Ambler v. Nissen

Case: 23-50696 Document: 83-1 Page: 1 Date Filed: 09/10/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

September 10, 2024

No. 23-50696 Lyle W. Cayce

____________ Clerk

Javier Ambler, Sr., individually, on behalf of all wrongful

death beneficiaries of Javier Ambler, II, on behalf of the

Estate of Javier Ambler, II, and as next friends of J.R.A., a minor

child; Maritza Ambler, individually, on behalf of all wrongful

death beneficiaries of Javier Ambler, II, on behalf of the

Estate of Javier Ambler, II, and as next friends of J.R.A., a minor

child; Michelle Beitia, as next friend J.A.A., a minor child; Javier

Ambler, II, Estate of Javier Ambler, II,

Plaintiffs—Appellees,

versus

Michael Nissen,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:20-CV-1068

______________________________

Before Smith, Wiener, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge:

Several officers attempted to restrain an individual following a high-

speed chase. As they did so, the suspect exclaimed that he was suffering

congestive heart failure and could not breathe. One Austin City Police Officer

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continued to restrain the arrestee despite those pleas. A few minutes later,

the suspect died. His family later brought a lawsuit in federal court, alleging

theories of excessive force and bystander liability against the restraining

officers. As pertinent here, the Police Officer moved for summary judgment

on qualified immunity grounds. But the district court denied the motion,

reasoning that genuine fact disputes precluded a judgment as a matter of law.

Because those fact disputes were material, we DISMISS for lack of

jurisdiction and REMAND for further proceedings.

I

Javier Ambler II was traveling on a Texas roadway in the early

morning hours without dimming the high beams on his vehicle. A Texas

sheriff’s deputy noticed and signaled for Ambler to stop, but Ambler refused.

A high-speed pursuit then ensued as more officers joined the chase.

Authorities trailed Ambler for more than twenty minutes along interstate

highways and residential streets, at times exceeding speeds of one-hundred

miles per hour. The chase ended when Ambler crashed into roadside trees

within the city limits of Austin, Texas. After the collision, a deputy

approached Ambler and the wrecked vehicle with his gun drawn. As Ambler

opened his car door, another deputy ordered him to “get on the ground,”

and discharged a taser. Ambler fell to the ground from the shock, and two

deputies tried handcuffing him.

That was the moment when Austin City Policeman Michael Nissen

entered the scene. The events that followed are in dispute. We nevertheless

restate the facts “in the light depicted by the videotape” Scott v. Harris, 550

U.S. 372, 381 (2007), or in this case, Nissen’s body-worn camera, which

shows the following: On arrival, Nissen advanced toward Ambler’s vehicle

with his gun drawn. He called out to the other officers that the car “look[ed]

clear” and then approached the deputies, who were standing over Ambler’s

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body. One of the deputies held a taser to Ambler’s neck and said: “Give me

your hand or I’m going to Tase you again.” Ambler faintly exclaimed that he

had congestive heart failure. An officer then yelled: “Other hand. Give me

your hand.” As one officer instructed Ambler to lie “flat on [his] stomach,”

Ambler twice said, “I can’t breathe.”

The officers repeatedly told Ambler to stop resisting, to which Ambler

responded: “I am not resisting.” Using his hands, Nissen then applied force

to Ambler’s arms and the back of his head, pushing it into the pavement. One

of the deputies exclaimed: “I think I just broke his finger.” Another said “I

am going to put my knee on this one to control him. Let me know when you’re

ready.” The officers then handcuffed Ambler, who appeared limp. Less than

thirty seconds later, the officers raised Ambler to a seated position and

checked for a pulse. They felt nothing. Ambler was taken to a hospital where

he was pronounced dead; the medical examiner’s report stated that his

manner of death was homicide.

Ambler’s family filed suit in federal district court against Williamson

County, the City of Austin Texas, and several defendants, including Nissen.1

According to the family, Nissen violated Ambler’s constitutional rights by

using excessive force and failing to intervene in the altercation that allegedly

cost Ambler his life. The district court denied Nissen’s motion for summary

_____________________

1

Several defendants had been dismissed prior to Nissen’s motion for summary

judgment. Plaintiffs also alleged that the City of Austin failed to provide Ambler reasonable

accommodations, in violation of Title II of the ADA, and is liable for Nissen’s Fourth

Amendment violation under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658

(1978). Neither theory is relevant to this appeal. The district court dismissed the deliberate

indifference claim, and the arguments against the City are not implicated in this appeal.

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judgment, finding that Nissen could not avail himself of qualified immunity.2

Nissen now appeals that ruling.

II

We typically lack jurisdiction over non-final district court orders,

although a few exceptions exist. Numbered among them, we may review

interlocutory denials of summary judgment on qualified immunity. But that

review is confined: We have jurisdiction to consider such appeals only if they

“turn[] on an issue of law.” Curran v. Aleshire, 800 F.3d 656, 660 (5th Cir.

2015) (quoting Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.2004) (en

banc)).3 In other words, judging the genuineness of the district court’s factual

findings (i.e., whether they exist) is off limits; determining whether those

factual findings have “legal significance” is fair game. Joseph ex. rel. Est. of

Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020) (citation omitted). We

review the latter issue de novo. See, e.g., Flores v. City of Palacios, 381 F.3d

391, 394 (5th Cir. 2004).

With those basics in mind, we must unfortunately complicate matters

further. Although the district court’s factual findings are given near-

complete deference, we cannot disregard clear video footage when available:

If events in dispute are recorded, as they are here, we do not accept any facts

that are “blatantly contradicted by the record” Scott, 550 U.S. at 380

(emphasis added); see also Bros. v. Zoss, 837 F.3d 513, 517 (5th Cir. 2016)

(Smith, J.) (“The Supreme Court has created a narrow exception to this

_____________________

2

The factual findings and legal conclusions were outlined in a report and

recommendation issued by the Magistrate Judge. Because the district court adopted the

ruling, we refer to the opinion throughout as the “district court’s ruling.”

3

Because both qualified immunity issues involve questions of law, we consider the

merits of the disputes to the extent that they are legally significant. See Argueta v. Jaradi,

86 F.4th 1084, 1088 (5th Cir. 2023).

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jurisdictional limitation where the record blatantly contradicts one party's

version of events.”). The summary judgment standard otherwise remains

the same: We view all other facts “in the light most favorable to the

nonmoving party and draw all reasonable inferences in its favor.” Deville v.

Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). A movant is entitled to a

judgment as a matter of law if they show “no genuine dispute as to any

material fact.” Fed. R. Civ. P. 56(a).

III

Plaintiffs’ complaint challenges Nissen’s allegedly unconstitutional

conduct under 42 U.S.C. § 1983, a statute that holds state actors liable for

depriving claimants of their constitutional rights. In this case, Plaintiffs say

Nissen violated the Fourth Amendment, which protects individuals from

“unreasonable searches and seizures.” U.S. Const. amend. IV. Plaintiffs

contend that, by holding Ambler’s body to the ground during a medical

emergency, Nissen used unreasonable force which was a contributing cause

of Ambler’s death.” Plaintiffs also contend that Nissen should have

protected Ambler from the other officers’ unnecessary force. Nissen’s

failure to do so, Plaintiffs assert, means Nissen is equally liable for his failure

to intervene.

