individuals could be seen talking in the foyer of the

home—a shirtless man in his mid-twenties with his back to the door, later identified as Makani,

and a middle-aged woman facing the door, later identified as his mother.

Upon pushing the door fully open, Brewer stepped just inside of the residence and

immediately says, “Hey, what’s the problem? Get outside. Get outside now.” Makani then turned

towards the door and attempts to close it with his right hand. Brewer responded by grabbing hold

of Makani’s right wrist with his right hand and pulling it off of the door. Makani’s mother then

approached and wrapped her arms around Makani’s right arm and told Brewer that the situation

was “a family matter.” Brewer then put away his flashlight, removed Makani’s mother’s hand from

his wrist, and told her to “back up” four times. The mother repeatedly placed her hand on Brewer’s

wrist and repeatedly said that the situation was a “family matter.” Meanwhile, Makani said to

Brewer, “I didn’t allow you to come inside this house . . . who allowed you come inside this house.”

Makani then grabbed the door to the residence with his left hand and attempted to pull his arm

away from Brewer’s grasp.

During this portion of exchange, a teenage woman—later identified as Makani’s younger

sister—walked into the entry hall and approached Makani, the mother, and Brewer The young

woman wrapped her arms around her mother’s right arm and attempted to pull her away from the

fray. Brewer then told dispatch to “close the channel.” Brewer testifies that that he did this because

he “thought [he] was in a dangerous situation, and [he] needed to be able to communicate with

dispatch on a priority basis.” (Doc. 21, pg. 50: Brewer Aff. ¶ 20). Brewer then grabbed Makani’s

right arm with his left hand and attempted to pull Makani outside of the residence—this time with

both arms—repeatedly telling Makani to “get outside right now.” Makani responded by attempting

to pull away from Brewer’s grasp and pulling Brewer a few steps farther into the residence, while

repeatedly asking, “Who allowed you to come inside this house?” Makani then grabbed hold

Brewer’s right wrist with his left hand in an apparent attempt to free himself from Brewer’s grasp.

Brewer responded by immediately removing Makani’s hand and saying, “Get off of me.” Makani

then backed farther into the residence, pulling Brewer with him. Brewer, holding Makani’s left

wrist in his left hand and his right hand on Makani’s left shoulder, said to Makani, “Do not touch

me.”

At this point, Brewer was fully inside of the residence and was surrounded by three

individuals—Makani, the mother, and the sister. Brewer then twisted Makani’s left arm behind

Makani’s back and took him to the ground. As Makani went to the ground, his face hit the tile

floor of the entry hall. Makani testifies that Brewer “slammed [him] face first onto [the] hard tile

floor causing injuries to his head and face, including a deep cut in [his] lip which bled profusely.”

(Doc. 29, pg. 66: Makani Decl. ¶ 14). Brewer testifies that the arm-twisting technique he used to

gain physical control over Makani is known as an “arm-bar takedown.” (Doc. 21, pg. 50: Brewer

Aff. ¶ 23). Brewer further testifies that, in his experience, suspects who are brought into custody

by way of an arm-bar takedown are usually able to brace themselves as they are being taken down.

(Doc. 21, pg. 50: Brewer Aff. ¶ 23). However, at this point, Brewer had hold of Makani’s left arm,

and Makani’s mother had hold of Makani’s right arm. Brewer testifies that, when he executed the

takedown, Makani’s legs went out from underneath him abruptly and, because Makani’s mother

had hold of Makani’s right arm, Makani hit the floor face first without bracing himself. (Doc. 21,

pg. 50: Brewer Aff. ¶ 24).

With Makani lying face down on the entry hall floor, Brewer placed Makani’s left hand in

handcuffs. Brewer then ordered Makani to put his right arm behind his back, grabbed and pulled

Makani’s right arm behind his back, and placed it in handcuffs as well. Once Makani was fully

handcuffed, Brewer immediately radioed dispatch to inform them that he had an individual in

custody and to send paramedics.

Shortly thereafter, other Carrollton police officers arrived and conducted interviews of the

individuals at the scene. Makani’s sister informed officers that Makani had grabbed and squeezed

her arm, causing her pain, and had grabbed her by the waist and pulled her to the ground. Makani’s

sister and mother also told the officers that Makani had grabbed his mother’s chin and the back of

her neck, pushed her back and forth, pushed her against a wall, and pulled her hair. Makani was

arrested for the charge of assault causing bodily injury—family violence.

Makani suffered injuries to his face and head as a result of the arrest, including a bloody

nose and a deep cut to the inside of his upper lip. Makani was transported to the emergency room

at the Baylor Medical Center in Carrollton, Texas, to receive treatment for his injuries. There, he

was diagnosed with alcohol intoxication, facial contusion, dehydration, and an unspecified head

injury. At 4:00 am, approximately three hours after the 911 call, Makani had a blood alcohol

content of 0.227%. At 7:01 am, approximately six hours after the 911 call, Makani’s blood alcohol

content was 0.16%. At around 9:45 am, Makani was discharged from the hospital. Makani returned

to Baylor Medical Center in the early morning hours of June 12, 2019, complaining of a headache.

After receiving a computed tomography (“CT”) scan, Makani was diagnosed with a concussion

and was discharged.

On January 19, 2021, Makani filed his Original Complaint, asserting two causes of action

against Brewer in his individual capacity under 42 U.S.C. § 1983. (Doc. 1). Specifically, Makani

alleges that Brewer—acting under the color of law—violated his Fourth and Fourteenth

Amendment rights to be free from excessive force and illegal searches. (Doc. 1). On February 9,

2021, Brewer filed his Answer to the Original Complaint, asserting—inter alia—the affirmative

defense of qualified immunity. (Doc. 5). This Court issued a Qualified Immunity Scheduling Order

on March 17, 2021. (Doc. 13). On October 7, 2021, Brewer submitted a Motion for Summary

Judgment seeking to dismiss Makani’s claims on the grounds of qualified immunity. This Court

issued an Order granting Brewer’s Motion for Summary Judgment on September 26, 2022, (Doc.

35), with opinion to follow. Below is the Court’s reasoning in support of that Order.

II. LEGAL STANDARD

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to summary judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). “[T]he substantive law will identify which facts are material.”

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A dispute of a material fact is “genuine”

if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.

Id. The moving party bears the burden of showing that summary judgment is appropriate. Celotex

Corp., 477 U.S. at 323. The moving party meets its burden by informing the Court of the basis of

its motion and by identifying the portions of the record which reveal there are no genuine material

fact issues. FED. R. CIV. P. 56; Celotex Corp., 477 U.S. at 323.

When reviewing the evidence on a motion for summary judgment, the Court must decide

all reasonable doubts and inferences in the light most favorable to the non-movant. See Matsushita

Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The Court cannot make a credibility

determination in light of conflicting evidence or competing inference. Anderson, 477 U.S. at 255.

As long as there appears to be some support for the disputed allegations such that “reasonable

minds could differ as to the import of the evidence,” the motion for summary judgment must be

denied. Id. at 250.

B. Qualified Immunity

Under 42 U.S.C. § 1983, private citizens may sue public officials for violations of their

federal statutory or constitutional rights. See Monroe v. Pape, 365 U.S. 167, 1717 (1961).

However, public officials are shielded from civil liability under § 1983 under the doctrine of

qualified immunity “so long as their conduct ‘does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 577

U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Qualified immunity

gives government officials breathing room to make reasonable[,] but mistaken judgments, and

protects all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims,

571 U.S. 3, 5 (2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743) (internal quotation marks

omitted).

