The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
MICHAEL WHETSTONE, et al.,
Plaintiffs,
v. 2:25-CV-050-Z-BV
CHARLES WHEELER, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion for Summary Judgment on the issue of
Qualified Immunity (“Motion”), filed September 30, 2025. ECF No. 32.! Plaintiffs
responded on October 14, 2025. ECF No. 38. Defendants replied on October 28, 2025. ECF
No. 42. The Motion is now ripe.
For the reasons below, Defendants are entitled to qualified immunity as to all of
Plaintiffs’ allegations. Accordingly, the Motion (ECF No. 32) is GRANTED. Plaintiffs’
claims against Defendants are DISMISSED.
BACKGROUND
I. The Search Warrant at Whetstone Junk Yard
Plaintiffs Michael Whetstone and his sons James and Alton Whetstone live at a
property they call the “Whetstone Junk Yard.” ECF No. 20 at 1—5; Pl. Ex. 8. at 3. The property
is known to be a location for consistent criminal activity, including multiple instances of
aggravated assault with a deadly weapon. Def. Ex. H. An aerial image of the property taken
the day of the incident in question is below:
1 This Motion was filed by all Defendants except Unidentified Officer #3. In this Memorandum Opinion
and Order, “Defendants” means the Defendants who filed this Motion, i.e. all Defendants except
Unidentified Officer #3.
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Ex. I at 05:03.
On August 11, 2023, a judge issued a search warrant for the Whetstone Junk Yard.
Def. Ex. B. A confidential informant informed a Dumas police officer that Plaintiffs James
and Alton Whetstone were distributing narcotics from the Whetstone Junk Yard. Def. Ex. C.
Following up on this tip, the confidential informant completed a controlled buy at the
Whetstone Junk Yard. Jd. The search warrant was issued soon thereafter. Def. Ex. B.
Later that day, Defendants executed the search warrant at the Whetstone Junk Yard.
ECF No. 20 at 3. The search warrant was considered “high-risk,” at least in part because of
the size of the property, the number of people there, and the possibility that the people there
would have weapons. Def. Ex. B at 2 (Lt. Cole Nuckols Incident Report). Accordingly, Randall
County SWAT, along with Moore County and Potter County tactical teams, helped the
Dumas Police Department execute the search warrant. Jd. A Texas Department of Public
Safety helicopter provided overhead surveillance while police executed the search warrant.
Id.; see ECF No. 20 at 3 (“The search warrant execution .. . involved no fewer than five law
enforcement agencies.”).
II. Officers Detain Alton and James Whetstone
Randall County SWAT entered the Whetstone Junk Yard from the south in an
armored vehicle. See ECF No. 33 at 3-4. Body camera footage shows they immediately
encountered a man in a red cutoff shirt standing outside of a trailer. Def. Ex. D at 07:30—-55.
That man was Plaintiff Alton Whetstone (“Alton”).2 ECF No. 20 at 16. He was apprehended
and handcuffed by Defendant Colby Copeland. Def. Ex. E at 2:10—45. Alton appears to resist
by attempting to go to the ground while Copeland is handcuffing him. Jd. at 2:15—25 (“Hands
behind your back. I didn’t say sit— Get up. Get up!”). But other than this minor incident,
Alton’s initial apprehension was uneventful—he does not allege Copeland or any other officer
used excessive force during his initial apprehension. See generally ECF No. 20. After
handcuffing him, Defendant Copeland placed Alton behind the armored vehicle. Def. Ex. E
at 02:25-03:20.
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The Plaintiffs in this action share a last name. For clarity and brevity, the Court refers to the
Plaintiffs by their first name.
Shortly after Copeland apprehended Alton, a man wearing a gray cutoff shirt
approached the armored vehicle. Def. Ex. E at 03:23-40. That man was Plaintiff James
Whetstone (“James”). ECF No. 20 at 13-14. James complied with all orders during his initial
apprehension. Def. Ex. E at 03:40—04:10. Copeland also handcuffed James and placed him
beside his brother behind the armored vehicle. Jd.