In response to Plaintiffs’ allegations, Nissen invokes the doctrine of

qualified immunity (“QI”), a defense that shields government officials

“from liability for civil damages[.]” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Whether an official is entitled to such a defense depends on the

answers to two distinct legal questions. See Ashcroft v. al-Kidd, 563 U.S. 731,

735 (2011). The first asks whether the official violated another’s

constitutional rights; the other asks if the alleged violation was “clearly

established” when the misconduct occurred. Id. The latter inquiry involves

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a review of legal authority to see if caselaw has deemed similar police actions

to be illegal, thus putting state officials on “notice.” Id.

In this case, the district court denied QI based on an inconclusive

record and the presence of several factual disputes. The issue presented for

this appeal is whether those disputes were “legally significant” and support

the district court’s holding. See Joseph, 981 F.3d at 331.

A

To resolve that issue, we begin with the constitutional violation prong

of the QI analysis. We accordingly consider whether Nissen violated

Ambler’s Fourth Amendment right to be free from excessive force.

Recovering under an excessive force theory requires that Plaintiffs prove “(1)

an injury (2) which resulted directly and only from a use of force that was

clearly excessive, and (3) the excessiveness of which was clearly

unreasonable.” Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.

2009) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)). No one

disputes the first element—and for good reason. Ambler, after all, suffered

more than injuries; he died as officers tried to arrest and detain him.

The crux of the parties’ dispute instead concerns the force Nissen

used to subdue Ambler and whether such force was clearly excessive or

unreasonable. Collapsing these questions into a single inquiry, the district

court found that Plaintiffs raised material fact issues about whether the level

of force Nissen used was appropriate given the circumstances of the

encounter. It reached that conclusion after considering the “totality of the

circumstances” from the “perspective of a reasonable officer on the scene”

and the well-established Graham factors, named after the Supreme Court

case bearing the same name. Graham v. Connor, 490 U.S. 386, 396 (1989).

We address the district court’s reasoning and the parties’ arguments below.

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1

One Graham factor relevant to the excessive force inquiry considers

the severity of the arrestee’s crime. Id. In Nissen’s view, the district court’s

Fourth Amendment analysis deemphasized this issue and, by extension, key

portions of our precedent. Doing so, according to Nissen, was reversible

error. In making his argument, Nissen points to our ruling in Salazar v.

Molina, 37 F.4th 278 (5th Cir. 2022), a case involving a suspect who, like

Ambler, led officers on a high-speed chase. The chase in Salazar culminated

in the subject stopping and exiting his vehicle, and then lying on the ground,

presumably in an act of surrender. Id. at 280. Despite the suspect’s

submission, however, a sheriff’s deputy immediately tased him. The arrestee

later sued, alleging excessive force. Id. We concluded that the arrestee’s

claim was meritless, partly because the suspect could have posed a serious

safety threat after dangerously evading capture. Id. at 282.

Nissen claims here that Ambler similarly posed a serious threat of

bodily injury after leading officers on a dangerous chase. And like the

circumstances in Salazar, Nissen asserts that any reasonable officer would

believe that Ambler was an ongoing threat until he was restrained in

handcuffs. Nissen accordingly contends that he is entitled to judgment as

matter of law on Plaintiffs’ excessive force claim. We hold a different view.

For one thing, the district court’s ruling did not undermine the significance

of the high-speed pursuit—nor could it, as the state of Texas considers

evading arrest via high-speed chase a felony, Tex. Penal Code § 38.04,

and the helicopter footage clearly shows Ambler weaving in and out of traffic,

jeopardizing the safety and wellbeing of others, see Salazar, 37 F.4th at 281–

82.

But, for another, the Fourth Amendment analysis considers the facts

and circumstances of each challenged encounter. See Graham, 490 U.S. at

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396. And although some of Salazar’s factual details parallel Ambler’s initial

evasion, what happened after the pursuit in each case is meaningfully

distinct. Of particular note, the officers in Salazar encountered the

unrestrained suspect mere seconds after the chase ended. Id. at 280. Such a

timeframe and scenario are unlike those at issue here: Nissen entered the

arrest scene nearly one minute after the chase. On arrival, Nissen witnessed

several officers surrounding Ambler’s body with one officer pointing a taser

to Ambler’s neck. Distinguishing matters further, Ambler was gasping as he

presumably underwent a medical emergency, all the while repeating “I have

congestive heart failure,” and “I can’t breathe.”

Relying on these distinctions, the district court believed a separate

Graham factor outweighed the severity of Ambler’s initial crime—that is,

Ambler’s immediate threat of danger. Graham, 490 U.S. at 396. The court

specifically held that the record raised a genuine issue of “material fact as to

whether a reasonable officer would believe that [Ambler] . . . was subdued

[or] an immediate threat to safety when Nissen began helping handcuff him.”

The video footage does not blatantly contradict that holding. Scott, 550 U.S.

at 380. True enough, Ambler engaged in dangerous behavior before his

arrest. Even still, based on the district court’s factual findings, a reasonable

jury could conclude that Ambler lacked a means to evade custody when

Nissen entered the scene. See Joseph, 981 F.3d at 335 (“If the suspect lacks

any means of evading custody—for example, by being pinned to the ground

by multiple police officers—force is not justified.”). A reasonable jury could

therefore conclude that Ambler posed little or no threat to Nissen or others

during the arrest. See id. The fact issues identified by the district court in this

context were therefore material to Plaintiffs’ Fourth Amendment claim. And

we lack jurisdiction to consider anything more. See id. at 331.

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2

Another Graham factor relevant to the excessive force inquiry is

whether Ambler was resisting or evading arrest by flight. Graham, 490 U.S.

at 396. According to Nissen’s testimony, he was unaware whether Ambler

had been compliant before coming to the scene. But Nissen said that, after he

arrived, it was “clear” that Ambler was not complying with commands; he

was “physically resisting [Nissen’s] efforts to place his hands behind his

back.” Plaintiffs view the facts differently. They contend that Ambler was

not resisting but instead “instinctively putting one arm on the ground to try

to breathe.” For its part, the district court held that the videos did “not

provide the clarity necessary to resolve the factual dispute presented by the

parties’ conflicting accounts.”

On appeal, Nissen contests the district court’s characterization,

reasoning that any reasonable officer would have believed Ambler was

resisting authority. Although Ambler alerted the officers about his inability

to breathe, Nissen says he need not have credited “Ambler’s statements that

he was having a medical emergency.” Nissen again references Ambler’s

choice to evade arrest by vehicle, explaining that an officer could have

reasonably been concerned about the sincerity of Ambler’s appeals. “When

a suspect has put officers and bystanders in harm’s way,” Nissen stresses,

“it is reasonable for officers to question whether the now-cornered suspect’s

purported surrender is a ploy.” See Salazar, 37 F.4th at 282.