The affirmative defense of qualified immunity has two prongs: (1) whether an official’s

conduct violated a statutory or constitutional right of the plaintiff, and (2) whether the right was

“clearly established” at the time of the violation. Saucier v. Katz, 533 U.S. 194, 200-01 (2001),

overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009). The two steps of the qualified

immunity inquiry may be performed in any order. Pearson, 555 U.S. at 236. “A court may rest its

analysis on either prong[.]” Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) (citation omitted).

The “clearly establish” prong of the qualified immunity analysis “‘is better understood as

two separate inquiries: [(1)] whether the allegedly violated constitutional rights were clearly

established at the time of the incident; and, if so, [(2)] whether the conduct of the defendants was

objectively unreasonable in light of that then clearly established law.’” Tarver v. City of Edna, 410

F.3d 745, 750 (5th Cir. 2005) (quoting Felton v. Polles, 315 F.3d 470, 477 (5th Cir. 2002)). “For

a right 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.” Turner v. Lieutenant

Driver, 848 F.3d 678, 685 (5th Cir. 2017) (alteration in original) (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). “For conduct to be objectively unreasonable in light of clearly

established law, there need not be a case directly on point, but ‘existing precedent must have placed

the statutory or constitutional question beyond debate.’” Tucker v. City of Shreveport, 998 F.3d

165 (5th Cir.) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)), cert. denied sub nom. Tucker v.

City of Shreveport, Louisiana, 211 L. Ed. 2d 388, 142 S. Ct. 419 (2021). “Thus, when considering

whether a defendant is entitled to qualified immunity, [] court[s] ‘must ask whether the law so

clearly and unambiguously prohibited his conduct that every reasonable official would understand

that what he is doing violates [the law].” Turner, 848 F.3d at 685-86 (emphasis and third alteration

in original) (quoting Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)). “To answer

that question in the affirmative, [a court] must be able to point to controlling authority—or a

‘robust consensus of persuasive authority’—that defines the contours of the right question with a

high degree of particularity.” Morgan, 659 F.3d at 371-72.

An officer’s invocation of the qualified immunity defense “alters the usual summary

judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010); see also

Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). Where, as here, a defendant has properly

asserted qualified immunity, “the plaintiff has the burden of negating the application of the

doctrine.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016). The plaintiff must “rebut the

defense by establishing that the official’s allegedly wrongful conduct clearly violated clearly

established law and that genuine issues of material fact exist regarding the reasonableness of the

official’s conduct.” Gates v. Texas Dep’t. of Protective and Regul. Servs., 537 U.S. 404, 419 (5th

Cir. 2008).

While the invocation of qualified immunity alters the typical burden of proof, the Fifth

Circuit has explained that:

At the summary judgment stage . . . all inferences are still drawn in the plaintiff's

favor. [Brown, 623 F.3d] at 253. This is true “even when ... a court decides only the

clearly-established prong of the [qualified immunity] standard.” Tolan v. Cotton,

572 U.S. 650, 657, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014). Likewise, “under

either [qualified immunity] prong, courts may not resolve genuine disputes of fact

in favor of the party seeking summary judgment.” Id. at 656, 134 S.Ct. 1861.

“Accordingly, courts must take care not to define a case's ‘context’ in a manner that

imports genuinely disputed factual propositions.” Id. at 657, 134 S.Ct. 1861; see,

e.g., Tarver, 410 F.3d at 754 (dismissal at summary judgment phase inappropriate

because determining whether officer's conduct was objectively unreasonable in

light of clearly established law required factfinding and credibility assessments).

Tucker, 998 F.3d at 173. While a plaintiff’s version of the facts is generally accepted as true in a

motion for summary judgment based on qualified immunity, a “narrow exception” to this approach

exists where “video evidence undeniably contradicts the plaintiff’s version of the facts such that

no reasonable jury could believe it.” Chacon v. Copeland, 577 F. App'x 355, 358 (5th Cir. 2014)

(citing Scott v. Harris, 550 U.S. 372, 380 (2007)). When such video evidence exists, the Fifth

Circuit has said that courts “need not rely on the plaintiff’s description of the facts . . . but instead

consider ‘the facts in the light depicted by the videotape.’” Carnaby v. City of Houston, 636 F.3d

183, 187 (5th Cir. 2011) (quoting Scott, 550 U.S. at 381).

Finally, whether every reasonable officer would consider a defendant’s conduct to violate

clearly established law is an “objective (albeit fact-specific) question.” Creighton, 483 U.S. at 641.

Thus, “[w]hen evaluating a qualified immunity defense, [courts] ‘consider[] only the facts that

were knowable to the defendant officers.’” Tucker, 998 F.3d at 173 (quoting White, 580 U.S. at

77). Accordingly, a defendant’s subjective state of mind has no bearing on whether he or she is

entitled to qualified immunity. Creighton, 483 U.S. at 641.

III. ANALYSIS

Makani asserts two claims against Brewer in his individual capacity under 42 U.S.C. §

1983 for the alleged violation of his Fourth and Fourteenth Amendment rights to be free from (1)

excessive force and (2) illegal searches. For the reasons discussed below, the Court concludes that

Brewer is entitled to qualified immunity on each of these claims. Therefore, summary judgment

must be granted, and the claims must be dismissed.

A. Count One—Excessive Force

1. Constitutional Violation

The Court concludes that Brewer is entitled to summary judgment on Makani’s excessive

for claim because Makani has not established that Brewer violated his Fourth Amendment right to

be free from unreasonable seizure. “For purposes of liability under 42 U.S.C. § 1983, excessive

force claims arising from an arrest or investigatory stop invoke the protection provided by the

Fourth Amendment of the United States Constitution against ‘unreasonable seizure.’” Tucker, 998

F.3d at 171. To prevail on a Fourth Amendment excessive force claim under § 1983, a plaintiff

must establish: (1) an injury; (2) that the injury resulted from force that was clearly excessive; and

(3) that the excessiveness of the force was clearly unreasonable. Cooper v. Brown, 844 F.3d 517,

522 (5th Cir. 2016). The parties do not contest that Makani suffered an injury when his face hit the

floor upon Brewer taking him to the ground. Thus, the issue before the Court is whether the

takedown was clearly excessive and objectively unreasonable under the totality of the

circumstances. The Court concludes that it was not.

Because “inquiries regarding whether a use of force was ‘clearly excessive’ or ‘objectively

unreasonable . . . are often intertwined,’” courts may consider those questions simultaneously.

Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017) (citing rr v. City of Shreveport, 691 F.3d 624,

628 (5th Cir. 2012)). In doing so, a court’s analysis must be objective: “‘the question is whether

the officer’s actions are objectively reasonable in light of the facts and circumstances confronting

them[.]’” Poole, 691 F.3d at 628 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (some

internal quotation marks omitted). Courts “must evaluate an officer’s use of force ‘from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”

Poole, 691 F.3d at 628 (quoting Graham, 490 U.S. at 396) (some internal quotation marks

omitted). This allows for the fact that “police 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.” Graham, 490 U.S at 396-97.

“Excessive force claims are necessarily fact-intensive” and “depend[] on the fact and

circumstances of each particular case.” Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009)

(per curiam). In Graham v. Connor, the Supreme Court identified three factors relevant to

assessing an excessive force claim: (1) “the severity of the crime[;]" (2) “whether the suspect poses

an immediate threat to the safety of the officers or others[;]” and (3) whether the suspect is

“actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Courts

“must determine whether the ‘totality of the circumstances justified’ the particular use of force.”

Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (quoting Tennessee v. Garner, 471 U.S.

1, 9 (1985)). Ultimately, the inquiry is whether the use of force was reasonable “under the facts as

a reasonable officer would perceive them.” Griggs, 841 F.3d at 313 (emphasis in original).

Applying the Graham factors, the Court concludes that Officer Brewer’s use of an arm bar

takedown to gain physical control over Makani was neither clearly excessive nor objectively

unreasonable under the circumstances. As to the first factor, Officer Brewer was called to the

Makani residence to investigate a serious crime of family violence. See Georgia v. Randolph, 547

U.S. 103, 117 (2006) (“[W]e recognize that domestic abuse is a serious problem in the United

States.”); see also Rockwell v. City of Garland, No. 308-CV-251-M, 2010 WL 3384833 (N.D. Tex.

June 10, 2010), report and recommendation adopted, No. 3:08-CV-251-M-BF, 2010 WL 3384826

(N.D. Tex. Aug. 26, 2010), aff'd sub nom. Rockwell v. Brown, 664 F.3d 985 (5th Cir. 2011)

(explaining that the Texas Legislature has noted the gravity of domestic and family violence); TEX.

CODE CRIM. PROC. ANN., art. 5.01, Legislative Statement (1985) (“Family violence is a serious

danger and threat to society and its members. Victims of family violence are entitled to the

maximum protection from harm or abuse or the threat of harm or abuse as is permitted by law.”);

id., art. 14.03 (authorizing warrantless arrest where there is probable cause of family violence).

Thus, this factor weighs in Brewer’s favor.

As to whether a reasonable officer would have perceived Makani as an immediate threat,

this “second factor is the most important.” Malborough v. Stelly, 814 F. App’x 798, 803 (5th Cir.

2020). Having reviewed the video recording of the dispute, the Court concludes that, under the

totality of the circumstances, a reasonable officer in Brewer’s situation could have perceived

Makani as an immediate threat. In his summary judgment response, Makani contends that he did

not pose an immediate threat to the safety of Officer Brewer or others in the home because he “[a]t

no point . . . threaten[ed] [Brewer] or any other person in [Brewer’s] presence.” (Doc. 28, pg. 14).

Brewer contends that, when he executed the arm bar takedown, he perceived a threat to himself

because he had been pulled into the house, was surrounded by multiple individuals, and feared that

those individuals may overpower him and gain access to his weapons. (Doc. 21, pg. 50: Brewer

Aff. ¶¶ 22-23). Brewer further testifies that Makani clenched his fist, which Brewer perceived as

an act of aggression. (Doc. 21, pg. 49: Brewer Aff. ¶ 17). Makani contests this assertion and

testifies that his “hand was not clenched in a fist in any aggressive manner.” (Doc. 28, pg. 14).

Brewer also testifies that he felt Makani “tense[] up his arm and body,” which Brewer “considered

to be a display of defensive resistance.” (Doc. 21, pg. 49: Brewer Aff. At ¶ 18). Finally, Brewer

testifies that he considered Makani’s action of grabbing his right wrist to be “active aggression.”

(Doc. 21, pg. 50: Brewer Aff. ¶ 21).

While the Court must construe the evidence in the light most favorable to Makani, it cannot

accept as true his conclusory assertion that he did not pose an immediate threat to the safety of

Brewer or others. See Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984); Broadway v. City of

Montgomery, 530 F.2d 657, 660 (5th Cir. 1976) (affidavits that recite “supported allegations,

conclusory in nature[,]” are “insufficient to avoid summary judgment”). Additionally, although

the Court “review[s] the evidence in the light most favorable to the nonmoving party, [it] assigns

greater weight, even at the summary judgment stage, to the facts evidence from video recordings

taken at the scene.” Carnaby, 636 F.3d at 187 (citing Scott, 550 U.S. at 381 (2007). Upon review

of the video evidence provided by both parties, the Court concludes that a reasonable officer in

Brewer’s position could have believed that Makani posed a threat to the safety of Brewer and

others.

At the time Officer Brewer executed the arm bar takedown, he was inside of the home,

surrounded by multiple individuals. Makani disputes Brewer’s contention that Brewer was pulled

into the residence, instead asserting that he backed away from the door and Brewer approached

him as he backed away. (Doc. 28, pg. 15). However, Makani’s assertion is contrary to the video,

which shows that Makani attempted to pull is right arm away from Brewer’s grasp, pulling Brewer

further into the home. (Doc. 21, pg. 8: Brewer Body Cam, 1:10-1:17). When Brewer took Makani

to the ground, he was fully inside of the home, did not know how many others were present,

whether they had weapons, or whether they would join in Makani’s resistance as Makani’s mother

had done. (Doc. 21, pg. 50: Brewer Aff. ¶ 22). At that time, Makani had not been searched for

weapons, and Brewer was aware that there may have been weapons in the home. Under these

circumstances, the Court concludes that it was reasonable for Brewer to perceive Makani as an

immediate threat.

As to the third Graham factor, the Court concludes that a reasonable officer in Brewer’s

situation could have concluded that Makani was actively resisting arrest. “Officers may consider

a suspect’s refusal to comply with instructions . . . in assessing whether physical force is needed

to effectuate the suspect’s compliance.” Deville, 567 F.3d at 167. Makani contends that he was not

actively resisting arrest when Officer Brewer took him to the ground using the arm bar technique.

The Court concludes, however, that the video evidence depicts a scenario in which a reasonable

officer could conclude that Makani was actively resisting arrest.

The video shows that Makani refused to comply with Brewer’s repeated orders to step

outside of the home. The video evidence shows that Makani continually attempted to pull away

from Brewer’s grasp. Makani does not contest the fact that he attempted to pull his right arm away

from Brewer’s grasp. However, Makani does contest Brewer’s assertion that he grabbed Brewer’s

wrist—Makani asserts that he “placed [his] hand on Officer Brewer’s hand has [his] mother had

done” and that he “did not squeeze Officer Brewer’s hand[.]” (Doc. 29, pg. 66: Makani Decl., ¶

11). However, the video evidence clearly shows that Makani put his right hand on top of and

wrapped his fingers around Brewer’s left wrist. Given Makani’s continual refusal to comply with

Brewer’s commands, his persistent efforts to pull away from Brewer’s grasp, and his act of

grabbing Brewer’s wrist, the Court concludes that—under the totality of the circumstances—it was

reasonable for Brewer to believe that Makani was actively resisting.

Moreover, the force used by Brewer did not exceed the amount necessary to gain physical

control over Makani. “Fourth Amendment jurisprudence has long recognized that the right to make

an arrest . . . necessarily carries with it the right to use some degree of physical coercion.” Graham,

490 U.S. at 396. “However, 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)). Viewing the evidence in the light most

favorable to Makani—including the video that captures the dispute underlying Makani’s claims—

the Court concludes that, under the totality of the circumstances, Brewer’s action of taking Makani

down to the ground was not disproportionate to the need.

Brewer used only his bare hands. He did not strike Makani. He did not use mase or a taser,

and he did not brandish any weapon. Instead, he used an open-handed technique to bring Makani

to the ground so that he could place him into handcuffs. Brewer was forced to make a split-second

decision to gain control over Brewer to deescalate the dispute. Finally, his use of force ceased the

moment Makani was in handcuffs, at which time he immediately called for medical assistance.

