The opinion
Case: 25-50311 Document: 113 Page: 1 Date Filed: 08/14/2026
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 25-50311
FILED
August 14, 2026
____________
Lyle W. Cayce
Louis Flores, Clerk
Plaintiff—Appellee,
versus
Felix Perez, in his individual capacity; Jackson Pierron, in his
individual capacity; Jorge Pastore, in his individual capacity,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:23-CV-673
______________________________
Before Clement, Douglas, and Ramirez, Circuit Judges.
Per Curiam:*
Plaintiff-Appellee Louis Flores brought an excessive-force claim
against Austin Police Department (“APD”) Officers Felix Perez, Jackson
Pierron, and Jorge Pastore (the “Defendant Officers”) arising from their use
of force on Flores during his arrest on Sixth Street in Austin, Texas. The
district court denied the Defendant Officers’ motion for summary judgment
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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on qualified immunity, finding that genuine disputes of material fact
precluded summary judgment and that a jury could conclude the Defendant
Officers violated Flores’s clearly established right to be free from excessive
force. This interlocutory appeal followed. Because the district court correctly
denied qualified immunity, we AFFIRM.
I
At around 2:00 a.m. on January 15, 2023, APD Officers Perez,
Pierron, and Pastore were on patrol on Sixth Street following bar closures.
Officer Perez believed he observed Flores grab the reins of a police horse
named Lucky, ridden by Corporal Kilgore.1 Whether Flores actually pulled
Lucky’s reins is disputed. Body-worn camera footage shows Flores’s hand
near the horse’s head but does not capture him making contact with the horse
or pulling its reins.
Officer Perez ran toward Flores from approximately 60 feet away to
effect an arrest for interference with a police service animal. Flores was
facing away from Perez as he approached. Perez was wearing his standard-
issue police uniform, but his badge was partially obscured by a red flower
pinned to his chest. Officer Perez grabbed Flores’s wrist and ordered him to
put his hands behind his back without identifying himself as a police officer.
About four seconds later, Flores pulled his arm away. Officer Perez
immediately performed a takedown.
Officers Pierron and Pastore joined to assist. While Flores was on the
ground, Officer Perez placed his knee on Flores’s stomach, pressed Flores’s
face onto the pavement, and pulled his arm nearly 90 degrees away from his
body. Officer Pierron drove his knee into Flores’s upper back and neck and
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1
Corporal Kilgore is not a party to this appeal.
2
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twisted his right arm beyond its normal range of motion. Officer Pastore held
Flores’s legs and pressed his knee into Flores’s lower back. Flores testified
that he felt that people were “striking,” “grabbing,” and “pulling” him
while he was on the ground. Officer Perez and Pastore’s body-worn cameras
cut out intermittently during this period.
Flores was charged with interference with a police service animal,
resisting arrest, and resisting transport. The Travis County District
Attorney’s office dismissed all charges after reviewing the body-worn camera
footage. After his release from custody, Flores sought medical care from
physicians at Ascension Seton Williamson Hospital, which diagnosed him
with a traumatic brain injury, thoracic spinal fractures, cervical spine injuries,
a dislocated right shoulder, a torn labrum, a torn bicep, and a broken
humerus. He underwent complex spinal fusion surgery.
Flores sued Officers Perez, Pierron, and Pastore for excessive force
under 42 U.S.C. § 1983 and bystander liability. He also brought a Monell
claim against the City of Austin (the “City”). The Defendant Officers and
the City moved for summary judgment. After an evidentiary hearing, the
district court granted summary judgment for the City on the Monell claim and
for Officers Pierron and Pastore on bystander liability. It denied the
Defendant Officers’ motion as to the excessive force claim, finding that
genuine disputes of material fact precluded summary judgment and
concluding that “if a jury accepts [Flores’s] version of the facts as true . . .
the jury could conclude that Defendant Officers violated Flores’s clearly
established right to be free from excessive force.” The Defendant Officers
appealed the excessive force claim.