Applying such reasoning without context, however, would undermine

the fact-specific nature of the excessive force analysis. After all, a criminal’s

choice to engage in unreasonable behavior does not give officer license to do

the same. To the contrary, an officer must use a “justifiable level of force in

light of the continuing threat of harm that a reasonable officer could

perceive.” Id. at 283. And in this case, “the issue of whether reasonable

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officers in this situation would have credited the warnings from

[Ambler] . . . is a factual question that must be decided by a jury.” Darden v.

City of Fort Worth, 880 F.3d 722, 730 (5th Cir. 2018).

None of that means that Nissen acted unreasonably as a matter of law.

Perhaps Ambler was indeed refusing to submit to the officers by pulling his

body away from the ground, and perhaps Nissen responded in a reasonable

manner. But viewing the evidence in Plaintiffs’ favor as we must, however, it

is just as believable that their allegations are correct, and Ambler was in a

struggle for his life. In either case, such a dispute is reserved for a jury, not

summary judgment. Fed. R. Civ. P. 56(a) (stating that a “court shall grant

summary judgment if the movant shows that there is no genuine dispute as to

any material fact.”). Because the court correctly considered the legal

significance of the factual disputes, we end our inquiry on this issue here. See

Joseph, 981 F.3d at 331.

B

To supplement their Fourth Amendment allegations, Plaintiffs next

contend that Nissen’s use of restraint was an application of deadly force.

Such a theory “is treated as a special subset of excessive force claims.”

Aguirre v. City of San Antonio, 995 F.3d 395, 412 (5th Cir. 2021). And like the

excessive force analysis above, this particular inquiry still calls for an

objective reasonableness standard, see Scott, 550 U.S. at 382–83, even though

the analysis includes an added layer: Analyzing the validity of a deadly force

allegation involves a two-pronged test. The first part asks “whether the force

used constituted deadly force”; the second considers “whether the subject

posed a threat of serious harm justifying the use of deadly force.” Timpa v.

Dillard, 20 F.4th 1020, 1028 (5th Cir. 2021). Applying both prongs to the

facts here, the district court denied Nissen summary judgment. On appeal,

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Nissen contends that the district court’s holding was in error and

contradicted by video evidence.

Nissen focuses his challenge on the first prong of the analysis—

whether the force used was deadly. Even though he concedes that deadly

force was unwarranted in Ambler’s case, he nevertheless avers that the force

he applied was not deadly to begin with. In Nissen’s telling, he was using

“minimal force” or “soft hand force” to place Ambler into handcuffs. That

Ambler died because of such minimal restraint was merely accidental and

mainly the result of Ambler’s poor health. Nissen reasons that it was

unforeseeable that applying “soft hand force” would result in an injury, let

alone death. In support of this argument, Nissen points to video footage that

he argues “conclusively shows that no officer was using deadly force to try

and kill Ambler.”4 As the video depicts, Nissen restrained Ambler for 90

seconds. Compared with other deadly force cases, Nissen explains that such

a period was minuscule. Indeed, two similar cases the district court

referenced involved officers who restrained decedents for at least five

minutes. See, e.g., Aguirre, 995 F.3d at 413 (five minutes); Timpa, 20 F.4th at

1028 (fourteen minutes).

Nissen believes that no reasonable officer would have known that

using force on Ambler for such a brief period would lead to his death. He

contends that any conclusion otherwise would essentially require denying QI

in all cases involving an accidental death. Such a result, in Nissen’s telling,

would trade the Fourth Amendment’s general reasonableness standard for

_____________________

4

We note that the test isn’t whether an officer was trying to kill Ambler, but

whether the force is deadly—that is, could have killed him. See Scott, 550 U.S. at 381.

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an outcome-oriented one that contravenes Supreme Court authority. See

Scott, 550 U.S. at 383. (“Whether or not [the officer’s] actions constituted

application of ‘deadly force,’ all that matters is whether [the officer’s]

actions were reasonable.”).

At least in this case, however, Nissen’s fears are unfounded. As a

threshold matter, whether a use of force is “deadly” is a question of fact.

Flores, 381 F.3d at 399 (“We lack jurisdiction to review the district court’s

factual finding that [the officer] used deadly force.”). The question is

whether a jury could find that the use of force “carr[ied] with it a substantial

risk of causing death or serious bodily harm.” Timpa, 20 F.4th at 1032

(quoting Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998)).

And the district court here identified specific material fact issues precluding

summary judgment. For example, it considered the recorded footage of the

encounter. As noted, the video shows an obese Ambler stating: “I have

congestive heart failure” and twice exclaiming “I can’t breathe.” Nissen

himself even acknowledged that one “obvious pitfall[] of [a suspect lying face

down] is, you know . . . people could be at risk for positional asphyxiation.”

The district court also considered expert reports. The medical

examiner who performed Ambler’s autopsy determined that Ambler’s death

was a homicide and found that it was caused by “congestive heart failure and

cardiovascular disease associated with morbid obesity in combination with

forcible restraint.” Plaintiffs’ medical expert further opined that Ambler died

from “a vicious cycle of respiratory distress from hypertensive crisis and

worsening heart failure pushed to physiological extremes by subsequent

tasing and forcible restraint.”

And while Nissen’s maneuver on a healthy plaintiff may have resulted

in no injury at all, it is well established that state actors who unlawfully use

excessive force take their victims as they find them. Darden, 880 F.3d at 728.

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Although that standard does not make minimal force excessive when used on

an eggshell plaintiff, a claimant may nevertheless prevail on an excessive

force claim if a reasonable officer would be aware of a preexisting health issue

and then aggravates it. See Windham v. Harris Cnty., 875 F.3d 229, 242 (5th

Cir. 2017) (“Our law is clear that the second [excessive force] prong does not

‘preclude [] recovery for aggravation of preexisting injury caused by the use

of excessive force.’”) (second alteration in the original). In this case, the

court identified enough evidence to conclude that a reasonable officer could

have been aware of Ambler’s health issues giving his obvious size and pleas

for air. See, e.g., Timpa, 20 F.4th at 1033 (holding that reasonable jury could

find “use of a prone restraint with bodyweight force on an individual with

three apparent risk factors—obesity, physical exhaustion, and excited

delirium—‘created a substantial risk of death or serious bodily injury.’”

(quoting Gutierrez, 139 F.3d at 446)). This was so even if Nissen applied

force for a mere ninety seconds.

Perhaps Nissen heard Ambler’s cries. Perhaps he did not. And

perhaps Nissen’s use of force, in his mind, was minimal given the context.

But the issues here do not turn on Nissen’s subjective appraisals; the relevant

inquiry is whether a “reasonable officer” would consider applying Nissen’s

level of force in the same situation. See Graham, 490 U.S. at 396. The district

court acknowledged this reality and, to that end, did not legally err as a result.

