Cantu v. Tamez

Case: 23-40673 Document: 69-1 Page: 1 Date Filed: 09/05/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________

FILED

September 5, 2024

No. 23-40673

____________ Lyle W. Cayce

Clerk

Ruben Cantu,

Plaintiff—Appellee,

versus

Christian Tamez, individually; Roberto Rodriguez,

individually; Gerrardo Ochoa, individually,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:21-CV-155

______________________________

Before Ho, Duncan, and Oldham, Circuit Judges.

Per Curiam:*

This is yet another qualified immunity excessive force case. Much of

the incident is caught on video, but the fateful seconds are not. The parties

offer competing versions of what happened off camera. The district court

denied qualified immunity at summary judgment. We AFFIRM in part and

REVERSE in part.

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-40673 Document: 69-1 Page: 2 Date Filed: 09/05/2024

No. 23-40673

I

A

On March 25, 2019, Officer Roberto Rodriguez stopped a white Jeep

Grand Cherokee in Weslaco, Texas. Ruben Cantu emerged from the Jeep and

walked toward Officer Rodriguez, ignoring instructions to “get back.” Offi-

cer Rodriguez arrested and handcuffed Cantu with the assistance of Officer

Federico Salazar, who had just arrived. After citing Cantu for a number of

traffic violations, Officer Rodriguez transported Cantu to the Weslaco Police

Department jail. The traffic stop was captured on video from Officer Rodri-

guez’s vehicle.

On May 15, 2019, Cantu filed a personnel complaint with the Weslaco

Police Department against Officer Rodriguez for his conduct during the traf-

fic stop.

Two weeks later, on May 30, Cantu appeared in Weslaco Municipal

Court in connection with the citations he received from the traffic stop two

months prior. After Cantu disregarded verbal orders from the municipal

judge to sit down, the judge held Cantu in contempt and ordered Officer

Christian Tamez to arrest him. After handcuffing Cantu with his arms behind

his back, Officer Tamez escorted Cantu out of the courtroom (and out of the

camera’s eye). Officer Gerrardo Ochoa followed. A few seconds later, a com-

motion in the hallway became audible in the courtroom, and Officer Rodri-

guez ran into the hallway too.1 All this was captured by a video camera in the

courtroom.

What happened next is the subject of Cantu’s § 1983 suit, and it is not

on video. Cantu claims that Officers Tamez and Rodriguez slammed him into

_____________________

1

This is the same Officer Rodriguez from Cantu’s traffic stop on March 25, 2019.

2

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No. 23-40673

a wall while Officer Ochoa was present, even though Cantu was being com-

pliant and cooperative. But the officers swear that Cantu resisted arrest by

pushing his foot off a wall near a door to prevent himself from being escorted

through. They also deny slamming Cantu.

Cantu and the officers next appear on a hallway video camera 20–25

seconds later. Officers Tamez and Rodriguez restrained Cantu, who was still

handcuffed, by standing on each side of him and looping their arms through

Cantu’s. They escorted Cantu through a door held open by Officer Ochoa.

Next, a third video camera shows Officers Tamez and Rodriguez bringing

Cantu into the Weslaco Police Department booking room, where they placed

him on a bench.

After Officers Tamez and Rodriguez left, Cantu remained in the book-

ing room rubbing his shoulder and complaining about his collarbone. After

about 15 minutes, a guard brought Cantu to a cell. A fourth camera shows

Cantu holding and rubbing his collarbone as he sat in the cell alone. That

evening, after fire department officials examined Cantu, Weslaco Police offi-

cials brought him to Knapp Medical Center in Weslaco. There, a doctor diag-

nosed Cantu with a displaced fracture of the lateral end of his right clavicle

and acute hypertension. The hospital discharged Cantu, sending him home

in a sling with pain meds and instructions for outpatient follow-up.

Cantu sued Officers Tamez, Rodriguez, and Ochoa for damages under

42 U.S.C. § 1983. Cantu alleges that Officers Tamez and Rodriguez used ex-

cessive force against him in violation of the Fourth Amendment, and he

alleges that Officer Ochoa unreasonably failed to intervene in violation of the

Fourth Amendment. The district court denied the officers’ summary-

judgment motions for qualified immunity in an oral order, citing “fact

issues.”

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No. 23-40673

B

Our review is de novo. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir.

