Walker v. Hoffman

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SHAUNTE WALKER, Individually §

and as mother of Kyle Dail Jr and §

Kymari Dail minor heirs of the §

Estate of KYLE DAIL SR., deceased, §

§

Plaintiff, §

§ Civil Action No. 3:23-CV-0391-D

VS. §

§

CITY OF DALLAS, et al., §

§

Defendants. §

MEMORANDUM OPINION

AND ORDER

Plaintiff Shaunte Walker (“Walker”), individually and as mother of the children and

minor heirs of the estate of Kyle Dail Sr. (“Dail”), sues the City of Dallas (the “City”) and

three individual Dallas Police Department (“DPD”) officers, asserting claims under 42

U.S.C. § 1983 for alleged violations of Dail’s Fourth and Fourteenth Amendment rights.

Defendants Thomas Hoffman (“Officer Hoffman”), Michael Piering (“Officer Piering”), and

Noah Hemm (“Officer Hemm”) (collectively, the “Defendant Officers”) move for summary

judgment based on the defense of qualified immunity. For the reasons that follow, the court

grants their motion and dismisses Walker’s claims against the Defendant Officers by Fed.

R. Civ. P. 54(b) final judgment filed today.

I

On July 27, 2022 a covert officer who was part of DPD’s Northeast Crime Response

Team was conducting surveillance at a gas station and convenience store (“Convenience

Store”) in connection with a drug trafficking investigation when he witnessed Dail engaging

in what he believed were hand-to-hand drug transactions.1 He informed the Defendant

Officers, who were stationed nearby, and began to follow Dail’s car with the intention of

making a traffic stop. Officer Hemm joined in the pursuit. When Officer Hemm spotted

Dail’s vehicle, he activated his lights and siren in an attempt to initiate a traffic stop, but Dail

continued driving, and the officers eventually lost track of his vehicle.

At approximately 11:30 p.m., Dail returned to the Convenience Store and went inside.

The covert officer, who had returned to the Convenience Store and resumed surveillance,

conveyed this information to the Defendant Officers, provided them with a description of

Dail’s clothing, and asked the Defendant Officers to enter the Convenience Store and arrest

Dail.

When the Defendant Officers arrived at the Convenience Store, they spotted Dail

standing at the far end of the left aisle with his back toward them. Officer Piering

approached down the left aisle with Officer Hemm trailing a few feet behind him, and

Officer Hoffman approached via the right aisle. The Defendant Officers did not announce

their presence, allegedly out of concern that Dail would flee again before they could detain

him.

1In deciding the Defendant Officers’ summary judgment motion, the court views the

evidence in the light most favorable to Walker as the summary judgment nonmovant and

draws all reasonable inferences in her favor. See, e.g., Owens v. Mercedes-Benz USA, LLC,

541 F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n

v. Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).

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Officer Piering reached Dail first and grabbed him from behind. The Defendant

Officers ordered Dail to stop moving, put his hands behind his back, and give them his hands,

but Dail did not comply. Instead, he flailed, pulled his hands away, and and fought against

the Defendant Officers while repeatedly yelling, “I’m not moving!” Ds. App. Ex. 3 (ECF

No. 48)2 at 23:40:48-23:41:02. A struggle ensued during which the Defendant Officers

pressed Dail against a soda dispenser and Officer Hoffman struck the side of Dail’s head with

a closed fist. Dail continued to resist, moving himself and the Defendant Officers several

feet up the aisle before crashing into a display, scattering merchandise all over the floor.

Officer Piering disengaged, moved a few steps up the aisle, drew his taser and yelled,

“I will tase you! I will tase you! Give them your hands!” Ds. App. Ex. 5 (ECF No. 48) at

23:41:06-10. Officer Piering then saw Dail reach into the front of his waistband and pull out

a pistol. Officer Piering screamed, “Gun! Gun! Gun!” as he dropped his taser, drew his own

pistol, and pointed it at Dail. Ds. App. Ex. 5 (ECF No. 48) at 23:41:10-13. Officer Hoffman

heard Piering shout “Gun!” and, at that moment, observed Dail holding a pistol in a shooting

grasp and raising it up toward Officer Hoffman’s head. Officer Hoffman believed Dail was

going to shoot him and his fellow officers, so he released Dail, drew his service weapon, and

fired three times, fatally wounding Dail. Unbeknownst to Officer Hoffman, as soon as he

released Dail to draw his service weapon, Dail threw his pistol over the display into the next

aisle.