II
Ordinarily, denials of summary judgment are not immediately
appealable under 28 U.S.C. § 1291. However, “the denial of qualified
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immunity is immediately appealable under the collateral order doctrine when
based on an issue of law.” Garcia v. Orta, 47 F.4th 343, 349 (5th Cir. 2022)
(citation modified); Mitchell v. Forsyth, 472 U.S. 511, 524–29 (1985). This
court does not have jurisdiction to review the genuineness of a fact issue
identified by the district court precluding qualified immunity, but it may
review the legal materiality of the district court’s identified fact issues. See
Cunningham v. Castloo, 983 F.3d 185, 190 (5th Cir. 2020). We review the
denial of qualified immunity at summary judgment de novo. Edwards v.
Oliver, 31 F.4th 925, 928–29 (5th Cir. 2022).
III
Qualified immunity involves two inquiries: whether the officer
violated a constitutional right, and whether the right was clearly established
at the time. Tolan v. Cotton, 572 U.S. 650, 655–56 (2014). The first question
asks whether the facts, viewed in the light most favorable to the party
asserting the injury, show that the officers violated a constitutional right. Id.
To prevail on a Fourth Amendment excessive force claim, a plaintiff must
show “(1) an injury, (2) which resulted directly and only from the use of force
that was excessive to the need, (3) the excessiveness of which was clearly
unreasonable.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). Three
factors guide the reasonableness inquiry: “(1) the severity of the crime at
issue; (2) whether the suspect pose[d] an immediate threat to the safety of
the officers or others; and (3) whether the suspect [was] actively resisting
arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S.
386, 396 (1989) (citation modified).
The Defendant Officers’ opening brief does not develop a challenge
to the injury or causation elements. The district court found both elements
supported and we proceed on that basis. We analyze Officer Perez’s
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takedown, the on-ground force used by each Defendant Officer, and clearly
established law in turn.
A
The Defendant Officers maintain that Officer Perez’s takedown was
justified by Flores’s pulling away from his grasp. They contend that the
disputed facts about the horse are immaterial because Officer “Perez did not
perform the takedown because Flores [allegedly] pulled the reins of the
horse.” The premise of that materiality argument is that the takedown
turned on the arm-pulling alone.
The objective Graham inquiry is not so narrow. It assesses force in
light of “the facts and circumstances of each particular case,” judged “from
the perspective of a reasonable officer on the scene.” Graham, 490 U.S. at
396. Those circumstances include the 2:00 A.M. setting, the crowded
street, the proximity of police horses, and the events leading to the
encounter. See Tucker v. City of Shreveport, 998 F.3d 165, 178–80 (5th Cir.
2021). Whether Flores actually pulled Lucky’s reins bears on what a
reasonable officer would have perceived. The dispute is material, and we
conclude that the Graham factors weigh against the Defendant Officers.
The first factor is the severity of the crime. Interference with a police
service animal and resisting arrest are both Class A misdemeanors under
Texas law. Tex. Penal Code §§ 38.151(c)(3), 38.03(a). And
misdemeanor offenses “militat[e] against the use of force.” Trammell v.
Fruge, 868 F.3d 332, 340 (5th Cir. 2017); see also Hanks v. Rogers, 853 F.3d
738, 745 (5th Cir. 2017). This factor therefore weighs against Officer Perez.
The second factor concerns immediate threat. Flores was unarmed
and bodycam footage reveals he made no threatening movement. The
district court found a genuine dispute as to whether he in fact pulled Lucky’s
reins or whether the horse turned in response to any contact. The horses had
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moved past Flores by the time of the takedown. And pulling “[an] arm out
of [an officer’s] grasp, without more, is insufficient to find an immediate
threat to the safety of the officers.” Ramirez v. Martinez, 716 F.3d 369, 378
(5th Cir. 2013). The Defendant Officers invoke Tucker for the proposition
that surrounding circumstances can supply the “more” that Ramirez found
lacking. 998 F.3d at 178–80. Tucker presented a fleeing suspect who led
officers into a high-crime residential area and displayed extreme and
increasing agitation just before his takedown. Id. at 178–79. The record here
contains no analogue. The second factor weighs in favor of Flores.