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ECF No. 20 at 14.
Lieutenant Cole Nuckols then ordered Defendant Dan Harris to move Plaintiffs Alton
and James to a different location. Def. Ex. G at 01:35—47. Alton and James appear to comply
with Harris’s order to “come with me” at first. Def. Ex. G. at 01:40—50; Def. Ex. E at 04:20-
25.
What happens next is disputed between the parties.’ In his incident report, Defendant
Harris says Alton and James began “planting their feet and not walking forward when I was
3 The available body camera footage is partially obscured during Defendant Harris’s interaction with
Alton and James. Def. Ex. E at 04:29—50; Def. Ex. F at 08:50—09:25.
telling them to.” Def. Ex. A at 9. Lieutenant Nuckols’s body camera footage supports
Defendant Harris on this point. When Nuckols turns briefly toward Harris escorting Alton
and James, Alton can be seen planting his feet and pushing back against Defendant Harris.
Def. Ex. G at 2:00—06.
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According to Harris, after Alton pushed his shoulder back into Harris’s chest, Harris
struck Alton’s right ear with left shoulder in a “distractionary strike.” Def. Ex. B. at 9. The
other Plaintiff James then “took an aggressive stance, puffed his chest out and cocked his
head back as if he were going to strike” or “spit on” Harris. Jd. So Harris struck James’s left
ear with his right elbow in another “distractionary blow” to prevent a potential assault. Id.
Eventually, Alton and James were secured by other officers who ran to help Harris. Jd.
Plaintiffs’ version of events is quite different. They claim Defendant Harris was
ordering them to walk faster than they can move due to preexisting physical disabilities. Pl.
Ex. 8 (James Whetstone Declaration); Pl. Ex. 10 (Alton Whetstone Declaration). Audio from
Defendant Harris’s body camera footage supports this part of Plaintiffs’ claim. Harris ordered
Alton and James to “walk faster,” then exclaimed “I’m going to throw you on the f******
ground if you don’t do what I say!” Def. Ex. F at 08:55—-09:07. Alton then says “I’m crippled
man, I’m handicapped” and James chimes in “Me too dude!” Jd. at 09:07—13; see also ECF No.
20 at 17. James declares that Harris then kicked Alton’s legs, bringing him to his knees, and
tried to get him all the way on the ground. Jd. Alton, describing the altercation differently,
declares it was Harris's elbow to his head that brought him to the ground. Pl. Ex. 10. Alton
says Harris then dragged him along the ground. Jd.‘ The parties agree Harris then elbowed
James in the head. See Pl. Ex. 8. Alton and James allege Harris used excessive force in
violation of the Fourth Amendment. ECF No. 20 at 13-18.
According to Plaintiffs, Unidentified Officer #3 then intervened. ECF No. 20 at 18.
This officer “repeatedly struck [Alton] in his legs, knees, arms, back, shoulders, and head,
both while [Alton] was upright and while he was on the ground.” Jd. When Alton stood back
up, Unidentified Officer #3 allegedly struck his legs again, driving him back to the ground.
Id. The interaction with Unidentified Officer #3 does not appear to be visible in any of the
available body camera footage. Plaintiffs claim Unidentified Officer #3 “committed excessive
force against Plaintiff Alton Whetstone in violation of the Fourth Amendment.” Jd. at 19.
Alton and James submitted excerpts of medical records related to the injuries they
sustained during the events described above. James Whetstone was taken to a doctor for
medical clearance the day of the altercation. Pl. Ex. 6. His examining physician noted “[hle
has minimal pain and trace bleeding with some surrounding dry blood.” Jd.
4 Still images from Defendant Copeland’s body camera refute Alton’s narrative—Alton appears to
remain on his feet through the entire altercation with Harris. Def. Ex. M. Even if he went to the ground
briefly, he was certainly not on the ground long enough for Harris to “drag him.” Jd.
