Smith v. Saenz

Case: 24-50975 Document: 70-1 Page: 1 Date Filed: 08/14/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

FILED

No. 24-50975 August 14, 2025

____________

Lyle W. Cayce

Ronald Smith, Clerk

Plaintiff—Appellee,

versus

Hunter Saenz; Jimmy Gonzalez,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:23-CV-881

______________________________

Before Jones, Graves *, Circuit Judges, and Rodriguez, District

Judge. †

Per Curiam: ‡

After a foot chase through private property and along a state highway,

Deputy Saenz used a non-lethal pepperball to subdue Smith and, with

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*

Judge Graves concurs in the judgment only.

†

District Judge of the Southern District of Texas, sitting by designation.

‡

Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited circumstances set

forth in 5th Circuit Rule 47.5.4.

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No. 24-50975

Deputy Gonzalez, placed Smith in handcuffs. The district court denied

Saenz’s and Gonzalez’s motions for summary judgment on qualified

immunity grounds. Because Saenz’s and Gonzalez’s conduct was not a

clearly established violation of Smith’s Constitutional rights, we

REVERSE.

I. Background

On June 27, 2021, Plaintiff-Appellee Ronald Smith was running and

walking on a public easement along Highway 46 in Guadalupe County,

Texas. Defendant-Appellant Deputy Saenz observed Smith on the side of

the highway while on patrol and turned around to “check on” him.

According to Saenz’s Offense Report, Smith “quickly got up and began to

walk towards the fence line,” and “jumped a barbed wire fence and began

running into a field” away from Saenz and onto private property. Based on

his experience as an officer, Saenz believed that Smith was “attempting to

avoid contact with law enforcement” or was about to commit a crime by

trespassing.” As the district court observed, the “record contains

uncontroverted evidence that Smith fled from Deputy Saenz . . . and that

Smith knew [] Saenz was a law enforcement officer at the time,” and Saenz’s

body camera footage clearly shows Saenz in pursuit while yelling for Smith

to stop.

Eventually, Smith stopped running and sat on the shoulder beside

Highway 46. Saenz approached Smith on foot at approximately the same

time Defendant–Appellant Deputy Gonzalez arrived in his vehicle. Smith,

claiming that he was “terrified and frozen with fear,” dialed 911. Gonzalez

and Saenz drew their firearms, and Saenz repeatedly directed Smith to put

his hands up and to show the officers his hands. Smith did not respond.

Saenz then holstered his firearm and drew his pepperball gun, while also

directing Gonzalez to “go less lethal.”

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Saenz and Gonzalez repeatedly directed Smith to lie on his stomach

on the ground. Smith, still on the phone with the 911 operator and in a

heightened emotional state, remained seated and told both Deputies to “hold

on.” After a final warning that if he did not lie on his stomach he would be

“hit” with a pepperball, Saenz fired his pepperball gun, striking Smith on the

left side of his head. Saenz again directed Smith to lie down multiple times,

and Smith remained in the seated position and “scream[ed]” into his phone

that people were shooting at him. This continued for roughly thirty seconds

until Deputies Saenz and Gonzalez approached Smith and placed him in

handcuffs. While being handcuffed, Smith complained that he could not

breathe and requested an ambulance. Smith refused to engage with EMS

when they arrived, however, and was taken to a nearby hospital for evaluation

before being transported to Guadalupe County Jail.

On August 7, 2023, Smith filed his First Amended Original

Complaint. 1 The district court granted summary judgment to all defendants

and claims, excepting Smith’s 42 U.S.C. § 1983 excessive force claim against

Saenz and Gonzalez. Saenz and Gonzalez timely appealed.

II. Standard of Review

“Once a government official asserts [qualified immunity], the burden

shifts to the plaintiff to ‘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.’” Bourne v. Gunnels, 921 F.3d 484, 490 (5th Cir. 2019) (quoting

Gates v. Tex. Dep’t of Prot’ve & Reg’y Servs., 537 F.3d 404, 419 (5th Cir.

