# Bailey v. Ramos

> Court of Appeals for the Fifth Circuit · January 10, 2025

URL: https://www.frixlaw.com/law-library/cases/10778485

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 10, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10778485

## How later opinions describe it (automated extraction)

- finding use of force is not excessive against handcuffed suspect who is verbally and physically resisting
- holding that plaintiff’s conduct moved beyond speech when he failed to follow the deputy’s instruction to move his truck

## Opinion text

Case: 23-50185 Document: 48-1 Page: 1 Date Filed: 01/10/2025

United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit

No. 23-50185
FILED
January 10, 2025
____________
Lyle W. Cayce
David Bailey, Clerk

Plaintiff—Appellee,

versus

Oscar Ramos,

Defendant—Appellant.
______________________________

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-466
______________________________

Before Elrod, Chief Judge, and Willett and Duncan, Circuit Judges.
Don R. Willett, Circuit Judge:
David Bailey and his friends went to downtown San Antonio to “film
the police.” With cameras rolling, they approached Officers Oscar Ramos
and Christopher Dech, who were guarding an ambulance. An altercation
ensued, and Bailey was arrested for interfering with the duties of a public
servant. He brought various constitutional claims against the City of San
Antonio and Officers Ramos and Dech, though this appeal concerns just the
claims against Ramos: unlawful arrest, unlawful seizure, First Amendment
retaliation, and excessive force. Ramos moved for summary judgment based
on qualified immunity, the district court denied it, and Ramos appealed. We
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No. 23-50185

REVERSE the denial of summary judgment and REMAND with
instructions to grant summary judgment in favor of Ramos and to dismiss
Bailey’s claims.
I
On April 28, 2018, David Bailey and three friends went to downtown
San Antonio “to film the police.” Angered by the recent arrest of a friend,
they planned for one member of the group to “kind of, be the jerk” to the
police officer, and Bailey would “film them” and “go up and be the . . . nice
citizen, and say, ‘Hey, just leave the – leave the cop alone. Let him do his
job.’” But once the officer expressed thanks, Bailey would tell the officer,
“I’m here because of what you-all [sic] did to Mike Thompson, and I’m, like
Well—well, f*** you.”
San Antonio Police Officers Oscar Ramos and Christopher Dech were
on bike patrol in downtown San Antonio. They responded to an assault at a
bar, and while paramedics administered treatment to the victim inside an
ambulance, the officers positioned themselves outside to keep people away.
The officers didn’t know yet who assaulted the victim, so they were also
using the area to interview witnesses.
Bailey and his group were filming and immediately hostile when they
first approached Ramos and Dech. Bailey gave the officers the middle finger
and said “f*** off” as he walked away. After this initial interaction, most of
the group wandered away, and Decha went back to the bar, leaving Ramos
alone. One of Bailey’s friends, Jack Miller, then walked up to Ramos while
openly carrying a gun. Miller asked Ramos, “What are you shaking your
f***ing head at?” Ramos asked him to watch his language and to back up.
Miller repeatedly asked where he should stand. At first, Ramos told him to
“back up” and “go over there,” motioning with his hand to move backwards.
At that point, Dech returned from the bar to stand beside Ramos in front of

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the ambulance. Body camera footage shows that Officer Dech instructed
Bailey and Miller to “just listen” and that the area was an active crime scene
while Bailey and Miller continued to shout over him. Video footage clearly
shows Bailey filming this interaction. Meanwhile, Miller continued to ask,
“[W]here would you like us to stand?” Dech responded, “[S]tand back
behind that line,” and pointed to a line in the sidewalk. Miller immediately
turned away and walked back, motioning to the group to follow and saying,
“[A]lright, let’s go, move.” Bailey, however, did not immediately comply.
Video footage shows him come to a complete stop and turn to face Ramos,
while still standing in front of the line.
The parties dispute what happened next. Ramos says that he lightly
touched Bailey’s shoulder to guide him toward the line. When Bailey stopped
moving, Ramos put his arm up again to Bailey’s chest, and Bailey responded
by “swatting Officer Ramos’ arm away, striking him, and causing him to
stagger.” Then Ramos says that he saw Bailey drop his left hand and clench
it into a fist. Because of Bailey’s conduct and these “signs of aggression,”
Ramos asserts he “was in fear of an impending assault.” In response, Ramos
placed both hands on Bailey’s chest and pushed him. He then grabbed Bailey
by his upper body and forced him to the ground. Bailey, however, denies
swatting Ramos or clenching his fist and alleges that Ramos “pushed [him]
back twice before tackling him to the ground, kneeling on him, and then
handcuffing him.” The video evidence also shows that Bailey yelled “hands
off!” in response to the contact with Ramos before he was tackled to the
ground.
Dech handcuffed Bailey once Ramos had him on the ground. The
officers lifted Bailey into a standing position and placed him up against a
nearby wall. There, Bailey repeatedly yelled expletives at Ramos and Dech
while they asked him to calm down and sit down. Bailey screamed at both
officers that he would “dial up my wife to own your ass” and told Dech that

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he would “lock you up with this little piece of sh*t,” referring to Ramos.
Bailey was moving about and stepped toward the officers. The officers guided
him back against the wall with their hands while telling him repeatedly to sit
down. Bailey did not comply and responded, “[W]hat, are you going to go
hands on again?” Ramos then used some type of leg maneuver to bring Bailey
to a seat on the ground.
Bailey was charged with interfering with the duties of a public servant.
The charge was later dismissed by the prosecutor’s office for lack of
evidence.
Bailey sued Ramos and Dech 1 and the City of San Antonio under 42
U.S.C. § 1983, alleging unlawful seizure and arrest, excessive force,
malicious prosecution, violation of his right to record the police, and First
Amendment retaliation. Bailey also brought municipal-liability claims against
the City. All three parties moved for summary judgment, with Ramos arguing
he was entitled to qualified immunity. The district court (1) dismissed all of
Bailey’s claims against the City; (2) dismissed Bailey’s right-to-record claim
because Bailey had conceded it; (3) granted qualified immunity for the
malicious prosecution claim; and (4) denied qualified immunity and
summary judgment for the unlawful arrest, unlawful seizure, First
Amendment retaliation, and excessive force claims because genuine disputes
of material fact existed. 2

_____________________
1
The parties later stipulated to dismiss the claims against Dech.
2
The district court partially granted summary judgment on the excessive force
claims to the extent that the claims were based on Ramos briefly placing his knee on Bailey’s
back while he was being handcuffed and Ramos pulling up Bailey by the handcuffs to a
standing position. Bailey does not challenge that holding on appeal.