If anything, the district court’s holding demonstrates precisely why these

Fourth Amendment cases are fact intensive: Not all plaintiffs are the same,

and harmless force in one situation could be deadly force in another. While

Nissen would have us disregard the context of his encounter with Ambler,

doing so would trade nuance for willful blindness. And contrary to his view,

such an approach is incompatible with the Fourth Amendment

reasonableness standard. See Graham, 490 U.S. at 396 (“Because ‘the test of

reasonableness under the Fourth Amendment is not capable of precise

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definition or mechanical application,’ however, its proper application

requires careful attention to the facts and circumstances of each particular

case[.]”) (citation omitted) (quoting Bell v. Wolfish, 441 U.S. 520, 559

(1979))).

In sum, the district court’s factual findings regarding a Fourth

Amendment violation support its legal conclusions. We lack jurisdiction to

“second guess” anything more. See Joseph, 981 F.3d at 331.

IV

Excessive force aside, Plaintiffs’ other basis for establishing § 1983

liability stems from Nissen’s alleged failure to intervene. According to

Plaintiffs, Nissen is liable under this theory because he was “present at the

scene and [did] not take reasonable measures to protect a suspect from

another officer’s use of excessive force.” Hale v. Townley, 45 F.3d 914, 919

(5th Cir. 1995). Section 1983 claimants may succeed on these “bystander

liability” claims when the officer “(1) knows that a fellow officer is violating

an individual’s constitutional rights; (2) has a reasonable opportunity to

prevent the harm; and (3) chooses not to act.” Whitley v. Hanna, 726 F.3d

631, 330 (5th Cir. 2013) (cleaned up). In resolving whether a bystander

liability claim is viable, courts also consider whether an officer “acquiesce[d]

in” the alleged constitutional violation. See Hale, 45 F.3d at 919.

When addressing Plaintiffs’ allegations here, the district court

identified a genuine dispute of material fact as to whether Nissen failed to

reasonably intervene. Relying on video evidence and testimony, the court

found that Nissen helped with the arrest after he cleared Ambler’s vehicle. It

further pointed to evidence showing that Nissen heard Ambler say he had

congestive heart failure and repeatedly say he could not breathe. Based on

Nissen’s proximity and the duration of force, the court concluded that a

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reasonable jury could find that Nissen had an opportunity to intervene.

Nissen disagrees.

As a threshold issue, Nissen stresses that he cannot be liable for the

force other officers used outside his presence. As for the force they used after

he arrived, Nissen claims it was insignificant. He argues that videos reveal

that he saw Ambler tased only once by the deputies—and this occurred as

they tried rolling Ambler back onto his stomach after Ambler had “effectively

resisted all three officers.” In Nissen’s telling, it was impossible for him to

know how Ambler acted between the time the crash occurred and his arrival

on the scene. As a policy matter, Nissen contends that courts should give

leeway to late-arriving officers because they must make split-second

assumptions based on incomplete information. See Chivers v. Reaves, No.

1:13-CV-00171, 2017 WL 4296726, at *27 (D. Utah Sept. 26, 2017) (holding

that “[i]t [was] plain that a reasonably prudent officer arriving on scene with

limited information would be justified in assuming that . . . [a plaintiff] [was

a] potential threat[].”).

While it might be true that Nissen’s actions were reasonable, the video

evidence here does not blatantly contradict Plaintiffs’ version of events or the

district court’s findings. Plaintiffs allege that Nissen had every reasonable

opportunity to mitigate and stop the use of force once he arrived at the active

arrest. After all, Plaintiffs note, Nissen had at least two minutes when he was

within arm’s reach to realize that Ambler was not resisting and posed no

threat. Based on the video footage, Plaintiffs say Nissen was in earshot of

Ambler to hear his breathing and pleas for help. Nissen was also present as

the deputies tased Ambler at least once. It is true that Nissen’s expert report

explained that the other officer’s taser was set to a mode that “does not

penetrate deeply enough to affect any human muscles or organs.” But as the

district court found, Plaintiffs’ expert concluded that Ambler died from “a

vicious cycle of respiratory distress from hypertensive crisis and worsening

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heart failure pushed to physiological extremes by subsequent tasing and

forcible restraint.”

Given those contradicting facts, the court held that a jury could

reasonably determine that Nissen had an opportunity to stop the excessive

force but failed to do so. We agree that the factual disputes the district court

identified are material. Ambler’s pleas for help, coupled with his arguably

obvious medical distress, may have alerted a reasonable officer to intervene

in the ordeal to stop the tasing and continued use of force. See, e.g., Carroll v.

Ellington, 800 F.3d 154, 178 (5th Cir. 2015) (affirming denial of summary

judgment when it was disputed whether officer was present for taser strikes

of restrained individual). We have no authority to engage Nissen’s arguments

further on this claim because they turn on factual disputes alone.

V

Our analysis does not end after a plaintiff clears QI’s first hurdle. As

noted above, plaintiffs must also meet the “clearly established” prong to

avoid summary judgment. Doing so requires them to point to a case where an

official, faced with similar circumstances as the defendant, was held to have

violated the Constitution. White v. Pauly, 580 U.S. 73, 79 (2017). Although

the law can be clearly established “despite notable factual distinctions

between the precedents relied on and the cases then before the Court,” Hope

v. Pelzer, 536 U.S. 730, 740 (2002), relying on generalized principles is not

enough: The pertinent decisions must give “reasonable warning that the

conduct then at issue violated constitutional rights” White, 580 U.S. at 79.

A

We first address excessive force. Citing Darden v. City of Fort Worth,

880 F.3d at 733–34, the district court held that Nissen violated clearly

established law. In Darden, officers performed a no-knock raid to execute a

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narcotics warrant inside a residence. During his subsequent arrest, arrestee

Darden was thrown to the ground, tased, choked, and punched. He was

“obese” and died from a “heart attack” during the encounter. Id. at 725.

Throughout Darden’s arrest “other people in the residence were repeatedly

yelling that Darden could not breathe.” Id. at 726. A unanimous panel of this

court held it clearly established that “the degree of force an officer can

reasonably employ is reduced when an arrestee is not actively resisting.” Id.

at 733 (collecting cases). Because Darden was issued years before the relevant

encounter here, the district court held that it applied to this case; Nissen,

according to the district court, was therefore on notice that it was unlawful to

use excessive force against a person who was on the ground, not resisting,

and possibly unable to breathe.

Nissen disputes that holding, arguing that the district court’s

rehashing of Darden “glossed” over the relevant facts without considering

the relevant distinctions. Most importantly, Nissen explains, the Darden

court held that the force used on an arrestee was excessive partly because he

“was not suspected of committing a violent offense.” Id. at 729 (citation

omitted). That issue alone, Nissen thinks, makes Darden counterfactual to

the case here. Indeed, Nissen argues that Ambler was suspected of

committing a crime that revealed an abject intention to endanger others and

escape at all costs.

