“Generally, if probable cause exists, any argument that the arrestee’s speech as opposed to her criminal conduct was the motivation for her arrest must fail, no matter how clearly that speech may be protected by the First Amendment.” (cleaned up)
How later courts described this case
- “Generally, if probable cause exists, any argument that the arrestee’s speech as opposed to her criminal conduct was the motivation for her arrest must fail, no matter how clearly that speech may be protected by the First Amendment.” (cleaned up)
- noting that “three appellate judges” should decline to “play[] junior-varsity jury”
- same as to claim that arrest violated free speech rights
Written by the judges who cited it.
The opinion
Case: 22-20028 Document: 79-1 Page: 1 Date Filed: 08/30/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-20028 August 30, 2024
____________ Lyle W. Cayce
Clerk
Corey Spiller,
Plaintiff—Appellant,
versus
Harris County, Texas; Harris County Constable
Precinct 7; Constable May Walker; Jared Lindsay,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
No. 4:20-CV-3878
______________________________
Before Jones, Dennis, and Willett, Circuit Judges.
James L. Dennis, Circuit Judge:
At approximately 4:00 a.m. on December 21, 2019, Corey Spiller
drove to assist his girlfriend, Dashanelle Moore, after her minor single car
accident on a Houston elevated expressway. Much of the episode forming the
basis of this lawsuit was captured on police body-worn cameras. Both parties
rely on those videos as accurately capturing and showing the facts in their
conflicting versions of what happened.
At the scene, Spiller and Moore peaceably conversed with officers
until a supervisor, Sergeant Jared Lindsay, arrived. Lindsay Video at 21:30–
Case: 22-20028 Document: 79-1 Page: 2 Date Filed: 08/30/2024
No. 22-20028
40. Lindsay briefly questioned Moore and rebuked Spiller for attempting to
answer for her. Lindsay Video at 22:10–23:20. He then directed Moore to go
with an officer to a nearby truck stop for further police procedures and he
told Spiller to follow in his car. Lindsay Video at 23:21–23:32. Spiller
attempted to ask Lindsay and other officers about what would happen to
Moore. Lindsay Video at 23:28–23:33. Lindsay became enraged, seized
Spiller at his neck, and slammed him on his back on the hood of a parked car.
Lindsay Video at 23:40–50; Lane Video at 8:10–20. The two tumbled to the
pavement and continued to scuffle as the other officers intervened and
grasped Spiller. Lindsay Video at 23:50–56. One officer tased Spiller in his
back. Lindsay Video at 23:57–24:03. Spiller was arrested and taken into
custody, but charges against him were later dropped.
Spiller filed suit under 42 U.S.C. § 1983 against Lindsay in his
individual and official capacities, Harris County, Harris County Constable
Precinct 7, and Chief Constable May Walker in her individual and official
capacities. Spiller brought claims for excessive force and false arrest,
bystander liability, retaliation, and a violation of the Americans with
Disabilities Act (ADA). The district court dismissed Harris County, Precinct
7, and Chief Constable Walker for failure to state a claim and later granted
summary judgment for Lindsay on the basis of qualified immunity. Spiller
timely appealed, 1 challenging the entry of summary judgment dismissing his
_____________________
1
With respect to the district court’s dismissal of Spiller’s claims against Precinct
7 and claims against Chief Constable Walker and Harris County for false arrest, First
Amendment retaliation, bystander liability, and ADA violations, Spiller does not challenge
these rulings in his briefing. A party forfeits an argument challenging the district court’s
ruling by not raising it on appeal. Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397 (5th Cir.
2021). Likewise, with respect to Spiller’s claims against Chief Constable Walker for
supervisory liability, he does not even mention supervisory liability in his briefing.
Accordingly, Spiller has forfeited those claims due to inadequate briefing. See DeVoss v. Sw.
2
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No. 22-20028
Fourth Amendment excessive force, Fourth Amendment false arrest, First
Amendment retaliation, and bystander liability claims against Lindsay; and
the dismissal of his Monell 2 claim against Harris County.
I
We review a grant of summary judgment on the basis of qualified
immunity de novo. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019)
(citing Vann v. City of Southaven, 884 F.3d 307, 309 (5th Cir. 2018)). When a
public official makes “a good-faith assertion of qualified immunity,” that
“alters the usual summary-judgment burden of proof, shifting it to the
plaintiff to show that the defense is not available.” Joseph ex rel. Joseph v.