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II
“Ordinarily, we would review the district court’s denial of summary
judgment de novo, applying the same standard as the district court.” 3 That
standard requires us to grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” 4
Because this is an interlocutory appeal of a denial of qualified
immunity, we “alter[] the usual summary judgment burden of proof.” 5 Once
a defendant asserts qualified immunity, the plaintiff bears the burden 6 of
negating it by showing that (1) the official violated a statutory or
constitutional right and (2) the right was “‘clearly established’ at the time of
the challenged conduct.” 7 “Although the plaintiff need not identify ‘a case
directly on point’ in order to” show the law was clearly established, “he or
she must point to ‘authority at a sufficiently high level of specificity to put a
reasonable official on notice that his conduct is definitively unlawful.’” 8

_____________________
3
Kinney v. Weaver, 367 F.3d 337, 347–48 (5th Cir. 2004) (en banc) (citing Vela v.
City of Houston, 276 F.3d 659, 666 (5th Cir. 2001)) (emphasis removed).
4
Fed. R. Civ. P. 56(a).
5
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
6
Id. (“The plaintiff bears the burden of negating qualified immunity, but all
inferences are drawn in his favor.” (citation omitted)).
7
Perniciaro v. Lea, 901 F.3d 241, 255 (5th Cir. 2018) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 735 (2011)); see also Brown, 623 F.3d at 253.
8
Buehler v. Dear, 27 F.4th 969, 981 (5th Cir. 2022) (quoting Vincent v. City of
Sulphur, 805 F.3d 543, 547 (5th Cir. 2015)).

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We review summary judgment based on qualified immunity de novo,
but only “to the extent that it turns on an issue of law.” 9 “This means that
the district court’s finding that a genuine factual dispute exists is a factual
determination that this court is prohibited from reviewing in this
interlocutory appeal.” 10 However, “the district court’s determination that a
particular dispute is material is a reviewable legal determination.” 11
There’s one further wrinkle. Where video evidence is available, there
is an “exception to the materiality/genuineness rule cited above.” 12 “[W]e
are required to ‘view the facts in the light depicted by the videotape.’” 13 The
Supreme Court instructed in Scott v. Harris that “[w]hen opposing parties
tell two different stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary
judgment.” 14 Thus, “we assign greater weight, even at the summary
judgment stage, to the facts evident from video recordings taken at the
scene.” 15 “Inasmuch as that video evidence is inconclusive, however, the
ordinary summary judgment standard applies.” 16

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9
Joseph ex rel. Joseph v. Bartlett, 981 F.3d 319, 331–32 (5th Cir. 2020) (quoting
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
10
Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).
11
Id.
12
Curran v. Aleshire, 800 F.3d 656, 663 (5th Cir. 2015).
13
Boyd v. McNamara, 74 F.4th 662, 665 (5th Cir. 2023) (quoting Salazar v. Molina,
37 F.4th 278, 280 (5th Cir. 2022) (alteration omitted)).
14
550 U.S. 372, 380 (2007).
15
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
16
Boyd, 74 F.4th at 666 (citing Aguirre v. City of San Antonio, 995 F.3d 395, 410 (5th
Cir. 2021)).

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III
The Fourth Amendment governs Bailey’s claim for unlawful arrest.
“A warrantless arrest must be based on ‘probable cause.’ 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.” 17
“[T]he adjudication of probable cause is an objective test: [C]ourts must look
to the totality of the circumstances and decide whether these historical facts,
viewed from the standpoint of an objectively reasonable police officer
demonstrate a probability or substantial chance of criminal activity.” 18
“If there was probable cause for any of the charges made . . . then the
arrest was supported by probable cause, and the claim for false arrest fails.”19
Bailey contends that Ramos lacked probable cause to arrest him. Ramos
counters that he had probable cause to arrest Bailey for (1) assault by
offensive conduct under Texas Penal Code § 22.01(a)(3) and (2) interference
with public duties under Texas Penal Code § 38.15.
A
We start with assault.
Under the Texas Penal Code, a person commits assault if he or she
“intentionally or knowingly causes physical contact with another when the

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17
Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000) (per curiam). See also Brown
v. Lyford, 243 F.3d 185, 191 (5th Cir. 2001) (“[I]f a reasonable officer could have concluded
that there was probable cause upon the facts then available to him, qualified immunity will
apply.” (quoting Terwilliger v. Reyna, 4 F.4th 270, 282 (5th Cir. 2021) (cleaned up)).
18
Reitz v. Woods, 85 F.4th 780, 790 (5th Cir. 2023) (quoting Terwilliger, 4 F.4th at
282).
19
Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).

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person knows or should reasonably believe that the other will regard the
contact as offensive or provocative.” 20 The district court denied qualified
immunity to Ramos because it concluded that there was a genuine dispute of
material fact as to the nature of the contact between Ramos and Bailey before
Ramos took Bailey to the ground.
“[T]he district court’s finding that a genuine factual dispute exists”
about the contact between Bailey and Ramos “is a factual determination that
this court is prohibited from reviewing in this interlocutory appeal.” 21 The
Scott v. Harris exception that allows us to draw our own conclusions from the
video evidence does not alter our review here because the video does not
“blatantly” contradict either Ramos’s or Bailey’s stories about the nature of
the contact between them. 22 Even though there were many recording devices
at the scene, none of the video evidence clearly shows whether Bailey swatted
Ramos or clenched his hand into a fist as though he was preparing to fight.
These factual disputes are material because Bailey’s conduct and the contact
between him and Ramos are part of the “facts and circumstances within the
officer’s knowledge” that are relevant to whether there was probable cause. 23
Accordingly, because we cannot conclude as a matter of law that Ramos had
probable cause to arrest Bailey for assault, we turn to the next charge:
interference with public duties.

_____________________
20
Tex. Penal Code § 22.01(a)(3).
21
See Good, 601 F.3d at 397.
22
See 550 U.S. at 380–81.
23
Reitz, 85 F.4th at 790 (quoting Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204
(5th Cir. 2009)).