2Citations to video exhibits contained in ECF No. 48 are to a flash drive that the

Defendant Officers manually filed.

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After the Defendant Officers located Dail’s gun, they began to render aid to Dail until

paramedics arrived. Dail was transported to a local hospital where he died as a result of a

gunshot wound to his head.

In February 2023 Walker filed the instant lawsuit against the City, DPD,3 and the

Defendant Officers. In her first amended complaint, which is her operative pleading, Walker

alleges a claim under 42 U.S.C. § 1983 against the Defendant Officers4 for using excessive

force, in violation of Dail’s Fourth and Fourteenth Amendment5 rights. She also brings a

claim against the City6 under 42 U.S.C. §§ 1983 and 1988/Monell.7 The Defendant Officers

3In Walker v. City of Dallas, 2023 WL 8705657, at *3 (N.D. Tex. Dec. 15, 2023)

(Fitzwater, J.), the court dismissed Walker’s claims against DPD.

4Walker brought this claim against the Defendant Officers in their individual and

official capacities. In Walker v. City of Dallas (Walker II), 2024 WL 2734951 (N.D. Tex.

May 28, 2024) (Fitzwater, J.), the court dismissed, as duplicative, Walker’s official-capacity

claims against these defendants. Id. at *2.

5It is undisputed that the Defendant Officers seized Dail under the Fourth

Amendment. To the extent that Walker alleges a claim against the Defendant Officers based

on the Fourteenth Amendment, the court dismisses this claim. See Graham v. Connor, 490

U.S. 386, 395 (1989) (“[We] hold that all claims that law enforcement officers have used

excessive force—deadly or not—in the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the Fourth Amendment[, n]ot the more

generalized notion of ‘substantive due process.’”); Mason v. Lafayette City-Par. Consol.

Gov’t, 806 F.3d 268, 278 (5th Cir. 2015) (“While substantive due process applies to some

police conduct, the Supreme Court has refused to look beyond the Fourth Amendment when

the police ‘seize’ a suspect.” (citation omitted)).

6The court in Walker II dismissed Walker’s § 1983 claim against the City to the extent

that it is based on a purportedly unconstitutional written policy, inadequate hiring practices,

and an alleged failure to train or supervise. Walker II, 2024 WL 2734951, at *5, 7-8.

7Monell v. Dep’t of Soc. Servs., 436 U.S. 658, (1978).

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move for summary judgment based on qualified immunity.8 Walker opposes the motion.

The court is deciding the motion on the briefs, without oral argument.

II

When a summary judgment movant will not have the burden of proof on a claim at

trial, he can obtain summary judgment by pointing the court to the absence of evidence on

any essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986). Once he does so, the nonmovant must go beyond her pleadings and designate

specific facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is

genuine if the evidence is such that a reasonable jury could return a verdict for the

nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s

failure to produce proof as to any essential element renders all other facts immaterial. See

TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater,

J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little,

37 F.3d at 1076.

When qualified immunity has been raised, “[t]he moving party is not required to meet

[his] summary judgment burden for a claim of immunity.” Hathaway v. Bazany, 507 F.3d

312, 319 (5th Cir. 2007) (citation omitted). Rather, the movant need only plead his

8The Defendant Officers also move for a protective order relieving them of any

obligation to respond to Walker’s requests for written discovery. Because the court is today

granting summary judgment dismissing Walker’s action against the Defendant Officers, the

court denies their motion for a protective order without prejudice as moot.

