Cambre v. Gottardi

Case: 19-30715 Document: 59-1 Page: 1 Date Filed: 05/06/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 19-30715 May 6, 2025

____________

Lyle W. Cayce

Jim C. Cambre, Clerk

Plaintiff—Appellee,

versus

Roger Gottardi; Jason Wilson,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-6509

______________________________

Before Higginbotham, Richman, and Willett, Circuit Judges.

Priscilla Richman, Circuit Judge: *

Iraq War veteran Jim C. Cambre (Cambre) sued two St. Tammany

Parish Sheriff’s Office (STPSO) deputies, Roger Gottardi and Jason Wilson

(Defendants), pursuant to 42 U.S.C. § 1983. Cambre alleged that he was

tased and beaten by the Defendants during an encounter in front of his

residence in Pearl River, Louisiana. The Defendants asserted qualified

immunity, but the district court declined to grant summary judgment in their

_____________________

*

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

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No. 19-30715

favor. This interlocutory appeal followed. We reverse the district court’s

denial of qualified immunity.

I

“Once a defendant invokes qualified immunity, the burden shifts to

the plaintiff to show that the defense is not available.” 1 In reviewing the

denial of qualified immunity at the summary judgment stage, though our

review is de novo, 2 we “must view the facts in the light most favorable to the

non-moving party and draw all reasonable inferences in its favor.” 3

Accordingly, we consider Cambre’s testimony and other evidence, as

distinguished from the allegations in his complaint, as well as undisputed

facts, and the facts to which Cambre gives credence. We note that the district

court’s ruling stated repeatedly that it accepted Cambre’s allegations as true,

which was incorrect at the summary judgment stage. Allegations are not

evidence. Equally importantly, we focus on the evidence regarding Gottardi

and Wilson because their actions, and not those of others involved on the

night Cambre was taken into custody, are the subject of this appeal.

Cambre served in the military and at one point was a military

policeman. Since returning from Iraq, Cambre has suffered from depression

and post-traumatic stress disorder. On January 21, 2018, Cambre posted on

Facebook: “F**k, I’m struggling over here!!” After seeing this post, several

of Cambre’s friends tried to contact him, but Cambre did not answer their

phone calls. Concerned, Cambre’s friends contacted the Pearl River Police

Department, which dispatched Officer Jessica Picasso to Cambre’s home.

_____________________

1

Kovacic v. Villareal, 628 F.3d 209, 211 (5th Cir. 2010).

2

Id.

3

Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (per curiam).

2

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Paramedics Pam Little and Joshua Landry from the Pearl River Fire

Department were dispatched to the scene as well.

Picasso, Little, and Landry arrived at Cambre’s home at

approximately the same time around 11 p.m. Little knocked on the door, and

Cambre came out. Cambre had volunteered at the fire department and had

worked with Little on multiple occasions. Little had also assisted Cambre

during a separate incident at the Pearl River Police Department

approximately three weeks earlier on New Year’s Eve. On the night of this

previous incident, Cambre appeared outside the police station, had been

drinking heavily, and was “experiencing suicidal ideation.” During the New

Year’s Eve incident, Cambre said to Little, “I can just act like I have a gun

and [the police] will shoot me and it will all be over.” But Little negotiated

with Cambre, and she was eventually able to convince him to go to the

hospital, where he remained for eleven days.

The incident giving rise to this suit occurred on January 21, about ten

days after Cambre’s discharge from the hospital. Little attempted to

persuade Cambre to go to the hospital again for evaluation, but Cambre “was

adamant he didn’t want to go.” He was afraid that if he were readmitted to

the hospital, he would lose his job at the Veterans Administration. Unable to

persuade Cambre herself, Little eventually requested Deputy Fire Chief

Matt Parish to come to the scene to help. Parish also knew Cambre from the

latter’s work as a volunteer at the fire department.

On his way to the scene, Parish called the Pearl River Police

Department for backup. He told Pearl River Police Department dispatch that

“Cambre had military training and had previously mentioned suicide by

cop.” Pearl River Police Department dispatch informed Parish that she

would have to contact STPSO for backup since Pearl River Police

Department only had one unit working that night. Parish said he would

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discuss the matter with the officer on the scene (Picasso) before making the

final call.