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1

Smith’s complaint alleged Fourth Amendment deadly force, excessive force, false

arrest, malicious prosecution, and supervisory liability claims as well as violations of the

Americans with Disabilities Act and Rehabilitation Act against Deputy Saenz, Deputy

Gonzales, Deputy Robert Locker, and Guadalupe County.

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2008)). “Where, as here, the district court finds that genuinely disputed,

material fact issues preclude a qualified immunity determination, this court

can review only their materiality, not their genuineness.” Manis v. Lawson,

585 F.3d 839, 842 (5th Cir. 2009). However, “[w]hether there are material

issues of fact is reviewed de novo.” Id. at 843. Finally, while “we review the

facts in the light most favorable to the non-moving party and draw all

reasonable inferences in its favor,” we will not accept “a plaintiff’s version

of the facts . . . for purposes of qualified immunity when it is blatantly

contradicted and utterly discredited by video recordings.” Hanks v. Rogers,

853 F.3d 738, 743–4 (5th Cir. 2017) (internal quotations omitted).

III. Discussion

To overcome Appellants’ assertion of qualified immunity, Smith

must establish issues of material fact on two points. Baldwin v. Dorsey, 964

F.3d 300, 325 (5th Cir. 2020). Smith “must adduce facts to show that

[Appellants] violated [his] constitutional rights, and [he] must show that ‘the

asserted right was clearly established at the time of the alleged misconduct.’”

Id. (quoting Cleveland v. Bell, 938 F.3d 672, 675–76 (5th Cir. 2019)). “A court

may consider either condition first, and if either condition does not obtain,

then [Appellants are] immune.” Id. at 326. A right is “clearly established”

when its “contours” are “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640, 107 S. Ct. 3034, 3037 (1987).

A.

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

Smith must show “(1) an injury, (2) which resulted directly and only from

the use of force that was clearly excessive, and (3) the excessiveness of which

was clearly unreasonable.” Ontiveros v. City of Rosenburg, 564 F.3d 379, 382

(5th Cir. 2009) (citation omitted). “Determining whether the force used was

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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.’” Anderson v. Estrada, 2025 WL

1672233, at *4 (5th Cir. Jun. 13, 2025) (quoting 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), considering the “totality of the circumstances.” Barnes v. Felix, 145

S. Ct. 1353, 1357–58 (2025).

Smith alleges that Appellants used excessive force in violation of his

Fourth Amendment rights when Saenz “brandish[ed] and pointed a

pepperball gun at [Smith],” and “fired the weapon, striking [Smith] in the

head.” Additionally, Smith alleges that both Saenz and Gonzalez used

excessive force by “jumping on his back,” causing Smith’s “face to impact

the ground.” 2 The district court determined that Smith suffered a

cognizable injury resulting from Saenz’s and Gonzalez’s brandishing of their

firearms and Saenz’s use of the pepperball gun, resulting in “migraines and

psychological injuries in the weeks, months, and years after the incident,”

which were “not directly contradicted by the proffered video footage or other

evidence.” Proceeding to the reasonableness inquiry, the court then

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2

On appeal, Smith dedicates a portion of his brief to arguing that Saenz’s and

Gonzalez’s brandishing their firearms constituted “deadly force” in violation of the Fourth

Amendment and that there was no lawful basis for Saenz and Gonzalez to stop him in the

first place. Because the only issue before us is the district court’s denial of qualified

immunity on Smith’s excessive force claim, we do not address these arguments.

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determined that “[a] jury could readily conclude from the video

evidence . . . that the force used . . . was clearly excessive.”

We need not address whether the officers’ force was reasonable

because the district court erred by considering the “clearly established”

prong at far too high a level of generality. Rather than simply determining

that a jury could readily conclude that the use force was excessive, Smith must

“show the violation of a constitutional right and that ‘the right at issue was

“clearly established” at the time of [the] alleged misconduct.’” Boyd v.

McNamara, 74 F.4th 662, 667 (5th Cir. 2023) (quoting Morrow v. Meachum,

917 F.3d 870, 874 (5th Cir. 2019)) (emphasis added).

“A right is clearly established only if relevant precedent ‘ha[s] placed

the . . . constitutional question beyond debate.” Morrow, 917 F.3d at 874

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083 (2011).

