Anderson v. Estrada

Case: 24-20142 Document: 96-1 Page: 1 Date Filed: 06/13/2025

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

____________

June 13, 2025

No. 24-20142 Lyle W. Cayce

____________ Clerk

Kenneth D. Anderson; Kristen Sandoval, Individually and

Next Friend and Trustee of N.B.A. and N.K.A.; Estate of Kenneth

Anderson, Jr.; N.B.A.; N.K.A.,

Plaintiffs—Appellees,

Evelyn Fay Ayers-Woods; Kenneth Anderson, Sr.,

Intervenor Plaintiffs—Appellees,

versus

Crystal Estrada, Deputy; Mohanad Alobaidi, Deputy;

Victor Page, Deputy; Mercy Garcia, Deputy,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:21-CV-3730

______________________________

Before King, Jones, and Oldham, Circuit Judges.

Edith H. Jones, Circuit Judge:

Deputy Mohanad Alobaidi drive-stunned Kenneth Anderson, Jr., who

struggled in a drug-induced tantrum as Alobaidi and the other officer-

defendants tried to secure him in Alobaidi’s vehicle. Anderson died later.

1

Case: 24-20142 Document: 96-1 Page: 2 Date Filed: 06/13/2025

No. 24-20142

Anderson’s estate and Kristen Sandoval, individually and on behalf of two of

Anderson’s children, sued Alobaidi and the other officers at the scene;

Anderson’s parents intervened as plaintiffs. The district court granted the

officers’ motions to dismiss on some grounds but refused to dismiss an

excessive force claim against Alobaidi and bystander liability claims against

the other officers. We disagree that Alobaidi’s force was objectively

unreasonable, especially because of Anderson’s active resistance.

REVERSED.

BACKGROUND

In the early morning of October 10, 2021, Kenneth Anderson, Jr.,

crashed a sedan in Harris County, Texas. Deputy Crystal Estrada was the

first officer to arrive at the scene around 3:25 A.M. Her body camera shows

Anderson’s car against the curb near an intersection and angled toward

oncoming traffic. Anderson was the only person inside the vehicle, where he

was bleeding and initially unresponsive. He became responsive five minutes

later, complied with orders to step out of the vehicle, and was handcuffed

without incident. On-scene emergency medical technicians evaluated him.

Deputies Mercy Garcia, Victor Page, and Mohanad Alobaidi soon arrived at

the scene. At 4:23 A.M., Alobaidi stated that they could take Anderson in for

driving under the influence, and the officers directed Anderson to Estrada’s

cruiser. They had some minor difficulty getting Anderson into the cruiser

because he would not pull his own legs inside.

Traveling in separate vehicles, the four officers arrived with Anderson

at a nearby gas station around 4:30 A.M. 1 They left Anderson in Estrada’s

_____________________

1

Why the officers moved Anderson to the gas station, rather than directly into

custody, is unclear. That said, Defendants’ counsel during oral argument suggested—

citing dialogue between the officers captured by the body camera—that this might have

allowed first responders to clear the roadway. Oral Arg. 6:00–7:05. He also cited other

2

Case: 24-20142 Document: 96-1 Page: 3 Date Filed: 06/13/2025

No. 24-20142

cruiser but noticed the vehicle shaking a few minutes later as Anderson

thrashed inside. At 4:40 A.M., Alobaidi asked Anderson—still in the

backseat—if he needed water. Anderson apparently replied affirmatively as

Alobaidi brought his cup, opened the back door of the cruiser, and attempted

to offer the cup to Anderson. Rather than drink, Anderson scooted toward

the open door. At first, Alobaidi told Anderson to stay inside, but then

allowed him to stand beside the cruiser. Alobaidi directed Anderson toward

his more capacious SUV. As they walked, Anderson was asked about

potential drug or alcohol use and admitted he had consumed “sherm,” a

street name for dried, PCP-dipped cigarettes. 2 For no apparent reason,

Anderson then asked if Alobaidi would tase him, to which Alobaidi replied

that he would not.

Upon reaching the open, rear passenger-side door of Alobaidi’s SUV

around 4:43 A.M., Alobaidi asked Anderson to sit. After being asked to sit

nearly ten times, Anderson asked for water. Alobaidi commented that

Anderson did not drink any water when Alobaidi last offered some.

Nevertheless, Alobaidi negotiated with Anderson, offering to bring water

again if Anderson sat down in the SUV. Meanwhile, Garcia brought the

water. Anderson initially hesitated but leaned forward to drink after Alobaidi

removed the lid. When the cup was empty, Anderson remarked that he was

“good now.”

Alobaidi again asked Anderson to sit. Anderson turned as if to do so

but then turned back around to face the officers and asked for more water.

_____________________

parts of the officers’ dialogue to suggest that they might have transferred Anderson there

to perform field sobriety or toxicology tests. Oral Arg. 7:05–55.

2

“‘PCP’ is the recognized abbreviation for phencyclidine hydrochloride, a

controlled substance which causes hallucinations and serious psychological disturbances.”

Guilbeau v. W.W. Henry Co., 85 F.3d 1149, 1164 n.41 (5th Cir. 1996).