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good-faith entitlement to qualified immunity, whereupon “the burden shifts to the plaintiff

to rebut it.” Id. (emphasis and citation omitted); see also Gates v. Tex. Dep’t of Protective

& Reg. Servs., 537 F.3d 404, 419 (5th Cir. 2008) (noting that when government official

pleads qualified immunity, plaintiff must “rebut the defense by establishing that the official’s

allegedly wrongful conduct violated clearly established law and that genuine issues of

material fact exist regarding the reasonableness of the official’s conduct”). Once qualified

immunity is asserted, the burden shifts to the plaintiff to demonstrate the inapplicability of

the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)

(per curiam).9

III

Qualified immunity jurisprudence is well settled. “[G]overnment officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

(citations omitted). Qualified immunity applies to state officials sued for constitutional

violations under § 1983. See id. at 818 n.30 (citing Butz v. Economou, 438 U.S. 478, 504

(1978)); Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). “Qualified immunity gives

9In her response brief, Walker fails to acknowledge the burden-shifting effect of

qualified immunity. Because the Defendant Officers have asserted in their summary

judgment motion their entitlement to qualified immunity, the burden has shifted to Walker

to demonstrate that they are not entitled to qualified immunity. See, e.g., McClendon, 305

F.3d at 323.

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government officials breathing room to make reasonable but mistaken judgments, and

protects all but the plainly incompetent or those who knowingly violate the law.” Thompson

v. Mercer, 762 F.3d 433, 437 (5th Cir. 2014) (internal quotation marks omitted) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).

“To decide whether defendants are entitled to qualified immunity, the court must first

answer the threshold question whether, taken in the light most favorable to plaintiff[] as the

part[y] asserting the injuries, the facts [she has] alleged show that defendants’ conduct

violated a constitutional right.” Ellis v. Crawford, 2005 WL 525406, at *3 (N.D. Tex. Mar.

3, 2005) (Fitzwater, J.) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required

to rule upon the qualified immunity issue must consider, then, this threshold question: Taken

in the light most favorable to the party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right? This must be the initial inquiry.”)).10 “If

no constitutional right would have been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201.

“[I]f a violation could be made out on a favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly established.” Id. Finally, “[e]ven if

the government official’s conduct violates a clearly established right, the official is

10Saucier’s two-step procedure for determining qualified immunity is no longer

mandatory. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). Courts are free to consider

Saucier’s second prong without first deciding whether the facts show a constitutional

violation. Id. The “decision does not prevent the lower courts from following the Saucier

procedure; it simply recognizes that those courts should have the discretion to decide whether

that procedure is worthwhile in particular cases.” Id. at 242.

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nonetheless entitled to qualified immunity if his conduct was objectively reasonable.”

Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir. 2005) (citing Hare v. City of

Corinth, 135 F.3d 320, 325 (5th Cir. 1998) (en banc)). “The objective reasonableness of

allegedly illegal conduct is assessed in light of the legal rules clearly established at the time

it was taken.” Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992) (citing Anderson v.

Creighton, 483 U.S. 635, 639 (1987)). “‘The defendant’s acts are held to be objectively

reasonable unless all reasonable officials in the defendant’s circumstances would have then

known that the defendant’s conduct violated the’ plaintiff’s asserted constitutional or federal

statutory right.” Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 284

(5th Cir. 2002) (quoting Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001)).

IV

The court begins with the Defendant Officers’ motion for summary judgment on

Walker’s Fourth Amendment excessive force claim based on the use of non-lethal force.

A

“The Fourth Amendment’s protection against unreasonable seizures of the person has

been applied in causes of action under 42 U.S.C. § 1983 to impose liability on police officers

who use excessive force against citizens.” Collier v. Montgomery, 569 F.3d 214, 218 n.12

(5th Cir. 2009) (citing Colston v. Barnhart, 130 F.3d 96, 102 (5th Cir. 1997)). “To establish

an excessive force claim, a plaintiff must prove ‘(1) an injury, which (2) resulted directly and

only from the use of force that was clearly excessive to the need; and the excessiveness of

which was (3) objectively unreasonable.’” McVae v. Perez, 120 F.4th 487, 492 (5th Cir.

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2024) (quoting Jackson v. Gautreaux, 3 F.4th 182, 186 (5th Cir. 2021).

The court will assume arguendo that Dail suffered an injury when he was struck in

the head with a closed fist, pressed against a soda dispenser, and “subjected to escalating

force despite the absence of an immediate threat.” P. Br. (ECF No. 52) at 15. “The relevant

question in this case is whether the force was ‘clearly excessive’ or ‘clearly unreasonable.’”