Viewed objectively, Brewer responded with “‘measured and ascending’ actions that

corresponded to [Makani’s] escalating verbal and physical resistance.” Poole, 691 F.3d at 629

(citing Galvan v. City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (explaining that the

use of force was reasonable when it involved “measured and ascending responses” to a plaintiff’s

noncompliance)). The situation was “tense, uncertain, and rapidly evolving,” and Brewer’s use of

force was reasonable and commensurate to the need. Graham, 490 U.S. at 396. Brewer was

faced—as the sole responding officer—with an intoxicated individual suspected of committing a

serious crime of family violence. It was reasonable for Brewer to believe that Makani posed an

immediate threat to the safety of Brewer or others when he was inside of the home, surrounded by

multiple individuals, and did not know if weapons were present in the home. It was also reasonable

for Brewer to believe that Makani—who refused to comply with his verbal instructions,

continually tried to pull away from his grasp, and grabbed Brewer’s arm in an apparent attempt to

free himself—was actively resisting. Finally, Brewer used only the physical force necessary to

gain physical control over Makani, and the evidence establishes that the amount of force used was

appropriate for the situation.

Thus, no fact issue exists as to whether Brewer’s use of force was objectively reasonable

and commensurate to the situation’s need, and the Court concludes that Makani has not established

that Brewer violated his Fourth Amendment right to be free from excessive force.

2. Clearly Established Law

Alternatively, Brewer is entitled to summary judgment on Makani’s excessive force claim

because Makani has not met his “heavy” and “demanding” burden of showing that Brewer’s use

of force violated clearly established law. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).

Although the Supreme Court “caselaw does not require a case directly on point for a right to be

clearly establish, existing precedent must have placed the statutory or constitutional question

beyond debate.” Kisela v. Hughes, — U.S. —, 138 S. Ct. 1148, 1152 (2018). “It is the plaintiff’s

burden to find a case in his favor that does not define the law at a ‘high level of generality.’” Vann

v. City of Southaven, 884 F.3d 307, 310 (5th Cir. 2018) (quoting Cass v. City of Abeline, 814 F.3d

721, 732-33 (5th Cir. 2016)). “[O]utisde of an obvious case, the law is only clearly established if

a prior case exists where an officer acting under similar circumstances . . . was held to have violated

the Fourth Amendment.” Hanks, 853 F.3d at 747 (quoting White, 580 U.S. at 80) (internal

quotation marks omitted). If, however, officers of “reasonable competence could disagree on

[whether the conduct is legal], immunity should be recognized.” Malley v. Briggs, 475 U.S. 335,

341 (1986).

Makani points the Court to several cases in support of his argument that the following

principles of law were clearly established on June 9, 2019: (1) where an individual’s conduct

amounts to mere passive resistance, use of force is not justified; and (2) a constitutional violation

occurs when an officer violently slams an arrestee who is not actively resisting arrest. (See Doc.

28, pgs. 31-33). But those cases are not sufficiently analogous to the facts at issue and do not

“squarely govern the particular facts at issue here such that, in [June 2019], no reasonable officer

would have thought that [Brewer’s] takedown of [Makani] was legally permissible.” Tucker, 998

F.3d at 176 (emphasis in original). Thus, Makani has not carried his burden of showing that

Brewer’s actions violated clearly established law.

With respect to Makani’s contention that the use of force is not justified when an individual

is merely “passively resisting” an officer, Makani points the Court to Trammell v. Fuge, 868 F.3d

332, 341 (5th Cir. 2012). In Trammell, the Fifth Circuit held it was objectively unreasonable in

light of clearly established law for several officers to tackle an intoxicated plaintiff that was not

fleeing, not violent, not aggressive, and only resisted by pulling his arm away from an officer’s

grasp. Id. at 341. However, Trammell is distinguishable from the case at hand along each of the

three factors identified in Graham as relevant to the excessive force inquiry.

First, the plaintiff in Trammell was suspected of driving under the influence. Id. at 337.

Here, Makani was suspected of committing a violent crime: assault causing bodily injury—family

violence. Because the crime being investigated here was of greater severity than the crime in

Trammell, this factor cuts against Makani’s contention that Trammell placed Brewer on notice that

his actions constituted excessive force. Thus, Trammell is distinguishable from the case at bar on

the first Graham factor.

Second, in Trammell, a fact question existed as to whether the officers believed that the

plaintiff posed a danger to himself or others. Id. at 340. There, the Fifth Circuit held—based on

the video recording of the encounter—that it was unreasonable for the officers to believe that: (1)

the plaintiff could endanger himself by stumbling into the roadway because it did not appear that

the plaintiff was about to fall over; and (2) the plaintiff would harm others by getting on his

motorcycle and driving away because he had stepped away from the motorcycle, which was turned

off and parked on a center stand. Id. By contrast, as discussed above, the video evidence here

indicates that it was reasonable for Brewer to believe that Makani posed a danger to Brewer or

others in the home. Brewer was engaged in a protracted struggle to gain physical control of

Makani, surrounded by multiple other individuals, had been pulled deeper into the residence, and

did not know whether there were weapons present in the home. Moreover, unlike in Trammell—

where four officers were interacting with only the plaintiff—Brewer was the sole responding

officer on the scene and was surrounded by multiple individuals, two of whom—Makani and

Makani’s mother—had placed hands on Brewer already. Thus, Trammell is distinguishable from

the case at bar on the second Graham factor.

Third, in Trammell, a fact question existed as to whether it was reasonable for the officer

to believe that the plaintiff was actively resisting arrest. Id. at 341. There, the plaintiff only pulled

his arm away from the defendant officer a few inches, and the officer was not pulled forward

towards the plaintiff whatsoever. Id. at 341-42. Here, Makani continually attempted to pull away

from Brewer and anchored himself by pushing off the front door the residence. Unlike the officer

in Trammell, Brewer was pulled forward by Makani’s attempts to pull away from Brewer’s grasp.

Moreover, unlike the plaintiff in Trammell, Makani grabbed Brewer’s arm in what can be

reasonably construed as an attempt to free himself from Brewer’s grasp.

Additionally, the quickness with which the officers in Trammell resorted to force further

distinguishes the case at bar. See id. at 342 (citing Newman v. Guedry, 703 F.3d 757, 763 (5th Cir.

2012); Deville, 567 F.3d at 167) (“This Court has several times found that the speed with which

an officer resorts to force is relevant in determining whether that force was excessive to the need.”).

There, only three seconds elapsed between the officers’ instructions for the plaintiff to place his

hands behind his back and the officers tackling the plaintiff to the ground. Thus, the Fifth Circuit

concluded that “a reasonable jury could infer that the officers used very little, if any, negotiation

before resorting to physical violence, and that the officers’ conduct did not constitute the required

‘measured an ascending’ actions calibrated to [the plaintiff’s] conduct.” Id. at 342 (citing Poole,

691 F.3d at 629). By contrast, more than twenty seconds elapsed between Brewer’s instruction for

Makani to step outside and the takedown, during which time Brewer repeated the instruction

multiple times. Moreover, the takedown only occurred after Makani escalated the encounter by

grabbing Brewer’s wrist. For these reasons, the Court must conclude that Trammell is

distinguishable from the case at bar and is not the sort of “prior case . . . where an officer acting

under similar circumstances . . . was held to have violated the Fourth Amendment” required for a

determination that Brewer acted objectively unreasonably in light of clearly established law.

Hanks, 853 F.3d at 747.