3

Case: 24-20142 Document: 96-1 Page: 4 Date Filed: 06/13/2025

No. 24-20142

After about 20 seconds of back-and-forth, Garcia stepped in and offered to

get more water if Anderson would sit in the SUV. This time, Anderson sat

on the bottom of the doorframe, not on the seat, but soon moved to the seat

after more coaxing. For about 30 seconds, Garcia tried to negotiate by

encouraging Anderson to pull his feet inside the SUV while giving him more

water. Anderson put his left foot into the SUV, and Garcia let him finish the

water. But Anderson removed his foot from the SUV and asked for more.

Garcia replied that he could only have more water if he pulled his feet inside.

Anderson grew noticeably more insistent and began asking for milk instead.

Garcia announced that the officers would pull Anderson into the car from the

other side. Page approached and put his hands on Anderson’s shoulders.

Anderson attempted to stand up, but Page held him down and admonished

him to stay seated.

Page tried to push Anderson into the SUV, but Anderson prevented

this by stiffening his legs and hooking his feet under the door. Page pried his

feet from under the door, and Anderson kicked his legs in an apparent

attempt to re-hook them. Together, Alobaidi and Page wrangled Anderson

onto his back in the backseat while Garcia and Estrada opened the opposite

door to pull Anderson in from the other side. Still, Page and Alobaidi could

not fully close the passenger-side door. Alobaidi stayed there to maintain

their progress while Page ran to the driver-side door to help Garcia and

Estrada. While Anderson thrashed, Page pulled him far enough for Alobaidi

to close the passenger-side door. Alobaidi circled around to the driver-side

door. Anderson’s head stuck out and prevented the officers from closing that

door.

At this point, seven minutes after he first ordered Anderson into the

SUV, Alobaidi threatened to tase Anderson verbally and by cycling his taser.

Cycling his taser made electricity audibly crackle from it. In response,

Anderson began asking to be tased. Alobaidi pulled Anderson out of the

4

Case: 24-20142 Document: 96-1 Page: 5 Date Filed: 06/13/2025

No. 24-20142

SUV and held him face-down on the ground as Garcia asked the other

deputies whether they should try leg restraints. Alobaidi again cycled his

taser and asked Anderson whether he would comply, and Anderson said he

would. Page and Alobaidi helped Anderson to his feet. But Anderson threw

his weight away from the open SUV door, prompting the officers to propel

him head-first into the backseat. As Anderson’s legs still remained outside

the car, Alobaidi drive-stunned 3 Anderson several times. 4 Nearly ten

minutes after the altercation had begun, Page and Alobaidi were finally able

to close the door with Anderson inside the SUV.

As they stepped away from the SUV, Page and Alobaidi remarked

that Anderson grabbed at their fingers during the struggle. A moment later,

Alobaidi returned to the SUV and noticed Anderson in an unsafe position

inside. Page went to the passenger-side door, opened it, and after two more

minutes of struggling with Anderson, successfully repositioned him and

closed the door. Alobaidi stated that the officers were lucky that Anderson

did not resist when he was still “in the street,” presumably referring to the

scene of the accident. Alobaidi also remarked: “He’s coming out of it, the

PCP, so he’s not feeling anything.”

Emergency medical personnel arrived at the gas station around

5:08 A.M. Anderson was unresponsive, but the EMTs did not transport

Anderson, allegedly because Alobaidi warned that he was dangerous.

_____________________

3

“The drive stun technique involves placing the end of the Taser directly on the

person, without the cartridge containing the metal probes . . . . Each application of the

drive stun technique delivers a jolt of electricity for about five seconds.” Carroll v.

Ellington, 800 F.3d 154, 164 (5th Cir. 2015). “A taser in drive-stun mode inflicts a painful

electric shock on contact, but does not cause the same seizing effect” as “[w]hen taser

prongs are deployed.” Cloud v. Stone, 993 F.3d 379, 382 n.2 (5th Cir. 2021).

4

It is unclear how many times Alobaidi drive-stunned Anderson, but the district

court counted at least four.

5

Case: 24-20142 Document: 96-1 Page: 6 Date Filed: 06/13/2025

No. 24-20142

Around the same time, Sergeant Joseph Douglass arrived and reminded the

officers about a recent warning about the dangers of drive-stunning. Alobaidi

and Garcia drove Anderson to the Harris County Joint Processing Center,

where they arrived around 5:45 A.M. As Anderson remained unresponsive,

emergency medical services were called again and unsuccessfully attempted

to resuscitate him. Anderson was transported to a hospital and pronounced

dead. 5

Anderson’s estate and Kristen Sandoval, individually and as next

friend and trustee of Anderson’s two children, sued the officers and Harris

County about a month later. Anderson’s parents, Kenneth Anderson, Sr.,

and Evelyn Fay Ayers-Woods, intervened on January 5, 2022. They asserted

numerous claims against both the officers and Harris County. The district

_____________________

5

An autopsy report allegedly concludes that the drive-stunning caused Anderson’s

death. The degree to which that report concluded that the drive-stunning was a cause or

the primary cause of death arose during oral argument. Oral Arg. 10:42–11:12. The autopsy

report, however, was not appended to the pleadings. See Oral Arg. 10:25–42. But the issue

does not impact this appeal because, as Plaintiffs’ counsel made clear in oral argument, the

Plaintiffs never brought a deadly force claim, but rather only an excessive force claim. Oral

Arg. 38:18–35. We are unaware of any case in which drive-stunning with a taser has been

deemed equivalent to “deadly force.” Moreover, that a person dies following officers’ use

of force does not render the force inherently deadly.