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B
Under the Texas Penal Code, a person commits the offense of
interference with public duties “if the person with criminal negligence
interrupts, disrupts, impedes, or otherwise interferes with . . . a peace officer
while the peace officer is performing a duty or exercising authority imposed
or granted by law.” 24 To constitute interference, the action must consist of
more than just speech alone. 25 But “Texas courts have found that failure to
comply with an officer’s instructions . . . violates Texas Penal Code § 38.15
and is not protected speech. Specifically, several courts have affirmed
convictions of defendants who failed to comply with an officer’s instruction
to move away from a crime scene.” 26
The district court assessed each of the instances in which Ramos says
Bailey refused to comply with his orders and concluded: (1) when Ramos said
“go over there,” he was speaking to Miller, not Bailey; (2) when Ramos
gestured with a hand motion to move backwards, it was not “explicit”; and
(3) the order from Dech to stand behind the line was directed at Miller, and
Bailey “immediately step[ped] back to look around . . . in order to locate the
line,” and “it is not clear that [Bailey] even had an opportunity to fully
comply with the order, given that Ramos lunged at [Bailey] approximately
one second after Dech’s instructions.” The district court held that there

_____________________
24
Tex. Penal Code § 38.15(a)(1).
25
Id. § 38.15(d). “Texas courts have recognized that merely arguing with police
officers . . . falls within the speech exception to section 38.15.” Freeman v. Gore, 483 F.3d
404, 414 (5th Cir. 2007); see also Carney v. State, 31 S.W.3d 392, 398 (Tex. App.—Austin
2000, no pet.) (reversing conviction where no evidence that defendant touched officers or
physically obstructed their entry into home).
26
Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017) (citing Duncantell v. State,
230 S.W.3d 835, 842 (Tex. App.—Hous. [14th Dist.] 2007, pet. ref’d); Key v. State, 88
S.W.3d 672, 676 (Tex. App.—Tyler 2002, pet. ref’d)).

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were genuine factual disputes “as to whether [Bailey] was complying with
the officers’ instructions in the moments before Ramos lunged at him” and
as to “the nature of the contact between [Bailey] and Ramos.” Because of
these disputed facts, the district court held that it could not “conclude as a
matter of law that Ramos had probable cause to arrest [Bailey].”
However, the Supreme Court instructs that police officers who
“reasonably but mistakenly conclude that probable cause is present” are
entitled to qualified immunity. 27 There must “not even arguably be probable
cause for the . . . arrest for the immunity to be lost.” 28 A plaintiff must clear
this “significant hurdle” in order to defeat qualified immunity. 29
The district court did not address whether Ramos could have
reasonably, although mistakenly, believed that he had probable cause. 30
Assuming that Ramos lacked probable cause, we must still ask whether
Ramos “could have reasonably thought his actions were lawful,” even if he
was mistaken. 31

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27
Anderson v. Creighton, 483 U.S. 635, 641 (1987). See also Reitz, 85 F.4th at 792
(alteration adopted) (quoting Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1994)).
“‘[T]he objective reasonableness of the defendant officers’ conduct goes to the question
of whether [the plaintiff’s] constitutional right [against being arrested absent probable
cause] was violated, not the question of whether that right was clearly established under
these particular circumstances.’ This inquiry does not aim to ‘add[] a standalone ‘objective
reasonableness’ element to the Supreme Court’s two-pronged test for qualified
immunity.’” Id. (quoting Baker v. Coburn, 68 F.4th 240, 251 n.10 (5th Cir. 2023)).
28
Haggerty v. Tex. S. Univ., 391 F.3d 653, 657 (5th Cir. 2004) (quoting Brown v.
Lyford, 243 F.3d 185, 190 (5th Cir. 2001)).
29
Id.
30
See Lyford, 243 F.3d at 190.
31
Reitz, 85 F.4th at 792; see also Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir.
2003).

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Officers told Bailey and Miller multiple times that this was an active
crime scene and they should stand back. Despite being told to “just listen,”
Bailey continued to shout over the officers. Bailey and Miller were both
standing close to the officers when Dech instructed that they should “stand
back behind that line.” Bailey himself was filming the interaction. Miller
immediately turned away to comply with the instruction, moving before
Dech finished his sentence. Within two more seconds, Miller was motioning
to the group to follow and saying, “alright, let’s go, move.” But Bailey did
not move at the same time as Miller. Bailey briefly stepped back and looked
backwards, but he came to a complete stop and turned back toward Ramos
while still in front of the line. Within two to three seconds of Miller’s
instruction, Ramos pushed Bailey backwards. Bailey responded by swatting
Ramos’s arm away.
The district court found that Bailey “immediately step[ped] back and
look[ed] around . . . in order to locate the line to which Dech was referring”
and that Ramos’s assertion that Bailey “failed to move” in response to
Dech’s orders was “contradicted by the video.” The videos confirm that
Bailey moved his right foot backwards and that he looked around and then
backwards. But it is unclear whether (1) Bailey was reflexively stepping back
and looking back in response to Ramos touching his shoulder to guide him
backwards, given that Bailey immediately said “hands off” after that contact,
or (2) Bailey was stepping back to locate the line, as the district court found.
Regardless, when Bailey continued to talk over the officers’
commands, did not start moving at the same time as Miller, and turned back
toward Ramos, an officer in Ramos’s position could have reasonably thought
that Bailey was not complying with the order to move behind the line and

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thus that there was probable cause to believe that Bailey was interfering with
a public duty. 32
Our court has held as much in similar circumstances. For example, in
Haggerty v. Texas Southern University, we held that an officer mistakenly but
reasonably believed that an action constituted interference with a public duty
where the officer warned the individual to not interfere, the individual was
within relative proximity of the crime scene, and the individual stepped
forward. 33 We said that a reasonable officer in that situation “could have
believed that the situation was tense and dangerous,” and so a reasonable
officer could also have believed that the failure to follow the instruction was
interfering with his duties. 34 Likewise, in Eisenbach v. Zatzkin, we held that
an officer mistakenly but reasonably believed that there was probable cause
to arrest for interference with a public duty where the officer warned the
plaintiff to leave the area of his investigation, but the plaintiff, believing the
investigation was over, approached the area. 35 The plaintiff’s approaching
the crime scene, which was contrary to the officer’s instruction, was
sufficient for a reasonable officer to conclude that the plaintiff was interfering
with a public duty. 36
Similarly here, when Bailey didn’t immediately move away with
Miller, Ramos could reasonably have believed that Bailey, like the plaintiffs
in Haggerty and Eisenbach, was ignoring officer instructions to stay away from
the crime scene. Even if Bailey was complying with those instructions,

_____________________
32
See Childers, 848 F.3d at 415.
33
391 F.3d at 657.
34
Id.
35
728 F. App’x 307, 311 (5th Cir. 2018).
36
Id.