Bartlett, 981 F.3d 319, 329-30 (5th Cir. 2020) (quoting Orr v. Copeland, 844
F.3d 484, 490 (5th Cir. 2016)). As is normal for summary judgment, “[t]he
plaintiff must show that there is a genuine dispute of material fact and that a
jury could return a verdict entitling the plaintiff to relief for a constitutional
injury.” Id. at 330. However, unique to the qualified immunity context, “to
overcome qualified immunity, the plaintiff’s version of those disputed facts
must also constitute a violation of clearly established law.” Id.
We review the grant of a motion to dismiss for failure to state a Monell
claim de novo. Henderson v. Harris Cnty., 51 F.4th 125, 130 (5th Cir. 2022)
(citing Groden v. City of Dall., 826 F.3d 280, 283 (5th Cir. 2016)). We take all
factual allegations as true and construe the facts in the light most favorable to
the plaintiff. See Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243,
249 (5th Cir. 2017) (citing Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir.
2017)). When considering the denial of a Rule 12(b)(6) motion, the pertinent
_____________________
Airlines Co., 903 F.3d 487, 489 n.1 (5th Cir. 2018) (concluding that failure to adequately
brief a claim on appeal forfeits it).
2
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
3
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No. 22-20028
inquiry is whether the plaintiff has alleged facts that raise a facially plausible
claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put differently, a Rule
12(b)(6) motion should be denied if the facts in the complaint, when taken as
true, “raise a right to relief above the speculative level.” Ruiz v. Brennan, 851
F.3d 464, 468 (5th Cir. 2017) (quoting Taylor v. City of Shreveport, 798 F.3d
276, 279 (5th Cir. 2015)).
II
A
Lindsay was not entitled to qualified immunity from Spiller’s
excessive force claim on summary judgment. Because the videos of Sergeant
Lindsay and Deputy Lane, and the record as a whole, do not blatantly
contradict Spiller’s version of events so that no reasonable jury could believe
it, this case does not fall within the exceptional holding of Scott v. Harris, 550
U.S. 372, 380 (2007) (admonishing us to not adopt or advert to the plaintiff’s
version of the facts for purposes of ruling on a motion for summary judgment
when the plaintiff’s version of events is utterly discredited by video
evidence). Instead, we apply Rule 56 of the Federal Rules of Civil Procedure
unvarnished. Doing so, we conclude that Lindsay failed to show the absence
of a genuine dispute of material fact as to both elements of qualified
immunity: whether Lindsay violated Spiller’s Fourth Amendment right to be
free from excessive force; and “whether the right at issue was clearly
established at the time of [the] alleged misconduct.” Morrow, 917 F.3d at 974
(alteration in original) (internal quotations omitted).
First, a violation of the Fourth Amendment “occurs when a seized
person suffers an injury that results directly and only from a clearly excessive
and objectively unreasonable use of force.” Joseph, 981 F.3d at 332 (citing
Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)). “Determining
whether force was excessive or unreasonable is a ‘necessarily fact-intensive’
4
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No. 22-20028
and case-specific inquiry.” Id. (quoting Poole, 691 F.3d at 628). Lindsay’s
affidavit contends that he was justified in seizing and body slamming Spiller
because Spiller (1) interfered with his investigation and (2) elbowed him in
his stomach.
To the first point, Lindsay and the dissent suggest that Lindsay’s force
was justified because Spiller was “actively obstructing [an] investigation,”
i.e., the severity of the crime—interfering with public duties—was great.
Post, at 19 (Jones, J., dissenting). But the Fifth Circuit has held that this
offense is “minor,” a factor that weighs in favor of finding excessive force.
Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018) (holding that, as to
Graham’s 3 first factor, the severity of the crime, interference with public
duties is a minor offense).
To the second point in Lindsay’s affidavit, Spiller’s declaration states
that Lindsay attacked him with excessive, unreasonable force, which was
totally unjustified and unprovoked by any act by Spiller. Spiller’s declaration
specifically asserts that he did not elbow Lindsay and that he was not actively
resisting. Joseph, 981 F.3d at 336 (finding excessive force was used when
officers beat and tased a man who—in the plaintiff’s version of the facts—
was not suspected of a crime and who, while not following instructions, was
not actively resisting); see also Ramirez v. Martinez, 716 F.3d 369 (5th Cir.
2013) (holding that officers exerted excessive force by immediately tasing and
forcing to the ground a person whose only resistance was merely failing to
comply with orders to put his hands behind his back and pulling his arm away
_____________________
3
Graham v. Connor, 490 U.S. 386, 396 (1989) (outlining a few considerations that
inform the need for force: the severity of the crime at issue, whether the suspect posed an
immediate threat to the safety of officers or others, and whether the suspect was actively
resisting arrest or attempting to evade by flight).