Even if deadly force was sufficiently alluded to in the complaint as the dissent

suggests, see post at 2 n.1 (King, J., dissenting), and even if there were legal support for

asserting that drive-stunning amounts to the use of deadly force, the Plaintiffs forfeited any

such claim by failing to brief it to this court or to the district court despite its invoking a

separate analysis. See Timpa v. Dillard, 20 F.4th 1020, 1032 (5th Cir. 2021) (To state a

claim for deadly force, a plaintiff must also show that “the use of force carried a substantial

risk of causing death or serious bodily harm.”); see also Carr v. City of Spring Valley Village,

No. 19-20373, 2022 WL 1553539, at *4 n.3 (5th Cir. May 17, 2022) (“Although Plaintiffs’

opening brief occasionally uses the phrase ‘deadly force,’ it does not engage the standard

of whether any officers’ conduct creates a substantial risk of death or serious bodily injury.

Thus, because we cannot conclude that any of the officers’ conduct was presumptively

unreasonable, this argument is forfeited.”).

6

Case: 24-20142 Document: 96-1 Page: 7 Date Filed: 06/13/2025

No. 24-20142

court dismissed all but the excessive force claim against Alobaidi and the

corresponding bystander liability claims against Estrada, Garcia, and Page.

The Plaintiffs do not appeal the claims dismissed, but the Defendants filed

an interlocutory appeal to challenge the district court’s denial of qualified

immunity on the excessive force and bystander liability claims. This court

has jurisdiction because “a district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the

absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct.

2806, 2817 (1985).

STANDARD OF REVIEW

This court reviews de novo the district court’s denial of a Federal Rule

of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. See

Harmon v. City of Arlington, 16 F.4th 1159, 1162 (5th Cir. 2021). “To survive

a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 554, 570, 127 S. Ct. 1955, 1974 (2007)). “But

this court does not presume true a number of categories of statements,

including legal conclusions; mere labels; threadbare recitals of the elements

of a cause of action; conclusory statements; and naked assertions devoid of

further factual enhancement.” Armstrong v. Ashley, 60 F.4th 262, 269 (5th

Cir. 2023) (quotation marks and citations omitted).

“Moreover, where video recordings are included in the pleadings, as

is the case here, the video depictions of events, viewed in the light most

favorable to the plaintiff, should be adopted over the factual allegations in the

complaint if the video ‘blatantly contradict[s]’ those allegations.” Harmon,

16 F.4th at 1163 (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,

1776 (2007)) (alteration in original). The Plaintiffs insist that we turn a blind

7

Case: 24-20142 Document: 96-1 Page: 8 Date Filed: 06/13/2025

No. 24-20142

eye to the video evidence. But where a party “referenced the video in their

complaint and brief” and “included several screenshots from the video in

their complaint,” “caselaw supports our consideration of the video.”

Winder v. Gallardo, 118 F.4th 638, 643–44 (5th Cir. 2024) (per curiam).

Because the Plaintiffs and Intervenors both referenced the video in their

complaints and included multiple screenshots from it in their brief to this

court, we consider the video.

DISCUSSION

Alobaidi “is entitled to qualified immunity at the motion-to-dismiss

stage unless the plaintiffs have alleged facts sufficient to plausibly show that

(1) the defendant's conduct violated a constitutional right and (2) the

constitutional right was clearly established at the time of the alleged

misconduct.” Harmon, 16 F.4th at 1163 (citing Pearson v. Callahan, 555 U.S.

223, 232, 129 S. Ct. 808, 816 (2009)). We are “permitted to exercise [our]

sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in

the particular case at hand.” Pearson, 555 U.S. at 236, 129 S. Ct. at 818,

overruling in part Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001). Here,

we need only address the first prong, and we hold that Alobaidi did not violate

Anderson’s constitutional rights.

I.

“The Fourth Amendment creates a ‘right to be free from excessive

force during a seizure.” Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017)

(quoting Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012)). “To

establish a claim of excessive force under the Fourth Amendment, plaintiffs

must demonstrate: ‘(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.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.

8

Case: 24-20142 Document: 96-1 Page: 9 Date Filed: 06/13/2025

No. 24-20142

2009) (per curiam) (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th

Cir. 2005)).

Determining whether the force used was clearly excessive and clearly

unreasonable “requires careful attention to the facts and circumstances of

each particular case, including [1] the severity of the crime at issue, [2]

whether the suspect poses an immediate threat to the safety of the officers or

others, and [3] whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872

(1989). “A court must make this determination from the perspective of a

reasonable officer on the scene, including what the officer knew at the time,

not with the 20/20 vision of hindsight.” Kingsley v. Hendrickson, 576 U.S.

389, 397, 135 S. Ct. 2466, 2473 (2015).

“The test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application.” Bell v. Wolfish, 441

U.S. 520, 559, 99 S. Ct. 1861, 1884 (1979). But we must begin with the three

Graham factors. Each factor suggests that Alobaidi used objectively

reasonable force. We then examine them together and in light of Alobaidi’s

taking “measured and ascending actions that corresponded to [Anderson’s]

escalating verbal and physical resistance.” Poole, 691 F.3d at 629 (quotation

marks and citation omitted). All told, we conclude that Alobaidi’s force was

objectively reasonable and did not violate the Fourth Amendment.