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Ramos, like the officers in Haggerty and Eisenbach, could have reasonably but
mistakenly believed that Bailey’s hesitation was contrary to his instructions
and interfered with a public duty. This is especially so, given that Bailey had
given the officers the middle finger and was cursing at them, and Miller had
approached them while openly carrying a gun, giving Ramos reason to believe
“the situation was tense and dangerous.” 37
Because we conclude that Ramos could have reasonably, even if
mistakenly, believed that he had probable cause to arrest Bailey for
interference with a public duty, he is entitled to qualified immunity as to the
unlawful arrest claim. 38
IV
We next address whether Ramos is entitled to qualified immunity as
to the unlawful seizure claim.
Ramos seized Bailey’s cell phone and belongings incident to his arrest.
Bailey asserts that these items were seized without a warrant or probable
cause in violation of the Fourth Amendment. Under the Fourth Amendment,
people have a right to be free from “unreasonable searches and seizures.” 39
“In the absence of a warrant, a search is reasonable only if it falls within a
specific exception to the warrant requirement.” 40 A warrantless search
incident to a lawful arrest is one of the oldest and most widely used exceptions
to the warrant requirement. 41 Bailey’s unlawful seizure claim rises and falls

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37
Haggerty, 391 F.3d at 657.
38
Reitz, 85 F.4th at 792.
39
U.S. Const. amend. IV.
40
Riley v. California, 573 U.S. 373, 382 (2014).
41
Id.

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with his unlawful arrest claim because the exception would not apply if the
arrest were deemed unlawful. Because Ramos is entitled to qualified
immunity for Bailey’s unlawful arrest claim, he is entitled to qualified
immunity for Bailey’s unlawful seizure claim.
V
We now turn to whether Ramos is entitled to qualified immunity as to
the excessive force claims. Bailey contends that Ramos used excessive force
when he: (1) pushed Bailey; (2) grabbed Bailey’s shirt and pulled it over his
head to slam him to the ground; (3) knelt on Bailey’s neck and shoulder; (4)
pulled Bailey up by the handcuffs; and (5) swept Bailey’s legs out from under
him to bring him to the ground.
The district court held that Ramos was entitled to qualified immunity
to the extent Bailey’s claims were premised on Ramos briefly placing his knee
on Bailey’s back to effectuate the arrest and lifting Bailey by the handcuffs
because neither of these acts violated a clearly established right. It otherwise
held that factual disputes precluding summary judgment existed as to
whether the other uses of force were objectively unreasonable under the
Fourth Amendment. Ramos appealed the denial of summary judgment.
Because Bailey did not cross-appeal the limited grant of summary judgment,
we do not review the district court’s grant of summary judgment for the
excessive force claims based on Ramos’s placing his knee on Bailey’s back or
picking him up by the handcuffs.
Ramos contends that Bailey raised the fact of his leg sweep for the first
time in his response to Ramos’s summary-judgment motion and that it

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should therefore not be considered. 42 The district court disagreed, noting
that Bailey’s complaint, which generally alleged that “Defendants use[d]
more physical force than necessary to effectuate the arrest,” was broad
enough to cover the leg sweep.
We agree. The complaint’s reference to physical force used to
“effectuate the arrest” is broad enough to cover force used to keep control
of Bailey in the minutes after he was placed in handcuffs. We also note that
Ramos was on notice about the leg sweep long before discovery closed, as one
of Bailey’s experts specifically identified it in his report. Accordingly, we
review whether Ramos is entitled to qualified immunity on Bailey’s excessive
force claims regarding both the leg sweep and the other takedown
procedures.
Bailey’s “excessive force claim is separate and distinct from [his]
unlawful arrest claim, and we must therefore analyze the excessive force
claim without regard to whether the arrest itself was justified.” 43 An officer’s
use of force is excessive under the Fourth Amendment if the plaintiff can
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.” 44 “The second and third elements collapse into a single
objective-reasonableness inquiry.” 45 To assess reasonableness, we consider
three factors that the Supreme Court outlined in Graham v. Connor: (1) “the

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42
U.S. ex rel. DeKort v. Integrated Coast Guard Sys., 475 F. App’x 521, 522 (5th Cir.
2012) (“[A] plaintiff may not raise a new claim for the first time at the summary-judgment
stage.”).
43
See Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007).
44
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting
Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)).
45
Pena v. City of Rio Grande City, 879 F.3d 613, 619 (5th Cir. 2018).

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severity of the crime at issue,” (2) “whether the suspect poses an immediate
threat to the safety of the officers or others,” (3) and “whether he is actively
resisting arrest or attempting to evade arrest by flight.” 46 “The
‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” 47 “‘Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers,’ violates the Fourth
Amendment.” 48 “To be reasonable is not to be perfect, and so the Fourth
Amendment allows for some mistakes on the part of government officials,
giving them ‘fair leeway for enforcing the law in the community’s
protection.’” 49
Bailey has met the injury requirement for an excessive force claim. He
provided evidence of “abrasion to his wrist and knee, acute neck pain, and a
concussion.” He also “testified that he still experiences pain in his neck,
shoulder, and spine and needs occasional cortisone shots.” “[A]s long as a
plaintiff has suffered some injury, even relatively insignificant injuries and
purely psychological injuries will prove cognizable when resulting from an
officer’s unreasonably excessive force.” 50 Thus, we need only consider
whether Ramos’s use of force was objectively reasonable under the Graham
factors.

_____________________
46
Deville, 567 F.3d at 167 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
47
Graham, 490 U.S. at 396.
48
Id. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
49
Heien v. North Carolina, 574 U.S. 54, 60–61 (2014) (quoting Brinegar v. United
States, 338 U.S. 160, 176 (1949)).
50
Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (internal
quotation marks and citation omitted).