Indeed, “qualified immunity is inappropriate only where the officer had ‘fair

notice’—‘in light of the specific context of the case, not as a broad general

proposition’—that his particular conduct was unlawful.” Id. at 875 (quoting

Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599 (2004) (per

curiam)). This is especially true in excessive-force cases, where “police

officers are entitled to qualified immunity unless existing precedent ‘squarely

governs’ the specific facts as issue.” Kisela v. Hughes, 584 U.S. 100, 104, 138

S. Ct. 1148, 1153 (2018) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 7,

13, 136 S. Ct. 305, 309 (2015)).

In his brief, Smith provides a litany of cases that purportedly put Saenz

and Gonzalez on notice that their conduct constituted a constitutional

violation. The cases are inapposite in their facts, issues raised, or both, and

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certainly do not “place[] . . . the constitutional question beyond debate.” 3

Morrow, 917 F.3d at 874. The district court, while neglecting to say so

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3

The cases Smith cites from this Circuit are not on point factually. Bush v. Strain,

513 F.3d 492 (5th Cir. 2018) (finding excessive force where officers slammed a handcuffed

plaintiff’s face into a vehicle with enough force to break teeth); Sam v. Richard, 887 F.3d

710, 714 (5th Cir. 2018) (suspect was fully compliant with officers’ orders, lying face down

with his hands on his head, and did not flee); Alexander v. City of Round Rock, 854 F.2d 298,

309 (5th Cir. 2017) (reversing the dismissal of an excessive force claim where officers threw

the plaintiff, who “pose[d] no flight risk,” to the ground, kneed him in the back, and pushed

his face into the concrete); Newman v. Guedry, 703 F.3d 757, 760 (5th Cir. 2012) (finding

excessive force where the plaintiff was struck with a baton thirteen times and tased three

times during a nonviolent traffic stop); Hanks v. Rogers, 853 F.3d 738, 743, 746 (5th Cir.

2017) (denying qualified immunity at summary judgment where an officer “administered

a blow to [plaintiff’s] upper back or neck” during a traffic stop, where plaintiff had made

“no attempt to flee”).

Smith’s out of Circuit cases are likewise factually distinct and are not clearly

established law in this court such that Smith and Saenz would have “fair notice that [their]

conduct was unlawful.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599 (2004);

see Fogarty v. Gallegos, 523 F.3d 1147, 1152 (10th Cir. 2008) (finding the combined use of

tear gas, pepperballs, and “dragg[ing] [the plaintiff] down the street” excessive when

dispersing protesters); Duran v. Town of Cicero, 653 F.3d 632 (7th Cir. 2011) (appealing the

denial of a Rule 59(e) motion and cross-appeals regarding evidence-spoilation and

admittance); Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125, 1129–30 (9th Cir.

2002) (officers who authorized repeated use of pepper spray against stationary protesters

were not entitled to qualified immunity); Young v. County of Los Angeles, 655 F.3d 1156, 1160

(9th Cir. 2011) (denying qualified immunity where officer used pepper spray and repeatedly

struck the plaintiff from behind with a baton during a nonviolent traffic stop); Howell v.

Sheriff of Palm Beach County, 349 F. App’x 399, 404–06 (11th Cir. 2009) (finding excessive

force where officer used pepper spray on a non-violent and stationary suspect while

responding to a noise complaint); Asociacion De Periodistas De Puerto Rico v. Mueller, 680

F.3d 70 (1st Cir. 2012) (granting qualified immunity to FBI agent’s use of pepper spray);

Duran v. Sirgedas, 240 F. App’x 104, 108–10 (7th Cir. 2007) (discussing use of pepper spray

inside a house when suspects were “confined inside”); Vinyard v. Wilson, 311 F.3d 1340,

1348 (11th Cir. 2002) (noting that “using pepper spray is excessive force in cases where the

crime is a minor infraction, the arrestee surrenders, [and] is secured . . .”); Duran v. United

Tactical Sys., 586 F. Supp. 3d 1106 (D. N.M. 2022) (products liability and negligence claim

against PepperBall manufacturer); Abay v. City of Denver, 445 F. Supp. 3d 1286, 1291–92

(D. Col. 2020) (discussing use of rubber bullets and tears gas against protesters,

“specifically aimed at heads and groins”); Keup v. Sarpy County, 709 F. Supp. 3d 770, 796

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directly, seems to have identified two authorities from this court that “clearly

established” a violation of Smith’s Constitutional rights under these facts.

