Rucker v. Marshall

Case: 23-60557 Document: 72-1 Page: 1 Date Filed: 10/14/2024

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 23-60557

October 14, 2024

____________

Lyle W. Cayce

Rodney Rucker, Clerk

Plaintiff—Appellee,

versus

James Marshall; William Carter; Terreous T.J.

Johnson,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:22-CV-113

______________________________

Before Southwick and Duncan, Circuit Judges, and Kernodle,

District Judge. *

Stuart Kyle Duncan, Circuit Judge:

Officer James Marshall observed Rodney Rucker sitting in the driver’s

seat of a running car at 3:00 a.m. in front of a hotel known for drugs and

prostitution. After learning the car was registered locally, Marshall

_____________________

*

United States District Judge for the Eastern District of Texas, sitting by

designation.

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approached to question Rucker, but Rucker repeatedly refused to identify

himself or exit the car. After other officers arrived, they broke Rucker’s

window, took Rucker to the ground, and arrested him. Rucker sued the

officers under 42 U.S.C. § 1983 for unlawful seizure and arrest, First

Amendment retaliation, excessive force, and bystander liability. The district

court denied the officers summary judgment on all claims. The officers now

appeal, contending the court erred by failing to grant them qualified

immunity. We agree.

Accordingly, we REVERSE the district court’s judgment and

REMAND for entry of summary judgment in the officers’ favor.

I.

While on patrol around 3:00 a.m. in February 2021, Officer Marshall

observed a car in the parking lot of Dreamland Inn with someone in the

driver’s seat and the engine running. Dreamland is known for drugs,

prostitution, and other criminal activity. In 2020 alone, the police

department received over 74 citizen complaints concerning Dreamland.

After surveilling for several minutes and seeing no activity, Marshall

ran the license plate and learned it was registered to a local address. He

watched for another five-and-a-half minutes. Finding the driver’s behavior

suspicious, Marshall parked behind the car and approached to question the

driver. Bodycam footage begins at this point.

After introducing himself, Marshall explained that he had observed

Rucker lingering in the car and that this was a “high area . . . for like narcotics,

prostitution, and stuff like that.” Rucker asked who called him in, and

Marshall told him nobody had—he had just noticed Rucker while on patrol.

Marshall asked Rucker if he was staying at the hotel. Rucker said he was in

room 105 and explained he was warming up the car because it was cold. He

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was wearing a t-shirt and continuously rubbed his hands together throughout

the encounter. His car was visibly full of clothes, bags, and a bike.

When Marshall asked Rucker for identification, Rucker claimed he did

not have his driver’s license. Marshall asked if he knew his social security

number; Rucker said he did not. Marshall asked for his name and Rucker gave

only “Rodney.” Marshall asked for his last name and birth date. The

following dialogue ensued:

Rucker: “What’s the reason?”

Marshall: “I just told you.”

Rucker: “…There ain’t no reason….”

Marshall: “What we always do, is when we see people sitting in their

vehicles, we get out with them, man, and make sure everything is on the up

and up.”

Rucker: “You know it’s cold, right? I’m getting the vehicle ready.”

...

Marshall: “I get everything you’re saying . . . Now I’m just asking you

to identify yourself.”

Rucker continued to refuse to identify himself.

At this point, Marshall ordered Rucker to exit his car. Rucker refused

and rolled up his window. Marshall told Rucker if he didn’t open the door

Marshall would get him out. Rucker became agitated, rolling his window up

and down and yelling that Marshall was “violating me already.” Further

commands and refusals followed.

During the exchange, Officer Carter arrived. Marshall told him

Rucker “still hasn’t identified himself, look at the white powder on his nose,

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plus he had white powder on his pants.” Rucker responded that the white

powder “could be anything.”

Rucker continued to yell and refused numerous commands from both

officers to exit the still running car. Both officers warned him that, if he didn’t

get out, then things could go badly. Marshall then called for Officer Johnson

to come to the scene while Carter stepped away to call Lt. Jenkins.

Carter asked Jenkins whether they had the right to break Rucker’s

window. Jenkins presumably said they did because Carter then told Marshall

that, once Johnson arrived with a baton, they would break the window. The

officers believed this was necessary because the car appeared to be locked.

When Johnson arrived, Marshall again ordered Rucker out of the car.