It is unclear if Alton was taken to a doctor the day of the search. But four days later,
he reported to the emergency room complaining of pain in his shoulder, left leg, and a
headache. PI. Ex. 5. His physician noted no symptoms “concerning for traumatic head injury”
and X-rays of his leg indicated “no acute fractures.” Jd. Alton was prescribed medication to
relax his shoulder muscles, reduce inflammation, and help with his headache. Jd.
III. Officers Detain Michael Whetstone
A second police unit—Potter County’s tactical team—entered the Whetstone Junk
Yard from the north in its own armored vehicle. Def. Ex. J. at 01:10—30. They immediately
encountered a man wearing overalls in a red and white pickup truck. /d. at 01:30—02:08. That
man was Plaintiff Michael Whetstone (“Michael”). ECF No. 20 at 6-12.
The Potter County tactical team deployed loud sirens and ordered Michael to stop
moving over the vehicle’s intercom. Def. Ex. J at 01:30—40 (“Sir, stop where you are. Sir, stop
where you are! Sheriff's Office!”). Michael did not comply with these instructions and entered
the red and white pickup truck. Jd. at 01:40—50 (“[He’s] getting into the vehicle!”). Continuing
to ignore instructions to stop, Michael drove the truck to a red shed. Jd. at 01:50—02:25.5
About one minute later, Michael turned the truck around and drove past the Potter County
tactical team toward the Randall County SWAT unit, again ignoring commands from the
Potter County tactical team to stop. Jd. at 03:25—04:05 (“Stop your truck and put your hands
in the air!”).
While the Potter County tactical team was interacting with Michael, the Randall
County SWAT unit was assessing a threat from another man (not a Plaintiff here) who
climbed into a crane on the property. See Ex. I at 07:00—09:45 (Texas Department of Public
Safety helicopter unit informing units on the ground about a man hiding in the crane).
5 Michael then probably locked the door to the red shed. Compare Def. Ex. I at 06:30—50 (the door to
the red shed is open), with Def. Ex. J. at 12:25—40 (the door to the red shed is locked).
Lieutenant Nuckols ordered Defendant Harris to use an unmarked police truck to provide a
“block” for a unit clearing another area of the property from a potential shooter in the crane.
Def. Ex. G at 02:35—45. As seen in the image below, the boom of the crane was in the line of
site from the location where the Randall County SWAT unit was gathered by their armored
vehicle:
Def. Ex. E at 05:09 (notice the boom of the crane in the center of the image).
While this threat assessment was ongoing, Michael drove the red and white truck
toward the Randall County SWAT unit. Def. Ex. E at 05:20-36. Lieutenant Nuckols fired a
“less lethal 40 mm” round near the truck, and another team member threw a “distraction
device that landed on the left driver’s side of the door’—both attempts to convince Michael
to voluntarily stop the truck. See Pl. Ex. A at 2 (Lieutenant Nuckols’s Incident Report); Def.
Ex. E at 05:45-48; Def. Ex. G at 02:55-03:20. But Michael kept driving toward the SWAT
unit. He did not stop until Defendant Harris drove the unmarked police truck head on into
Michael’s red and white truck and stopped him near the SWAT unit’s armored vehicle. Def.
Ex. D at 11:24—41; Def. Ex. E at 05:46—56. ®
6 Both trucks were moving slowly when they collided.
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After Defendant Harris stopped Michael's truck, members of the SWAT unit quickly
approached Michael while he was still in the vehicle. Def. Ex. D at 11:40—44. Michael raised
his arms with his palms facing in toward himself, but did not exit the vehicle. Jd. A SWAT
member opened the door of Michael’s truck, and Defendant Charles Wheeler aggressively
pulled Michael by his left arm out of the truck and onto the ground, continuing to pull him a
short distance away from the truck. Jd. at 11:44—50; see also ECF No. 20 at 6—7.