In making his argument, however, Nissen seems to suggest that

Ambler continued fleeing throughout the encounter, despite the clear video

evidence suggesting otherwise. To be sure, “where a suspect initially resists,

force must be reduced once he has been subdued.” Bagley v. Guillen, 90 F.4th

799, 803–04 (5th Cir. 2024) (internal quotation marks, alteration, and

citation omitted). As explained above, there is a fact dispute about whether

Ambler was subdued when Nissen arrived on the scene. If Ambler was indeed

compliant and not resisting arrest, then the continued use of force,

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particularly after Ambler said he had congestive heart failure and could not

breathe, necessarily would be excessive. See id.; see also Timpa, 20 F.4th

at 1038 (determining that law in 2016 clearly established that if plaintiff was

“subdued and nonthreatening by nine minutes into the restraint, then the

continued use of force for five additional minutes was necessarily

excessive”). To that end, such a circumstance would, as the district court

found, parallel Darden. On that basis, the district court did not commit legal

error.

B

Turning last to Plaintiffs’ § 1983 bystander claim on QI’s second

prong, the district court held that an officer violates clearly established law in

excessive force cases if the officer “knew a constitutional violation was taking

place and had a reasonable opportunity to prevent the harm.” Hamilton v.

Kindred, 845 F.3d 659, 663 (5th Cir. 2017). In this context, the district court

concluded that tasing someone who is subdued and does not pose a threat can

constitute excessive force. See Ramirez v. Martinez, 716 F.3d 369, 379 (5th

Cir. 2013); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012).

On appeal, Nissen again points to Ambler’s decision to flee from

police by motor vehicle. He contends that no clearly established case put

Officer Nissen on notice that the deputies—in subjecting Ambler to a taser

and prone restraint after a high-speed chase—violated Ambler’s

constitutional rights. But, again, the district court identified a fact dispute

about whether Ambler was visibly undergoing a medical emergency when

Nissen arrived at the active arrest. It also found a dispute about whether

Nissen had time to decide that force was not necessary and try to stop it. See

Hamilton, 845 F.3d at 663. If Plaintiffs’ view of the encounter prevails at trial,

Nissen had fair notice that participating in another officers’ use of excessive

force gives rise to liability. See, e.g., Carroll, 800 F.3d at 178 (affirming denial

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of summary judgment where it was disputed whether officer was present for

taser strikes of restrained individual); Timpa, 20 F.4th at 1039 (holding that

it was clearly established in 2016 that officers who stood “mere feet away”

from plaintiff during fourteen-minute restraint were subject to bystander

liability). The district court did not legally err in reaching that conclusion.

* * *

One final point bears mentioning. In reaching our conclusion today,

we deferred to the district court’s sound identification of genuine factual

disputes and reserved the weighing of evidence for the jury’s capable hands.

In doing so, we have not only allowed the district court space to do its job,

but we have given jurors the space to do theirs. See Joseph, 981 F.3d at 331.

So, for all the dissent’s inflammatory rhetoric, it makes at least one salient

point: The majority’s ruling indeed “serves . . . this plaintiff.” See post, at 15.

Absent from the dissent’s observation, however, is the value our decision

offers this defendant. A restrained judiciary, after all, benefits all parties in

equal measure. In the dissent’s view, our decision today in this interlocutory

appeal will lead to an endless parade of horribles. But to the extent the

dissent’s concerns are valid, it should direct its criticisms at the Federal

Rules of Civil Procedure, see Fed. R. Civ. P. 56(a), or Supreme Court

authority, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), not this opinion. See

also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[T]he judge's

function is not himself to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.”).

VI

As outlined above, Nissen fails to raise pure legal issues and instead

challenges the district court’s factual findings. Nissen has therefore failed to

invoke this court’s limited interlocutory jurisdiction and this appeal is

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accordingly DISMISSED. This case is REMANDED for further

proceedings.

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Jerry E. Smith, Circuit Judge, dissenting:

The majority, albeit with the most wholesome of intentions, preaches

that qualified immunity is “a defense that shields state officials from being

held accountable for their misconduct.” Op. at 5 (citation omitted). Given

that opening, what follows is no surprise.

In the wake of a high-speed chase involving three crashes and triple

digit speeds, Officer Michael Nissen used a modicum of force to restrain

Javier Ambler. Nissen spent about a minute controlling Ambler’s hand—

without touching any other part of his body—and then no more than

20 seconds applying pressure to Ambler’s upper back and head. That is

hardly anything out of the ordinary, especially in the immediate aftermath of

Ambler’s extended and reckless flight from justice that endangered the

public, the officers, and Ambler himself. Indeed, that is precisely the type of

controlled and measured response we expect from police reacting to a mani-

festly dangerous suspect. Tragically, in part because of an imperceptible

medical condition, Ambler died during the arrest as a result of the restraint.

Qualified immunity exists for just this sort of a case. A police officer

made an appropriate, split-second judgment about reasonable force in light

of the gravity of the situation and is now tied up in a federal lawsuit, facing

possible civil damages, because of it. Yet the majority jettisons QI for officers

who do just that.

Because the majority makes it impossible for officers to receive quali-

fied immunity in cases of accidental death, no matter how reasonable their

use of force was in context, I respectfully dissent.

I.

Some of the majority’s errors stem from its misconception of the

appropriate standard of review. It avers that “judging the genuineness of the

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district court’s factual findings (i.e., whether they exist) is off limits.” Op. at

4 (citation omitted). Yet, though some judges, in error, have suggested that

we are forbidden to do so,1 “we are permitted to review genuineness where,

as here, video evidence is available.” Argueta v. Jaradi, 86 F.4th 1084, 1088

(5th Cir. 2023) (citations omitted). There are multiple, clear videos of what

happened. Therefore, reviewing the district court’s determinations of

genuineness is not off the table.

II.

One might charitably express a narrow version of what the majority

advances as follows:

Ambler died. Deadly force is a question of fact. There is

no question that if Nissen had walked up and shot Ambler in

the head he would be liable. So deadly force is obviously mate-

rial. Ergo, we deny QI.

The practical problem is two-fold. First, the majority essentially elim-

inates qualified immunity in cases of accidental death, almost all of which are

situations where deadly force is not warranted. If it were warranted, they

would likely not be accidental. That means “whether force is deadly” will

almost always be material in accidental-death cases. Since deadliness is a fact

question, a defendant will never get QI.

That is error. If we accept the basic rationale behind qualified immun-

ity, this sort of an accidental-death case is squarely within its heartland. But

instead, the majority’s rationale categorically eliminates QI from this set of

cases.

_____________________

1

See Argueta v. Jaradi, 94 F.4th 475, 476–81 (5th Cir. 2024) (Douglas, J., dissenting

from denial of rehearing en banc).

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Second, the majority’s reasoning creates a perverse incentive for police

to use deadly force when it is justified, even if the situation can be de-

escalated. This case is the perfect example: To avoid liability, Nissen should

have shot Ambler during the chase (when deadly force was more likely justi-

fied to protect the public). In the majority’s view, waiting and trying to

defuse the situation with minimum force increased, counterintuitively,

Nissen’s risk of liability. That is an odd result, indeed.

Obviously, we are not policymakers, so none of the above matters on

its own accord. I offer it only to demonstrate the grave consequences of the

majority’s legal error.

II.

And what a legal error! Nissen should receive qualified immunity

from both claims at both prongs of the standard QI analysis.