Sixteen seconds elapsed during which Johnson warned Rucker this was his

last chance. Johnson then broke the window, after which Marshall opened

the door and removed Rucker. They took Rucker to the ground, cuffed him,

and stood him back up in less than a minute. Marshall repeated that Rucker

had white powder on his nose and lap. This time, Rucker responded it was

“oil.”

The officers searched Rucker and his car, finding no drugs but

discovering his driver’s license in his front pocket. Marshall arrested Rucker

for failure to comply and resisting arrest. Carter took Rucker to the station

where he failed a drug test. The test noted Rucker “refused blood and urine

sampl[ing],” was “swaying,” and had “bloodshot eyes,” “white powdery

substance in both nasal cavities,” and “an orange tongue.” Carter added a

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DUI charge. All charges were dismissed, though, when Marshall did not

appear in court because he was sick with COVID.

Rucker filed this suit in June 2022, bringing claims against Officers

Marshall, Carter, and Johnson, as well as the City of Senatobia. 1 The district

court granted summary judgment to the City but denied it to the officers.

Specifically, the court found genuine fact disputes as to: (1) whether Marshall

had reasonable suspicion or probable cause to park behind and question

Rucker; (2) whether Marshall tried to manufacture justification for Rucker’s

arrest by mentioning white powder; (3) whether the officers retaliated against

Rucker for questioning his detention; and (4) whether Rucker only passively

resisted such that the force used to subdue him was excessive. The court

performed no analysis of whether the officers’ actions violated clearly

established law. The officers timely appealed.

II.

We review the denial of qualified immunity de novo. Walsh v. Hodge,

975 F.3d 475, 481 (5th Cir. 2020). While we are generally limited on

interlocutory appeal to examining the materiality of fact disputes identified

by the district court, see Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020),

we can review genuineness when available video shows a party’s account of

the facts is false. Poole v. City of Shreveport, 13 F.4th 420, 424 (5th Cir. 2021)

(citing Scott v. Harris, 550 U.S. 372, 380–81 (2007); Curran v. Aleshire, 800

F.3d 656, 663–64 (5th Cir. 2015)).

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1

As noted, Rucker sued the officers under § 1983 for unlawful seizure and arrest,

First Amendment retaliation, excessive force, and bystander liability. He sued the City for

municipal liability, a claim which is not before us.

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III.

To deny qualified immunity, a district court must find “that the

alleged conduct amounts to a constitutional violation” and that “the right

was clearly established at the time of the conduct.” Buehler v. Dear, 27 F.4th

969, 980 n.13 (5th Cir. 2022) (quoting Lytle v. Bexar Cnty., 560 F.3d 404, 410

(5th Cir. 2009)). On appeal, the officers argue that the district court failed to

view “the facts in the light depicted by the [body cam videos],” Scott, 550

U.S. at 381, which plainly showed none of them violated Rucker’s

constitutional rights. We agree. 2

A.

We first consider Rucker’s claim that Marshall unlawfully seized him.

We agree with Marshall that the body cam videos show beyond dispute that

Marshall had reasonable suspicion to stop and question Rucker.

“[R]easonable suspicion exists when the officer can point to specific

and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant the search and seizure.” United States v.

Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). Officers may “draw on

their own experience and specialized training to make inferences from and

deductions about the cumulative information available to them.” United

States v. Roper, 63 F.4th 473, 478 (5th Cir. 2023). Actions “which by

themselves may appear innocent, may in the aggregate rise to the level of

reasonable suspicion.” Id. at 477 (quoting United States v. Ibarra-Sanchez, 199

F.3d 753, 759 (5th Cir. 1999)). Reasonable suspicion is “a low threshold,”

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2

The officers also argue that the district court erred by failing to perform a clearly

established law analysis. They are correct, see Buehler, 27 F.4th at 980 n.13, but we need

not base our reversal on that given the district court’s error on the first qualified immunity

prong.

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United States v. Alvarez, 40 F.4th 339, 343 (5th Cir. 2022), “considerably less

than . . . a preponderance of the evidence, and obviously less than is necessary

for probable cause.” Kansas v. Glover, 589 U.S. 376, 380 (2020) (quoting

Prado Navarette v. California, 572 U.S. 393, 397 (2014)). An officer is entitled

to qualified immunity so long as he is reasonable—even if mistaken—in

believing he had the requisite suspicion. See Heien v. North Carolina, 574 U.S.

54, 66–67 (2014).