5
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No. 22-20028
when an officer grabbed his hand). Lindsay and the dissent exaggerate 4 the
video evidence by arguing it “clearly shows that the first blow was struck by
Spiller when he elbowed Sergeant Lindsay in the chest.” Post, at 20. The key
moment in the footage is when Lindsay steps into Spiller’s face and Spiller
moves his elbow. The video evidence does not show Spiller striking Lindsay.
Instead, the bodycams show Spiller maneuvering to get a view of the officers
he was addressing and creating space between himself and Lindsay. Lindsay
Video at 23:40–50; Lane Video at 8:10–20. At that same time, Lindsay
barreled toward Spiller, which caused Spiller’s elbow to rub up against
Lindsay.
Because the video evidence in the record does not completely refute
Spiller’s declaration, we apply Rule 56, find there is a genuine dispute of
material fact as to whether Spiller “elbowed” Lindsay, and assume that the
jury will believe the non-moving party’s evidence at trial. Scott, 550 U.S. at
380; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The
evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.”).
Second, we conclude that the right to be free from excessive force was
clearly established at the time of the violation in this case. See Joseph, 981
F.3d at 342 (relying on, inter alia, Newman v. Guedry, 703 F.3d 757, 764 (5th
Cir. 2012) and Ramirez, 716 F.3d at 378–79, for the “long . . . established
[rule] in our circuit [that] [o]fficers engage in excessive force when they
_____________________
4
“Video is no magic bullet to end fierce conflicts in interpretation.” Mary D. Fan,
Democratizing Proof: Pooling Public and Policy Body-Camera Videos, 96 N.C. L. Rev. 1639,
1658 (2018). Legal scholars have commented that “[t]he allure of video’s seeming
transparency into truth heightens the risk that viewers will miss the persuasion effects and
even potential distortion caused by angle, framing, perspective, and the filter of one’s own
preconceived notions.” Id. at 1662.
6
Case: 22-20028 Document: 79-1 Page: 7 Date Filed: 08/30/2024
No. 22-20028
physically strike a suspect who is not resisting arrest”). 5 Newman involved
excessive force against an individual who had only made off-hand remarks
and stepped back into officers during a pat down. 703 F.3d at 760–64. Ramirez
involved excessive force against an individual whose only resistance was
merely failing to comply with orders to put his hands behind his back and
pulling his arm away when an officer grabbed his hand. 716 F.3d at 378. These
cases are factually similar to this case, in which Lindsay used force after the
only things Spiller did was not immediately comply with instructions to leave
the scene and maneuvered his elbow near Lindsay to maintain a line of sight
to the officers he was speaking with and to create space between himself and
Lindsay. These cases establish that officers engage in excessive force when
they physically strike a suspect who is not resisting arrest. Joseph, 981 F.3d at
342. Moreover, Newman, in which the force occurred against an individual
not suspected of wrongdoing, 703 F.3d at 764, and Westfall, in which an
individual was tackled even though she was not under arrest, 903 F.3d at 548,
establish that less force is permissible against individuals not yet under arrest,
like Spiller in this case.
For its part, the dissent tries to distinguish Newman and Ramirez by
improperly resolving two fact disputes in favor of the moving party. First,
whether Spiller struck Lindsay, which, for the reasons already explained, is
genuinely disputed. And second, whether Spiller was potentially intoxicated.
_____________________
5
Joseph itself did not clearly establish the right at issue for the present case because
it was decided after 2019, the year in which the events in this case took place. See Salazar
v. Molina, 37 F.4th 278, 286 (5th Cir. 2022). Nevertheless, Joseph relied on Newman and
Ramirez, cases decided in 2012 and 2013 respectively, to find that it has “long been
established in our circuit [that] [o]fficers engage in excessive force when they physically
strike a suspect who is not resisting arrest.” 981 F.3d at 342. Newman and Ramirez clearly
establish the right at issue here because they were decided before 2019.
7
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No. 22-20028
Post, at 19–21. Putting aside materiality, 6 there is a genuine dispute of fact as
to whether Lindsay suspected Spiller (as opposed to Spiller’s then-girlfriend)
of intoxication—after all, Lindsay directed Spiller to get into his vehicle and
drive it away from the scene. That request does not jibe with a supposed
contemporaneous belief that Spiller had been drinking.
Having found genuine fact disputes material to the existence of a
constitutional violation and concluding that the right at issue was clearly
established at the time Lindsay’s misconduct occurred, we reverse the
district court’s grant of summary judgment to Lindsay on Spiller’s excessive
force claim. 7 A jury may ultimately decide the facts against Spiller, but at this
stage, he has made an adequate showing to “go to trial for damages.” Post, at
17.