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Another SWAT member handcuffed Michael while he was on the ground and yelling
in pain. Def. Ex. D at 11:50—12:10. Concerned about the potential threat from the man still
in the crane, other members of the SWAT unit stood between the officers apprehending
Michael and the crane. Def. Ex. G at 03:20-35 (members positioning themselves between
Michael and the crane; someone says “Watch the crane.”). At least one of these members was
using a shield to protect himself and those behind him, as seen in the image below:
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Michael suffered injuries to his “knees, arms, back, shoulders, neck, and head” from
being pulled out of the truck. ECF No. 20 at 7-8. These injuries resulted in a “multi-day
hospitalization.” Id. Michael alleges Defendant Wheeler's actions in pulling him out of the
truck amounted to excessive force in violation of the Fourth Amendment. Jd. at 9.
Defendants Randy Rice and Jacob Cochran took custody of Michael after he was
handcuffed, with one defendant holding each of his arms. ECF No. 20 at 9-13. As Michael
continued to yell in pain, Rice and Cochran aggressively lifted him off the ground, dragging
him upright a short distance to move him to a different area. Def. Ex. D at 12:07—15; Def. Ex.
10
G at 03:48—55. Michael almost immediately fell back to the ground, which caused Rice to yell
“Keep your f******* legs moving!” Def. Ex. G at 03:55-58; ECF No. 20 at 10. Lieutenant
Nuckols approached and deescalated the situation. Def. Ex. G at 03:58-04:02 (“Easy, guys.
Easy, easy.”). Rice and Cochran then drag Michael a short way, eventually pulling him to his
feet and escorting him away from the area. Def. Ex. E at 06:35—43.
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Michael claims that Rice and Cochran’s conduct caused injuries to his “knees, arms,
back, shoulders, neck, and head.” ECF No. 20 at 10, 12. These injuries, in conjunction with
the injuries caused when Defendant Wheeler pulled Michael out of the truck, led to a “multi-
day hospitalization.” Jd. at 11, 13. Michael alleges Rice and Cochran’s conduct amounted to
excessive force in violation of the Fourth Amendment. Jd. Michael also alleges that two
officers—Defendants Armando Adame and Colby Copeland—are liable as bystanders
because they saw other Defendants committing excessive force violations against him and
did not intervene. Jd. at 19-21.
11
LEGAL STANDARD
A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. Civ. P. 56(a). A fact is “material” if its existence or non-existence “might affect the
outcome of the suit under the governing law,” and a dispute about a material fact is “genuine”
if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Brown v. City of Hou., Tex.,
337 F.3d 539, 541 (5th Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and
unsupported speculation are not sufficient to defeat a motion for summary judgment.” (citing
Bridgmon v. Array Sys. Corp., 325 F.3d 572, 577 (5th Cir. 2003))).
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion” and identifying the portions of the
record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party makes this showing, “the
nonmoving party must come forward with ‘specific facts showing that there is a genuine issue
for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting FED. R. CIV. P. 56(e)). While the moving party is not required to negate each element
of the nonmoving party’s case, it can meet its burden by demonstrating the “absence of facts
supporting the elements’ of the nonmoving party’s causes of action. Little v. Liquid Air Corp.,
37 F.3d 1069, 1076 n.16 (5th Cir. 1994) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1195
(5th Cir. 1986)).
12
ANALYSIS
I. Excessive Force Claims
Plaintiffs allege various Defendants used excessive force against them in violation of
the Fourth Amendment. ECF No. 20. Defendants assert the defense of qualified immunity.
ECF Nos. 23, 24. Qualified immunity “alters the usual summary judgment burden of proof,
shifting it to the plaintiff to show that the defense is not available.” Cass v. City of Abilene,
814 F.3d 721, 728 (5th Cir. 2016) (internal marks omitted).
While the Plaintiffs bear the burden of proof, the Court still “view[s] the facts in the
light most favorable to the non-moving party and draw all reasonable inferences in its favor.”
Vann v. City of Southaven, Miss., 884 F.3d 307, 309 (5th Cir. 2018) (citation omitted).
However, “[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007). When video of the incident in question is available,
and a party’s version of events is “utterly discredited” by the video evidence, the Court should
“view|[] the facts in the light depicted by the videotape.” Jd. at 380-81.