We disagree.

First, the district court cited Boyd v. McNamara to establish that

officers cannot use a taser on a “non-threatening, compliant subject.” 74

F.4th at 668. In Boyd, an officer first tased and then drive stunned a pretrial

detainee in the detainee’s cell at the McLennan County jail. Id. at 664. The

detainee was facing away from the officer with his hands behind his back,

waiting to be secured in handcuffs as the officer had instructed. Id. In this

context, we concluded that our precedents “conclusively establish that the

use of a taser on a non-threatening and cooperative subject is an

unconstitutionally excessive use of force.” Id. at 663.

The district court’s reliance on Boyd is misplaced. First, Boyd was

decided in 2023, and could not have put the Saenz and Gonzalez on notice of

any “clearly established” constitutional violations in 2021. Second, the

plaintiff in Boyd was tased and drive stunned inside his cell after complying

with all of the officer’s verbal instructions, turning his back towards the

officer with his hands ready to be handcuffed. Smith, by contrast, made no

attempts to comply with Saenz’s and Gonzalez’s repeated and consistent

directives to “lay [sic] down,” even after Saenz warned Smith that he would

use his pepperball gun. Considering the preceding foot chase and Smith’s

non-compliance, Boyd does not “clearly establish” that the use of a

pepperball gun violated Smith’s Constitutional rights.

Second, the district court cited Trammel v. Fruge for the proposition

that “[w]here an individual’s conduct amounts to mere ‘passive resistance,’

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(D. Neb. 2023) (holding that the officer was entitled to qualified immunity for the use of

pepperballs to disperse protesters).

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use of force is not justified.” 868 F.3d 332, 341 (5th Cir. 2017). On the

contrary, “this court’s cases ‘do[] not establish that when mere passive

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

that the amount of reasonable force varies.’” Anderson, 2025 WL 1672233,

at *7 (quoting Robles v. Ciarletta, 797 F. App’x 821, 828 (5th Cir. 2019)).

Smith’s flight from the officers while Saenz can be heard yelling, “stop,

Sherriff’s office,” is readily distinguishable from Trammel, where there was

no indication that the plaintiff “was attempting, or intended, to flee the

scene.” 868 F.3d at 341. In addition, Trammel involved a “headlock”

takedown by three officers and multiple knee strikes to the “arms, thighs,

and ribs” that resulted in displaced and fractured vertebrae. Id. at 337–38.

Trammel involved neither similar resistance nor similar force, and in no way

does it “squarely govern[] the specific facts at issue” here nor place the

constitutional question “beyond debate.” Kisela, 584 U.S. at 104, 138 S. Ct.

at 1153 (quotation omitted).

Finally, Smith’s arguments that Saenz and Gonzalez used excessive

physical force by “vigorously shov[ing] Smith to the ground face-first, and

“leap[ing] on his back” are simply incompatible with the video evidence.

Saenz and Gonzalez approached Smith while he was sitting cross-legged on

the grass. Saenz and Gonzalez first pushed Smith’s shoulders forward and

down to bring Smith’s arms behind his back. At this point, Smith was still

seated cross-legged, with his upper body bent forward. Gonzalez then put

his knee on the outside of Smith’s right arm while Saenz placed the

handcuffs. As soon as the handcuffs were secured, Gonzalez and Saenz

released Smith and Saenz helped Smith into an upright seated position.

Consequently, Smith has not met his burden to show that any violation of his

constitutional rights would be “clearly established.” Smith once again

identifies no “controlling precedent that renders it beyond debate—such

that any reasonable officer would know” that Saenz’s and Gonzalez’s

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conduct violated the Fourth Amendment. Morrow, 917 F.3d at 876–77

(quotation omitted).

The judgment of the district court is REVERSED.

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