After Parish arrived on the scene, Little called Medical Control to

discuss Cambre’s situation and her concerns. Under Louisiana law, a person

may be taken into protective custody and transported to a treatment facility

for involuntary medical evaluation. 4 Medical Control eventually gave the

order to transport Cambre to the hospital for evaluation. Having received

the order to transport, Little and Parish approached Cambre to let him know

what Medical Control had advised. Even after being told of the order from

Medical Control, Cambre still would not allow Parish and Little to transport

him to the hospital.

While Little continued to negotiate with Cambre, Parish approached

Officer Picasso and discussed the need for additional backup. Parish told

Picasso that he had already contacted Pearl River Police Department

dispatch, but he wanted to let Picasso make the final call. Ultimately, the

request for backup went out. Pearl River Police Department dispatch

contacted STPSO dispatch requesting “back-up” for a possible “27-29S”

by a “military officer” who had previously threatened “suicide by cop.” The

“27-29S” indicated attempted murder by suicide. 5

After receiving this information from the Pearl River Police

Department, STPSO sent out the following dispatch to its patrolling

officers:

_____________________

4

See La. Stat. Ann. § 28:53(L)(1).

5

The number “27” references Louisiana’s attempt statute. La. Stat. Ann.

§ 14:27. The number “29” references Louisiana’s criminal homicide statute. Id. § 14:29.

The letter “S” indicates suicide.

4

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PRPD NEEDING ASSISTANCE IN REF TO A 27/29 FOR

A CHRIS CAMBRE . . . HAS HISTORY OF 27/29 ALSO

STATED HE IS SUICIDE BY COP . . . IS IN

MILITARY . . . ONLY HAVE ONE UNIT WHO IS OUT

THERE . . . UNKN [UNKNOWN] MEANS.

Five STPSO officers responded to the dispatch, including Gottardi and

Wilson.

The STPSO officers arrived on the scene carrying their rifles. They

immediately approached Cambre and Little and asked if Cambre had any

weapons. Little said that Cambre was unarmed. They asked Little how she

knew that Cambre did not have weapons; Little said she knew because she

had hugged him. Upon hearing this exchange, Cambre lifted his shirt and

turned 360 degrees. The officers then walked back to Officer Picasso’s patrol

vehicle and stowed their rifles. Two apprehending officers testified that it

was possible Cambre could have possessed a weapon of some sort in his

pocket(s), including a firearm, knife, or other type of weapon.

After stowing their rifles, one of the deputies asked Picasso “what was

going on?” Picasso told the deputy that “it’s just a welfare check, they said

he needs to go to the hospital, he doesn’t want to go and he’s trained

military.” Around this time, Parish had Little move away from Cambre and

go with him to get the stretcher out of the medic unit.

Multiple witnesses who were on the scene at the time of the incident

in question provided evidence of the tasing and the aftermath. Deputy Chad

Melendez said in an interview with internal investigators about two weeks

after the incident that when officers approached Cambre just prior to the

tasing event, Cambre kept putting his right hand in his pocket and was “very

uneasy.” Melendez said that it was “about that time” that “one of the fire

guys said the last time they were there they had to fight him [Cambre],” that

“he [Cambre] had this time made threats to kill himself if they left,” and

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“that he [Cambre] had a lot of weapons inside the trailer.” Melendez said

they then “kept getting closer and closer to him,” and “at the time, you

know, we’re saying hey, you’re not in trouble or anything like that. What’s

going on?” Rather than paraphrase Melendez’s further statement, we quote

it:

We started getting closer and closer. And once again we tried

to reassure him he was not in trouble with us. But he keeps

dipping his hand back in his pocket. You know, it was like he

was trying to initiate a confrontation, a lethal confrontation to

get us to hurt him or something, shoot him. And we just kept

moving closer and closer. And about that time the decision was

made just to move in and swarm him. As we moved in, Deputy

Gottardi utilized his taser device.

Melendez stated that Deputy Gottardi, one of the two officers who are

appellants before us, gave commands to Cambre before the taser was

deployed, and stated further that “[w]e all gave him commands, get on the

ground. I was yelling at the top of my lungs, ‘Get on the ground, get on the

ground.’” When asked if commands were given more than once, Melendez

said, “Several times. And he just balled his fist up and he was ready to fight.