A.

Nissen did not use constitutionally excessive force.

1.

In excessive-force claims, the reasonableness of an officer’s

conduct depends on the “facts and circumstances of each par-

ticular case, including [1] the severity of the crime at issue,

[2] whether the suspect poses an immediate threat to the safety

of the officers or others, and [3] whether he is actively resisting

arrest or attempting to evade arrest by flight.”

Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)). These are the so-called Graham factors,

each of which supports Nissen’s use of force against Ambler.

The majority agrees that the first Graham factor supports Nissen. It

rightly notes that “the state of Texas considers evading arrest via high-speed

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chase a felony, Tex. Penal Code § 38.04, and the helicopter footage clearly

shows Ambler weaving in and out of traffic, jeopardizing the safety and well-

being of others.” Op. at 7 (citation omitted). The majority wrongly empha-

sizes the district court’s weighing of the factors. “[T]he ultimate determina-

tion of Fourth Amendment objective reasonableness is a question of law.”

White v. Balderama, 153 F.3d 237, 241 (5th Cir. 1998) (per curiam) (citation

omitted). Therefore, we may freely weigh the first Graham factor in favor of

Nissen.

The majority does not grapple with the degree to which this factor

supports Nissen’s use of force. Undeterred by multiple crashes, Ambler con-

tinued to flee at triple-digit speed through residential neighborhoods—

gravely endangering many innocent lives to evade a routine traffic stop. This

weighs strongly in favor of Nissen.

2.

On to the second Graham factor, “whether the suspect poses an

immediate threat to the safety of the officers or others.” Graham, 490 U.S.

at 396. The majority suggests that there is a genuine dispute of material fact

“whether a reasonable officer would believe that [Ambler] . . . was subdued

[or] an immediate threat to safety when Nissen began helping handcuff him.”

Op. at 8 (citation omitted). But this factor—which may or may not be the

most important in this context2—“is a question of law left to the court.”

Argueta, 86 F.4th at 1092. And with the benefit of two videos of Ambler’s

arrest, this factor readily resolves in favor of Nissen.

_____________________

2

“[T]he second factor—whether there is an immediate threat to safety—is gen-

erally the most important factor in determining the objective reasonableness of an officer’s

use of deadly force.” Baker v. Coburn, 68 F.4th 240, 247–48 (5th Cir. 2023) (citation

omitted). I will address the argument that this was a use of deadly force.

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There are several reasons why a reasonable officer in Nissen’s posi-

tion might act as he did. First, Ambler had just come from of a high-speed

chase fleeing a traffic stop for failure to dim his high beams. That suggests

(1) that Ambler had little to no regard for the lives of others, (2) that Ambler

had a demonstrated willingness to flee the police at all costs, and (3) that

maybe this was not just about a minor traffic infraction. Maybe Ambler had

something else in the car that heightened his desire to flee. Maybe he was

mentally ill or on drugs. Each of these is a meaningful possibility that a rea-

sonable officer would consider. Ambler’s flight alone makes this Graham

factor weigh in favor of Nissen.

But the flight was not the only fact known to Nissen from which he

could have reasonably inferred Ambler’s dangerousness. Inter alia,

Ambler—at 410 pounds—was a very large individual, who was still unre-

strained and feet from an unsearched car, despite the efforts of multiple other

police officers who had deployed a taser. It boggles the mind to think that a

reasonable officer would not perceive Ambler as a meaningful threat.

Resisting this conclusion, the majority attempts to distinguish Salazar

v. Molina, 37 F.4th 278 (5th Cir. 2022), in which, after a considerably less

dangerous chase,

Salazar abruptly stopped his vehicle. He quickly got out,

dropped to his knees next to the car, and raised his hands. He

then lay on the ground with arms above his head and legs

crossed. Five seconds after stopping his car, Salazar was lying

prone on the ground.

Id. at 280. Despite the clear surrender, the police tased Salazar. Our court

rejected Salazar’s excessive force claim, holding that

when a suspect has put officers and bystanders in harm’s way

to try to evade capture, it is reasonable for officers to question

whether the now-cornered suspect’s purported surrender is a

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ploy. That’s especially true when a suspect is unrestrained, in

close proximity to the officers, and potentially in possession of

a weapon.

Id. at 282. Here, “[Ambler] ha[d] put officers and bystanders in harm’s way

to try to evade capture.” Id. He was also “is unrestrained, in close proximity

to the officers, and potentially in possession of a weapon.” Id.3

The majority attempts to distance itself from Salazar: “Distinguish-

ing matters further, Ambler was gasping as he presumably underwent a medi-

cal emergency, all the while repeating ‘I have congestive heart failure,’ and

‘I can’t breathe.’” Op. at 8 (emphasis added). But what the majority labels

a distinction is the central analogy. The majority gets the presumption pre-

cisely backward. In the context of this sort of a chase, when a reasonable

officer hears Ambler’s pleas, he reasonably assumes “ploy,” not “medical

emergency.” See Salazar, 37 F.4th at 282. Or, at the very least, he is reason-

ably entitled to make that presumption.4

The majority fixates on one other aspect of Ambler’s situation, that

“a reasonable jury could conclude that Ambler lacked a means to evade cus-

tody when Nissen entered the scene.” Op. at 8 (citation omitted). This falls

_____________________

3

I grant that whether Ambler was “potentially in possession of a weapon” is the

weakest point of comparison. But it is not inconceivable, given Ambler’s size and proximity

to the relatively unsearched car. More importantly, this is just one of many factors that

heighten the already reasonable assumption that Ambler’s actions were a ploy. That’s

especially true when every single one of the other facts mentioned in this holding from

Salazar is on all fours with this case.

4

The majority also points to Nissen’s comparatively late arrival, though it admits

the difference between the cases is measured in mere seconds. The majority does not

explain why time of arrival—especially when still so close to the initial contact—matters in

applying the Salazar presumption. The Salazar presumption is that somebody who is will-

ing to flee at great cost to others might also be willing to lie to officers to get out of a tricky

spot. Why that has anything do with a difference in arrival times escapes my imagination.

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properly under the third Graham factor, “whether he is actively resisting

arrest or attempting to evade arrest by flight,” 490 U.S. at 396, so I will

address it there.

But factor two—“whether the suspect poses an immediate threat to

the safety of the officers or others,” id.—unambiguously favors Nissen.

3.

Thus far, we are faced with an unrestrained suspect who poses a sub-

stantial threat to officers in the wake of a serious crime indicating a very low

regard for human life. Those factors alone justify Nissen’s light-touch appli-

cation of force to Ambler.

The final Graham factor is “whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id. (emphasis added). I agree with the

majority that any attempt by Ambler to flee the scene would have likely

failed.5 But the third Graham factor includes “actively resisting arrest.” Id.

And it’s hard to characterize Ambler’s actions as anything other than that.

Two minutes and fifteen seconds pass between the time the first officer

makes physical contact with Ambler and the time the handcuffs click. In

those two-plus minutes, Ambler ignored command after command, continu-

ously and rather obviously providing physical resistance to the multiple offi-

cers trying to cuff him. It does not get more clear-cut than that.