A.

Applying the first Graham factor, the “crime at issue” was serious.

See id. The Plaintiffs concede that the officers stated they were bringing

Anderson into custody for driving under the influence (“DUI”). Before the

drive-stunning took place, Anderson admitted that he was under the

influence of sherm, and Alobaidi’s remarks about PCP after the incident

reveal that he knew the effects of sherm. It follows that, from the reasonable

9

Case: 24-20142 Document: 96-1 Page: 10 Date Filed: 06/13/2025

No. 24-20142

officer’s perspective, DUI was the underlying offense. 6 In this circuit, DUI

is a serious crime. See Griggs v. Brewer, 841 F.3d 308, 316 (5th Cir. 2016);

Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016); Brothers v. Zoss, 837 F.3d

513, 519 (5th Cir 2016); Scott v. City of Mandeville, 69 F.4th 249, 256 (5th Cir.

2023).

The Plaintiffs try to distinguish the DUI precedents by arguing that

DUI was only deemed serious in those cases because the arrestees resisted.

This argument conflates the Graham factors. If a crime’s seriousness turns

on the degree of an arrestee’s resistance, then seriousness ceases to be an

independent factor. Moreover, that arrestees in other DUI cases resisted

custody does not distinguish this case because, as will be discussed below,

Anderson was actively resisting. Plaintiffs point to Trammell v. Fruge, which

noted that intoxication-related misdemeanors are not generally serious. 868

F.3d at 340. But Trammell involved a public intoxication arrest, not a DUI,

and does not purport to hold that all intoxication-related misdemeanors are

not serious. Trammell does not derogate from this court’s repeated,

unequivocal, and binding holdings that DUI is a serious crime under

Graham.

Finally, Anderson’s crime is emblematic of the seriousness of a DUI

arrest. While under the influence of PCP, he was driving late at night,

crashed into a curb, and his car ended up facing opposite the flow of traffic.

There was a high chance that in the darkness he could have collided head-on

_____________________

6

The district court mistakenly relied on the Plaintiffs’ allegation that Anderson

was arrested because of an open warrant for nonappearance in court for failure to have a

driver’s license and found no serious underlying crime. The district court also noted the

Intervenors’ allegation that the officers thought Anderson might be a murder suspect, but

that the officers knew any such suspicion was unsubstantiated before they used force. The

district court erred by failing to credit the Intervenors’ allegation, substantiated by video,

that Alobaidi remarked that the officers could take Anderson in for DUI.

10

Case: 24-20142 Document: 96-1 Page: 11 Date Filed: 06/13/2025

No. 24-20142

with another vehicle or that oncoming traffic could have hit Anderson’s car

in its wrecked position. Anderson’s conduct posed a serious risk of injury to

himself and others. Such risks are comprehended by this court’s precedents

holding DUI offenses to be inherently serious under Graham.

B.

Pertinent to the second Graham factor, Anderson posed an immediate

risk to the officers’ safety. Anderson was, as this court put it in Griggs,

“capable of and evinced erratic behavior.” 841 F.3d at 316. That is enough

to establish a threat because any of the officers could be injured by

Anderson’s kicking, thrashing, and throwing himself around. He was a very

large man compared to the male officers and especially the two female

officers involved in subduing him. Tucker v. City of Shreveport, 998 F.3d 165,

180 (5th Cir. 2021) (an arrestee’s relative size informs how a reasonable

officer would understand and respond to an escalating situation).

Nevertheless, the Plaintiffs counter that Anderson was not a threat for the

first hour of his detention; Deputy Alobaidi created any threat by

“commanding Mr. Anderson to exit Estrada’s vehicle”; and any threat

Anderson did pose was “minimal” because he was handcuffed.

These arguments fail. First, while “the question is ‘whether the

totality of the circumstances justifie[s] a particular sort of . . . seizure,’”

Anderson’s initial compliance at the scene of his car accident cannot make

his later actions at the gas station any less threatening to the officers’ safety.

See Graham, 490 U.S. at 396, 109 S. Ct. at 1872 (quoting Tennessee v. Garner,

471 U.S. 1, 8–9, 105 S. Ct. 1694, 1699–1700 (1985)) (alteration in original).

Second, the notion that Alobaidi precipitated a confrontation by

directing Anderson to exit Estrada’s cruiser is clearly contradicted by the

video. Instead, Alobaidi opened the car door to offer Anderson water, and

Anderson moved to step out of the cruiser while Alobaidi instructed him not

11

Case: 24-20142 Document: 96-1 Page: 12 Date Filed: 06/13/2025

No. 24-20142

to. Alobaidi relented and allowed Anderson to stand without attempting to

physically detain Anderson in the car. We reject any argument that

Alobaidi’s attempt to avoid escalation, by allowing Anderson to stand outside

the cruiser, somehow incited Anderson’s increasingly erratic behavior over

the following minutes or undermined Alobaidi’s reasonable perception of a

growing physical threat.