He took like a boxer stance where he was bringing his hands up to his sides

and anticipating a fist encounter.” Melendez said Cambre did not get on the

ground, and that was when Deputy Gottardi deployed the taser.

Melendez reiterated many of these facts in his deposition, testifying

that he told Cambre “[s]everal times” that Cambre was “not in trouble with

us.” Melendez testified that “[s]hortly after” Cambre lifted his shirt,

Cambre slowly put his hand into one of his front pockets multiple times as if

“to force us to take some type of action against him.” Melendez affirmed

that he saw “Cambre ball his fists” and get “in some sort of a fighting

stance.” Melendez testified that he gave Cambre “[s]everal very loud

commands to get on the ground.” Finally, after both Melendez and Gottardi

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continued to give verbal commands to get on the ground, “at that point,

shortly thereafter, the taser was deployed.”

Deputy Fire Chief Parish filed an incident report stating that STPSO

deputies asked Cambre to comply with requests to get on the ground, he did

not, they tased him, and they then handcuffed him. Parish also told internal

affairs investigators four days after the incident that “I know I heard them

hollering, ‘Sheriff’s department. Get on the ground.’ He didn’t get on the

ground. So I know they tased him.” Parish subsequently testified in his

deposition that two deputies were approaching Cambre from behind him and

two were “coming from the front.” Parish also testified that he heard a

deputy tell Cambre to get down on the ground before he was tased.

Another fire department officer, Landry, told investigators three days

after the event that deputies told Cambre “to calm down” and that after that,

“they took their guns off” and put them in a vehicle. The STPSO officers

then “came back,” by which time two more sheriff’s deputies were

approaching, and Landry heard “Get on the ground, get on the ground.”

Landry and Little had started to walk away to get the stretcher, and when

Landry heard “get on the ground” the second time, he turned around to look.

Landry said, “When they said it the third time, he wouldn’t get down, they

tased him. And four of them were on top of him. And they put him in cuffs

and stuff.” Landry clarified in the same statement that Cambre hit the

ground after he was tased, and then “[f]our of them got on top of him.”

Landry then heard officers say, “Put your hands behind your back. Put your

hands behind your back, I ain’t got time for this f***in’ sh*t.”

Evidence from Little was consistent. She told investigators four days

after the incident, and testified in her subsequent deposition, that she heard

deputies command Cambre to get on the ground before she heard a taser

fired. A police officer on the scene, Picasso, heard a sheriff’s deputy tell

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Cambre to “get on his knees” before the taser was fired, and she later heard

“stop resisting.” A device report showed that the officers deployed the taser

for approximately fifteen seconds.

Officer Wilson, an appellant in the case before us, testified that after

Cambre was on the ground, and at least two officers were attempting to

restrain him, Cambre “was still physically resisting them,” and Wilson saw

Cambre’s “upper body tensing and moving.” Wilson said he could not see

Cambre’s right arm, and it “appeared that he was intentionally keeping his

arm tucked up under his body, so that we could not get control of it.” Wilson

was concerned that there might be a weapon underneath Cambre or that he

had access to a weapon on his person, and Wilson therefore drew his baton.

Wilson was concerned for the safety of the other officers and himself,

testifying that he did not want “to be placed in a dangerous situation where

my life is at stake.” He further testified:

I wasn’t particularly interested in killing Mr. Cambre. . . . [M]y

chief objective at that point was to get him to relinquish control

of his right hand or his right arm as quickly as possible; and

under the circumstances, the most reasonable course of action

to me at that point was to utilize another pain compliance tool.

Wilson “then began administering a series of reverse strikes to Mr. Cambre’s

left thigh region while also giving him [at least one] loud verbal command[]

to give up his hand.” Wilson testified that he did not hit Cambre anywhere

other than on his left thigh.