The third factor asks whether the suspect was actively resisting arrest
or attempting to flee. The district court found that Flores was at most
passively resistant and that a jury could conclude no reasonable officer would
have perceived him as actively resisting. We agree. Where conduct amounts
to mere passive resistance, the use of injurious force is not justified.
Trammell, 868 F.3d at 341–42; Hanks, 853 F.3d at 746. Flores was given
approximately four seconds to comply with commands issued by an officer
he may not have recognized as such. We have consistently held that “the
quickness with which the officers resort[] to” force “militates against a
finding of reasonableness.” Trammell, 868 F.3d at 342. The third factor too
weighs in favor of Flores. 2
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2
The concurring opinion cites Tuttle v. Gallegos for its conclusion that we must
“account for all relevant circumstances, including the ‘events leading up the climactic
moment.’” --- F.4th ----, 2026 WL 1861047, at *11 (5th Cir. 2026) (publication
forthcoming) (quoting Barnes v. Felix, 605 U.S. 73, 76 (2025)). Indeed, context does matter
here. We must underscore that it is undisputed that Flores was suspected only of a Class A
misdemeanor at the time of his takedown. The concurring opinion also focuses on a factual
distinction between this case and Trammel v. Fuge, namely that the suspect in that case was
“in a parking lot across the street from a club,” whereas Flores was taken down on a
crowded street at 2:00 A.M. Trammel 868 F.3d at 336. But bodycam footage reveals that
Flores was not in the thick of the crowd and, again, he was suspected only of a Class A
misdemeanor. Also, in Trammel, the suspect was given multiple opportunities to comply
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On these facts, we conclude that a reasonable jury could find Officer
Perez’s takedown excessive and unreasonable under the Fourth
Amendment.
B
After the takedown, the Defendant Officers restrained Flores. The
Defendant Officers correctly note that we “must analyze the officers’ actions
separately” where excessive force claims are brought against multiple
officers in a single arrest. Buehler v. Dear, 27 F.4th 969, 985 (5th Cir. 2022).
We do so for each.
1. Officer Perez
While Flores was on the ground, Officer Perez placed his knee on
Flores’s stomach, pushed the side of his face onto the concrete, and pulled
his arm nearly 90 degrees away from his body. Flores was surrounded by
three officers, unarmed, suspected only of a misdemeanor, and out of the
path of pedestrians or horses. He posed no threat. The district court found
that any physical resistance perceived was a result of the natural limited range
of motion of Flores’s body and that overlapping officer commands made
compliance difficult. Force exerted to control what at most amounted to a
passively resisting suspect who “was never aggressive [or] violent toward the
officers prior to being tackled,” is excessive. See Trammell, 868 F.3d at 342.
2. Officer Pierron
The Defendant Officers contend that Pierron only “assisted in
handcuffing Flores by holding [his] right hand on the ground.” However,
Officer Perez’s body camera footage shows that Pierron positioned his knee
_____________________
with Officer Fuge before he was taken down. Id. at 337. Flores received no such warning
here.
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on Flores’s head and maintained a grip on his arm as he was wrestled and
rolled onto his stomach by the Defendant Officers. Flores claims that
extending his arm beyond its normal range of motion caused a tear in his
labrum, a torn bicep, a broken upper arm, and a dislocated shoulder. This
conduct closely tracks the post-takedown force at issue in Trammell, where
this court held that pummeling a non-threatening, at-most-passively-
resisting suspect with knees and fists to subdue and handcuff him exceeded
constitutional bounds. 868 F.3d at 337–38, 342. The video footage, combined
with the differing accounts of the Defendant Officers and Flores indicate that
the district court was correct in concluding that material factual disputes
predominate as to Officer Pierron’s conduct. We agree that these factual
disputes are better suited for a jury.