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A
We start with the force used during the takedown procedure, when
Ramos pushed Bailey and brought him to the ground. The district court
denied summary judgment for this use of force because it held that there were
genuine disputes of material fact as to the nature of the contact between
Ramos and Bailey in the moments preceding the use of force.
Turning to the Graham factors to assess the reasonableness of the
takedown procedure, first, the offense Bailey was being arrested for—
interference with public duties—is “a minor offense” under Texas law. 51
Second, Ramos does not argue that Bailey was actively resisting arrest or
attempting to evade arrest by flight. But whether Bailey posed “an immediate
threat to the safety of the officers or others” 52 can only be determined once
the factual disputes as to the nature of the contact between Ramos and Bailey
have been resolved. We cannot review the “district court’s finding that a
genuine factual dispute exists” about the nature of the contact between Bailey
and Ramos unless the video evidence blatantly contradicts the story either
Ramos or Bailey presents. 53 As we discussed above, none of the video
evidence clearly shows the nature of the contact between Bailey and Ramos.
Because the nature of the contact is relevant to whether Bailey posed an
immediate threat to the safety of others and to the reasonableness of the force
used, we agree with the district court and the dissent that these disputes of
fact are material.

_____________________
51
Buehler, 27 F.4th at 983 (quoting Westfall v. Luna, 903 F.3d 534, 547 (5th Cir.
2018)).
52
Deville, 567 F.3d at 167 (citing Graham, 490 U.S. at 396).
53
See Good, 601 F.3d at 397; Scott, 550 U.S. at 380–81.

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But even if there is a genuine and material fact dispute as to whether
the takedown procedure did amount to excessive force, Ramos is still entitled
to qualified immunity because the unlawfulness of his conduct was not clearly
established at the time it occurred. 54
Bailey, for his part, submits that the unlawfulness of Ramos’s
takedown procedure was clearly established, pointing to our 2012 decision in
Newman v. Guidry. 55 In Newman, the defendant-officers severely beat and
tased a passenger of a stopped car, precipitated only by the passenger’s
suggestion that one of the officer’s hands “remained on [his] crotch for an
uncomfortable length of time” during the pat-down search. 56 There was,
moreover, no evidence that the passenger failed to comply with any lawful
order before officers hit him thirteen times with a baton, tased him three
times, and dragged him to the sidewalk with taser barbs in his skin and his
shorts around his ankles. 57 We accordingly held that the officers’ force was
objectively unreasonable under Graham and violated the passenger’s clearly
established constitutional right to be free from such force. 58
We agree with Ramos that our decision in Newman is not sufficiently
analogous to have put him on notice that his conduct was unlawful. Most
notably, unlike in Newman, Bailey was given an order with which to comply,
thus rendering the circumstances preceding Ramos’s use of force materially

_____________________
54
See Hogan, 722 F.3d at 735. Cf. Kokesh v. Curlee, 14 F.4th 382, 409 (5th Cir. 2021)
(Willett, J., dissenting) (arguing that officer was not entitled to summary judgment on
qualified immunity where there were genuine disputes of material fact and plaintiff’s
constitutional rights were clearly established at the time of the arrest).
55
703 F.3d 757 (5th Cir. 2012).
56
Id. at 760.
57
Id. at 760–63.
58
Id. at 763–64.

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different. And the level of force the officers used in Newman far exceeded the
force that Ramos used here. 59
Newman is not this court’s only relevant precedent. 60 However,
further review of our caselaw shows that it was not clearly established in April
2018 that Ramos’s takedown procedures were unlawful.
Just weeks before Bailey’s arrest, we denied qualified immunity and
observed in Sam v. Richard that “it was clearly established . . . that pushing,
kneeing, and slapping a suspect who is neither fleeing nor resisting is
excessive.” 61 However, the use of force in Richard is distinguishable in that
it was used after the plaintiff was lying face down on the ground, with his
hands on the back of his head. 62 Under Richard, an officer isn’t entitled to
qualified immunity if takedown procedures are used after the officer has

_____________________
59
The dissent suggests that we fail to view the evidence in the light most favorable
to Bailey. However, considering the clear video evidence and the facts in Bailey’s favor,
Ramos’s force consisted of placing an arm to Bailey’s chest, placing both hands on Bailey’s
chest and pushing him, pulling Bailey’s shirt, and grabbing Bailey’s upper body and
pushing him to the ground. None of these actions rise to the level of violence exhibited in
Newman or in the other cases we distinguish below.
60
The only case Bailey cited in his reply brief is Newman. To be sure, we have
recited many times that “[t]he plaintiff has the burden to point out clearly established law.”
Tucker v. City of Shreveport, 998 F.3d 165, 173 (5th Cir. 2021). But we have never understood
this burden to mean that we are artificially boxed in by only those cases cited in the
plaintiff’s brief. Indeed, as we recently observed in a qualified-immunity case, “this court
is not restricted to analyzing the issues properly presented by the parties only on the
authorities cited by the parties.” Templeton v. Jarmillo, 28 F.4th 618, 622 (5th Cir. 2022).
The Supreme Court has similarly held that “[a] court engaging in review of a qualified-
immunity judgment should . . . use its full knowledge of its own and other relevant
precedents.” Elder v. Holloway, 510 U.S. 510, 516 (1994) (alterations and internal quotation
marks omitted). Nevertheless, our review of the caselaw shows that it was not clearly
established at the time of Bailey’s arrest that Ramos’s takedown procedures were unlawful.
61
887 F.3d 710, 714 (5th Cir. 2018).
62
Id.

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gained control of the suspect. But that isn’t the case here, where Bailey
wasn’t yet handcuffed, and Ramos used force to gain control of Bailey under
the reasonable belief that Bailey was disregarding his orders. Moreover, the
force used in Richard—slapping the suspect across the face and kneeing him
while he was face down on the ground with his hands on the back of his
head 63—was more severe and less appropriate than the shove, pulling of
Bailey’s shirt, and push to the ground that Ramos used here to gain control
of and handcuff Bailey. 64
Similarly, in Bush v. Strain, a decade earlier, we held that it was clearly
established that officers could not “forcibly slam[]” a “handcuffed and
subdued” individual’s face “into a nearby vehicle” when the individual
“was not resisting arrest or attempting to flee.” 65 But, again, that is not the
case here. True, Ramos doesn’t contest that, like the suspect in Bush, Bailey
wasn’t resisting arrest. But we have “frequently held” that takedown
procedures like pushing a suspect and bringing him to the ground are lawful
ways to gain control of and arrest a suspect before he has been handcuffed
and subdued. 66 Bush does not clearly establish that use of takedown
procedures is unlawful when law enforcement hasn’t yet gained control of
the suspect. So, even if Bailey wasn’t resisting arrest, as determined above, a
reasonable officer could have believed he was refusing to follow instructions
and thus needed to be subdued using such measures.