III
Next, the district court found that Lindsay was entitled to qualified
immunity from Spiller’s Fourth Amendment false arrest claim on summary
judgment because “[a] reasonably competent officer could have believed that
probable cause existed for [Spiller’s] arrest.” “A false-arrest claim requires
a showing of no probable cause.” Westfall, 903 F.3d at 542 (citing Brown v.
Lyford, 243 F.3d 185, 189 (5th Cir. 2001)). Lindsay had probable cause to
arrest Spiller for interference with public duties. Section 38.15 of the Texas
Penal Code provides: “A person commits an offense if the person with
criminal negligence interrupts, disrupts, impedes, or otherwise interferes
with . . . a peace officer while the peace officer is performing a duty or
_____________________
6
See post, at 16 n.10 (Willett, J., concurring) (“I do not take the dissent to
suggest that an officer can chokeslam someone based on the smell of alcohol.”).
7
The dissent includes a throw-away argument that Spiller “suffered no injury[.]”
Post, at 21. That is wrong. Spiller submitted an affidavit saying Lindsay’s challenged acts
caused him “pain” and to “fear for [his] life.”
8
Case: 22-20028 Document: 79-1 Page: 9 Date Filed: 08/30/2024
No. 22-20028
exercising authority imposed or granted by law.” Tex. Penal Code §
38.15(a)(1). Texas courts have affirmed convictions of defendants who failed
to comply with an officer’s instruction to move away from a crime scene. See,
e.g., Duncantell v. State, 230 S.W.3d 835, 842 (Tex. App.—Hous. [14th Dist.]
2007, pet. ref’d) (finding that defendant violated Texas Penal Code § 38.15
by repeatedly disregarding officers’ orders to stand away from crime scene
during an investigation). Likewise, the Fifth Circuit has found probable cause
when an individual fails to follow instructions necessary for an officer to
perform their duties. See, e.g., Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir.
2017).
In this case, during the investigation, Spiller at one point answered a
question for Moore, prompting Lindsay to tell him to let Moore answer.
Lindsay Video at 22:34–22:38. Spiller does not dispute this. Lindsay then
asked Spiller to leave the scene multiple times while Moore went with the
other officers to complete the investigation. Lindsay Video at 23:22–23:40.
Like in the cases cited above, a reasonable officer could think Spiller was
interfering with the investigation by refusing to leave while the investigation
was being completed. See, e.g., Childers, 848 F.3d at 415; Westfall, 903 F.3d
at 544; Duncantell, 230 S.W.3d at 842. Because there was probable cause for
Spiller’s arrest for interference with public duties, Spiller has failed to show
a constitutional violation, and Lindsay was entitled to qualified immunity on
Spiller’s false arrest claim. 8
IV
_____________________
8
Separately, the district court granted summary judgment as to Spiller’s bystander
liability claim against Lindsay. Spiller inadequately uses a single sentence of analysis on this
claim in his briefing; it is forfeited. See DeVoss, 903 F.3d at 489 n.1.
9
Case: 22-20028 Document: 79-1 Page: 10 Date Filed: 08/30/2024
No. 22-20028
The district court also found that Lindsay was entitled to qualified
immunity for Spiller’s First Amendment retaliation claim on summary
judgment “[b]ecause Lindsay had probable cause to arrest Spiller.”
Generally, “[i]f [probable cause] exists, any argument that the arrestee’s
speech as opposed to her criminal conduct was the motivation for her arrest
must fail, no matter how clearly that speech may be protected by the First
Amendment.” Westfall, 903 F.3d at 550 (second alteration in original)
(quoting Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008)). In this case, as
already explained, Lindsay had probable cause to arrest Spiller for
interference with public duties. 9 The district court’s grant of qualified
immunity on Spiller’s First Amendment retaliation claim was proper.
V
Finally, the district court properly dismissed Spiller’s Monell claim
against Harris County under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Spiller failed to allege any specific facts from which it may be
inferred that he was injured by any policy, custom, or practice of the County
that was a moving force of his altercation with Lindsay. Gomez v. Galman, 18
F.4th 769, 777 (5th Cir. 2021) (quoting Davidson v. City of Stafford, 848 F.3d
384, 395 (5th Cir. 2017), as revised (Mar. 31, 2017)).
VI
For the foregoing reasons, we REVERSE the district court’s award
of summary judgment to Lindsay based on qualified immunity from Spiller’s
_____________________
9
Spiller does not argue that the exception recognized in Nieves v. Bartlett, 587 U.S.