Ramire v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008). In assessing the reasonableness of

the use of force, the court must give “careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).

“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.” Rockwell v.

Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Graham, 490 U.S. at 396). This is an

objective standard: “the question is whether the officers’ actions are ‘objectively reasonable’

in light of the facts and circumstances confronting them, without regard to their underlying

intent or motivation.” Graham, 490 U.S. at 397. “The calculus of reasonableness must

embody allowance for the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.” Id. at 396-97.

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B

The Defendant Officers maintain that their use of non-lethal force was reasonable.

They contend that, before arresting Dail, they knew, inter alia, that he was a suspected drug

dealer; that drug traffickers commonly and frequently carry guns and are willing to use them;

that Dail had fled from a traffic stop just one hour earlier; and that Dail might try to flee or

fight once he became aware of their presence. The Defendant Officers also posit that Officer

Piering approached Dail from behind and grabbed him without first announcing his office

to avoid giving Dail the opportunity to flee, and that, from this initial seizure until the

moment Dail pulled a gun from his waistband, the Defendant Officers continuously grasped

his arms and tried to pull his hands behind his back while giving him commands not to move

and to give them his hands for handcuffing, but that Dail “intentionally and forcefully

obstructed the officers’ efforts by thrashing around, dragging them into store displays, and

pulling his hands away to prevent being handcuffed,” Ds. Br. (ECF No. 45) at 18. Based on

these facts, all of which are corroborated by video or other evidence in the summary

judgement record,11 the Defendant Officers contend that all three of the Graham factors are

11As the Defendant Officers point out, video evidence has a special status at the

summary judgment stage.

[W]e assign greater weight, even at the summary judgment

stage, to the facts evident from video recordings taken at the

scene. When one party’s description of the facts is discredited

by the record, we need not take his word for it but should view

the facts in the light depicted by the videotape.

Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (internal quotation marks and citations

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satisfied: Dail committed several serious crimes (including felonies) in their presence, he

likely posed an immediate threat to the safety of the officers or others, and he actively

resisted arrest or attempted to evade arrest by flight.

Walker responds that the video evidence demonstrates the “excessive nature” of

defendants’ use of force:

Video footage shows Dail pressed against a soda dispenser and

struck in the head despite no visible weapon or immediate

threat. Defendants fail to justify the use of such force given that

Dail’s alleged resistance consisted of pulling away and moving

his arms—a response consistent with defensive reflexes rather

than active aggression.

P. Br. (ECF No. 52) at 16. She contends that the record lacks evidence that Dail posed an

imminent threat to officer safety and that “[t]he absence of a visible weapon at the time of

the head strike underscores the unreasonableness of the force used,” id.; that the alleged

severity of Dail’s crimes is diminished by the lack of any immediate or active criminal

conduct at the time of the physical altercation; that “[w]ithout a clear and present danger to

officers or bystanders, escalating the use of force—such as striking Dail in the head—cannot

be justified solely on the basis of past crimes,” id. at 17; that Dail’s resistance consisted of

pulling his arms away and moving his body defensively, which do not constitute an

immediate threat under binding precedent; and that although some level of force may be

appropriate in effectuating an arrest, the escalation to head strikes and pressing Dail against

omitted) (first quoting Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011), then

quoting Scott v. Harris, 550 U.S. 372, 380-81 (2007)).

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the soda dispenser was disproportionate to the situation.

C

The court holds that, based on the summary judgment evidence, a reasonable jury

could not find that the Defendant Officers’ use of non-lethal force in this case—i.e., pressing

Dail against a soda dispenser and striking him in the head—was unreasonable under the

circumstances. “A suspect’s active resistance is a key factor in the Fourth Amendment’s

‘objective reasonableness’ test.” Curran v. Aleshire, 800 F.3d 656, 661 (5th Cir. 2015)

(citing Graham, 490 U.S. at 396). And this circuit’s “qualified immunity jurisprudence is

filled with cases recognizing the need for officers to use reasonable force to subdue and

handcuff suspects who strike them or are otherwise resisting.” Id. Although “the force

calculus changes substantially once that resistence ends,” id. (citing Ballard v. Burton, 444

F.3d 391, 401 (5th Cir. 2006)), conclusive video evidence in this case12 demonstrates that

Dail’s active resistance had not ended by the time the Defendant Officers used non-lethal

force in their attempt to subdue him.