Cambre points to an incident report by the Pearl River Police

Department, which Officer Picasso authored the day after the incident that

is the subject of this appeal. Picasso’s report reflects that at the beginning of

the incident, Cambre told her and Little that he wanted to “go back inside

and finish it,” and that “if he was dead he wouldn’t have to worry about

paying his bills.” Picasso’s report further says that after STPSO officers

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had arrived on the scene and secured their weapons in Picasso’s vehicle after

Cambre lifted his shirt, two STPSO officers approached Cambre from his

left side and, without speaking to him “or getting a sense of his demeanor,”

one officer said, “I’m tired of dealing with your f***ing sh*t; get down on

your knees!” Picasso’s report then states that a second deputy then

“immediately deployed his controlled electronic device,” and “[t]hree other

deputies’ [sic] simultaneously approached Mr. Cambre from behind on his

right side where all five deputies then jumped on Mr. Cambre while one

deputy continuously struck Mr. Cambre with a baton.” This statement

differs in some respects from other evidence in the record, but not materially

for purposes of summary judgment. Picasso’s report does not address what

fire department officials may have told sheriff’s deputies about Cambre’s

past aggressive behavior when previously arrested or explain why Picasso

would have heard such statements by fire officials had they been made.

Picasso’s statement does not conflict with testimony that Cambre had not

been patted down for weapons by anyone and that he clinched his fists as

officers approached, nor does it purport to know what he was doing with his

right hand. Her written report confirms that Cambre was given a warning

before he was tased. It does not address where Cambre’s right arm was when

he fell to the ground or whether she could have observed if he was resisting

arrest when officers were on top of him. Picasso’s report, written the day

after the incident, said that she “observed Mr. Cambre having blood running

from near his ear down his neck and swelling to his face.” This is consistent

with an “abrasion” on Cambre’s cheek near his ear, which medical records

show that hospital personnel observed during a physical exam after he was

tased.

Picasso was deposed after the date of her written report. When asked

if Cambre’s resistance was passive, she said, “With the deputies out there,

he was passive aggressive at first. I don’t know when they all started moving

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towards him. I didn’t see him to be able to answer that question accurately

the whole time.” She said she was not able to see Cambre because “[m]y

focus was on the deputies.” She testified that at the time she wrote her

report, she did not “have the benefit of knowing exactly how Pearl River

dispatch had contacted the sheriff’s office and informed them of the need for

assistance.” By the time of her deposition, she said, “I was told that they

were sent to a suicide by cop hostage type situation, is what they were told.”

Based on the voice recordings of the dispatcher that are in the record, it is

undisputed that this is what was conveyed to STPSO. When asked during

Picasso’s deposition if she saw any STPSO deputy use a baton and strike

Cambre in the head, she testified, “I saw him strike but I didn’t see where he

struck at.” She testified that she did not believe STPSO deputies used

excessive force in taking Cambre into custody, and she reiterated that she

heard the sheriff’s office command Cambre to “get on his knees” before the

taser was deployed.

Cambre testified that he did not see anyone with a baton in his or her

hand and did not feel anyone strike him in the head or elsewhere with a baton.

He recalls that he was on his stomach on the ground, and that “the electricity

[was] still going through my body with someone screaming at me to stop

resisting,” but he does not know if anyone was on top of him at that point.

He testified that “with the electrical current going through me, that’s the

only thing that I felt.” But he believed he was hit by a baton based on “bruises

on [his] leg, ribs, and head.” When asked, “[W]hen is the first time you

recall actually having the sensation of someone’s hands being placed on

you,” he responded, “Once the tase had ended, I felt the officer grab my left

wrist, place a cuff on it, and then place a cuff on my right wrist.”

Cambre was taken to the Ochsner Medical Center for examination.

Cambre’s medical records from the hospital noted a taser puncture wound

on his right flank as well as an “abrasion to his left cheek just anterior to his

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ear.” The examination also noted a blood alcohol content of 227 mg/dL—

roughly two and a half times the legal limit for operating a vehicle. Cambre

was discharged from the hospital the morning after he was taken into custody.

Cambre subsequently sued Gottardi and Wilson alleging, among other

things, excessive use of force in violation of the Fourth Amendment. 6

According to Cambre’s complaint, the Defendants’ “uses of force,

including . . . the use of a [taser] and the use of a baton (particularly, baton

strikes to the head, which are deadly uses of force), were not justified under

the circumstances and were excessive.” Discovery proceeded, and

numerous witnesses, including Cambre, were deposed. The Defendants

moved for summary judgment, asserting qualified immunity. The district

court denied the Defendants’ motion. This interlocutory appeal followed.