Yet the majority proffers two objections to the clarity of this situation.

First, the majority concludes that “a reasonable jury could conclude that

Ambler lacked a means to evade custody when Nissen entered the scene.”

Op. at 8 (citation omitted). Its best authority for the relevance of that

_____________________

5

Though this is only because of multiple officers’ applying to Ambler the precise

sort of force that the majority finds objectionable.

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conclusion is an absurdly overbroad reading of Joseph v. Bartlett, 981 F.3d

319, 335 (5th Cir. 2020).

Joseph held that “[i]f the suspect lacks any means of evading

custody—for example, by being pinned to the ground by multiple police

officers—force is not justified.” Id. The only way that might matter in this

case is if one reads the court to be imposing a categorical bar on the use of any

force when a suspect is on the ground. But that is quite clearly not what

Joseph stands for.

First, the language immediately before this passage makes it plain that

subduing a suspect means that officers must reduce but not necessarily cease

force. Second, it conditions that reduction in force to require the actual

subduing of the suspect. And Ambler was far from subdued. That differs

significantly from the situation in Joseph.6 And third, even if Nissen’s toes

edged beyond the boundary set forth in Joseph, we don’t jettison the other

Graham factors—which obviously and strongly support a robust use of force

in this case.7

_____________________

6

In Joseph, a schizophrenic man who had been seen standing by a middle school

jumped behind a convenience store counter while avoiding the police. He promptly crump-

led into the fetal position. Then, “Officer Martin, weighing 300 pounds, immediately

placed his full weight onto Joseph, who was still lying on the floor with his legs bent toward

his chest.” 981 F.3d at 326. And the use of force continued for some time, including

“deploy[ing] [a] taser for eleven seconds,” “jabb[ing] [a baton] downward, striking Joseph

at least twice with the pointed end,” tasing for another three seconds, “kick[ing] Joseph

twelve to thirteen times while holding onto the counter,” “punching Joseph in the head

three times,” “drag[ging] Joseph toward [a] wider area,” then “punch[ing] Joseph in the

face [another] three times,” and closing out the “scrum” with “punch[ing] Joseph in the

head [yet another] six times.” Id. at 326–27. Read in context, the court was concerned

about the timing of all this in relation to the initial pinning. See id. at 335.

7

Especially relative to Joseph—in which the police used significantly more force

against a significantly less dangerous person because of a far less serious offense. See supra

note 5.

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Second, the majority attempts to distinguish Salazar by appealing to

“the fact specific nature of the excessive force analysis.” Op. at 9. Beyond

this vague handwringing, we get very little. Presumably, the majority means

to impute its attempt to distinguish Salazar under the second Graham factor

here. But that distinction proves the central analogy between the cases on

the third factor, just as it does on the second factor. Indeed, the third Graham

factor also implicates reasonable concerns about the genuineness of a sur-

render. See Salazar, 37 F.4th at 284. Because Nissen could reasonably doubt

the genuineness of Ambler’s pleas, he could reasonably interpret Ambler’s

attempts to move away from officers as resistance rather than as “a struggle

for his life.” Op. at 10.8

Because all three Graham factors support Nissen, Ambler’s excessive-

force claim fails on the first prong of qualified immunity.

4.

The majority separately treats plaintiffs’ claims of deadly force. That

methodology is error as a matter of law. Though “[c]laims that law

enforcement unreasonably utilized deadly force are treated as a special subset

of excessive force claims,” Aguirre v. City of San Antonio, 995 F.3d 395, 412

(5th Cir. 2021), the constitutional inquiry is still governed by the Graham

factors.9

The majority relied on the important decision in Tennessee v. Garner,

471 U.S. 1, 3 (1985), to obscure the relevant analysis. In particular, the

_____________________

8

And that’s assuming Ambler’s actions were ambiguous. But they were not.

9

All that changes is which factors are emphasized. “When an officer uses deadly

force, the second Graham factor is generally the most important.” Singleton v. Casanova,

No. 22-50327, 2024 WL 2891900, at *31 n.17 (5th Cir. June 10, 2024) (unpublished) (cita-

tion and internal quotation marks omitted).

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majority reads Garner to establish some sort of threshold inquiry in deadly-

force cases: “Deadly force is objectively unreasonable ‘unless it is necessary

to prevent [a suspect’s] escape and the officer has probable cause to believe

that the suspect poses a significant threat of death or serious physical injury

to the officer or others.’” Op. at 10 (quoting Garner, 471 U.S. at 3). That is

error twice over.

First, the Supreme Court has flatly rejected this errant reading of

Garner. See Scott v. Harris, 550 U.S. 372, 382 (2007). Indeed, “Garner did

not establish a magical on/off switch that triggers rigid preconditions when-

ever an officer’s actions constitute ‘deadly force.’” Id. Instead, “Whether

or not [Nissen]’s actions constituted application of ‘deadly force,’ all that

matters is whether [Nissen]’s actions were reasonable.” Id. at 383. Having

already applied the Graham factors and found that each one favors Nissen,

that ends our inquiry.

Second, the majority curiously recontextualizes Garner’s language to

untether it from Garner’s very different set of facts. In full, the passage from

Garner reads,

This case requires us to determine the constitutionality of

the use of deadly force to prevent the escape of an apparently

unarmed suspected felon. We conclude that such force may not

be used unless it is necessary to prevent the escape and the offi-

cer has probable cause to believe that the suspect poses a signif-

icant threat of death or serious physical injury to the officer or

others.

Garner, 471 U.S. at 3 (emphasis added). The use of “such” harkens back to

the facts of that case, which involved shooting a fleeing suspect with live

rounds to prevent his escape. See id. at 4. That sort of force that is very

different from what was present here, and consequently it calls for a different

sort of inquiry.

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In short, none of the facts raised by the majority in this section mate-

rially bears on whether Nissen’s actions were reasonable in light of the

Graham factors. Whether Nissen heard Ambler does not matter because

Nissen could reasonably disregard Ambler’s complaints in the context of his

flight. Whether Nissen’s actions did or did not in fact lead to Ambler’s death,

as the medical examiner suggested, doesn’t matter because it does not cast

doubt on the reasonableness of Nissen’s split-second decisions at the time of

the accident. Even Nissen’s admission about the risks of the prone position

in the abstract does not matter because of the negligible amount of time Nis-

sen forced Ambler to be quasi-prone in this case. That such a position “could

be” dangerous to “some people” “depending on the situation” is not

enough to send this case to trial.10

In Nissen’s words,

In this specific situation, Mr. Ambler's size was certainly a con-

sideration that I had when I was attempting to take him into

custody, but the other part of that, what they also teach us at

the Academy is that you have to weigh those considerations

against the situation that you are facing. So in this situation,

where I am assisting trying to take an individual into custody

who just spent the last 20-or-so minutes driving recklessly

through the City of Austin, crashing multiple times, I had to

weigh the risk of not taking him into custody quickly against

what possible health conditions he may or may not have had.