_____________________
63
Id.
64
See Buehler, 27 F.4th at 987 (distinguishing Richard and finding qualified
immunity because Richard “involved more severe and less appropriate uses of force” than
used by the Buehler officers).
65
513 F.3d 492, 502 (5th Cir. 2008).
66
Buehler, 27 F.4th at 988 n.67. Though Buehler was decided after Bailey’s arrest,
several of the cases it cites were decided prior to Bailey’s arrest in 2018.

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The dissent also points to Trammell v. Fruge, 67 Joseph v. Bartlett, 68 and
Darden v. City of Fort Worth 69 as showing that Ramos’s conduct was a clearly
established violation of Bailey’s constitutional rights at the time of the arrest.
But analogy to these cases suffers the same flaws as analogies to Richard and
Bush—the officers were not “acting under similar circumstances” as Ramos,
so the cases cannot have put him on notice that his actions were
unconstitutional. 70
For example, in contrast to the plaintiffs in those cases, Bailey was not
yet subdued when officers exerted the alleged excessive force. In Darden, we
denied qualified immunity where video evidence showed that officers exerted
force after the plaintiff was kneeling with his hands in the air and following
officer instructions, all while bystanders were shouting to the officers that the
plaintiff couldn’t breathe. 71 Likewise, in Joseph, the officers exerted force
after the plaintiff was already lying on the ground in the fetal position,
obviously subdued. 72 By contrast, although Bailey was not actively resisting
arrest, he had not given officers an obvious indication that he was subdued,
such as kneeling with his hands in the air or lying in the fetal position. Instead,
he was on his feet, shouting over officer instructions, and obstructing an
active crime scene. Bailey hasn’t pointed to any case saying that officers may
not use some force to subdue an arrestee in this situation.

_____________________
67
868 F.3d 332 (5th Cir. 2017).
68
981 F.3d 319.
69
880 F.3d 722 (5th Cir. 2018).
70
See Joseph, 981 F.3d at 337 (citing D.C. v. Wesby, 583 U.S. 48, 64 (2018) (cleaned
up)).
71
Darden, 880 F.3d at 725, 730–33.
72
Joseph, 981 F.3d at 340.

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These cases are also distinguishable in the amount of force officers
used. We have held that “the degree of force an officer can reasonably
employ is reduced when an arrestee is not actively resisting.” 73 But none of
these cases suggest that Ramos’s use of force—putting his hands to Bailey’s
chest, pulling his shirt, and pushing him to the ground—was more force than
reasonably necessary to subdue Bailey under the circumstances. Ramos’s
force was far milder than the officers in Darden, who “threw [plaintiff] to the
ground, tased him twice, choked him, punched and kicked him in the face,
pushed him into a face-down position, pressed his face into the ground, and
pulled his hands behind his back to handcuff him.” 74 And Ramos’s actions
were less violent than the officers’ actions in Trammell, which consisted of
grabbing plaintiff’s arms, executing knee strikes and a headlock, and tackling
him. 75 Ramos also acted far more proportionally than the officers in Joseph,
who held the plaintiff’s body down and tased him for 11 seconds, struck him
with a baton at least twice, tased him again, then kicked and punched him
multiple times. 76 These much more extreme cases thus do not clearly
establish that Ramos “should have known that he could not use that amount
of force on an individual who was not resisting arrest.” 77 By contrast, even
taking the facts in the light most favorable to Bailey, Ramos pushed Bailey,
shoved him to the ground, then stopped the force immediately after Bailey
was handcuffed. Bailey cannot point to any case saying that this amount of
force was not reasonably necessary to subdue Bailey under the

_____________________
73
Darden, 880 F.3d at 733 (emphasis added).
74
Id. at 725.
75
Trammell, 868 F.3d at 337–38.
76
Joseph, 981 F.3d at 326–27.
77
Darden, 880 F.3d at 731–32.

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circumstances. We thus cannot say that Ramos’s actions were “plainly in
conflict with our caselaw at the time of the alleged misconduct.” 78
Bailey has thus failed to meet his burden to show that it was clearly
established at the time of his arrest that Ramos’s takedown maneuver was an
unlawful use of force. Accordingly, Ramos is entitled to qualified immunity
on this claim.
B
We turn now to whether Ramos used excessive force when he swept
Bailey’s legs out from under him.
The district court denied summary judgment for this use of force,
holding that Ramos used a leg sweep on a “subdued suspect who had not
resisted arrest,” violating Bailey’s clearly established rights. Our caselaw has
“clearly established . . . that, once a suspect has been handcuffed and
subdued, and is no longer resisting, an officer’s use of force is excessive.” 79
But use of force against a handcuffed suspect is not excessive if the suspect is
resisting by ignoring lawful commands. 80
Video evidence clearly shows that, after Bailey was handcuffed, he
was placed standing up against a wall. There, he repeatedly yelled expletives
at Dech and Ramos. Both officers told Bailey to “sit down” and “kneel
down,” to which Bailey defiantly responded, “[W]hat, are you going to go
hands on again?” The officers responded by maneuvering Bailey so that his
back was against the wall. Ramos then used some type of leg maneuver to seat

_____________________
78
Id. at 733.
79
Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir. 2015).
80
See Pratt v. Harris County, 822 F.3d 174, 178 (5th Cir. 2016) (finding use of force
is not excessive against handcuffed suspect who is verbally and physically resisting).