II

In denying the Defendants’ motion for summary judgment on

qualified immunity grounds, the district court held that the Defendants

“violat[ed] Cambre’s Fourth Amendment right to be free from excessive

force” and that the Defendants’ conduct was “objectively unreasonable in

light of then-existing clearly established law.” On appeal, the Defendants

argue that the “district court erred in failing to identify any clearly

established law particularized to the facts of this case that precluded a grant

of qualified immunity.” We do not resolve whether either Gottardi or

Wilson violated Cambre’s constitutional rights, though it is highly

questionable that either did so based on the summary judgment record, as

opposed to the allegations in Cambre’s complaint. We conclude that,

_____________________

6

In addition to Gottardi and Wilson, Cambre also sued STPO Sheriff Randy

Smith, Corporal Ryan Hopkins, Deputy Chad Melendez, and Deputy Christopher

Harman. Smith filed a motion to dismiss, which was subsequently granted by the district

court. Cambre voluntarily dismissed Hopkins, Melendez, and Harman with prejudice.

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viewing the facts in the light most favorable to Cambre, the law was not

clearly established on the night in question that the Fourth Amendment

prohibited the Defendants’ conduct in the particular situation they

confronted. 7 Accordingly, we reverse the district court’s decision denying

qualified immunity and render summary judgment in the Defendants’ favor.

III

We review a district court’s ruling on summary judgment de novo,

applying the same legal standards as the district court. 8 Under Federal Rule

of Civil Procedure 56, summary judgment is appropriate if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” 9 Generally, “the movant bears the initial burden of

demonstrating the absence of a material fact issue.” 10 However, “‘[a] good-

faith assertion of qualified immunity alters the usual summary judgment

burden of proof,’ shifting it to the plaintiff to show that the defense is not

available.” 11 To negate the qualified immunity defense, the plaintiff must

make a two-step showing. 12 “First, a plaintiff must show that the official

violated a statutory or constitutional right; second, [the plaintiff] must show

_____________________

7

See Mullenix v. Luna, 577 U.S. 7, 12-13 (2015) (per curiam) (quoting Brosseau v.

Haugen, 543 U.S. 194, 199-200 (2004) (per curiam)).

8

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th

Cir. 2008) (citing Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th Cir. 2002)); see also

Fed. R. Civ. P. 56.

9

Uptown Grill, L.L.C. v. Camellia Grill Holdings, Inc., 920 F.3d 243, 247 (5th Cir.

2019) (quoting Bridges v. Empire Scaffold, L.L.C., 875 F.3d 222, 225 (5th Cir. 2017)).

10

Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986)).

11

Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (per curiam) (quoting

Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)).

12

Voss v. Goode, 954 F.3d 234, 238 (5th Cir. 2020).

12

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that the right was clearly established at the time of the challenged conduct.” 13

We have discretion in deciding which step of the qualified immunity defense

to address first. 14

Without deciding whether the Defendants’ conduct constituted a

constitutional violation, we conclude that the law was not clearly established

at the time of the Defendants’ conduct. Clearly established law for qualified

immunity purposes means that the law is “sufficiently clear that every

reasonable official would have understood that what he is doing violates that

right.” 15 “[C]learly established law must be ‘particularized’ to the facts of

the case” 16 and not defined at a “high level of generality.” 17 “In other words,

outside of ‘an obvious case,’ the law is only ‘clearly established’ if a prior

case exists ‘where an officer acting under similar circumstances . . . was held

to have violated the Fourth Amendment.’” 18 “While there does not have to

be ‘a case directly on point,’ existing precedent must place the lawfulness of

the particular [action] ‘beyond debate.’” 19

_____________________

13

Id. (citing Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc)).

14

See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

15

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle v. Howards,

566 U.S. 658, 664 (2012)).

16

White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)); see also Kisela v. Hughes, 584 U.S. 100, 104 (2018)

(per curiam) (quoting Mullenix, 577 U.S. at 13).

17

Mullenix, 577 U.S. at 12 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

18

Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017) (alteration in original) (quoting

White, 580 U.S. at 79); see also Mullenix, 577 U.S. at 12 (“Put simply, qualified immunity

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

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))).

19

District of Columbia v. Wesby, 583 U.S. 48, 64 (2018) (quoting al-Kidd, 563 U.S.

at 741).