Multiple undisputed facts demonstrate Marshall’s reasonable

suspicion to approach Rucker. First, Marshall had over seven years of law

enforcement experience and had made numerous arrests at Dreamland in his

three months working for the Senatobia Police Department. See United States

v. Flowers, 6 F.4th 651, 656 (5th Cir. 2021) (holding “courts must consider

the facts in light of the officer’s experience” of 10 years when considering

“reasonable suspicion”); United States v. Hill, 752 F.3d 1029, 1035 (5th Cir.

2014) (acknowledging officer’s testimony that he was present for two arrests

at the specific complex presented “relevant contextual considerations in a

Terry analysis”) (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)).

Second, Marshall observed Rucker at this suspicious location at “an

unusual hour of the night” after “2:00 a.m., [when] ‘the overwhelming

majority of law-abiding citizens are at home in bed.’” Hill, 752 F.3d at 1036

(quoting United States v. Michelletti, 13 F.3d 838, 845 (5th Cir. 1994) (en banc)

(DeMoss, J., concurring)). See also United States v. Byrd, 113 F. App’x 602,

603 (5th Cir. 2004) (per curiam) (finding reasonable suspicion because the

defendant was out at midnight in a high crime area).

Third, Marshall learned that Rucker’s plate was registered to a local

address. Other courts have found that a local individual staying at a hotel

raises suspicion. See, e.g., United States v. McIntyre, 384 F. App’x 805, 812

(10th Cir. 2010) (holding officer “reasonably suspected criminal activity

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because the vehicle was traveling through the parking lot of a hotel at 2:30

a.m. even though it was registered to an individual with a local address”);

United States v. Garza, 125 F. App’x 927, 929 (10th Cir. 2005) (finding

reasonable suspicion to knock on suspect’s hotel room door because she

provided a local address, did not have a reservation for the room, and paid in

cash).

Finally, Rucker was idling in a running car in a high crime area. We

have repeatedly held that idling in such areas contributes to an officer’s

reasonable suspicion. See Roper, 63 F.4th at 478 (“the relevant characteristics

of a location can contribute to a finding of reasonable suspicion” (cleaned

up)); United States v. Bass, 996 F.3d 729, 738 n.1 (5th Cir. 2021) (reasonable

suspicion existed “where a vehicle was parked in front of a store with a known

history of narcotics-related activity in a high-crime area”).

Our decision in United States v. Flowers, 6 F.4th 651, is illustrative.

There, an officer observed the defendants idling in a car outside a

convenience store in a “notoriously crime-ridden neighborhood, at night.”

Id. at 657. Several “officers, all in separate patrol cars, converged upon the

[defendants’] vehicle with their blue lights activated” such that “it would

have been impossible for the [defendants] to leave the parking lot.” Id. at 654.

We held that the officers had reasonable suspicion to approach the

defendants’ car in this manner. Id. at 653–54.

Rucker responds that Flowers is distinguishable because Dreamland is

not a high crime area. Under Flowers, he claims, such a finding requires “a

series of recent arrests for violent crimes and burglaries.” He posits the 74

calls in 2020 about Dreamland really show only two narcotics reports and a

single prostitution report during the prior year. We disagree. Courts

generally accept officers’ testimony about whether an area is one with a high

incidence of criminal activity. See, e.g., Hill, 752 F.3d at 1035 (considering

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officer’s testimony concerning drug arrests as part of “relevant contextual

considerations in a Terry analysis”) (citation omitted). In Flowers itself, we

accepted that the area was high crime based on the officer’s belief and

testimony. See Brief for Appellant, Flowers, 6 F.4th at *5–6 (No. 20-60056),

2020 WL 3088354; Flowers, 6 F.4th at 656.

Finally, we note that—again, according to the video evidence—

Marshall’s actions subsequent to the initial stop were also reasonable. That

is, his encounter with Rucker “last[ed] no longer than [was] necessary” to

“dispel his reasonable suspicion” until “further reasonable suspicion,

supported by articulable facts, emerge[d].” Johnson v. Thibodaux City, 887

F.3d 726, 734 (5th Cir. 2018) (cleaned up).