Third, that Anderson was handcuffed has no necessary bearing on

whether he was a threat. See Pratt v. Harris Cnty., 822 F.3d 174, 178–82 (5th

Cir. 2016). Unpredictable aggressive behavior is often associated with PCP

inebriation, as Alobaidi recognized. Indeed, Intervenors’ counsel essentially

agreed during oral argument that Alobaidi should not have allowed Anderson

out of Estrada’s cruiser because he was exhibiting “aggressive behavior.”

Oral Arg. 28:55–29:15. That belies the notion that no reasonable officer could

have perceived Anderson, handcuffs notwithstanding, as a threat when he

kicked, thrashed and threw his sizeable body around to avoid confinement in

the SUV.

C.

Under this court’s interpretation of the third Graham factor, we

conclude that Anderson was actively resisting the officers. The Plaintiffs

vigorously disagree. But the Plaintiffs’ characterization of the facts is

contradicted by the video, which shows Anderson kicking, thrashing, and

using his weight against the officers to prevent his being loaded into the

SUV. The line between an arrestee’s active and passive resistance and the

purpose of resistance are significant to the parties and requires review of this

court’s relevant cases.

To begin, the third Graham factor concerns the degree to which an

arrestee resists the officer’s mission or objective. While the second Graham

factor examines the threat the arrestee poses to law enforcement, the third

12

Case: 24-20142 Document: 96-1 Page: 13 Date Filed: 06/13/2025

No. 24-20142

considers the degree of the arrestee’s resistance. Contrary to the position

espoused by the Plaintiffs and district court, whether resistance is active or

passive does not turn solely on whether an arrestee poses a serious physical

threat. The separate factors should not be conflated. Instead, excessive force

cases “require[] careful attention to the facts and circumstances of each

particular case,” and courts accordingly must not weigh the factors in a

“mechanical” way. Graham, 490 U.S. at 396, 109 S. Ct. at 1872 (first quote);

Bell, 441 U.S. at 559, 99 S. Ct. at 1884 (second quote). That does not permit

blending the Graham factors into an analytical hodge-podge.

This court’s case law has helpfully elucidated distinctions between

active and passive resistance, and the potential overlap of that factor with the

question of a physical threat to the officers or others. In Cloud v. Stone, for

instance, we contrasted cases in which arrestees “aggressively evaded

[officers’] attempts to apprehend [them]” with cases where arrestees merely

pulled their arms away from arresting officers and/or made snide comments

at the officers. 993 F.3d 379, 384–85 (5th Cir. 2021) (quoting Pratt, 822 F.3d

at 182). 7 And in finding active resistance in Betts v. Brennan, after reiterating

the same line described in Cloud, we explained:

Betts did not just mouth[e] off at Brennan, ignore one of his

orders, or move away from his grasp. Rather, as the video

shows, Betts adopted a confrontational stance at the outset and

things got worse from there. Betts repeatedly contested why

_____________________

7

In Cloud, as the officer handcuffed the arrestee’s hands behind his back, the

arrestee spun around to face the officer. 993 F.3d at 382. The officer tased the arrestee.

Id. When the arrestee pulled the taser prongs from his chest, the officer drive-stunned him.

Id. The struggle continued to escalate, and the officer eventually shot and killed the

arrestee. Id. While the deadly-force claim that the court rejected in Cloud is not fully

apposite to the present discussion, the court instructively found the arrestee’s actions

preceding the tasing and drive-stunning were active resistance, rendering uses of force

reasonable. See id. at 384–87.

13

Case: 24-20142 Document: 96-1 Page: 14 Date Filed: 06/13/2025

No. 24-20142

he was stopped, ignored dozens of Brennan's commands,

disputed Brennan's authority, accused him of lying, batted

away his hand, warned Brennan to call other officers, and dared

Brennan to tase him. Most importantly, Betts repeatedly

disputed Brennan's power to order him to stand behind the

truck.

22 F.4th 577, 584 (5th Cir. 2022). The third Graham factor, in sum, concerns

the degree of resistance to the officer’s objective.

Here, it happens to concern whether the arrestee was actively or

passively resisting being put inside Alobaidi’s SUV. As laid out above, Cloud

and Betts discuss this line. An arrestee who is “restrained and subdued” is

not actively resisting. Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008). But

those characteristics of passive resistance are conjunctive: that a suspect is

handcuffed does not end the inquiry. See Carroll v. Ellington, 800 F.3d 154,

177 (5th Cir. 2015) (“once a suspect has been handcuffed and subdued, and

is no longer resisting, an officer’s use of force is excessive”); Bailey v. Ramos,

125 F.4th 667, 684 (5th Cir. 2025) (“use of force against a handcuffed suspect

is not excessive if the suspect is resisting by ignoring lawful commands”).

When an arrestee “mouth[es] off” or pulls a hand away from an

officer, that does not quite cross the line into active resistance under most

circumstances. Betts, 22 F.4th at 584; see also Trammel, 868 F.3d at 341–42

(citing Goodson v. City of Corpus Christi, 202 F.3d 730, 734, 740 (5th Cir.

2000)). Similarly, an arrestee’s merely “tens[ing] up” when an officer grabs

him is passive resistance. Samples v. Vadzemnieks, 900 F.3d 655, 662 (5th Cir.