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A

Without much discussion, the district court concluded that “clearly

established law demonstrates that an officer violates the Fourth Amendment

if he abruptly resorts to overwhelming physical force rather than continuing

verbal negotiations with an individual who poses no immediate threat or

flight risk, who engages in, at most, passive resistance.” In reaching this

conclusion, the district court failed to identify any cases “where an officer

acting under similar circumstances . . . was held to have violated the Fourth

Amendment.” 20 Instead, the district court relied on a patchwork of

generalized statements of law from factually dissimilar cases to conclude that

the constitutional question in this case is beyond debate. 21

The majority of the cases the district court cited in its order denying

summary judgment—and that Cambre now cites on appeal—involved minor

traffic violations. 22 For instance, in Hanks v. Rogers, 23 an officer half-

_____________________

20

Id. (alteration in original) (quoting White, 580 U.S. at 79).

21

See Melton v. Phillips, 875 F.3d 256, 265 (5th Cir. 2017) (en banc); Vincent v. City

of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015) (“Abstract or general statements of legal

principle untethered to analogous or near-analogous facts are not sufficient to establish a

right ‘clearly’ in a given context; rather, the inquiry must focus on whether a right is clearly

established as to the specific facts of the case.” (citing Brosseau v. Haugen, 543 U.S. 194,

198 (2004) (per curiam))); Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (“[C]ourts

will not deny immunity unless ‘existing precedent . . . placed the statutory or constitutional

question beyond debate.” (second alteration in original) (quoting al-Kidd, 563 U.S. at 741)).

22

See Hanks, 853 F.3d at 741-43; Brothers v. Zoss, 837 F.3d 513, 515-16, 519-20 (5th

Cir. 2016); Pratt v. Harris County, 822 F.3d 174, 177-78 (5th Cir. 2016); Doss v. Helpenstell,

626 F. App’x 453, 454-55 (5th Cir. 2015) (per curiam); Newman v. Guedry, 703 F.3d 757,

759, 763 (5th Cir. 2012); Deville v. Marcantel, 567 F.3d 156, 161-63 (5th Cir. 2009) (per

curiam); cf. Trammell v. Fruge, 868 F.3d 332, 336, 339-43 (5th Cir. 2017) (analyzing an

officer’s use of force against allegedly intoxicated suspect who had wrecked his motorcycle

coming home from a bar).

23

853 F.3d 738 (5th Cir. 2017).

14

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speared 24 a motorist he had pulled over for driving under the interstate speed

limit. 25 We held in that case that it was clearly established that an officer

“violates the Fourth Amendment if he abruptly resorts to overwhelming

physical force rather than continuing verbal negotiations with an individual

who poses no immediate threat or flight risk, who engages in, at most, passive

resistance, and whom the officer stopped for a minor traffic violation.” 26

Likewise, in Newman v. Guedry, 27 officers tased and beat a passenger who had

been in a vehicle that was pulled over for failing to yield to oncoming traffic.28

The officers had allegedly begun to beat and tase the passenger after he told

an off-color joke during a pat-down. 29 We held that the officers “use of force

was objectively unreasonable in th[o]se circumstances,” given that the

vehicle had been pulled over for a “mere traffic violation” and that the

“officers used force in response to nothing more than an off-color joke.” 30

This case cannot be compared to a minor traffic stop. In this case, the

undisputed dispatch record shows that the officers were dispatched as

backup to assist with an individual who had “a history of [attempted

suicide]” and had “stated he is suicide by cop.” The dispatch also informed

the officers that Cambre was in the military and that his means were

unknown. Cambre was also highly intoxicated when the officers arrived. A

medical order had been issued to transport Cambre to a hospital for

_____________________

24

See id. at 743 (defining a “half spear” as a blow to the upper back or neck).

25

Id. at 741.

26

Id. at 747 (emphasis added) (citing Deville, 567 F.3d at 167-69).

27

703 F.3d 757 (5th Cir. 2012).

28

Id. at 759-60.

29

Id. at 762.

30

Id.

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No. 19-30715

evaluation before the officers being sued arrived on the scene. This situation

hardly resembles a minor traffic stop.