Makani also points the Court to Darden v. City of Fort Worth in support of his contention

that a constitutional violation occurs when an officer “violently slams an arrestee who is not

actively resisting arrest.” 880 F.3d 722, 731 (5th Cir. 2018). In Darden, the Fifth Circuit denied

summary judgment on qualified immunity grounds to an officer who—during a drug raid of a

private residence—choked, punched, kicked, twice tased, and force an asthmatic, obese arrestee

(weighing 340 pounds) down onto his stomach, shoved his face into the floor, and pulled his hands

behind his back for handcuffing. Id. at 725-27, 730-33. Moreover, the officers were told by others

at the residence that the plaintiff—who died during the arrest—could not breathe. Id. at 726.

Darden is also materially distinguishable from the case at bar.

First, the amount of force used in Darden far exceeded the amount of force Brewer used to

gain physical control over Makani. Second, a genuine factual dispute existed in Darden as to

whether the arrestee was actively resisting arrest. There, conflicting testimony from the officers

and eyewitnesses created a factual question. Id. at 730-31. While the evidence in Darden contained

body camera footage of the raid, the footage did not capture significant portions of the officers’

interactions and ensuing struggle with the arrestee. Id. at 730-31. Accordingly, the Fifth Circuit

resolved evidence in favor of the plaintiff and determined that a reasonable jury could determine

that the arrestee was not resisting arrest. Id. at 730. By contrast, the video evidence here captures

the physical struggle at issue and discredits Makani’s contention that he was not actively resisting.

Thus, Darden does not satisfy Makani’s burden of pointing the Court to a precedent that “squarely

govern[s] the particular facts at issue here such that, in [June 2019], no reasonable officer would

have thought that [Brewer’s] takedown of [Makani] was legally permissible.” Tucker, 998 F.3d at

176 (emphasis in original).

Finally, Makani relies on Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013), in support of

his assertion that it was objectively unreasonable for Brewer to “violently slam [him] face first to

the marble floor when [he] was not presenting a threat.” (Doc. 28, pg. 32). However, this case

undercuts Makani’s claim that his constitutional rights were violated and, even if it did not, is

distinguishable from the case at bar. In Ramirez, the Fifth Circuit affirmed the district court’s

denial of summary judgment on qualified immunity grounds where an officer immediately tased a

plaintiff who had pulled his arm away from the officer, forced the plaintiff to the ground even

though the plaintiff was no longer resisting, and tased the plaintiff again after the plaintiff was

handcuffed. Ramirez, 716 F.3d at 378.

First, the Fifth Circuit’s ruling in Ramirez cuts against Makani’s contention that he was not

actively resisting. There, the Court held that “under Texas law, [the officer] could have reasonably

concluded that [the plaintiff] committed the offense of resisting arrest when [the plaintiff] pulled

his arm away from [the officer’s] grasp.” Id. at 376 (concluding that the facts the plaintiff alleged

did not make out a constitutional violation of false arrest when the officer testified that the plaintiff

was arrested for resisting arrest). Second, the Fifth Circuit’s ruling related to excessive force

focused on: (1) the officer’s use of a taser as an immediate response to the plaintiff’s act of pulling

his arm away from the officer; (2) the officer taking the plaintiff down to the ground when he was

no longer resisting; and (3) the officer’s use of the taser when the plaintiff was handcuffed on the

ground. Id. at 378-79.

Makani relies on the Fifth Circuit’s observation that the Ramirez plaintiff’s action of

“pulling his arm out of [the officer’s] grasp, without more, is insufficient to find an immediate

threat to the safety of the officers” to argue that the use of force against him was unreasonable.

(Doc. 28, pg. 32) (citing Ramirez, 716 F.3d at 378). In doing so, however, Makani fails to recognize

that the facts of Ramirez significantly differ from the facts here. There, the only crime the plaintiff

was suspected of committing was resisting arrest by pulling his arm away from the officer.

Ramirez, 716 F.3d at 378. Here, however, Makani was suspected of committing a serious offense

of family violence. Moreover, Makani’s resistance was more significant than the plaintiff in

Ramirez as he refused to comply with Brewer’s repeated verbal commands, spent twenty seconds

trying to pull his arm away from Brewer, and grabbed Brewer’s hand in an apparent attempt to

free himself from Brewer’s grasp. Finally, the plaintiff in Ramirez was surrounded by multiple

officers in a parking lot in the middle of the day. Id. at 372. By contrast, Brewer was the sole

responding officer to a domestic disturbance call at a little after 1:00 a.m., was engaged in a

protracted struggle with an intoxicated individual, was pulled into the plaintiff’s residence, was

surrounded by multiple individuals, and did not know whether there were weapons in the home.

Thus, the record before the Court “reflects the essential ‘more’ that was missing in Ramirez.”

Tucker, 998 F.3d at 178 (citing Ramirez, 716 F.3d at 378) (concluding that an officer’s takedown

of a plaintiff suspected of driving under the influence was not objectively unreasonable after the

plaintiff did not immediately pull over, led the officers into a high-crime area, exhibited escalating

verbal and physical agitation, tensed up, and moved his arms away from the officers upon seeing

that he was about to be handcuffed). For these reasons, Ramirez does not “squarely govern the

particular facts at issue here such that, in June 2019, no reasonable officer would have thought that

[Brewer’s] takedown of [Makani] was legally permissible.” Tucker, 998 F.3d at 176.

In light of the requirement that clearly established law be particularized to the facts of the

case at bar, and Makani’s failure to identify such law, the Court must conclude that Brewer is

entitled to qualified immunity from Brewer’s claim of excessive force. See Batyukova v. Doege,

994 F.3d 717, 729 (5th Cir. 2021) (affirming grant of summary judgment where the plaintiff “failed

to identify clearly established law”).

B. Count Two—Illegal Entry

1. Constitutional Violation

The Court concludes that Brewer is entitled to summary judgment on Makani’s illegal entry

claim on the grounds of qualified immunity because Makani has not established that Brewer

violated his Fourth Amendment right to be free from unreasonable searches. “Physical entry of the

home is the chief evil against which the wording of the Fourth Amendment is directed.” United

States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972). “It is ‘a basic principle of Fourth Amendment

law that searches and seizures inside a home without a warrant are presumptively unreasonable.’”

Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559

(2004)). However, “because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’

the warrant requirement is subject to certain exceptions.” Stuart, 547 U.S. at 403 (citing Flippo v.

West Virginia, 528 U.S. 11, 13 (1999) (per curiam); Katz v. United States, 389 U.S. 347, 357

(1967)).

One such exception is the “emergency aid exception,” under which “law enforcement may

enter a home without a warrant to render emergency assistance to an injured occupant or to protect

an occupant from imminent injury.” Stuart, 547 U.S. at 403 (citing Mincey v. Arizona, 437 U.S.

385, 392 (1978)). “Officers do not need ironclad proof of a likely serious, life-threatening injury

to invoke the emergency aid exception.” Michigan v. Fisher, 558 U.S. 45, 48 (2009). Instead, for

the emergency aid exception to apply, there must be “an objectively reasonable basis [for believing

that] that a person within the house is in need of immediate aid.” Fisher, 558 U.S. at 47 (internal

quotation marks omitted); see also Linicomn v. Hill, 902 F.3d 529, 536 (5th Cir. 2018) (“Exigent

circumstances exists where, inter alia, officers must enter a home to provide emergency assistance

to preserve life or to prevent serious injury.”). The exception “does not depend on the officers’

subjective intent or the seriousness of any crime they are investigating when the emergency arises.”