2018); but see Angulo v. Brown, 978 F.3d 942, 951 (5th Cir. 2020) (arrestee

who tried to remain seated in a vehicle, despite an officer’s pulling, “with

such force that the vehicle rocks from one side and the headlights flicker”).

But even so, this court’s cases “do[] not establish that when mere passive

resistance is at issue, officers are precluded from using any force, but instead

14

Case: 24-20142 Document: 96-1 Page: 15 Date Filed: 06/13/2025

No. 24-20142

that the amount of reasonable force varies.” Robles v. Ciarletta, 797 F. App’x

821, 828 (5th Cir. Dec. 19, 2019); see Escobar v. Montee, 895 F.3d 387, 394–95

(5th Cir. 2018) (citing Cooper, 844 F.3d at 524); cf. Grisham v. Valenciano, 93

F.4th 903, 912 (5th Cir. 2024) (“Grisham did not put his hands behind his

back when ordered but instead kept them within reach of his handgun. Given

these circumstances, it was not unreasonable for Chief Valenciano to

believe—at the time he deployed the taser—that Grisham was both a safety

threat and resisting arrest.”).

As soon as resistance escalates into any physical action beyond

nonthreateningly pulling his hand back, the arrestee is actively resisting.

Repeated attempts to withdraw from an officer or declining to follow an

officer’s orders constitute active resistance. Betts, 22 F.4th at 584.

“Pull[ing], twist[ing], turn[ing], or walk[ing]” toward or away from an

officer amount to active resistance when those actions frustrate the officer’s

objective or disobey an officer’s order. Craig v. Martin, 49 F.4th 404, 416

(5th Cir. 2022); see Benfer v. City of Baytown, 120 F.4th 1272, 1278, 1282–83

(5th Cir. 2024); cf. Timpa v. Dillard, 20 F.4th 1020, 1031 (5th Cir. 2021) (if

arrestee’s “‘squirm[ing]’ and ‘mov[ing] his head from left to right” were not

“in order to breathe,” it would be active resistance).

Accordingly, an arrestee actively resists by ignoring an officer’s order

to stop doing something or to refrain from doing something. Benfer, 120 F.4th

at 1278, 1282–83; see also Romero v. City of Grapevine, 888 F.3d 170, 174–75

(5th Cir. 2018); but see Deville, 567 F.3d at 162–63, 167 (passive resistance

when grandmother who was pulled over with her 2-year-old granddaughter

declined to follow command to exit vehicle until her husband arrived). An

arrestee who backs away while slapping at an officer’s arms, rather than just

pulling back her hand, is also actively resisting. Slight v. City of Conroe, 87

F.4th 290, 297, 299 (5th Cir. 2023); see also Hogan v. Cunningham, 722 F.3d

725, 734 (5th Cir. 2013) (arrestee shutting the door to the doorway of his

15

Case: 24-20142 Document: 96-1 Page: 16 Date Filed: 06/13/2025

No. 24-20142

home in which he stood was actively resisting). Even an arrestee who only

“backs away from the arresting officers is actively resisting arrest—albeit

mildly.” Solis v. Serrett, 31 F.4th 975, 982–83 (5th Cir. 2022) (quoting

Buehler v. Dear, 27 F.4th 969, 984 (5th Cir. 2022)).

Under these precepts, the video shows that Anderson actively resisted

the officers in this case. Anderson kicked at them when attempting to hook

his feet under the SUV door, thrashed as the officers struggled to secure him

inside the SUV, used his weight to make the officers’ task more difficult, and

failed to comply with countless orders by the officers to stop resisting and to

sit in the vehicle with his legs inside. Anderson’s actions, which frustrated

for a lengthy period the officers’ attempts to secure him inside the SUV,

constituted active resistance.

D.

Because the Graham factors weigh in favor of some use of force by the

officers, the remaining question is whether Alobaidi’s drive-stunning was a

reasonable response. See Deville, 567 F.3d at 167 (“officers must assess not

only the need for force, but also ‘the relationship between the need and the

amount of force used.”) (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th

Cir. 1999); Salazar v. Molina, 37 F.4th 278, 281 (5th Cir. 2022) (“the

permissible degree of force depends on the Graham factors.”) (quoting

Cooper v. Brown, 844 F.3d 517, 524–25 (5th Cir. 2016)). Our cases emphasize

that “measured and ascending actions that correspond to [the arrestee’s]

escalating verbal and physical resistance” are reasonable. Cloud, 993 F.3d at

384 (quoting Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 332–33

(5th Cir. 2020) (quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th

Cir. 2012))) (alterations in original); see Betts, 22 F.4th at 583. Weighing the

Graham factors here, the seriousness of Anderson’s DUI crime, the threat

Anderson posed to the officers, and his active resistance, against the force

16

Case: 24-20142 Document: 96-1 Page: 17 Date Filed: 06/13/2025

No. 24-20142

used, we conclude that Alobaidi’s conduct was reasonable and did not violate

Anderson’s Fourth Amendment rights.