Nor can this case be compared to any of the non-traffic-violation cases

cited by the district court, such as Darden v. City of Fort Worth. 31 In Darden,

a large team of heavily armed police officers executed a no-knock search

warrant on a private residence. 32 The officers suspected cocaine was being

sold from the residence. 33 When the officers entered the residence, the

suspect was kneeling on the couch. 34 Eyewitnesses testified that the suspect

“put his hands in the air when the officers entered the residence, complied

with the officers’ commands, and did not resist arrest.” 35 Yet the officers

threw the man to the ground, then proceeded to choke, tase, and repeatedly

kick and punch the man in the face. 36 During the beating, the man had a heart

attack and died. 37 We held that it was clearly established that an “officer uses

excessive force when the officer strikes, punches, or violently slams a suspect

who is not resisting arrest.” 38 In other words, we held that it was clearly

established that “gratuitously harming a restrained suspect constitutes

excessive force.” 39

_____________________

31

880 F.3d 722 (5th Cir. 2018).

32

Id. at 725.

33

Id.

34

Id.

35

Id. at 731.

36

Id. at 726.

37

Id. at 725.

38

Id. at 732.

39

Id. (quoting Griggs v. Brewer, 841 F.3d 308, 315-16 (5th Cir. 2016)).

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Here, the officers entered a situation where the suspect had previously

threatened to commit suicide by cop. The suspect was “trained military”

with “unknown means.” The officers were told that the suspect “need[ed]

to go to the hospital,” and that “he [did not] want to go.” The suspect was

also highly intoxicated. Darden involved none of those factors. The witness

testimony in this case also paints a much different picture than the witness

testimony in Darden. Unlike Darden, the witness testimony in this case does

not establish that the officers “gratuitously harm[ed]” a suspect who had

surrendered himself and was complying with all the officers’ commands. 40

Four different witnesses testified that the officers did not employ force until

after issuing the command for Cambre to “get on the ground.” Unlike in

Darden, Cambre was refusing to comply with officer commands when the

officers chose to deploy a taser.

Admittedly, failure to comply with officer commands does not always

warrant the use of force, and we have distinguished between “active” and

“passive” resistance. 41 “But the line between active and passive resistance

is sometimes hazy and must be judged in light of the ‘necessarily fact-

intensive’ nature of the inquiry.” 42 When someone has “not committed a

crime, attempted flight, or disobeyed any commands,” the use of a taser is

almost certainly “excessive.” 43

_____________________

40

See Darden v. City of Fort Worth, 880 F.3d 722, 732 (5th Cir. 2018) (quoting

Griggs v. Brewer, 841 F.3d 308, 315-16 (5th Cir. 2016)).

41

See, e.g., Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam).

42

Betts v. Brennan, 22 F.4th 577, 583 (5th Cir. 2022) (quoting Deville, 567 F.3d at

167).

43

Cloud v. Stone, 993 F.3d 379, 385 (5th Cir. 2021) (citing Newman v. Guedry, 703

F.3d 757, 762-63 (5th Cir. 2012)).

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Here, however, Cambre ignored officer commands, and (according to

some witnesses) either balled his fists or continued to slide his hands into his

pockets. In a different context, Cambre’s actions seem passive, and the

district court cited caselaw to that effect. 44 But Cambre has not identified a

case that accounts for the unique circumstances present here: the officers

were called and told that the man now failing to comply with their

instructions had expressed a desire to commit suicide by cop. Cases

involving traffic stops are unavailing in this context, as “clearly established

law must be ‘particularized’ to the facts of the case.” 45 A traffic stop, unlike

an attempt to restrain or transport a suicidal individual, does not carry with

it the same inherent danger or risk to human life. For these reasons, we

cannot say that clearly established law shows the officers violated the Fourth

Amendment by resorting to physical, non-lethal force when a suicidal

individual failed to comply with repeated officer commands.

B

“It is true that the same incident can include both lawful and unlawful

uses of force.” 46 Accordingly, we examine whether the baton strikes to

Cambre post-taser deployment violated clearly established law. We conclude

that they did not.

It is clear in this circuit that “the use of certain force after an arrestee

has been restrained and handcuffed is excessive and unreasonable.” 47 In

other qualified immunity cases, we have held that it is “clearly established—

_____________________

44

E.g., Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017).

45

White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

46

Cloud, 993 F.3d at 386.

47

Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013).