3. Officer Pastore
Officer Pastore’s role is also contested. The Defendant Officers
contend that Officer Pastore did no more than hold and cross Flores’s legs
while attempting to handcuff him. Flores maintains he was pummeled on the
ground. The body-worn camera footage cuts out intermittently during the
relevant period. The district court found that the videos do not blatantly
contradict Flores’s account and we do not disturb that finding. Scott, 550
U.S. at 380; Darden, 880 F.3d at 730. The disputes about Officer Pastore’s
conduct are material because, on Flores’s version, the conduct could violate
the Fourth Amendment under Trammell. For Officer Pastore, as well,
summary judgment was unwarranted.
C
The remaining issue is whether Flores’s version of the disputed facts
constitutes a violation of clearly established law. A right is clearly established
when “controlling authority—or a robust consensus of cases of persuasive
authority— . . . defines the contours of the right in question with a high
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degree of particularity.” Wigginton v. Jones, 964 F.3d 329, 355 (5th Cir.
2020). Clearly established law is not to be defined “at a high level of
generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). However, a
plaintiff need not produce a case directly on point. Id. at 741.
Trammell squarely controls the on-ground force.3 There, officers
tackled a non-violent, at-most-passively-resisting suspect to the ground and
pummeled him with knees and fists to subdue him. 868 F.3d at 337–38. This
court denied qualified immunity. Id. at 342. Trammell gives fair notice that,
once a non-threatening and at-most-passively-resisting suspect is on the
ground, officers may not deliver knee strikes or twist his limbs beyond their
natural range to subdue him. The on-ground conduct of Officers Perez and
Pierron falls within Trammell’s prohibition. Officer Pastore’s conduct, on
Flores’s version, could too.
The takedown presents a closer question, but it is also controlled by
clearly established law. Ramirez holds that pulling an arm out of an officer’s
grasp, without more, does not establish an immediate threat. 716 F.3d at 378.
Hanks holds that suddenly resorting to physical force after brief
noncompliance with verbal commands is “clearly excessive and clearly
unreasonable.” 853 F.3d at 745. 4 The Defendant Officers urge that Sixth
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3
In Trammell, the plaintiff suffered similar injuries to those suffered by Flores. 868
F.3d at 338. In that case, our court also focused on the speed with which the officers
resorted to injurious force, after a protracted conversation between the plaintiff and the
officer arriving on the scene. Id. at 336-37. Flores received no such warning or
conversation. All of the Defendant Officers resorted to injurious force less than sixty
seconds after Perez first encountered an unarmed Flores.
4
We later held in Trabucco v. Rivera that Hanks “did not settle ‘beyond debate’”
whether the defendant officer’s conduct in that case constituted excessive force. 141 F.4th
720, 728 (5th Cir. 2025). However, we reached that determination in the context where
the officer believed the suspect was going to flee or “fight with [him],” and, more
importantly, where the suspect was not “blindsided” like the suspect in Hanks. Trabucco
141 F.4th at 729. Flores, however, was taken down in under ten seconds after Officer Perez
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Street at 2:00 a.m., with crowds and horses, supplies the “more” that
Ramirez found lacking, relying on Tucker, 998 F.3d at 178. The context
cannot bear that weight on this record. Tucker involved a suspect who fled,
led officers into a high-crime area, and displayed extreme agitation. Id.
Nothing comparable appears here. Trammell itself confirms that “the
quickness with which the officers resort[] to” injurious force “militates
against a finding of reasonableness” even where the suspect pulled his arm
away. 868 F.3d at 342. Officer Perez gave Flores roughly four seconds to
comply with commands by an officer Flores may not have recognized as such.
The Defendant Officers’ distinctions of Trammell, Darden, and Hanks
turn on the degree of force used in those cases compared to this one. The
operative facts here disclose force that tore Flores’s bicep, dislocated his
shoulder, broke his humerus, and fractured his spine while he was, at most,
passively resisting. The cited cases placed the Defendant Officers on notice
that immediate escalation to such force violates the Fourth Amendment.