Pratt v. Harris County is instructive and virtually on all fours with this

case:

Pratt ignored multiple requests and warnings from both Lopez

and Medina. Indeed, Pratt aggressively evaded Lopez and

Medina's attempts to apprehend him. Only after he

continuously failed to comply, did either deputy deploy tasers;

Medina used his taser only after Lopez's efforts to subdue Pratt

were ineffective. The evidence showed that Medina cycled his

taser only when Pratt continued to resist handcuffing. Once

Pratt complied, and Goldstein was able to handcuff him,

Medina stopped using his taser. But, when Pratt kicked an

officer after being taken to the ground, Medina used his taser

again; and, once again, officers were able to control him. It is

also important that neither officer used their taser as the first

method to gain Pratt's compliance. The record shows that both

officers responded with measured and ascending actions that

corresponded to [Pratt's] escalating verbal and physical

resistance.

822 F.3d at 182 (quotation marks and citations omitted) (alteration in

original).

Here, Alobaidi’s measured and ascending actions were proportional

to the escalating situation. As the Plaintiffs concede, no force was used for

approximately the first hour after Anderson was detained at the scene of the

accident. Neither was any force used in moving Anderson from Estrada’s

cruiser to approach Anderson’s SUV. When Anderson asked Alobaidi

whether he would be tased, Alobaidi naturally responded in the negative. But

then, as Anderson ignored dozens of orders by the officers to enter the SUV,

the officers tried and tried again to negotiate with him. For minutes, they

17

Case: 24-20142 Document: 96-1 Page: 18 Date Filed: 06/13/2025

No. 24-20142

tried to reason with him, offering him water in exchange for his compliance,

and even providing him with water when he failed to comply.

Only when Anderson suddenly tried to stand out of the SUV did the

officers resort to pushing and pulling to get him into the vehicle. They did

not strike, choke, tackle, drive-stun, tase, or apply any heightened force.

Rather, they continued to push and pull for nearly ten minutes as Anderson

kicked at them, thrashed, and otherwise actively resisted. After minutes

went by and the officers began to realize the futility of their approach,

Alobaidi drew his taser. But instead of using it right away, he attempted to

restart negotiations with Anderson. He cycled it, asked Anderson if he would

comply, and said that he would be tased if he did not comply. Anderson still

failed to comply, and even began asking to be tased.

As a last-ditch ameliorative effort, 8 Alobaidi pulled Anderson from the

vehicle and onto the ground, once again cycled the taser and asked if

Anderson would comply. When Anderson replied that he would, Alobaidi

helped him to his feet. That is when Anderson threw his weight toward the

officers, rather than into the vehicle. Once the officers managed to get

Anderson inside, Alobaidi began drive-stunning Anderson as it became clear

that the officers’ other attempts at securing compliance were futile. As soon

as Anderson was subdued, and the officers were able to place him fully inside

the SUV, Alobaidi stopped drive-stunning him. Moments later, when they

realized that Anderson was precariously positioned, Alobaidi did not resume

drive-stunning, even though Anderson was still actively resisting, as the

officers adjusted his body.

_____________________

8

Although Garcia asked the others about potentially using leg restraints around

this time, the officers’ failure to attempt that after fighting a kicking arrestee for nearly ten

minutes was not objectively unreasonable.

18

Case: 24-20142 Document: 96-1 Page: 19 Date Filed: 06/13/2025

No. 24-20142

Alobaidi’s use of force, in drive-stunning Anderson after much time

had elapsed and both negotiations and lesser force had proved fruitless, was

reasonable under the circumstances and did not transgress constitutional

limits. 9 Because the allegations of the complaint, graphically depicted in the

video, fail to show a constitutional violation by Alobaidi, none of the other

defendants can be liable under a bystander liability theory. The district court

erred in denying Appellants’ motion to dismiss these claims.

The judgment of the district court is REVERSED.

_____________________

9

Plaintiffs mention various questions of local police department policy, including

a policy on drive-stunning and a policy for “crisis intervention response that should be used

for drugs.” Oral Arg. 26:16–26; 41:46–55. Those issues do not bear on whether officers’

actions violated the constitution. Regardless, the Harris County policy on “Conducted

Electrical Devices” (CEDs) does not necessarily suggest that Alobaidi’s use of the drive-

stun technique was a violation. Among other things, the policy directs officers “to always

attempt to de-escalate” first; authorizes officers to use CEDs “to control dangerous or

violent suspects when deadly force does not appear to be justified or necessary”; and

reminds officers that successive uses of CEDs can be dangerous and that officers must

therefore assure that each use is “reasonable and individually justified.”

19

Case: 24-20142 Document: 96-1 Page: 20 Date Filed: 06/13/2025

No. 24-20142

King, Circuit Judge, dissenting:

The district court determined that the plaintiffs adequately alleged

that one officer’s fatal use of a taser, and other officers’ failure to intervene,

was a constitutional violation of clearly established law. I agree.

To conclude that Alobaidi’s use of force was reasonable, the majority

relies on the video to find Anderson posed a threat to officers and actively

resisted arrest. But Plaintiffs and Intervenors alleged that when the taser was

deployed, Anderson was neither posing a threat nor actively resisting: He was

disoriented, handcuffed, unarmed, and contained in the back of a police car.

And the video, viewed in the light most favorable to the plaintiffs, supports,

rather than blatantly contradicts, these allegations. See Darden v. City of Fort

Worth, 880 F.3d 722, 730 (5th Cir. 2018) (recognizing the blatant

contradiction standard is a “demanding one: a court should not discount the

nonmoving party’s story unless the video evidence provides so much clarity

that a reasonable jury could not believe his account”).