391 (2019), to the no-probable-cause requirement applies. See Gonzalez v. Trevino, 144 S.
Ct. 1663, 1665–66 (2024) (noting that the no-probable-cause requirement does not apply
“if [t]he [plaintiff] produces ‘objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech had not
been.’” (quoting Nieves, 587 U.S. at 407)).
10
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No. 22-20028
claim for excessive force, AFFIRM the district court in all other respects,
and REMAND this case for further proceedings not inconsistent with this
opinion.
11
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No. 22-20028
Don R. Willett, Circuit Judge, concurring:
Videos from police body and dashboard cameras and bystanders’
smartphones play a front-and-center role in many excessive-force cases. For
police officers, body-worn video cameras, like badges and firearms, are
becoming standard-issue equipment. Sometimes the captured footage
convincingly shows an officer’s actions were justified (limiting police
liability), sometimes the footage convincingly shows the opposite (enhancing
police accountability)—and sometimes the footage is less convincing than
confounding.
As this case shows, absolute truth is sometimes hard to pin down, even
when captured by high-definition video. And visual storytelling in use-of-
force cases usually involves the parties jousting over what is—and is not—
shown on screen. “When opposing parties tell two different stories,” we
must assess the factual dispute in light of the video evidence. 1 And while such
evidence can sharpen our decision-making by leaving less room for
speculation and guesswork, it can often raise as many questions as it
answers—for example, what about what the footage doesn’t show . . . the
events that took place during the run-up to the alleged misconduct? And even
what the often-harrowing video does show can become a Rorschach test of
sorts, as viewers filter objective evidence through subjective experience.
Where some see damning digital proof, others see clear-cut exoneration.
Civil-rights lawsuits alleging police abuse are fact-intensive, and we
must scrutinize every minute detail of these often-chaotic encounters. And
make no mistake, the process is not glamorous. We painstakingly examine
every frame: watching, re-watching, re-re-watching, pausing, rewinding, and
sometimes squinting—and then comparing what we saw with our own eyes
_____________________
1
See Scott v. Harris, 550 U.S. 372, 380 (2007).
12
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No. 22-20028
to the parties’ competing descriptions of what we saw. 2 Invariably, there will
be incongruities—a gentle word for it—between what we see on the screen
and what we read in the briefs. Advocates, after all, are hardwired for
certitude, insisting the video “clearly” shows this or “indisputably” shows
that. Sometimes that’s true—but just as often, not.
As nonaligned observers, judges are not predisposed to
overstate/understate based on personal involvement in the dispute or a stake
in who wins. That said, we’re far from perfect. Even high-definition video
footage can yield competing eye-of-the-beholder takeaways. And the most
disinterested observer may not always appreciate the full picture. Indeed, the
dissent believes just that, leveling the accusation that we have, apparently,
omitted “[s]everal critical details” from the bodycam footage and
consequently produced “an absurd result on the facts before” us. 3 I, of
course, disagree with both the accusation and the characterization. As best I
can tell, the majority’s description is largely faithful to what the evidence
shows in light of the allegations made. But after reading the dissent, one can
only wonder how we can reach such polar-opposite conclusions from the
same video.
Describing video footage is tricky. But we must do our best. Just as the
parties must explain themselves to us, we must explain ourselves to them—
and to the public. 4 My colleagues have offered competing accounts of the
video, and below I add mine.
_____________________
2
See Boyd v. McNamara, 74 F.4th 662, 665 (5th Cir. 2015) (“[W]e are required to
view the facts in the light depicted by the videotape.” (internal quotations omitted)).
3
Post, at 17 (Jones, J., dissenting).
4
As former Supreme Court Justice Tom C. Clark once remarked, “You see, we
don’t have an army to enforce our opinions, and we don’t have any money . . . to run an ad
in the newspaper. The only way we have is logic and the force and common sense of the
13
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No. 22-20028
* * *
After Sergeant Lindsay arrives at the scene and is quickly debriefed
about the accident, he questions both Moore and Spiller. His questions were
curt and direct. So were the answers from Moore and Spiller. While the other
officers seem to have been preoccupied with the wrecker and removing
Moore’s car from the tollway, Sergeant Lindsay asks the other officers if they
smell something—which, he later says in his affidavit, was a “strong odor of
alcohol.”
Sergeant Lindsay then directs Moore to go with an officer to a nearby
truck stop, telling Spiller that he can follow in his car. Spiller tried to ask
follow-up questions, but Sergeant Lindsay cut him off twice. Visibly
frustrated, Spiller insists on speaking with the officers who, up until Sergeant
Lindsay arrived, had no issues with Spiller. Sergeant Lindsay, also frustrated,
rapidly approaches Spiller, their bodies inches away, and informs Spiller that
he (Sergeant Lindsay) is the supervisor.