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No. 23-50185

him on the ground. Bailey slid with his back along the wall to the ground, with
Dech’s hand on his chest guiding him down. Because the video evidence
shows that Bailey was not complying with the officers’ lawful orders to sit
down, Ramos’s responsive use of force was not objectively unreasonable
under the Fourth Amendment. 81
Because the video evidence is clear that bringing Bailey to a seat with
a leg sweep was not an objectively unreasonable use of force, Ramos is
entitled to qualified immunity.
VI
Finally, we turn to Bailey’s First Amendment retaliation claim. To
survive summary judgment, Bailey must show there is at least a genuine
dispute of material fact that “(1) [he was] engaged in constitutionally
protected activity, (2) the defendant[’s] actions caused [him] to suffer an
injury that would chill a person of ordinary firmness from continuing to
engage in that activity, and (3) the defendant[’s] adverse actions were
substantially motivated against the plaintiff[’s] exercise of constitutionally
protected conduct.” 82 A retaliation claim is only available “when non-
retaliatory grounds are in fact insufficient to provoke” the arrest, meaning

_____________________
81
See Buehler, 27 F.4th at 988 n.67 (collecting cases showing instances in which
bringing suspect to the ground was neither excessive force nor unreasonable); Childers, 848
F.3d at 415 (holding that plaintiff’s conduct moved beyond speech when he failed to follow
the deputy’s instruction to move his truck); Deville, 567 F.3d at 167 (“Officers may
consider a suspect’s refusal to comply with instructions during a traffic stop in assessing
whether physical force is needed to effectuate the suspect’s compliance.”).
82
Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).

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that the officer’s subjective motivation must be the but-for cause of the
adverse action against the plaintiff. 83
The district court denied summary judgment on this claim.
The parties do not dispute that Bailey satisfies the first prong. And for
good reason: In Turner v. Lieutenant Driver, 84 we held that the right to film
police under the First Amendment is clearly established, “subject only to
time, place, and manner restrictions.” 85
The second prong requires an injury that would “chill a person of
ordinary firmness from continuing to engage in that activity.” 86 “The effect
on freedom of speech may be small, but since there is no justification for
harassing people for exercising their constitutional rights, it need not be great
in order to be actionable.” 87 Bailey contends that “arresting and injuring
[him], while seizing his belongings, would chill a person of ordinary
firmness . . . .” We agree that the injuries Bailey suffered as a result of the use
of force during his arrest meet this standard.
As to the third prong, “[a]t the summary judgment stage, [Bailey]
cannot rely on allegations; he must produce specific support for his claim”
that Ramos had an “unconstitutional motive.” 88 We do not require plaintiffs
to produce direct evidence. “Circumstantial evidence is equally as probative

_____________________
83
See Degenhardt v. Bintliff, —F.4th—, No. 24-40034, 2024 WL 4274180, *7 (5th
Cir. September 24, 2024).
84
848 F.3d 678 (5th Cir. 2017).
85
Id. at 688.
86
Keenan, 290 F.3d at 258.
87
McLin v. Ard, 866 F.3d 682, 697 (5th Cir. 2017) (quoting Keenan, 290 F.3d at
258).
88
See Tompkins v. Vickers, 26 F.3d 603, 608 (5th Cir. 1994).

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as direct evidence in proving illegitimate intent. Also, direct evidence of an
improper motive is usually difficult, if not impossible, to obtain. Thus,
requiring direct evidence of an improper motive would effectively insulate
from suit public officials who deny an improper motive . . . .” 89
Looking to circumstantial evidence, Bailey points out that Ramos did
not pay attention to or arrest any of the people walking through the area who
were not recording. True, the fact that “he was arrested when otherwise
similarly situated individuals not engaged in the same sort of speech had not
been” would be good evidence in his favor. 90 But the video evidence blatantly
contradicts Bailey’s characterization of events. None of the passersby
walking through the crime scene were “similarly situated” to Bailey. Apart
from those whom the officers were interviewing as witnesses, no one stopped
and lingered in close proximity to the ambulance. Bailey was the only person
who appeared to disregard police orders to stay back from the crime scene.
Indeed, video shows other individuals recording the interaction, and those
individuals were not arrested.
Bailey hasn’t pointed to any other evidence that would show that
Ramos had a subjective retaliatory motive, much less that any such motive
was the but-for cause of Ramos’s decision to arrest him. Video evidence
blatantly disputes his only argument. As a result, no dispute of material fact
exists, and Ramos is entitled to judgment as a matter of law on Bailey’s First
Amendment retaliatory arrest claim.

_____________________
89
Id. at 609.
90
Gonzalez v. Trevino, 144 S.Ct. 1663, 1665 (2024) (citing Nieves v. Bartlett, 587
U.S. 391, 402 (2019)).

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VII
We REVERSE the denial of summary judgment and REMAND
with instructions to grant summary judgment in favor of Ramos and to
dismiss Bailey’s claims.

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No. 23-50185

Jennifer Walker Elrod, Chief Judge, concurring in part and
dissenting in part:
I agree with the majority opinion as to all of Bailey’s claims except for
the excessive-force claim based on Ramos pushing Bailey, grabbing him
around the upper neck and back, and taking him to the ground. In my view,
there are genuine disputes of material fact that preclude summary judgment
on that excessive-force claim and require us to dismiss that portion of the
appeal for lack of jurisdiction. I believe that the majority opinion errs because
it does not view these factual disputes in the light most favorable to Bailey.
I
In an interlocutory appeal of a denial of qualified immunity, when the
district court determines that there is a genuine factual dispute and that
dispute is material, under our long-standing precedent in Kinney v. Weaver,
367 F.3d 337 (5th Cir. 2004) (en banc), we must dismiss the appeal for lack
of jurisdiction. See id. at 346–47.
Here, the district court concluded that there were genuine disputes of
fact as to whether Bailey was complying with Officer Ramos’s and Officer
Dech’s instructions to stand behind a line in the sidewalk. The district court
reviewed the video footage and stated that Bailey and his friend Miller “both
appear to immediately step back and look around them in order to locate the
line to which Dech was referring.” It observed that “it is not clear that
[Bailey] even had an opportunity to fully comply with the order, given that
Ramos lunged at [Bailey] approximately one second after Dech’s
instructions.” The district court determined that Bailey “appear[ed] to
initially comply with the order to move behind the line.”
The district court also determined that there were genuine factual
disputes regarding the contact between Bailey and Ramos. It noted that there
was conflicting testimony about Bailey allegedly “swatting” Ramos and