IV
The district court correctly denied the Defendant Officers’ motion for
summary judgment. Material factual disputes predominate, and the district
court correctly determined that a jury could determine that the Defendant
Officers violated Flores’s clearly established right to be free from excessive
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approached him from behind. Relevant too, in Trabucco, we reviewed the facts after a jury
had already concluded that the defendant officer was entitled to qualified immunity,
whereas here we are at the summary judgment stage, deciding whether the Defendant
Officers must go to trial at all. What’s more, in Trabucco, the suspect “pleaded guilty to a
driving-under-the-influence charge.” Trabucco 141 F.4th at 729. Flores was charged with
no crime after the bodycam footage was reviewed by the APD. Trabucco therefore presents
readily distinguishable circumstances from the instant case and, as our court held in Tuttle
v. Gallegos, “context matters.” --- F.4th ----, 2026 WL 1861047, at *11 (publication
forthcoming).
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force. For these and the above-mentioned reasons, the judgment of the
district court is AFFIRMED.
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Edith Brown Clement, Circuit Judge, concurring in the judgment:
Qualified immunity cases are notoriously difficult, and reasonable
minds may disagree. The facts, the law, and the procedural posture create a
“tricky” interplay that requires a careful analysis. Joseph ex rel. Est. of Joseph
v. Bartlett, 981 F.3d 319, 328 (5th Cir. 2020). Excessive force cases present
an even greater challenge. Oftentimes, it “is unclear at what point passive
resistance becomes the sort of active resistance which justifies force.”
Trammell v. Fruge, 868 F.3d 332, 341 (5th Cir. 2017). Today, we confront a
case on the “hazy border between excessive and acceptable force.” Mullenix
v. Luna, 577 U.S. 7, 18 (2015) (per curiam) (quoting Brosseau v. Haugen, 543
U.S. 194, 201 (2004) (per curiam)). I join the court’s opinion that Perez’s
use of force while Flores was on the ground was excessive and unreasonable
under the Fourth Amendment, and that Flores’s right was clearly
established. I write separately because Officer Perez’s takedown of Flores
did not violate clearly established law. The context of Perez’s takedown—at
2:00 A.M. on Sixth Street amid a large crowd of partygoers and near police
horses—readily distinguishes this case from those relied on by the court.
For a right to be clearly established, the “contours of the right must
be sufficiently clear that a reasonable official would understand what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (2011). In
ascribing meaning to this idea, “the Supreme Court has repeatedly instructed
that clearly established law is not to be defined at a high level of generality.”
Tucker v. City of Shreveport, 998 F.3d 165, 173 (5th Cir. 2021) (collecting
cases). While “a case directly on point” is not required, “existing precedent
must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Therein lies the tension.
The court relies on three cases—Ramirez v. Martinez, 716 F.3d 369
(5th Cir. 2013), Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017), and
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Trammell—for its qualified-immunity takedown analysis.1 I respectfully
disagree that these cases place the “constitutional question” here “beyond
debate.” al-Kidd, 563 U.S. at 741. Perez would not have had fair notice.
The court cites Ramirez for its holding that “[p]ulling [an] arm out of
[an officer’s] grasp, without more, is insufficient to find an immediate threat
to the safety of the officers.” 716 F.3d at 378. In the abstract, I agree. But the
court’s cursory use of Ramirez is divorced from details of that case. There,
Ramirez had arrived at his landscaping business, where officers were
executing a warrant for the arrest of his sister-in-law. Id. at 372. Ramirez
arrived when officers were still present, and he claimed the officers had their
guns drawn and were pointing the guns at his employees. Id. After a shouting
match ensued between Ramirez and a police officer, Ramirez was told to put
his hands behind his back, but he did not comply, so the officer grabbed his
hand and told him to turn around. Id. Ramirez pulled away and was tased in
the chest before he was taken down to the ground by several officers. Id. at
372–73. Here, unlike in Ramirez, there was no shouting exchange between
Perez and Flores before the takedown. Instead, the takedown took place
within seconds after Perez observed Flores near a police horse. All the while,
Perez was patrolling a crowded public street, not a private landscaping
business.