Nissen’s testimony confirms what the video plainly shows—that he acted

reasonably.

_____________________

10

In this way, the majority arbitrarily denies QI to officers in another category of

situations. As soon as a suspect goes prone, for however long, if the suspect happens to die

later, the case must go to trial. That would be a bizarre result, but seemingly one that the

majority’s reasoning dictates.

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B.

We should also extend qualified immunity because the law is not

clearly established. The majority only gets to “clearly established” by string-

ing together several cases—none of which contains all the major facts in this

case—at an inappropriately high level of generality. But applying the

appropriate level of generality is central to this part of the QI inquiry:

What clearly established means depends largely upon the level

of generality at which the relevant legal rule is to be identified.

An official does not lose qualified immunity merely because a

certain right is clearly established in the abstract. Officials

should receive the protection of qualified immunity unless the

law is clear in the more particularized sense that reasonable

officials should be on notice that their conduct is unlawful.

Cantrell v. City of Murphy, 666 F.3d 911, 919–20 (5th Cir. 2012) (cleaned up).

Recall the high bar required to deny QI: “Qualified immunity is justified

unless no reasonable officer could have acted as Officer [Nissen] did here, or

every reasonable officer faced with the same facts would” have acted

differently. Mason v. Faul, 929 F.3d 762, 764 (5th Cir. 2019).

The law is not clearly established because there is no case that is fac-

tually similar, even at a low level of generality. The majority fails to identify

a single decision that found an excessive-force violation based on (1) control-

ling a subject in the aftermath of a high-octane chase; (2) let alone an

unhandcuffed subject in the aftermath of a high-octane chase; (3) and a

subject who crashed and resumed his attempt at escape several times; (4) and

whose car had not yet been searched; (5) and who was an exceedingly large

individual (6) who’d been able to avoid being handcuffed despite the efforts

of multiple able-bodied police officers. Keep in mind this was all over a

busted light. Ambler’s desperate attempt to escape suggests any number of

additional facts that justify Nissen’s actions.

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The majority leans on Darden:

In Darden, officers performed a no-knock raid to execute a

narcotics warrant inside a residence. During his subsequent

arrest, arrestee Darden was thrown to the ground, tased,

choked, and punched. He was obese and died from a heart

attack during the encounter. Throughout Darden’s arrest

other people in the residence were repeatedly yelling that Dar-

den could not breathe. A unanimous panel of this court held it

clearly established that the degree of force an officer can

reasonably employ is reduced when an arrestee is not actively

resisting. Because Darden was issued years before the relevant

encounter here, the district court held that it applied to this

case; Nissen, according to the district court, was therefore on

notice that it was unlawful to use excessive force against a

person who was on the ground, not resisting, and possibly

unable to breathe.

Op. at 16–17 (cleaned up).

But the many differences from Darden are striking. One is sufficient:

Darden never attempted to escape the police. Here’s how the court described

the beginning of that raid:

When the police first arrived at the house, the entry team

broke down the front door with a battering ram, yelled that they

were police, and ordered everyone to get down. A large man,

later identified as Darden, was kneeling on the seat of a couch

near the door when the officers first entered, and he

immediately raised his hands in the air.

Darden v. City of Fort Worth, 880 F.3d 722, 725 (5th Cir. 2018). Darden made

no effort to run at any point. That stands in striking contrast to Ambler’s

prolonged flight with reckless disregard for the lives of others.

The majority pushes back by insisting that Nissen’s argument de-

pends on the premise that “Ambler continued fleeing throughout the en-

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No. 23-50696

counter, despite the clear video evidence suggesting otherwise.” Op. at 17.

Even were that portrayal of facts correct, that misses the point: Ambler’s

immediately prior flight fundamentally changes the analysis, particularly be-

cause he was not yet restrained.

That’s where Salazar comes in. Salazar stands for the proposition

that lack of restraint after an extended attempt to escape justifies a height-

ened used of force. See 37 F.4th at 284. The majority faults the analogy to

Salazar, because unlike as in Salazar,

Nissen entered the arrest scene nearly one minute after the

chase. On arrival, Nissen witnessed several officers surround-

ing Ambler’s body with one officer pointing a taser to Ambler’s

neck. Distinguishing matters further, Ambler was gasping as

he presumably underwent a medical emergency, all the while

repeating “I have congestive heart failure,” and “I can’t

breathe.”

Op. at 8. But these distinctions are not as extreme as the majority makes

them out to be.11 And, more importantly, it tiptoes away from the relevant

standard here. Salazar creates enough ambiguity that the law is not clearly

established. At the time of the officers’ respective arrivals, both subjects

remained unrestrained. Sure, officers were hovering over Ambler, but that

hardly constitutes restraint, given Ambler’s size, proximity to the un-

searched car, and demonstrated hostility to arrest.12

_____________________

11

For example, the gap between the arrival of the officers in Salazar (eight sec-

onds), 37 F.4th at 280, and Nissen here (“nearly one minute”), is still a matter of seconds.

12

For what it’s worth, the chase here was also substantially longer and more

dangerous than that in Salazar (in which the chase lasted 5 minutes and topped out at 70

mph). Id. So, even if the treatment of the suspects between the cases were meaningfully

different, the discrepancy would be justified because officers could reasonably believe that

Ambler was considerably more dangerous than Salazar.

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No. 23-50696

III.

For largely similar reasons, the failure-to-intervene claim fails at both

prongs of the analysis. Taser deployment easily gets expanded leeway after

a high-speed chase. See Salazar, 37 F.4th at 284. If the officers were not

clearly committing a constitutional violation, then Nissen cannot be faulted

for failing to intervene.13 And Nissen gets even broader leniency because of

his late arrival.14 Neither the majority nor the briefing serves up a case that

overcomes the doubt raised by Salazar as to the law in these circumstances.

Indeed, neither Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013), nor

Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012), involved a flight from

justice at all.

*****

The majority’s opinion serves nobody but this plaintiff. Police will be

unduly subject to litigation because of circumstances completely beyond their

control. Suspects face greater danger because police now have an incentive

to use deadly force instead of de-escalating.

Because Officer Nissen acted as would any reasonable officer in this

tricky, high-stakes, split-second situation, I respectfully dissent.

_____________________

13

Though not legally relevant here, it’s worth noting that the officers were acquit-

ted of manslaughter, criminally negligent homicide, and assault by a jury. See Serena Lin

& Tony Plohetski, Former sheriff’s deputies found not guilty of all charges in death of Javier

Ambler, Austin Am.-Statesman, Mar. 7, 2024, available at

https://tinyurl.com/94aprsxj.

14

“Clearly established federal law does not prohibit a reasonable officer who ar-

rives late to an ongoing police action in circumstances like this from assuming that proper

procedures, such as officer identification, have already been followed.” White v. Pauly, 580

U.S. 73, 80 (2017). Cf., e.g., Otkins v. Gilboy, 2023 WL 6518119 at *3–4 (5th Cir. Oct. 5,

2023) (per curiam) (unpublished) (affirming QI for late-arriving officers with limited

information while vacating as to first responder).

35