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No. 23-50185

concluded that “[b]ecause the video footage does not offer a clear view of the
nature of [Bailey’s] contact with Ramos, a jury would need to rely on
credibility determinations and weigh the evidence to resolve the question.”
In the district court’s view, “taking the facts in the light most favorable to
[Bailey], a jury could conclude that Ramos’s use of force was objectively
unreasonable in light of clearly established law at the time of the incident.”
Here, the video evidence does not blatantly contradict either Bailey’s
or Ramos’s version of the facts—as the majority opinion itself acknowledges.
Accordingly, we cannot and should not review the genuineness of those
factual disputes. See Kinney, 367 F.3d at 346–47; Curran v. Aleshire, 800 F.3d
656, 663–64 (5th Cir. 2015) (noting that the Scott v. Harris exception to the
materiality/genuineness rule applies only if the plaintiff’s story is “blatantly
contradicted” by the video evidence).
Further, the district court correctly determined that these factual
disputes are material to the determination of whether Ramos’s use of force
was excessive, and the majority opinion again agrees. Thus, in this case, “we
do not second-guess the district court’s determination that there are genuine
disputes of material fact” in the qualified-immunity context, and summary
judgment is improper. See Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319,
331, 346 (5th Cir. 2020); see also Roque v. Harvel, 993 F.3d 325, 339 (5th Cir.
2021); Kokesh v. Curlee, 14 F.4th 382, 409 (5th Cir. 2021) (Willett, J.,
dissenting) (“[B]ecause there are genuine disputes of material fact . . . , the
conclusion is apparent: [the defendant] is not entitled to summary judgment
on this claim.”). I would accordingly dismiss the appeal as to Bailey’s
excessive-force claim based on the takedown for lack of jurisdiction. See
Kinney, 367 F.3d at 347.

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II
These factual disputes are also material to the analysis of whether
Bailey’s rights were clearly established under our precedent. I believe that
the majority opinion errs because it fails to view the factual disputes in the
light most favorable to Bailey when conducting that analysis. “[T]o
overcome qualified immunity, the plaintiff’s version of th[e] disputed facts
must also constitute a violation of clearly established law.” Joseph, 981 F.3d
at 330 (emphasis added).
When viewing the facts in the light most favorable to Bailey, Ramos’s
takedown of Bailey could have violated clearly established law. Although
officers may use some physical force to effectuate an arrest, they must also
consider “the relationship between the need and the amount of force used.”
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Gomez v.
Chandler, 163 F.3d 921, 923 (5th Cir. 1999)). The majority opinion asserts
that Ramos could have reasonably believed that Bailey was not complying
with orders and that Ramos’s use of force was thus necessary to gain control
of Bailey. However, Bailey’s compliance is in dispute, and “[w]e have no
more ability to review these factual disputes as to clearly established law than
we did as to the constitutional merits—which is to say, none.” Joseph, 981
F.3d at 337. Further, disobeying orders generally does not constitute active
resistance. See id. at 339; Trammell v. Fruge, 868 F.3d 332, 341 (5th Cir. 2017).
“Our case law makes clear that when an arrestee is not actively resisting
arrest the degree of force an officer can employ is reduced.” Darden v. City
of Fort Worth, 880 F.3d 722, 731 (5th Cir. 2018); see also id. at 730
(determining that the video evidence did not resolve the factual dispute over
whether the plaintiff complied with commands or resisted arrest); Trammell,
868 F.3d at 341 (concluding that there was a factual dispute as to whether the
plaintiff was actively resisting arrest by refusing to comply with orders and
pulling his arm away from officers). If Bailey was not dangerous, was not

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disobeying orders, and was not resisting arrest, a jury could find that a
reasonable officer would know that the amount of force used to subdue Bailey
was excessive.
For example, in Trammell v. Fruge, we held that the law in 2013
“clearly established that it was objectively unreasonable for several officers
to tackle an individual who was not fleeing, not violent, not aggressive, and
only resisted by pulling his arm away from an officer’s grasp.” 868 F.3d at
343. There, the officers grabbed the plaintiff’s arms, used a knee strike, put
him in a headlock, and “pulled [him] to the ground.” Id. at 337. We
described this force as “tackling [the plaintiff] to the ground” and
determined that such force was excessive even when used before the officers
had “subdue[d] and handcuff[ed] him.” Id. at 337–38, 342. Our caselaw also
clearly establishes that “violently slamming or striking a suspect who is not
actively resisting arrest constitutes excessive use of force.” See Darden, 880
F.3d at 732–33. Finally, in Sam v. Richard, 887 F.3d 710 (5th Cir. 2018), we
also determined that the force used before handcuffing the suspect was
excessive because the suspect was compliant. See id. at 712. In sum, if Bailey
did not pose an immediate threat and was compliant—questions on which
there are open factual disputes and on which we must make all inferences in
Bailey’s favor—it is clearly established that Ramos was not justified in
resorting to using the takedown maneuver. See Trammell, 868 F.3d at 342
(“[T]he quickness with which the officers resorted to tackling [the plaintiff]
to the ground militates against a finding of reasonableness.”).
As we have previously observed:
[A] jury could ultimately determine that the suspect was in fact
resisting arrest or disobeying commands. And under those
alternative facts, the officers’ force may have been reasonable
under the Fourth Amendment and reasonable under the clearly
established law. Yet, a genuine dispute of material fact existed,

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meaning that a jury could also find facts demonstrating the
opposite. Therefore, the officers were not entitled to qualified
immunity at the summary-judgment stage.
Joseph, 981 F.3d at 342 (footnotes omitted) (citing Darden, 880 F.3d at
731–32). I would thus hold that Bailey has overcome qualified immunity at
this stage on his excessive-force claim based on Ramos’s takedown.
III
Simply put, the interlocutory appeal of the excessive-force claim
based on Ramos’s takedown maneuver should have been dismissed for lack
of jurisdiction. See Kinney, 367 F.3d at 347. Genuine disputes of material fact
preclude our jurisdiction over the appeal of this claim and make granting
qualified immunity at the summary-judgment stage improper. When the
facts are properly viewed in the light most favorable to Bailey, a reasonable
jury could find that Ramos’s use of force in these circumstances violated
clearly established law. I respectfully dissent in part.

32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10778485. Public record. Not legal advice.