Then, in what appears to be an attempt to create space between him
and Sergeant Lindsay, Spiller extends his elbow out, rubbing up against
Sergeant Lindsay’s stomach. Sergeant Lindsay reacts by grabbing Spiller by
his neck and throwing him down on the hood of a patrol car. A struggle
ensues, with both Sergeant Lindsay and Spiller grabbing each other by the
arms. Once Sergeant Lindsay has him pinned down, Spiller appears to swipe
at Sergeant Lindsay’s nose with his hand, but it is unclear (at best) whether
he ever makes contact. Spiller later falls to the ground, other officers
pouncing on him to detain him, and ultimately ending with Spiller getting
tased multiple times in the back.
_____________________
opinion.” Mimi Clark Gronlund, Supreme Court Justice Tom C. Clark
189 (2010).
14
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No. 22-20028
* * *
Those are the crucial details as I see them. Much can be said about the
differences between the above description and the dissent’s, but I think there
are at least three worth pinpointing.
First, according to the dissent, “Spiller clenched his fist and elbowed
Sergeant Lindsay in the chest.” 5 With respect, I do not see either of those
things. Up until Sergeant Lindsay grabbed Spiller by his neck, one of Spiller’s
hands was in his jacket pocket, and the other was gesturing toward Moore.
So it is unclear where the dissent spies a clenched fist. As far as I can tell, “it
doesn’t register on the video at all.” 6
Second, when the dissent says Spiller “elbowed Sergeant Lindsay in
the chest,” I take that to be an overstated way of simply saying that Spiller
moved his elbow in a way that created space between him and Sergeant
Lindsay—a natural reaction when someone larger than you, officer or not,
suddenly gets in your face for the purpose of intimidation. 7
Third, and finally, it is unclear how the dissent so assuredly observes
“Spiller punch[] Sergeant Lindsay in the upper lip and jaw, causing
injuries.” 8 There were, to be sure, hands and arms flailing around after
Sergeant Lindsay chokeslammed Spiller onto the patrol car. And Spiller’s
hand did indeed fly near Sergeant Lindsay’s face as they were both struggling
atop the car, possibly showing an attempted punch or swipe—maybe, maybe
_____________________
5
Post, at 18 (Jones, J., dissenting).
6
Id.
7
Ironically, the dissent’s description of what Sergeant Lindsay might have done to
Spiller—“not much of a nudge”—more aptly fits what we see Spiller do to Sergeant
Lindsay. Id.
8
Id.
15
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No. 22-20028
not. But, from the point of view provided on Officer Lane’s bodycam, I am
doubtful Spiller ever connected his attempted punch (if it was indeed an
attempted punch 9). Whatever happened, though, I certainly cannot describe
it with anything close to the dissent’s unswerving conviction, and more
importantly for the excessive-force claim before us, it was well after Sergeant
Lindsay decided that the circumstances warranted a chokeslam. 10
* * *
At bottom, while I see the video differently than the dissent, I think
our disagreement is a reasonable one. The dissent insists Sergeant Lindsay
merely reacted to an “assault,” while I believe that the video tends to
corroborate Spiller’s allegation of excessive force—or at minimum confirms
there is a material factual dispute. Given our disagreement—a sincere but
significant one—I have no heartburn with the notion that the parties’ dispute
“can go to trial,” 11 a bedrock constitutional guarantee that the dissent seems
to fear will materialize. There, in a solemn United States courtroom, the
dissent’s view, if correct, can be vindicated by a jury of Spiller’s and Sergeant
Lindsay’s peers—not by three appellate judges playing junior-varsity jury.
_____________________
9
Whether Spiller attempted to punch Sergeant Lindsay is a disputed fact issue,
and one that cannot be easily resolved by reference to Deputy Lane’s bodycam footage. I
therefore cannot say, as the dissent seems to imply, that Spiller’s version of events is
“blatantly contradicted by the record.” Scott, 550 U.S. at 380.
10
In concluding that Sergeant Lindsay’s use of force was justified, the dissent also
mentions that Spiller was “potentially intoxicated.” Post, at 19 (Jones J., dissenting). I do
not take the dissent to suggest that an officer can chokeslam someone based on the smell of
alcohol.
11
Id. at 17.
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Edith H. Jones, Circuit Judge, dissenting:
Sergeant Lindsay arrived at the scene of a traffic accident and got
interrupted repeatedly by Spiller, who elbowed him in the ribs, fought with
him, and eventually bloodied his lip—and Spiller can go to trial for damages?