The events depicted by video evidence unfold rapidly over a span of only 29 seconds.

12The qualified immunity inquiry at this stage requires that the court “accept the

plaintiff’s version of the facts (to the extent reflected by proper summary judgment evidence)

as true.” Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004). But the only evidence

before the court that supports any version of the use-of-force incident is the video evidence

submitted by the Defendant Officers. Accordingly, “the version of events depicted by the

video[s] determines, for present purposes, whether any particular officer defendant violated

[Dail]’s constitutional right to be free from excessive force.” Hutcheson v. Dallas County,

Tex., 2020 WL 1692950, at *15 (N.D. Tex. Apr. 7, 2020) (Horan, J.), aff’d, 994 F.3d 477

(5th Cir. 2021).

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While Dail is standing in the back of the Convenience Store with his back to the Defendant

Officers, Officer Piering makes contact with Dail, grabbing him from behind.13 The

Defendant Officers command Dail to give them his hands, but Dail pulls his hands away,

fights against the Defendant Officers, and repeatedly yells, “I’m not moving!” Ds. App. Ex.

5 (ECF No. 48) at 23:40:44-23:41:10; Ds. App. Ex. 3 (ECF No. 48) at 23:40:48-23:41:02.

Dail then twists away from the Defendant Officers toward a soda dispenser on the far side

of the aisle. Officer Piering presses Dail against the soda dispenser for leverage, and,

seconds later, Officer Hoffman strikes the side of Dail’s head with a closed fist. Dail

continues to resist, moving himself and the Defendant Officers several feet up the aisle

before crashing into a display, scattering merchandise all over the soda-slicked floor. In her

summary judgment response, Walker characterizes Dail’s conduct as “defensive in nature

and insufficient to warrant escalating force.” P. Br. (ECF No. 52) at 18. But the video

evidence clearly depicts Dail thrashing and fighting so vigorously that three officers are

unable to subdue him, throwing himself and the officers into product displays on both sides

13In her response, Walker contends that Officer Piering’s grabbing Dail from behind

“without an announcement or justification . . . escalated the situation unnecessarily and

violated [Dail]’s Fourth Amendment right to be free from unreasonable seizure.” P. Br.

(ECF No. 52) at 7. She also contends that the Defendant Officers’ “decision to apprehend

[Dail] inside the store without clear evidence of a crime violated his Fourth Amendment

rights against unreasonable seizure.” Id. at 6. But Walker has not pleaded a claim for the

violation of Dail’s Fourth Amendment right to be free from unreasonable seizures, and she

cannot raise it for the first time in her summary judgment response. See, e.g., Cutrera v. Bd.

of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not

raised in the complaint but, rather, is raised only in response to a motion for summary

judgment is not properly before the court.” (citing Fisher v. Metro. Life Ins. Co., 895 F.2d

1073, 1078 (5th Cir. 1990))).

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of the aisle. As the Defendant Officers point out, “[a]t no point in the video does Dail

surrender, cease resisting to allow handcuffing, or act in a manner ‘consistent with defensive

reflexes rather than active aggression.’” Ds. Reply. (ECF No. 55) at 5 (quoting P. Br. (ECF

No. 52) at 16). To the contrary, Dail was actively resisting at the time the Defendant Officers

used non-lethal force to subdue him. See Graham, 490 U.S. at 396.

A reasonable jury could not find that it was unreasonable for the Defendant Officers

to press Dail against the soda dispenser or strike his head while he was actively resisting their

attempt to arrest him. Video evidence conclusively establishes that, in the 29 seconds that

followed Officer Piering’s initial contact with Dail, it was Dail, not the Defendant Officers,

who escalated the situation by refusing to comply with the Defendant Officers’ commands

and attempts to handcuff him.