Fisher, 558 U.S. at 47 (citing Brigham City, 457 U.S. at 404-05). “While avoiding the risk of

second-guessing officers’ actions based on 20/20 hindsight, [courts] must still ensure that, at the

time the officer acted, there was reliable information of an ‘urgent, ongoing emergency.’” Rice v.

ReliaStar Life Ins. Co., 770 F.3d 1122, at 1132 (5th Cir. 2014) (citing United States v. Timmann,

741 F.3d 1170, 1180-81 (11th Cir. 2013)).

While the Fifth Circuit has not issued binding precedent on facts similar to those at issue

here, two cases—one published, one unpublished—are instructive. In Rice v. ReliaStar Life Ins.

Co., the Fifth Circuit found that the emergency aid exception applied when officers entered a home

without a warrant because the officers had an objectively reasonable basis for believing an

individual would imminently injure himself. Id. There, officers responded to a 911 call from

someone inside of the home. Id. The officers were aware of the contents of this call from dispatch

and knew the following: (1) the individual was suicidal; (2) the individual had a gun; (3) the

individual had been drinking; and (4) the individual was sitting in his truck, inside of his closed

garage, holding a gun to his head. Id. Based on these facts, the Fifth Circuit determined that it was

objectively reasonable for the officers to believe—based on the information relayed to them by

dispatch—that warrantless entry into the home was necessary to protect the individual from

himself. Id.

In its unpublished decision in Cesar v. City of Eunice, the Fifth Circuit held that the

emergency aid exception applied when officers had received a credible report of domestic

violence. 642 F. App’x 387, 389 (5th Cir. 2016) (per curiam).1 There, police officers were

responding to a report of a domestic disturbance and learned—while en route to the scene—that

the plaintiff was attempting to fight his girlfriend and had struck one of her family members. Id.

at 388. The officers made contact with the plaintiff near the apartment he shared with his girlfriend,

but the plaintiff ignored their commands and ran away. Id. After searching for the plaintiff, the

officers located him back at his apartment and broke down the apartment door after the plaintiff

refused to open it. Id. at 388. Based on these facts, the Fifth Circuit held that the officers were

entitled to enter the apartment to protect the plaintiff’s girlfriend from potential harm. Id. at 389

(citing United States v. Martinez, 406 F.3d 1160, 1164-65 (9th Cir. 2005); Tierney v. Davidson,

133 F.3d 189, 197 (2nd Cir. 1998) (“Courts have recognized the combustible nature of domestic

disputes, and have accorded great latitude to an officer’s belief that warrantless entry was justified

by exigent circumstances when the officer had substantial reason to believe that one of the parties

to the dispute was in danger.”)).

1 “An unpublished opinion issued after January 1, 1996 is not controlling precedent, but may be persuasive

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).

Turning to the facts at hand, the Court concludes that it was objectively reasonable for

Brewer to believe that warrantless entry into the Makani residence was justified by the need to

protect individuals within the home from potential harm. It is undisputed that: (1) Brewer’s action

of pushing the front door fully open and stepping inside of the home constituted a search under the

Fourth Amendment; and (2) Brewer had neither a warrant nor consent to search the home.

However, Brewer argues that this search was justified under the emergency aid exception to the

Fourth Amendment’s warrant requirement. (Doc 20, pg. 24). The Court concludes that it was. In

light of the case law discussed above, the Court concludes that it was objectively reasonable for

Brewer to believe that his entrance into the Makani home justified to protect individuals within

the residence from the threat of imminent violence.

In the early morning hours of June 9, 2019, Brewer responded to a credible report of a

domestic dispute. In doing so, he responded to a “Priority 1” call—offense against persons, in

progress, on-going. (Doc. 21, pg. 47: Brewer Aff. ¶ 4). Based on communications he received from

dispatch—both written and verbal—Brewer was aware of the following facts when he arrived at

the Makani residence: (1) someone in the home had called 911; (2) the caller reported that an

intoxicated man in his mid-twenties was fighting with people in the residence; (3) the man was

hurting family members; (4) the man had broken a door; (5) the man was trying to get his car keys;

(5) there may be weapons in the home; and (6) the 911 caller was hiding from the man because

she was afraid of him. (Doc. 21, pgs. 47-48: Brewer Aff. ¶¶ 4-8). Brewer arrived at the home less

than six minutes from the beginning of the 911 call and less than a minute after the dispatcher’s

final comment appeared on his squad car’s in-unit computer screen. (Doc. 21, pg. 22: Event Report,

pg. 7).

The parties dispute whether there was loud screaming or arguing when Brewer arrived at

the Makani residence. Because Brewer’s body camera footage is silent for the first thirty seconds,

the recording does not corroborate either Brewer or Makani’s version of the events as to whether

a loud argument could be heard when Brewer arrived. Thus, making a finding as to whether such

screaming and arguing could be heard would require the Court to make a credibility

determination—which it may not do at this stage. Anderson, 477 U.S. at 255. Mindful that, under

either prong of the qualified immunity analysis, it “may not resolve genuine disputes of fact in

favor of the party seeking summary judgment[,]” Tolan, 572 U.S. at 656, the Court recognizes that

there is a genuine dispute as to whether loud screaming and arguing could be heard when Brewer

arrived at the Makani residence.

Nevertheless, in light of relevant Fifth Circuit case law, the Court concludes that it was

objectively reasonable for Brewer to believe that warrantless entry into the Makani residence was

necessary to protect the individuals within from immediate harm. Even if, arguendo, the Court

accepted Makani’s version of facts as true and assumes that there was no loud screaming or arguing

when Brewer arrived, the Fifth Circuit’s decision in Rice indicates that Brewer need not have heard

such arguing or screaming to believe exigent circumstances existed. In Rice, the record did not

indicate that the officers heard any sort of loud commotion when they arrived at the scene. Rice,

770 F.3d at 1132. Nonetheless, the Fifth Circuit found that the officers had an objectively

reasonable basis for believing warrantless entry into the home was justified based on a credible

report of imminent violence from someone inside of them home, of which they learned through

their communications with dispatch. Id.

Like the officers in Rice, Brewer was aware of a credible report of imminent violence

through their communications his dispatch. While the officers in Rice were aware that the

individual was armed and was only threatening to harm himself, Brewer had an even greater basis

for believing exigent circumstances existed than the officers there. Unlike the officers in Rice,

Brewer was aware that: (1) Makani had already physically harmed individuals inside of the home;

and (2) at least one person in the home was hiding out of fear of continued violence. Moreover,

the Fifth Circuit’s decision in Cesar—albeit unpublished and non-binding, but nevertheless

persuasive—supports Brewer’s contention that a credible report of a domestic disturbance in

which the suspect had allegedly already harmed someone within the home supports a

determination that the emergency aid exception justified warrantless entry. Cesar, 642 F. App’x

389-90 (“[T]he officers received a credible report of domestic violence and were entitled [under

the emergency aid exception to enter Cesar’s home to protect his girlfriend . . . from potential

harm.”)

Thus, no fact issue exists as to whether Brewer’s warrantless entry into the Makani

residence was objectively reasonable under the circumstances, and the Court concludes that

Makani has not established that Brewer violated his Fourth Amendment right to be free from

unreasonable searches. As such, Brewer is entitled to qualified immunity from Makani’s illegal

entry claim.