The initial stop, where Marshall approached Rucker’s car and asked

him to identify himself, lasted only 35 seconds. These actions were

proportionate to the suspicion Marshall had at that point. Rucker’s

subsequent refusal to identify himself or exit his vehicle legitimately

increased Marshall’s suspicion. See Kokesh v. Curlee, 14 F.4th 382, 395 (5th

Cir. 2021) (defendant’s failure to identify himself contributed to officer’s

reasonable suspicion). Furthermore, Rucker’s nervously rubbing his hands

together throughout the encounter also supported reasonable suspicion. See

United States v. Holmes, 2022 WL 3335775, at *2 (5th Cir. Aug. 12, 2022)

(“Nervous behavior is . . . supportive of a reasonable suspicion.”); United

States v. Jefferson, 89 F.4th 494, 503 (5th Cir. 2023) (suspect’s “looking

around nervously” and shaking hands contributed to reasonable suspicion).

In sum, contrary to the district court’s ruling, the video evidence

plainly shows that Marshall had reasonable suspicion to stop and question

Rucker. Marshall was therefore entitled to qualified immunity on the

unlawful seizure claim.

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B.

Next we consider Rucker’s claim that Marshall unlawfully arrested

him. We again agree with Marshall that the arrest was lawful and that,

consequently, he is entitled to qualified immunity on this claim also.

“An arrest is unlawful unless it is supported by probable cause.”

Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004). “Probable cause

exists when the totality of facts and circumstances within a police officer’s

knowledge at the moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed or was committing an offense.”

United States v. Levine, 80 F.3d 129, 132 (5th Cir.1996).

Marshall had probable cause to arrest Rucker for two reasons. First,

Mississippi law requires someone “operating a motor vehicle” to display his

license “upon demand of a . . . peace officer” or else face “imprisonment in

the county jail.” Miss. Code Ann. §§ 63-1-41, 69; see also Lewis v. State,

831 So. 2d 553, 558 (Miss. Ct. App. 2002) (defining “‘operating’ the

vehicle” as “sitting behind the wheel, in control with the motor running.”).

Second, Mississippi law requires individuals to obey a police officer’s lawful

commands—e.g., to identify oneself or exit one’s vehicle—where a breach of

the peace may otherwise occur, and officers may arrest someone who refuses.

See Miss. Code Ann. § 97-35-7.

In sum, contrary to the district court’s ruling, the undisputed video

evidence shows Marshall had probable cause to arrest Rucker. Marshall is

therefore entitled to qualified immunity on that claim as well.

C.

We next consider Rucker’s claim that Marshall arrested him in

retaliation for Rucker’s exercising his First Amendment rights. Once again,

we conclude Marshall is entitled to qualified immunity.

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Our court has repeatedly explained that a police officer is protected by

qualified immunity against a First Amendment retaliatory arrest claim “[i]f

probable cause existed . . . or if reasonable police officers could believe

probable cause existed.” 3 Roy v. City of Monroe, 950 F.3d 245, 255 (5th Cir.

2020) (quoting Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002)). 4 As

discussed, Marshall had probable cause to arrest Rucker under Mississippi

law. That means Marshall is protected by qualified immunity as to Rucker’s

retaliatory arrest claim. The district court erred in concluding otherwise.

D.

Next, we consider Rucker’s claim that Marshall and Johnson used

excessive force to arrest him. We agree with the officers that they are entitled

to qualified immunity on this claim also.

To establish excessive force, a plaintiff must show “(1) injury,

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

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

Byrd v. Cornelius, 52 F.4th 265, 270 (5th Cir. 2022) (quotations omitted).

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3

A “narrow” exception applies when a plaintiff shows other individuals “engaged

in the same sort of protected speech” were not arrested. Nieves v. Bartlett, 587 U.S. 391,

406-07 (2019). Rucker does not argue this exception applies, so we do not consider it.

4

See also Davidson v. City of Stafford, Tex., 848 F.3d 384, 391–92 (5th Cir. 2017)

(referring to First Amendment retaliatory arrest claim, “[o]fficers are . . . entitled to

qualified immunity unless there was no actual probable cause for the arrest and the officers

were objectively unreasonable in believing there was probable cause for the arrest”) (citing

Crostley v. Lamar Cnty., 717 F.3d 410, 422–23 (5th Cir. 2013)); Cooper v. City of La Porte

Police Dep’t, 608 F. App’x 195, 199 (5th Cir. 2015)); Cass v. City of Abilene, 814 F.3d 721,

730 (5th Cir. 2016) (“In applying the test for qualified immunity [with respect to a

retaliatory arrest claim], we explained that ‘[i]f probable cause existed . . . or if reasonable

police officers could believe probable cause existed, they are exonerated.’”) (quoting

Keenan, 290 F.3d at 262).