Because Walker has not created a genuine issue of material fact on the question

whether the Defendant Officers’ use of non-lethal force was reasonable under the

circumstances, the court concludes that the Defendant Officers are entitled to qualified

immunity based on the first prong of the qualified immunity analysis.

D

In the alternative, the court holds that the Defendant Officers are entitled to qualified

immunity under the “clearly established” prong of the qualified immunity analysis.

1

Under the second prong of the qualified immunity analysis, courts consider “whether

the defendant’s conduct was objectively reasonable in light of the clearly established law at

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the time of the incident.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008) (citation

omitted); see also Wood v. Moss, 572 U.S. 744, 758 (2014) (“The ‘dispositive inquiry,’ we

have said, ‘is whether it would have been clear to a reasonable officer’ in the [defendants’]

position ‘that [their] conduct was unlawful in the situation [they] confronted.’” (some

alterations in original, some brackets omitted) (quoting Saucier, 533 U.S. at 202)). To make

this determination, the court must

ask whether the law so clearly and unambiguously prohibited

[the defendants’] conduct that every reasonable official would

understand that what [they are] doing violates the law. To

answer that question in the affirmative, [the court] must be able

to point to controlling authority—or a robust consensus of

persuasive authority—that defines the contours of the right in

question with a high degree of particularity.

Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc) (internal quotation

marks, footnotes, and some brackets omitted) (quoting al-Kidd, 563 U.S. at 741). While “a

case directly on point” is not required for the court to conclude that the law is clearly

established, “existing precedent must have placed the statutory or constitutional question

beyond debate.” al-Kidd, 563 U.S. at 741. Moreover, a court may not “define clearly

established law at a high level of generality, since doing so avoids the crucial question

whether the official acted reasonably in the particular circumstances that he or she faced.”

Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (internal quotation marks and citation

omitted). “The central concept is that of ‘fair warning’: The law can be clearly established

‘despite notable factual distinctions between the precedents relied on and the cases then

before the Court, so long as the prior decisions gave reasonable warning that the conduct then

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at issue violated constitutional rights.’” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004)

(en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).

2

Walker has failed to point to any controlling authority that would have put the

Defendant Officers on notice that pressing Dail into a soda dispenser and striking his head

with a closed fist while they attempted to control and handcuff him constituted an objectively

unreasonable use of force in violation of Dail’s Fourteenth Amendment Rights.

In the context of her argument that the Defendant Officers’ use of non-lethal force was

unreasonable,14 Walker relies on several cases that are factually distinguishable. She first

cites Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012), for the proposition that “tasing and

striking a suspect who resisted handcuffing by pulling his arms away [is] excessive and

unconstitutional.” P. Br. (ECF No. 52) at 16. But in Newman there was evidence that police

officers had struck the plaintiff 13 times with a baton and had tased him—force that is much

greater than the non-lethal force used in this case—even though he “was not given any

commands with which he failed to comply.” Newman, 703 F.3d at 760. In this case, Officer

Hoffman struck Dail one time after he failed to comply with commands to give the officers

his hands and while he was actively and physically resisting the Defendant Officers’ attempts

to subdue him.

14Walker does not directly address the “clearly established” prong of the qualified

immunity analysis in the context of her Fourth Amendment claim based on the use of non-

lethal force.

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Walker also cites Trammel v. Fruge, 868 F.3d 332, 341 (5th Cir. 2017), arguing that

“physical force is not justified when an individual offers minimal resistance and does not

pose a threat.” P. Br. (ECF No. 52) at 16. But Trammel is also distinguishable. In

describing the plaintiff’s conduct, the Trammel panel explained that his

only physical resistance prior to being tackled was his attempt

to pull his arm away. In fact, the dash cam footage reveals that

Trammel did not even use much force in pulling away from the

officers; although Trammel can clearly be seen moving his arm

in the opposite direction from Officer Fruge, he is only able to

move it away by a few inches such that the officer’s hand never

lost contact with Trammel’s arm. It also appears that Officer

Fruge himself was not pulled forward. Trammel was neither

aggressive nor violent toward the officers prior to being tackled.