2. Clearly Established Law

In the alternative, the Court concludes that Brewer is entitled to qualified immunity from

Makani’s illegal entry claim because Makani has not met his “heavy” and “demanding” burden of

showing that Brewer’s warrantless entry violated a clearly established right. Morrow, 917 F.3d at

874. Revoking qualified immunity is “an extraordinary remedy. To get it, [a plaintiff] must make

an extraordinary showing.” Id. at 877. Makani has failed to do so. He has not identified a

controlling precedent that “‘squarely governs’ the facts at issue.’” Kisela, 138 S.Ct. at 1153

(quoting Mullenix, 577 U.S. at 13). Nor has he identified a robust consensus of persuasive authority

rendering it “beyond debate”—such that any reasonable office would know, under the totality of

circumstances—that Brewer’s action of pushing fully open the door to enter the Makani residence

when responding to a credible report from within the home of domestic violence would violate the

Fourth Amendment. See al-Kidd, 563 U.S. at 741.

As discussed above, to establish that that the law is clearly established, plaintiffs must point

to “controlling authority—or a ‘robust consensus of authority’—that defines the contours of the

right in question with a high degree of particularity.” Morgan, 659 F.3d at 371-72 (quoting al-

Kidd, 563 U.S. at 742). The controlling authority need not be “directly on point” for a the law to

be clearly established, but it “must have placed the statutory or constitutional question beyond

debate.” Kisela, 138 S.Ct. at 1153. With respect to the use of persuasive authority to argue that the

law is clearly established, the Fifth Circuit has not identified the level of consensus required to put

the relevant question beyond debate. Morrow, 917 F.3d at 879 (citing al-Kidd, 563 U.S. at 741).

The bar, however, is high. See McClendon v. City of Columbia, 305 F.3d 314, 330-32 (5th Cir.

2002) (concluding that the adoption of the state-created-danger doctrine in six circuits was

insufficient to create a robust consensus because the circuits were not unanimous in defining the

doctrine’s its “contours” or applying it “to a factual context similar to that of the instant case”).

Makani points the Court to both Fifth Circuit and out-of-circuit case law in an attempt to

show that it was objectively unreasonable for Brewer to believe that exigent circumstances

justified his warrantless entry into the Makani residence in light of clearly established law. For the

reasons discussed below, both lines of argument fail to do so.

(i) Controlling Precedent

Makani fails to point the Court to any controlling precedent that “squarely governs the facts

at issue.” Kisela, 138 S.Ct. at 1153 (citation and quotation marks omitted). Makani cites only one

controlling case in which an officer’s warrantless entry into a residence under the auspices of the

emergency aid exception was held to be a violation of the Fourth Amendment. Makani makes

passing reference to Brigham City v. Stuart and Michigan v. Fisher, both of which are Supreme

Court cases in which the emergency aid exception was found to apply. These cases do nothing to

put Brewer on notice that entering the Makani residence six minutes after someone within the

home reported that violence had occurred and that they were afraid of continued violence was not

justified under the emergency aid exception. He also cites to dicta in the Supreme Court’s decision

in Georgia v. Randolph, quoting in a parenthetical the Court’s statement that police officers have

the “authority . . . enter a dwelling to protect a resident from domestic violence[] so long as they

have good reason to believe such a threat exists.” Randolph, 547 U.S. at 118. However, “clearly

established law comes from holdings, not dicta.” Morrow, 917 F.3d at 875. Moreover, even if dicta

could constitute clearly established law, Randolph actually cuts against Makani’s position. As the

Court discussed at length above, Brewer had good reason to believe that entering the Makani

residence was necessary to protect individuals in the home from violence. See supra III.B.1.

Makani points the Court to only one case constituting controlling precedent in which a

court found that the emergency aid exception did not apply—the Fifth Circuit’s decision in United

States v. Troop, 514 F.3d 405, 409 (5th Cir. 2008). However, Makani merely cites this case, does

not discuss its facts, and makes no attempt to explain how it “‘squarely governs’ the specific facts

at issue.” Kisela, 138 S.Ct. at 1153 (citation and quotation marks omitted). A brief analysis of

Troop reveals that it does not.

In Troop, the Fifth Circuit held that emergency aid exception did not apply when border

patrol agents concluded that the individuals they were tracking were in need of immediate medical

assistance—based solely on the fact that their footprints showed signs of fatigue. Troop, 514 F.3d

at 410. The Troop court found that signs of fatigue alone, absent evidence “of medical distress

requiring immediate aid, such as loss of blood, signs of physical illness, or evidence that the

individual had been carried or dragged,” did not constitute exigent circumstances justifying

immediate entry into the house. Id.

This case at bar is distinguishable from Troop on two grounds. First, the border patrol

agents in Troop entered the residence for a different reason that Brewer did in the case at hand.

There, the agents argued that it was objectively reasonable for them to believe that the individuals

needed medical assistance. Troop, 514 F.3d at 410. Here, Brewer argues that it was objectively

reasonable for him to believe that he needed to enter the Makani residence to prevent imminent

violence to those inside. (Doc. 20, pgs. 28-29). That alone renders Troop distinguishable from the

case at bar.

Second, the agents in Troop based that determination on fewer facts than Brewer did.

There, the agents based their determination solely on the fact that the footprints leading to the

house in question “became more scuffed and had less pronounced toe indentations than at first,

which indicated that the individuals were fatigued.” Troop, 514 F.3d at 407. Here, Brewer acted

in response to a 911 call from inside the Makani residence indicating that Makani was intoxicated,

had harmed individuals in the home, and that the caller was hiding from Makani out of fear.

Because the 911 call asking for assistance could reasonably be construed as evidence that Brewer

needed to enter the house to prevent imminent harm to those inside, Troop does not clearly

establish that Brewer’s actions were objectively unreasonable in light of clearly established law.

See Linicomn, 902 F.3d at 536 (finding that Troop did not squarely govern the facts at issue

because an estranged mother’s 911 call asking for assistance to check on a sick and lethargic child

who was living with the father could have reasonably been construed as evidence that the children

were in need of medical assistance). Thus, Troop is not “controlling authority . . . that defines the

contours of the right in question with a high degree of particularity” as required by the Fifth Circuit.

Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013).

Because Makani does not cite any controlling authority establishing that Brewer’s entry

into the home in response to a credible report of domestic violence from an individual within the

home would have violated a clearly established right, the Court next turns to Makani’s argument

that a robust consensus of persuasive authority clearly establishes that Brewer’s conduct was

unlawful.

(ii) Persuasive Authority

When a plaintiff points to a purported robust consensus of persuasive authority to argue

that the law is clearly established, courts must assess those decisions to determine whether they

define the relevant legal rule with “sufficient clarity to provide a reasonable officer in [the

defendant’s] position with fair warning that” his conduct would violate the plaintiff’s rights.

McClendon, 305 F.3d at 331. Makani provides a cavalcade of string citations to out-of-circuit cases

in an attempt to argue that a robust consensus of persuasive authority establishes that Brewer’s

entry into the home violated clearly established law. However, Makani makes no attempt to

describe how these cases define the contours of the emergency aid exception with sufficient clarity

to put Brewer on notice that his actions would violate the Fourth Amendment. A review of these

cases reveals that they do not demonstrate that the specific acts at issue here violated clearly

established law.

Makani only cites three out-of-circuit cases that could arguably be considered similar to

the case at hand insofar as they involved warrantless entry by officers responding to reports of

violent disturbances. However, these cases do not present situation analogous to the one faced by

Brewer on June 9, 2019, because they do not involve situations where an individual inside of the

residence called 911 and reported that: (1) an individual in the residence had already harmed

people in the home; and (2) the caller was hiding from that individual out of fear of further

violence.