2019). We view the facts in the light most favorable to Cantu and draw all

reasonable inferences in his favor. Id. On an officer’s interlocutory appeal

from the denial of qualified immunity at summary judgment, we are limited

to reviewing “the materiality (i.e., legal significance) of factual disputes the

district court determined were genuine, not their genuineness (i.e., exist-

ence).” Argueta v. Jaradi, 86 F.4th 1084, 1088 (5th Cir. 2023). Even so, “we

are permitted to review genuineness where . . . video evidence is available”

and supports one party’s version of events. Id.; see also Scott v. Harris, 550

U.S. 372, 380–81 (2007).

II

The qualified-immunity inquiry has two steps. First, we ask whether

“the officer’s conduct violated a federal right.” Tolan v. Cotton, 572 U.S.

650, 655–56 (2014). Second, we ask “whether the right in question was

‘clearly established’ at the time of the alleged violation, such that the officer

was on notice of the unlawfulness of his [] conduct.” Cole v. Carson, 935 F.3d

444, 451 (5th Cir. 2019) (en banc) (quoting Tolan, 572 U.S. at 656).

Here, we resolve the inquiry on the “clearly established” step. See

Mullenix v. Luna, 577 U.S. 7, 11 (2015). We (A) deny qualified immunity to

Officers Tamez and Rodriguez and (B) grant qualified immunity to Officer

Ochoa.

A

In denying Officer Tamez’s and Officer Rodriguez’s summary-

judgment motions for qualified immunity in an oral order, the district court

found there were “fact issues” regarding “whether the force used by Defen-

dant Tamez was excessive or reasonable” and “whether the force used by

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Officer Rodriguez was excessive or reasonable.” We interpret the district

court to have held that there was a genuine dispute as to these facts. See Fed.

Rule Civ. Proc. 56(c).

“[A] police officer uses excessive force when the officer strikes,

punches, or violently slams a suspect who is not resisting arrest.” Darden v.

City of Fort Worth, 880 F.3d 722, 732 (5th Cir. 2018) (collecting cases); see

also Curran v. Aleshire, 800 F.3d 656, 663 (5th Cir. 2015) (finding no legal

error in a district court’s conclusion that “slamming a student’s head into

the wall after her resistance had ceased is a violation of clearly established

law”).

Here, a genuine dispute of material act precludes summary judgment

for Officers Tamez and Rodriguez. Cantu was in handcuffs in the hallway.

He claims the officers slammed him into the wall for no reason. The officers

by contrast claim Cantu resisted arrest and was never slammed. Although

there is video footage immediately before and after the contested events,

there is no video footage of the events themselves. Without video or other

blatant contradictions in the record, “we do not second-guess the district

court’s determination that there are genuine disputes of material fact.”

Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020); cf. Scott, 550 U.S. at 380–

81. Viewing the facts in the light most favorable to Cantu, see Morrow, 917

F.3d at 874, the district court correctly denied summary judgment to Officers

Tamez and Rodriguez.

B

In denying Officer Ochoa’s summary-judgment motion for qualified

immunity in an oral order, the district court found that there were “fact

issues” regarding “whether Defendant Ochoa used force and whether the

force he used was excessive.” We interpret the district court to have held

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No. 23-40673

that there was a genuine dispute as to these facts. See Fed. Rule Civ.

Proc. 56(c).

Although the district court held that there was a genuine dispute as to

whether Officer Ochoa used force, the parties agree on appeal that Officer

Ochoa did not touch Cantu. So if Officer Ochoa violated Cantu’s rights, it

was only through bystander liability—on the theory he unreasonably failed to

prevent Officers Tamez and Rodriguez from using excessive force against

Cantu.

An officer is liable for failure to intervene when that officer knew a

fellow officer was violating an individual’s constitutional rights, was present

at the scene of the constitutional violation, and had a reasonable opportunity

to prevent the harm but nevertheless chose not to act. Bartlett, 981 F.3d at

343. “Bystander liability requires more than mere presence in the vicinity of

the violation; we also consider whether an officer acquiesced in the alleged

constitutional violation.” Id. at 343.

Even if Officers Tamez and Rodriguez did use excessive force against

Cantu in Officer Ochoa’s presence, Cantu has not identified a single case

clearly establishing that any reasonable officer would have known to inter-

vene in circumstances like this, let alone that Ochoa had a reasonable oppor-

tunity to act when the alleged “slamming” took place in at most 25 seconds.

Furthermore, Officer Ochoa’s mere presence and act of holding a door open

is not sufficient to show that he acquiesced in excessive force (again, assum-

ing anyone used it).

* * *

The denial of Officer Tamez’s and Officer Rodriguez’s summary-

judgment motions for qualified immunity is AFFIRMED. The denial of

Officer Ochoa’s summary-judgment motion for qualified immunity is

REVERSED.

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