Thus . . . we conclude that a reasonable jury could conclude that

the officers’ use of force was clearly excessive to the

circumstances.

Id. at 341-42 (emphasis added). In contrast, in the present case, the evidence shows Dail

pulling both of his arms forward, thrashing his body in such a way that three officers are

unable to subdue him, and throwing himself and the officers into product displays on both

sides of the aisle. Dail’s conduct, which is much more aggressive and constitutes active

resistance to the Defendant Officers, is markedly different from the passive pulling away of

an arm that the Trammel panel describes. Accordingly, Trammel would not have put the

Defendant Officers on notice that their use of non-lethal force in this case was clearly

excessive.

Finally, Walker cites Bush v. Strain, 513 F.3d 492 (5th Cir. 2008), to argue that “force

[is] excessive where a restrained suspect pose[s] no clear danger despite minimal resistance.”

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P. Br. (ECF No. 52) at 17. But Bush likewise would not have put the Defendant Officers on

notice that their use of non-lethal force was clearly excessive under the circumstances. In

Bush there was evidence that the defendant officers “forcefully slammed” the plaintiff’s face

into a vehicle, injuring her jaw and breaking two of her teeth, “when [she] was handcuffed

and subdued.” Id. at 501. But as is evident from the surveillance and body-worn camera

videos in the present case, Dail was neither handcuffed nor subdued at the time the

Defendant Officers pressed him against the soda dispenser and struck him in the head.

None of the other cases that Walker cites in her response brief is sufficiently similar

to the instant case to put the Defendant Officers on notice that their conduct violated clearly

established law. Accordingly, the court holds, in the alternative, that under the second step

of the qualified immunity analysis, the Defendant Officers are entitled to qualified immunity

as to Walker’s § 1983 excessive force claim based on the use of non-lethal force.

V

The court now turns to Walker’s excessive force claim based on Officer Hoffman’s

use of deadly force, beginning with the first prong of the qualified immunity analysis—i.e.,

whether Officer Hoffman’s use of deadly force violated Dail’s Fourth Amendment rights.

A

“An officer’s use of deadly force is not excessive, and thus no constitutional violation

occurs, when the officer reasonably believes that the suspect poses a threat of serious harm

to the officer or to others.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). And “if the

officer believes the suspect has a gun, the calculation changes—even if there was never, in

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fact, a gun.” Allen v. Hays, 65 F.4th 736, 744 (5th Cir. 2023) (emphasis added). Uses of

force may be reasonable when the officer could reasonably believe the suspect was reaching

for or had a gun. See, e.g., Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 385 (5th Cir.

2009) (“[T]his court has upheld the use of deadly force where a suspect moved out of the

officer’s line of sight and could have reasonably been interpreted as reaching for a

weapon.”); Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) (police did not use

excessive force when a decedent repeatedly refused to keep hands raised and appeared to be

reaching for an object, despite the “fact that [the decedent] was actually unarmed.” (emphasis

added)).

B

Walker contends that the surveillance footage and body-worn camera evidence present

genuine disputes of material fact as to whether Officer Hoffman reasonably believed that

Dail posed an imminent threat of serious harm at the time Officer Hoffman discharged his

weapon. She maintains that

[w]hile the defendants rely on surveillance and body-worn

camera footage, these exhibits do not unequivocally demonstrate

that Dail posed an immediate threat when Officer Hoffman fired

his weapon. Although Officer Hoffman may have seen Dail

initially raise the gun, subsequent video evidence shows Dail

transferring the gun to his left hand and flinging it away from

the officers. The timeline of these events—occurring within

mere seconds—raises a material dispute as to whether Dail still

constituted a threat at the precise moment Officer Hoffman

decided to use deadly force.

P. Br. (ECF No. 52) at 22. The court disagrees. Whether Dail was in fact aiming a gun at

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Officer Hoffman at the time that Officer Hoffman fired his weapon “does not

matter—binding caselaw demonstrates that what matters is whether [Officer Hoffman] could

reasonably believe that [Dail] was reaching for or had a gun.” Winder v. Gallardo, 118 F.4th

638, 646 (5th Cir. 2024) (citing Ontiveros, 564 F.3d at 385).