Hanks gets us closer to case specifics, but it does not provide a clean
fit, either. Unlike Flores, who pulled his arm away from Perez, Hanks offered
no physical resistance. 853 F.3d at 742–43. Both of my esteemed colleagues
recognized that distinguishable fact in Trabucco v. Rivera, 141 F.4th 720 (5th
Cir. 2025). There, the court concluded that Hanks did not settle whether
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1
The court also cites Darden v. City of Fort Worth, 880 F.3d 722 (5th Cir. 2018),
but it does not analyze that case.
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Officer Rivera’s use of force was excessive because “Hanks offered no
physical resistance,” whereas Trabucco “jerked his hand away” from the
Officer Rivera, “tussl[ed]” with Rivera, and “refused to get on the ground
when Rivera pointed his taser at him.” Id. at 729. Now, the court recasts
Hanks in a more expansive light, concluding that it held that it is clearly
excessive for an officer to resort to force after brief noncompliance. But our
clearly established jurisprudence requires a more rigorous inquiry into facts.
Trammell is the closest case comparison, but it would not have
supplied Officer Perez fair notice that his takedown of Flores violated the
Fourth Amendment. Critically, in Trammell, we reversed summary judgment
in favor of the officers, concluding that the law at the time of Trammell’s
arrest “clearly established that it was objectively unreasonable for several
officers to tackle an individual who was not fleeing, not violent, not
aggressive, and only resisted by pulling his arm away from an officer’s
grasp.” 868 F.3d at 343. Unlike in Trammell, where the suspect was in a
parking lot across the street from a club, id. at 336, Flores was on Sixth Street
at 2:00 A.M., where there were large crowds of people and police horses on
the street after bar closures. The environment in this case was palpably more
unsafe, especially given the hostility that police officers faced on Sixth Street
at this hour, compared to the less chaotic parking lot in Trammell. In short,
the context leading up to Perez’s takedown was far more “tense, uncertain,
and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989). Granted,
Trammell is similar to these facts insofar as Perez quickly resorted to a
takedown, but the context here was readily distinguishable. Thus, I disagree
that Trammell, which involved several officers using a takedown in a parking
lot, provided fair notice to a single officer, who was patrolling a public street
with horses, drunk people, and large crowds at 2:00 A.M., in his takedown.
The court swiftly dispenses with these factual distinctions and
narrowly focuses on the distinctions between “the degree of force.” But in
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excessive-force cases, “context matters.” Tuttle v. Gallegos, --- F.4th ----,
2026 WL 1861047, at *11 (5th Cir. 2026) (publication forthcoming). Since
our moment-of-threat rule was vitiated by the Supreme Court, we must now
“account for all relevant circumstances, including the ‘events leading up to
the climactic moment.’” Id. (quoting Barnes v. Felix, 605 U.S. 73, 76 (2025));
see also Trabucco, 141 F.4th at 729 (“These multiple factual distinctions
matter because excessive force claims are necessarily fact-intensive and turn
on the facts and circumstances of each particular case.” (cleaned up)).
The court concedes that the “takedown presents a closer question,”
before concluding that it is “controlled by clearly established law.” That
concession reinforces my conclusion that the law was not clearly established.
For these reasons, Ramirez, Hanks, and Trammell did not settle “beyond
debate” that Perez’s takedown of Flores violated a clearly established right.
Accordingly, I agree with the court that Perez and the other officers
are not entitled to qualified immunity because they used excessive force while
Flores was on the ground in violation of clearly established law. Yet I
respectfully disagree that Perez’s takedown violated clearly established law.
15