This is an absurd result on the facts before the panel. Sergeant Lindsay is
entitled to qualified immunity on Spiller’s excessive force claim. I
respectfully dissent from the majority’s denial of qualified immunity. 1
Several critical details are omitted from the majority opinion, as the
record and video evidence reveal. From the minute Sergeant Lindsay arrived
on the scene, Spiller was interfering with Sergeant Lindsay’s investigation of
the accident. Spiller spoke over Moore and attempted to answer questions
directed at her; Spiller was immediately warned by Sergeant Lindsay not to
do this. Lindsay Video at 22:36-38. Sergeant Lindsay detected a “strong
odor of alcohol,” as he approached Moore and Spiller on the roadside. He
mentioned this to the other officers, and asked Deputy Lane “Do you smell
that?. . . You need to take a big whiff.” Lindsay Video at 23:10-15; Lane
Video at 7:45-50. Lindsey also asked Deputy Lane if he had checked Moore
and Spiller for driving while intoxicated (DWI). 2 Lindsay Video at 23:08-
23:14.
Unsure where the odor was coming from, Sergeant Lindsay told
Deputy Lane to separate Moore and Spiller until the officers could move
their investigation off the Tollway for safety reasons. Spiller was told that he
could follow Moore and Deputy Lane off the Tollway, but that Moore needed
_____________________
1
I concur in the remainder of the opinion, which affirms the dismissal of Spiller’s
other “constitutional” claims.
2
A search of Spiller’s car revealed a large, near-empty bottle of tequila and a red,
disposable tumbler on the hood of the car.
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No. 22-20028
to go with Deputy Lane. Lane Video at 7:54-8:07. But Spiller insisted on
speaking over Sergeant Lindsay and demanded to speak with someone else.
Lane Video at 8:07-8:11. Then, when Lindsay approached Spiller to say that
he was a supervisor and to explain what was happening, Spiller clenched his
fist and elbowed Sergeant Lindsay in the chest. Lane Video at 8:11-14.
Sergeant Lindsay recognized this as an assault, and the physical
confrontation between Spiller and Lindsay followed. Lane Video at 8:14-
8:49; Lindsay Video at 23:40-24:11. Contrary to the majority’s view, the
video plainly shows Spiller’s aggressive elbowing of Sergeant Lindsay. But
even if there were a fact issue as to whether the Sergeant nudged Spiller first,
it obviously was not much of a nudge, because it doesn’t register on the video
at all. That being the case, Spiller had no right to attack Sergeant Lindsay
with his fists. Even worse, during the confrontation, Spiller punched
Sergeant Lindsay in the upper lip and jaw, causing injuries. This punch left
Sergeant Lindsay in pain and disoriented. As a result, he tumbled to the
ground and bloodied his knuckles. Contrary to the implication in the majority
and concurring opinions, Sergeant Lindsay did not tase Spiller; another
officer had to do that when Spiller continued fighting a third officer. Lane
Video at 8:28-8:37.
After the melee, the deputies relocated to a nearby Shell station where
Sergeant Lindsay was treated by the Houston Fire Department for his
injuries: a swollen, bloody lip, a cut, swollen right hand, and pain in his right
elbow. Spiller, for his part, denied being injured and refused treatment.
To this more complete recitation of the facts, I apply the familiar two-
step qualified immunity inquiry: “[t]he first question is whether the officer
violated a constitutional right. The second question is whether the right at
issue was clearly established at the time of the alleged misconduct . . . . We
can decide one question or both.” Morrow v. Meachum, 917 F.3d 870, 874
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(5th Cir. 2019) (quotation marks and citation omitted). Spiller bears a heavy
burden under the second question, as precedent
requires the plaintiff to identify a case—usually, a body of
relevant case law—in which an officer acting under similar
circumstances . . . was held to have violated the Constitution.
While there need not be a case directly on point, the
unlawfulness of the challenged conduct must be beyond
debate.
Joseph ex rel. Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020) (quotation
marks and footnotes omitted). The upshot is that “[q]ualified immunity is
justified unless no reasonable officer could have acted as [Sergeant Lindsay]
did here, or every reasonable officer faced with the same facts would not have”
acted as Sergeant Lindsay did. Mason v. Faul, 929 F.3d 762, 764 (5th Cir.
2019) (emphases in original); see also Brown v. Callahan, 623 F.3d 249, 253
(5th Cir. 2010) (“In essence, a plaintiff must allege facts sufficient to
demonstrate that no reasonable officer could have believed his actions were
proper”).