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“[O]fficers are entitled to qualified immunity unless existing precedent

‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 584 U.S. 100,

104 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015)).

We have repeatedly held that “noncompliance or continued physical

resistance” justifies the use of force. 5 The undisputed facts—again, as plainly

shown by the video evidence—fall easily within these precedents. Rucker

refused officer commands to get out of his car at least 20 times. The officers

then gave him two final warnings before breaking the window sixteen seconds

later. Once Rucker was cuffed, the officers ceased all use of force at once.

This use of force was objectively reasonable.

In response, Rucker points to Deville v. Marcantel, 567 F.3d 156 (5th

Cir. 2009), arguing it supports his argument that the officers used excessive

force. We disagree. In Deville, officers stopped Deville for speeding and

ordered her out of the car because she complained about the stop. She refused

to exit because her two-year-old granddaughter was in the back seat and her

husband was on the way. The officers threatened to call child protective

services to take the child, and then broke her window, dragged Deville out,

threw her against the car, and cuffed her. Id. at 162–64. Deville sustained

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5

See, e.g., Solis v. Serrett, 31 F.4th 975, 979 (5th Cir. 2022) (no excessive force

when, during a minor traffic stop, officers grabbed a belligerent passenger’s arms, took her

to the ground, cuffed her, and then raised her up); Priest v. Grazier, 860 F. App’x 343, 344–

45 (5th Cir. 2021) (granting qualified immunity to officers who, after spending two minutes

trying to get the plaintiff to lower his window or open his door, broke the window, took him

to the pavement, held his face down in broken glass while cuffing him, and struck him three

times to get him to stop pulling his hand away); Collier v. Montgomery, 569 F.3d 214, 219

(5th Cir. 2009) (no excessive force during minor traffic stop because suspect’s resistance

to being handcuffed justified “pushing him onto the hood of the cruiser”); Tennyson v.

Villarreal, 801 F. App’x 295, 296 (5th Cir. 2020) (granting qualified immunity to officers

who “had to take [plaintiff] to the ground to handcuff him because of his noncompliance”).

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serious injuries that required multiple surgeries. Id. at 168. We held a jury

could find this amounted to excessive force. Id. at 169.

This case is quite different. For instance, Rucker was a young man

suspiciously lingering in a high crime area in a running car at 3:00 a.m.,

whereas Deville was a grandmother (with her infant granddaughter in the

back seat) pulled over for going 10 miles over the speed limit in broad

daylight. See id. at 161. Rucker refused to identify himself, whereas Deville

produced her registration. Id. Rucker was ordered out his car because of the

potentially dangerous situation; Deville, only because she voiced displeasure

at the stop. Id. Rucker had one cut that required a stitch; Deville suffered

serious injuries. Id. at 168. Thus, Deville does not support that the officers

used unreasonable force here. 6

In sum, the video evidence plainly shows the officers did not use

excessive force in extracting Rucker from his car and arresting him. The

officers are therefore entitled to qualified immunity on this claim.

E.

Finally, the officers argue that the district court erroneously failed to

grant summary judgment dismissing Rucker’s bystander liability claim

against Carter. We agree. This claim was premised on Rucker’s claims for

unlawful arrest and excessive force by the other officers. We have already

ruled that all of those claims fail and must be dismissed. See supra part III.A–

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6

Rucker also points to our decisions in Trammell v. Fruge, 868 F.3d 332 (5th Cir.

2017), and Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017), but neither helps him. Both

involved officers quickly resorting to severe force to subdue subjects who were not given a

meaningful chance to comply with the officers’ commands. See Trammell, 868 F.3d at 342;

Hanks, 853 F.3d at 746. Rucker was given multiple chances to comply with the officers’

orders to exit his running vehicle, but steadfastly refused.

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D. Accordingly, Rucker’s bystander liability claim against Carter necessarily

fails as well. 7

IV.

The officers are entitled to qualified immunity on all claims.

Accordingly, we REVERSE the district court’s judgment and REMAND

for entry of summary judgment in favor of the officers.

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7

The officers also argue Rucker waived this claim by failing to press it in response

to the officers’ summary judgment motion. See Keenan, 290 F.3d at 262 (explaining that

“an issue raised in the complaint but ignored at summary judgment may be deemed waived

. . . and cannot be considered or raised on appeal” (cleaned up)). We need not address this

point, however, because Rucker’s bystander liability claim would fail regardless.

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