A reasonable officer in Officer Hoffman’s position could have reasonably believed,

in the seconds before he fired his weapon, that Dail had a gun and “pose[d] a threat of serious

harm to [him] or to others.” Manis, 585 F.3d at 843. The Defendant Officers have produced

evidence that Officer Hoffman saw the gun when Dail “held the pistol by the grip in a

shooting grasp as he raised it up and in the direction of [Officer Hoffman’s] head.” Ds. App.

(ECF No. 46) at 3. This moment is visible in the Defendant Officers’ surveillance video

screenshot, in which the black handgun in Dail’s right hand is visible against the backdrop

of a white box sitting on the counter next to the soda dispenser. In addition, Officer Hoffman

avers in his affidavit that he

believed the suspect was going to shoot and kill me and my

fellow officers. I released my grip on the suspect and drew my

pistol and fired at the suspect in defense of my life and the lives

of my fellow officers. The suspect slumped down, and I stopped

firing. I continued to point my pistol at the suspect and moved

the suspect’s arm attempting to locate the pistol which I

believed he still had.

Id. Walker adduces no evidence to the contrary.

Although the surveillance video in fact shows Dail flinging his gun in the direction

of Officer Piering in the seconds before Officer Hoffman fired his weapon, this video was

captured by a ceiling camera—a bird’s-eye view unavailable to Officer Hoffman. Dail’s act

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of throwing the gun is not visible in any of the footage from the officers’ body-worn cameras.

And Walker has not produced any evidence that would enable a reasonable jury to find that

Officer Hoffman knew or believed that Dail had surrendered his gun at the moment he fired

the fatal shots. The surveillance video shows that Officer Hoffman was standing behind and

to the right of Dail and was in the process of drawing his service weapon from its holster at

the moment Dail threw his gun. And Walker acknowledges that Officer Hoffman was

“[unable] to directly observe Dail’s final actions, including the throwing of the gun.” P. Br.

(ECF No. 52) at 20.

A reasonable jury could not find that Officer Hoffman’s use of deadly force under the

circumstances was unreasonable. The undisputed summary judgment evidence establishes

that, over the span of two seconds, Officer Hoffman saw Dail with a gun in his hand, heard

Officer Piering shout “Gun!” and fired his weapon at Dail. Even if Walker is correct that

“Dail was attempting to surrender or otherwise disarm himself,” P. Br. (ECF No. 52) at 20,

Walker has not produced any proof that would permit the reasonable conclusion that, at the

moment Officer Hoffman shot Dail, Officer Hoffman had knowledge of this fact.

As stated above, 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.” Graham, 490 U.S. at 396. A reasonable officer in Officer Hoffman’s position

could have reasonably believed that, when Dail pulled out his gun, he “pose[d] a threat of

serious harm to [Officer Hoffman] or to others.” Manis, 585 F.3d at 843. Accordingly, his

use of deadly force was neither excessive nor unreasonable under binding Fifth Circuit

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authority.

Because Walker has failed to raise a genuine issue of material fact on the question

whether Officer Hoffman’s use of deadly force violated Dail’s Fourth Amendment rights, the

court grants the Defendant Officers’ motion for summary judgment on this claim.'°

* * *

Accordingly, for the reasons explained, the court grants the Defendant Officers’

motion for summary judgment and dismisses Walker’s action against them by Rule 54(b)

final judgment filed today.

SO ORDERED.

February 4, 2025.

STONES A. olin

SENIOR JUDGE

''In her summary judgment response, Walker contends that “[f]ollowing the shooting,

[Dail] lay unresponsive on the floor. Defendant Officers delayed providing medical aid,

instead prioritizing the recovery of the discarded firearm. This delay violated [Dail]’s

Fourteenth Amendment right to due process by denying him timely and appropriate medical

attention.” P. Br. (ECF 52) at 8. But Walker has not pleaded a Fourteenth Amendment due

process claim based on the Defendant Officers’ delay in providing medical care to Dail, and,

as stated above, see supra note 13, she cannot raise such a claim for the first time in her

summary judgment response. See, e.g., Cutrera, 429 F.3d at 113.

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