Qualified immunity involves a two-step inquiry: (1) “whether the officer violated a
constitutional right”; and (2) “whether the right at issue was clearly established at the time
of the alleged misconduct.” Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019) (Oldham,
J.) (internal marks omitted). Because the burden is on the Plaintiffs, they “must rebut the
defense by establishing a genuine fact issue as to whether the official's allegedly wrongful
conduct violated clearly established law.” Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017)
(citation omitted). Plaintiffs bear the burden to establish a genuine fact issue at both steps of
13
the qualified immunity inquiry. See Joseph v. Bartlett, 981 F.3d 319, 328-30 (5th Cir. 2020).
If they cannot do so at either step, the Defendants are entitled to qualified immunity. See id.
A. Whether Defendants Used Excessive Force
The Court begins by considering the first prong of the qualified immunity analysis:
whether the Defendants used excessive force in violation of the Plaintiffs’ constitutional
rights. The Court finds the Defendants’ use of force was objectively reasonable and
proportionate. Because Plaintiffs have not created an issue of material fact as to whether the
use of force violated the Fourth Amendment, Defendants are entitled to qualified immunity.
To establish unconstitutional excessive force, Plaintiffs must show “(1) an injury (2)
which resulted from the use of force that was clearly excessive to the need and (3) the
excessiveness of which was objectively unreasonable.” Ramirez v. Martinez, 716 F.3d 369,
377 (5th Cir. 2013) (citation omitted). The Defendants here do not challenge whether
Plaintiffs have demonstrated sufficient injuries. See ECF No. 33 at 15 (“Any dispute over the
extent of Michael’s injuries would not necessitate trial because the use of force in removing
Michael from the vehicle by his arms and shoulders was reasonable in the [cireumstances].”);
id. at 21—26 (not analyzing Alton or James's injuries). The Court thus assumes without
deciding that Plaintiffs have at least established a genuine issue of fact as to whether their
injuries are sufficient to sustain an excessive force claim. The inquiries into whether a use of
force was “clearly excessive” or “clearly unreasonable” are intertwined. Hanks, 853 F.3d at
744. Thus, the Court considers those questions together below.
“Excessive force claims are necessarily fact-intensive; whether the force used is
‘excessive’ or ‘unreasonable’ depends on the facts and circumstances of each particular case.”
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (internal marks omitted). “The
calculus of reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense, uncertain, and
14
rapidly evolving—about the amount of force that is necessary in a particular situation.”
Graham v. Connor, 490 U.S. 386, 396-97 (1989). The inquiry in excessive force cases is
objective, not subjective. Jd. at 397 (“An officer’s evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of force; nor will an officer’s good
intentions make an objectively unreasonable use of force constitutional.”). And the “inquiry
into the reasonableness of police force requires analyzing the totality of the circumstances.”
Barnes v. Felix, 605 U.S. 73, 80-82 (2025) (rejecting the “moment-of threat rule” previously
applied in this Circuit). Factors to consider include (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.” Graham, 490 U.S. at 396.
1. Alton and James’s Excessive Force Claims
Plaintiffs Alton and James allege Defendant Harris used excessive force against them
when escorting them across the property. ECF No. 20 at 13-18. Because Plaintiffs’ account
of the events differs from the Defendants’ account, the Court begins by considering the
evidence to determine what happened. All reasonable inferences will be drawn in Plaintiffs’
favor, unless Plaintiffs’ version is clearly contradicted by the record, including the video
evidence. See Vann, 884 F.3d at 309; Scott, 550 U.S. at 380-81.
Plaintiffs allege the physical altercation with Defendant Harris began when Harris
kicked Alton in the legs. ECF No. 20 at 14; Pl. Ex. 8. But Alton’s own Declaration contradicts
this version of events—he alleges Harris elbowed him in the head, bringing him to the
ground. Pl. Ex. 10. Plaintiffs further allege Harris struck James with his elbow while James
“was re[s]trained with his hands behind his back.” ECF No. 20 at 15. Harris, for his part,
says Alton and James were “planting their feet and not walking forward.” Def. Ex. A at 9. He
says the men were “pushing back against him,” and when Alton pushed his shoulder back
into his chest he delivered a “distractionary blow” to prevent Alton from continuing to push
15
him. Jd. Harris says James then assumed a posture as if to assault Harris, so Harris delivered
a distractionary blow to him as well. /d.