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and possibly even obvious—that an officer violates the Fourth Amendment

if he shoots an unarmed, incapacitated suspect who is moving away from

everyone present at the scene.” 48 However, we have held that an officer’s

continued use of force after a taser is deployed is not clearly unreasonable. 49

It may instinctively seem unfair to hit Cambre with a baton for failing

to permit officers access to his right arm if he had been completely

immobilized by the taser. However, it may not be clear to an apprehending

officer whether a person has been completely immobilized by tasing and if so,

for how long. Officers attempting to subdue Cambre saw movement in his

upper body and were unable to place a handcuff on his right arm while it

remained underneath him. There is no clearly established law as to whether

or how an officer may be able to ascertain why a tased individual has failed to

allow access to his arm for handcuffing—whether he is unable to move his

arm due to the tasing or is instead resisting. Accordingly, we cannot say that

the law is “clearly established” with respect to the officers’ actions.

In Poole v. City of Shreveport,50 for example, two officers tried to grab

Roger Poole during a tense traffic stop where Poole refused to “turn around

and give up his right arm.” 51 After the initial physical interaction, Poole

alleged that the officers “tasered him repeatedly” because he “tucked [his

arm] into his chest and verbally and physically resisted [the officers’]

repeated stern commands . . . to give it to [them].” 52 After tasing Poole, the

_____________________

48

Roque v. Harvel, 993 F.3d 325, 339 (5th Cir. 2021).

49

See Cloud, 933 F.3d at 386-87 (citing Graham v. Connor, 490 U.S. 386, 397

(1989)).

50

691 F.3d 624 (5th Cir. 2012).

51

Id. at 629.

52

Id. at 626, 629.

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officers “flipped Poole onto the ground, and yanked his arms” in order to

apply the handcuffs. 53 On appeal, we found the officers were entitled to

qualified immunity despite the fact that they had already tasered Poole before

flipping him onto the ground and “yank[ing] his arms.” 54

Importantly, our caselaw notes that “the use of certain force after an

arrestee has been restrained and handcuffed is excessive and unreasonable” 55;

however, Cambre had not been fully restrained when he was struck by the

baton. While “a reasonable officer wouldn’t need a specific case ‘to know

that he cannot shoot a compliant suspect and that he cannot fire again at

someone who is objectively “downed or incapacitated,”’” 56 caselaw

concerning force post-tasing is less clear. Cambre has not identified a case

that speaks to the continued use of force after a taser is deployed but before

the individual is handcuffed; there is no clearly established law showing that

Cambre, in this context, would be considered “downed or incapacitated”

when officers were unable to place him in handcuffs. Additionally, none of

the witnesses on the scene the night of the incident testified to seeing Cambre

being struck in the head with a baton. Indeed, one witness affirmatively

testified that Cambre was not struck on the head. Moreover, both Picasso

and Cambre himself testified to having heard officers command Cambre to

“stop resisting” during the struggle on the ground.

_____________________

53

Id. at 626.

54

Id.

55

Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013) (emphasis added).

56

Roque v. Harvel, 993 F.3d 325, 338 (5th Cir. 2021) (quoting Graves v. Zachary,

277 F. App’x 344, 349 (5th Cir. 2008)).

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C

Our conclusions here are strictly limited to the facts and related

caselaw before us. We are not holding that the use of physical force after the

deployment of a taser is presumptively reasonable. Nor are we saying that an

individual must be handcuffed before an officer’s use of force becomes

unreasonable. All we are saying is that “existing precedent [did not] place[]

the conclusion that [Gottardi and Wilson] acted unreasonably in these

circumstances ‘beyond debate.’” 57 Not only did the officers encounter a

noncompliant individual with suicidal ideation and military training, but they

warned him repeatedly before deploying the taser, and employed baton

strikes only when they could not access his other arm for purposes of

handcuffing him. We conclude that, under the particular circumstances of

this case, existing precedent did not place the lawfulness of the Defendants’

actions beyond debate. For these reasons, the Defendants are entitled to

qualified immunity. The district court erred in holding otherwise.

* * *

We REVERSE the district court’s denial of qualified immunity and

RENDER summary judgment in Gottardi and Wilson’s favor.

_____________________

57

Mullenix v. Luna, 577 U.S. 7, 14 (2015) (per curiam) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011)).

21