First, Makani cites United States v. Davis, where the Tenth Circuit found that the exigent

circumstances exception did not apply where: (1) police officers responding to a reported domestic

disturbance did not hear noises from outside of the residence; and (2) the wife appeared at the front

door and resisted her husband’s efforts to close the door. 290 F.3d 1239, 1244 (10th Cir. 2002).

However, nothing in that decision indicates that the police responded to a call from within the

home from someone who had already witnessed violence and was hiding in fear. Makani also

points to the Tenth Circuit’s decision in Storey v. Taylor in support of his assertion that the report

of a loud argument that has ceased when officers arrived—without more—does not constitute

exigent circumstances. 696 F.3d 987, 996 (10th Cir. 2012). This argument suffers from the same

defects as Makani’s reliance on Davis. In Storey, the officers responded to an anonymous call from

someone who had overheard the loud argument from outside of the residence, id., not a call from

within residence by someone who witnessed violence and was hiding out of fear of continued

violence

Makani’s reliance on a decision of the Nevada Supreme Court is also misplaced. In Hannon

v. State, police officers responded to a 911 call of a possible domestic disturbance from a neighbor

who overheard a loud argument between the defendant and his girlfriend in their apartment next

door. 207 P.3d 344, 345 (2009), as modified (June 2, 2009). There, the officers entered the

apartment without a warrant when they arrived forty-five minutes after the 911 call and the

domestic disturbance and seemingly dissipated. Id. at 348. The Nevada Supreme Court suppressed

evidence gathered during that warrantless entry, holding that the emergency aid exception did not

apply because the officers had no reason to believe that the defendant or his girlfriend had been

injured or that there was a third person within the residence in need of emergency assistance. Id.

Again, however, this case does not support the assertion that it was objectively unreasonable for

Brewer to believe that the emergency aid exception applied when he responded to a 911 call from

inside of the residence—made from inside the residence only six minutes prior—indicating that

violence had already occurred and that at least one person inside the home was afraid that the

violence would continue.

Makani also cites a number of cases where sister circuits have held that the emergency aid

exception did not apply in situations that are entirely distinguishable from the case at bar. He cites

United States v. Moss, in which the Fourth Circuit held that the emergency aid exception did not

apply when a park ranger entered a supposedly unoccupied cabin because he saw an illegally

parked vehicle in front of it and feared that the owner might be lost or hurt. 963 F.2d 673 (4th Cir.

1992), as amended (May 21, 1992). He also cites United States v. Washington, where the Sixth

Circuit held that “an ongoing criminal trespass, on its own, constitutes an exigency that overrides

the warrant requirement” for officers who entered an arrestee’s home without a warrant seven days

after arresting him, based on his landlord’s report that there had been a “great deal of foot traffic”

into the apartment and that “a tenant had seen one man enter the unit with a gun.” 573 F.3d 279,

287-289 (6th Cir. 2009). Next, Makani cites Sandoval v. Las Vegas Metro. Police Dep’t, in which

the Ninth Circuit held that the emergency aid exception did not apply when an officer “arrived at

a home to find a pattern consistent with either lawful or unlawful activity, but with no evidence of

weapons, violence, or threats” 756 F.3d 1154, 1165 (9th Cir. 2014), cert denied, 574 U.S. 1153

(2015). There, however, the officer—responding to a 911 call about two white males casing a

neighborhood house—entered a different home after seeing Hispanic teenagers through a window

who did not match the description conveyed in the 911 call. Id. Finally, Makani cites United States

v. Hill, pointing out that the Fourth Circuit held that that exigent circumstances did not exist based

on officers’ observations that: (1) the door to the residence looked like it had been kicked in; (2)

noise inside of the home but no response to officer’s inquiries; (3) it sounded like someone

attempted to lock the door; and (4) the occupant had previously called weeks before to remove the

defendant from the home. 649 F.3d 258, 265 (4th Cir. 2011). There, however, officers had an arrest

warrant for the arrestee, went to the home to ask the occupant about the arrestee’s whereabouts,

and had expressed no basis for believing that anyone inside of the home was in need of assistance.

Id. None of these cases are similar to the case at bar insofar as they do not involve situations in

which officers responded to a 911 call from inside of a home indicating that violence had already

occurred and at least one person within the home was afraid that the violence would continue.

Moreover, Makani cites cases in which sister circuits have held that the emergency aid

exception did apply, which do nothing to put Brewer on notice that his actions violated clearly

established law. Makani cites United States v. Layman, an unpublished Tenth Circuit decision in

which the court found that warrantless entry was permissible based on information that the

plaintiff—a wanted felon—was staying in the residence and the officers detected a strong chemical

smell indicating that if someone was inside, that they may be unconscious or incapacitated. 244 F.

App’x 206, 208-209 (10th Cir. 2007). Makani also cites United States v. Taylor, where the Fourth

Circuit held that emergency aid exception justified warrantless entry into a house when the police

sought to identify the parents of a four-year-old child who was found wandering nearby alone and

had identified the house as where she lived. 624 F.3d 626 (4th Cir. 2010). However, these cases

do not further Makani’s argument that Brewer’s conduct was unreasonable under the

circumstances facing him on the morning of June 9, 2019.

Finally, Makani cites to dicta in two out-of-circuit cases to further his argument that a

robust consensus exists. (See Doc. 28, pg. 22-23) (citing Timmann, 741 at 1179 (observing that

cases applying the emergency aid exception “have in common the indicia of an urgent, ongoing

emergency, in which officers have received emergency reports of an ongoing scene, arrived to find

a chaotic scene, and observed violent behavior, or at least evidence of violent behavior”); Nelms

v. Wellington Way Apartments, LLC, 513 F. App’x 541, 545 (6th Cir. 2013) (“[E]ach time this

court has upheld a warrantless entry based on the emergency aid exception, credible and reliable

evidence established the potential for injury to the officer or others and the need for swift action.”)).

Even if the cited portions of these cases supported Makani’s argument that Brewer violated clearly

established law—which they do not—plaintiffs may not rely on dicta to argue that an officer’s

conduct violates clearly established law. See Morrow, 917 F.3d at 875 (“[C]learly established law

comes from holdings, not dicta.”) (citations omitted).

Thus, Makani has failed to show that a robust consensus of persuasive authority

demonstrates that it was clearly established on June 9, 2019, that the specific act at issue here—an

officer’s entry into a home to which he was called to investigate a credible report of violence that

came from within the home—violated the Fourth Amendment. McClendon, 305 F.3d at 331.

Because Makani has neither identified controlling precedent nor a robust consensus placing this

question beyond debate, he has not carried his heavy burden of demonstrating that Brewer’s

actions violated clearly established law. See Morrow, 917 F.3d at 876-880 (5th Cir. 2019)

(affirming summary judgment granting qualified immunity because appellant did not identify

controlling precedent or a robust consensus of persuasive authority). Accordingly, the Court must

conclude that Brewer is entitled qualified immunity from Makani’s illegal entry claim.

IV. CONCLUSION

For the reasons discussed above, the Defendant Michael Brewer’s Motion for Summary

Judgment, (Doc. 19), is GRANTED. Accordingly, all of Plaintiff Rasool Makani’s claims against

Defendant Brewer are hereby DISMISSED WITH PREJUDICE.

SO ORDERED: April 6, 2023.