The Court does not credit Plaintiffs’ version of events as to the altercation with Alton,
because it is contradicted by the record. See Scott, 550 U.S. at 380-81. Lieutenant Nuckols’s
body camera clearly shows Alton planting his feet and pushing back against Harris. Def. Ex.
G at 2:00—06. This contradicts Plaintiffs’ version of events, in which Harris begins the
encounter by striking or kicking Alton unprovoked.’ Further, still images from Defendant
Copeland’s body camera show that Alton did not go to the ground during his interaction with
Harris, at least not for any significant period of time. Def. Ex. M. This contradicts both Alton
and James’s account of the events. Thus, as to the altercation with Alton, the Court credits
the version of events supported by the video record. While Harris was escorting Alton and
James, Alton resisted the escort and began pushing back against him. After multiple verbal
attempts to obtain Alton’s compliance, Harris struck him once with his elbow to prevent
further resistance and to obtain compliance. See Def. Ex. F at 08:50-09:25; Def. Ex. G at
02:00—06; Def. Ex. M.
As to the altercation with James, Plaintiffs’ account is not clearly contradicted by the
record, including available video. Defendant Harris claims he elbowed James in response to
a threatened assault. While Defendants’ version is not clearly contradicted by the record, it
is not clearly supported either. Thus, drawing all reasonable inferences in Plaintiffs’ favor,
the Court assumes for now that Harris struck James without any direct threat from James.
The Court now considers the three Graham factors. The first Graham factor—the
severity of the crime at issue—favors Defendants. Plaintiffs argue this factor favors them
7 The internal inconsistency of Plaintiffs’ Declarations as to how Harris initiated the altercation—
submitted by them as evidence—further supports the Court’s decision not to credit their accounts on
this point.
16
because “James and Alton were not arrested or charged for anything related to their
interaction with Defendant Harris, which is the issue at hand.” ECF No. 40 at 25. But the
first Graham factor requires considering the severity of the crime that led to the encounter,
not subsequent charges arising from the encounter. In cases involving apprehensions during
the execution of a warrant, courts consider the severity of the crime underlying the warrant.
Darden v. City of Ft. Wor., Tex., 880 F.3d 722, 729 (5th Cir. 2018). And the severity of the
crime weighs against excessive force where the apprehension occurred while executing a
warrant related to drugs. Jd. Here, the search warrant was related to the distribution of
drugs. Def. Ex. B. Alton and James admit they faced drug charges, and Alton also faced a
firearm charge. ECF No. 40 at 25. Thus, the first Graham factor weighs against excessive
force.
The second Graham factor is whether the suspect poses an immediate threat to the
safety of officers or others. This factor also favors Defendants. Alton and James argue they
did not pose an immediate threat because they complied with officer instructions when
initially being apprehended. ECF No. 40 at 25. The video record casts some doubt on this
claim—Alton resisted at least somewhat to initially being handcuffed. Def. Ex. E at 02:15—
25. But regardless, even if their previous compliance favors James and Alton when
considering the totality of the circumstances, they still posed a risk to Harris at the moment
of the altercation. See Anderson v. Estrada, 140 F.4th 634, 644 (5th Cir. 2025) (earlier
compliance does not negate later threatening conduct). And the fact that they were
handcuffed does not mean they could not pose a threat to Harris. See id. This is especially
true given Harris was outnumbered, at least at the start of the interaction. See ECF No. 40
at 18 (Plaintiffs acknowledging that an officer being outnumbered two to one weighs in the
officer’s favor in the Graham analysis). As to Harris's strike against James, even though the
17
Court assumes James did not threaten Harris, this factor still favors Harris. When an officer
is outnumbered and facing force and resistance from other people, reasonable force against a
suspect who is not actively resisting or using force himself does not violate the Constitution.