Whether and to what extent Anderson posed an immediate safety

threat to officers, or actively resisted arrest, present factual questions that

cannot be resolved in favor of the officers on a motion to dismiss. See Darden,

880 F.3d at 729–30 (denying qualified immunity on excessive force claim in

part because “a jury could conclude” that “no reasonable officer would have

perceived [arrestee] as posing an immediate threat to the officers’ safety” or

as resisting arrest). Our cases do not establish the sweeping test for active

resistance the majority strains to articulate, but rather recognize that “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.” Betts

v. Brennan, 22 F.4th 577, 583 (5th Cir. 2022) (quoting Deville v. Marcantel,

567 F.3d 156, 167 (5th Cir. 2009)).

20

Case: 24-20142 Document: 96-1 Page: 21 Date Filed: 06/13/2025

No. 24-20142

In any case, we must consider “not only the need for force, but also

the relationship between the need and the amount of force used.” Cloud v.

Stone, 993 F.3d 379, 384 (5th Cir. 2021) (quoting Joseph ex rel. Estate of Joseph

v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020)). Plaintiffs and Intervenors

further alleged, and the video supports, that Anderson “was drive-stunned

repeatedly” and “for an extended period of time . . . at least twenty-four (24)

seconds in a span of just two minutes.” Anderson died as a result. 1 Moreover,

the officers had been warned about the dangers of drive-stunning and

instructed against using the technique in a recent memorandum. See Darden,

880 F.3d at 732 n.8 (explaining the existence of police department policies

and “corresponding notice to officers” is “relevant in analyzing the

reasonableness of a particular use of force”).

Even assuming the Graham factors justified some use of force, a “jury

could reasonably find that the degree of force the officer[] used was not

justifiable under the circumstances.” Crane v. City of Arlington, 50 F.4th 453,

465 (5th Cir. 2022). Relatedly, a jury could find, as the district court noted,

that the prolonged use of the taser in drive-stun mode was unreasonable. See

Timpa v. Dillard, 20 F.4th 1020, 1030 (5th Cir. 2021) (“A jury could find that

no objectively reasonable officer would believe that [arrestee]—restrained,

surrounded, and subdued—continued to pose an immediate threat of harm

justifying the prolonged use of force.”); Bartlett, 981 F.3d at 335 (explaining

_____________________

1

The majority concludes the allegation that the drive-stunning caused Anderson’s

death is not relevant to this appeal, because an exchange at oral argument “made clear”

that Plaintiffs did not bring a deadly force claim. But the complaints repeatedly allege the

use of “deadly force,” and Plaintiffs and Intervenors have maintained that the force caused

Anderson’s death. Regardless of whether they have proceeded on a theory of deadly force,

the injury inflicted—death—is relevant to determining whether the force was excessive.

See Deville, 567 F.3d at 168 (“Thus, ‘the extent of [the] injury inflicted’ may be considered

in determining whether the officers used excessive force.” (quoting Whitley v. Albers, 475

U.S. 312, 321 (1986))).

21

Case: 24-20142 Document: 96-1 Page: 22 Date Filed: 06/13/2025

No. 24-20142

that “even if [arrestee] failed to comply and struggled against the officers at

certain points throughout the encounter, that resistance did not justify force

indefinitely” because “[f]orce must be reduced once a suspect has been

subdued” or “lacks any means of evading custody”).

Furthermore, when the facts are properly viewed in favor of Plaintiffs

and Intervenors, Alobaidi’s use of force violated clearly established law. See,

e.g., Boyd v. McNamara, 74 F.4th 662, 668 (5th Cir. 2023), cert. denied sub

nom. Johnson v. Boyd, 144 S. Ct. 562 (2024) (holding officer was on notice

that “he could not constitutionally fire a taser at a non-threatening,

compliant subject”); Timpa, 20 F.4th at 1034 (holding that “the law has long

been clearly established that an officer’s continued use of force on a

restrained and subdued subject is objectively unreasonable”).

Having concluded that Plaintiffs and Intervenors sufficiently alleged

an excessive force claim against Alobaidi, I would also affirm the district

court’s decision to deny qualified immunity on the bystander liability claims

against Officers Garcia, Page, and Estrada. I agree with the district court that

Plaintiffs and Intervenors’ allegations that the officers knew Alobaidi was

using excessive force, had time to intervene, and failed to do so, are sufficient

to state a constitutional violation. See Bartlett, 981 F.3d at 343–45. And “Hale

is clearly established law that provides fair notice to officers of their duty to

intervene, rather than to acquiesce, in the unconstitutional conduct of

others.” Austin v. City of Pasadena, 74 F.4th 312, 331 (5th Cir. 2023) (citing

Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995)).

* * *

In sum, “a jury could ultimately determine that [Anderson] was in fact

resisting arrest or disobeying commands” or posing a threat to a degree that

justified the prolonged and fatal use of a taser in drive-stun mode. See Bartlett,

22

Case: 24-20142 Document: 96-1 Page: 23 Date Filed: 06/13/2025

No. 24-20142

981 F.3d at 342. But at this early stage, “a jury could also find facts

demonstrating the opposite.” Id. I respectfully dissent.

23