The district court correctly concluded that Spiller failed to meet his
burden to show it was “clearly established” that his use of force was
excessive. The cases relied on by the majority to suggest that Spiller was
subjected to excessive force are not on point. Lindsay acted lawfully in
physically restraining Spiller, who was uncooperative, potentially
intoxicated, and actively obstructing investigation, after Spiller elbowed him.
The majority relies on Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.
2012) and Ramirez v. Martinez, 716 F.3d 369, 378–79 (5th Cir. 2013) to show
that, as of 2019, relevant caselaw in this circuit “clearly established” the right
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at issue for the present case. 3 Both are thin reeds, and are applied by the
majority at an inappropriately high level of generality. 4 Principally, neither
one involved an injurious assault by the subject of arrest on the law
enforcement officer. 5
Newman is thus distinguishable for three reasons. First, the
videotapes in Newman did not clearly demonstrate the plaintiff’s non-
compliance with an officer’s commands. 703 F.3d at 762. Here, the
unambiguous video evidence fully “discredit[s]” Spiller’s allegations. Id.
Spiller disobeyed instructions from Lindsey, despite repeated warnings.
Second, unlike Newman, Deputy Lane’s body camera footage clearly shows
that the first blow was struck by Spiller when he elbowed Sergeant Lindsay
in the chest. Lane Video at 8:11-14. In Newman, however, the video evidence
neither “contradict[ed] nor confirm[ed]” competing accounts of whether
Newman had grabbed an officer’s hand and refused to let go before being
struck with a baton, or whether Newman had been struck with a baton despite
never resisting or failing to comply with the officers’ commands. 703 F.3d at
_____________________
3
The Supreme Court, of course, has repeatedly reserved the question whether
circuit courts can rely on their own precedents, as opposed to those of the Supreme Court
itself, to demonstrate “clearly established law.” See D.C. v. Wesby, 583 U.S. 48 , 66 n.8,
138 S. Ct. 577, 591(2018); Reichle v. Howards, 566 U.S. 658, 665–66, 132 S. Ct. 2088, 2094
(2012).
4
Notably, in Wesby, the Supreme Court noted that it has “repeatedly stressed that
courts must not define clearly established law at a high level of generality, since doing so
avoids the crucial question whether the official acted reasonably in the particular
circumstances that he or she faced.” 583 U.S. at 63–64, 137 S. Ct. at 590 (quotation marks
omitted).
5
Nor, for that matter, does Westfall v. Luna, 903 F.3d 534 (5th Cir. 2018), which
the majority cites for the proposition that “less force is permissible against individuals not
yet under arrest.” In that case, the plaintiff was not suspected of being intoxicated, and the
plaintiff did not make initial physical contact with the officer. Id. at 539–41. Thus, that
case is readily distinguishable from the facts at issue here as well.
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760. Third, this case features an element completely absent in Newman: the
presence of a strong smell of alcohol coming from Spiller and Moore. There
is no basis in Newman for finding that Spiller had a “clearly established right”
not to be physically restrained by Sergeant Lindsay after Spiller elbowed him.
Morrow, 917 F.3d at 874.
The Ramirez case, like Newman, involved no strong smell of alcohol
as was present here. See 716 F.3d at 372–73 (reciting facts). Second, plaintiff
Ramirez was shot with a taser right after he became noncompliant and pulled
his arm away. In contrast, Sergeant Lindsay engaged Spiller’s throat after
Spiller had elbowed him. The taser was not deployed by other deputies until
substantially later in the incident.
Moreover, the majority agree that “actions such as ma[king] physical
contact with any of the officers or physically obstruct[ing] them from
performing their legally authorized duties could constitute interference.”
Voss v. Goode, 954 F.3d 234, 239 (5th Cir. 2020) (citation and quotation marks
omitted). Spiller “did more than just argue with police officers; he failed to
comply with an officer’s instruction, made within the scope of the officer’s
official duty and pertaining to physical conduct rather than speech.” Childers
v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017). The video evidence shows that
Spiller’s conduct established probable cause for arrest—before the scuffle
commenced. The question here is simply whether Sergeant Lindsay used
excessive force to consummate the arrest. Neither this court nor the
Supreme Court has authored any case that I know of, or the parties have
cited, where the law enforcement officer got injured when confronting a
suspect and the suspect himself suffered no injury, yet qualified immunity
was denied so that the suspect could sue for damages.
Spiller’s claims should not survive the stringent test of “clearly
established law,” which is intended to protect law enforcement officers from
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strike suits, especially where insult is piled on injury as happened here.
Morrow, 917 F.3d at 874. The summary judgment should have been affirmed.
I dissent.
22