See Craig v. Martin, 49 F.4th 404, 410 (5th Cir. 2022). And while the risk Alton and James
posed to Harris may have been minor, his response—one strike to each of them—was
proportionate. See Bartlett, 981 F.3d at 332—33 (officer's response should calibrated to actions
of the plaintiff). Thus, the second Graham factor weighs against excessive force.
The third Graham factor considers whether Plaintiffs were resisting and also favors
Defendants here. Alton was digging his feet into the ground to resist moving in the direction
Harris wanted him to move. And even if James was not engaged in the same behavior, he
was verbally resisting Harris’s commands in an aggressive way. Def. Ex. F at 09:00—25. While
the resistance may have been somewhat minor, it was resistance See Solis v. Serrett, 31 F.4th
975, 982 (5th Cir. 2022) (a suspect who merely backs away from an arresting officer is actively
resisting). Because Alton and James were resisting, the third Graham factor weighs against
excessive force.
Taking these considerations together, Harris did not use excessive force against
James and Alton. Each of the three Graham factors favors Harris. Given the Plaintiffs’
resistance and threat to Harris, his calibrated response of striking them once each to regain
compliance and ensure his safety was not “clearly excessive” or “objectively unreasonable.”
Thus, Plaintiffs have failed to establish a genuine issue of fact as to whether Harris used
excessive force against them. See Ramirez, 716 F.3d at 377.
2. Michael’s Excessive Force Claims
Michael alleges Defendant Wheeler used excessive force against him when Wheeler
pulled Michael out of his truck and dragged him a short distance along the ground. ECF No.
18
20 at 6—7. He further alleges Defendants Rice and Cochran used excessive force against him
when they aggressively pulled him from the ground and dragged him a short way when trying
to move him to a different location. Jd. at 9-13. Again, the Court draws all reasonable
inferences in Plaintiffs’ favor, unless Plaintiffs’ version is clearly contradicted by the video
evidence. See Vann, 884 F.3d at 309; Scott, 550 U.S. at 380-81.
The first Graham factor—severity of the crime—supports Defendants for the same
reasons as Alton and James's claims. To be sure, Michael was not arrested for any crimes
related to the drug search, unlike Alton and James. See ECF No. 40 at 17. But the proper
subject of the first Graham factor in a warrant context are those implicated by the warrant
(here, Alton and James). See Smith v. Lee, 73 F.4th 376, 385 (5th Cir. 2023). The officers
apprehending Michael did not know whether Michael was involved in the drug operation at
the time of his apprehension. For that matter, they did not even know Michael’s identity—
for all they knew, he could have been James or Alton. Thus, the severity of the crime weighs
against a finding of excessive force.
The second Graham factor—whether defendant poses a risk to the officers or others—
weighs strongly in Defendants’ favor. Two major factors are important when considering the
risk Michael put the officers in. First, in the moments immediately preceding the disputed
encounters, Michael drove a vehicle directly at the Randall County SWAT unit. He did so
despite their clear instructions to stop. He even kept driving toward them after they deployed
a “flash bang device” and a “40mm less-lethal round” at or near the oncoming truck. ECF No.
33 at 26. Michael never voluntarily stopped driving toward the SWAT unit—he only stopped
when an unmarked truck ran into him, forcing him to stop. Even then, Michael never applied
the brake and never parked the truck. See Def. Ex. E at 06:10—20 (truck continues rolling
after Michael is removed). Plaintiffs argue that Michael did not place the officers at risk
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because he drove at a “very, very slow speed.” ECF No. 40 at 17. While this might mitigate
to some degree the risk presented directly by the truck, it does little to reduce the risk
perceived by officers from a suspect who was completely undeterred by multiple attempts to
stop him.
Second, while all this was happening, the officers faced another possible threat from
the man in the crane. Contra Plaintiffs’ assertion (ECF No. 40 at 20), the crane is clearly in
the line of sight from the area where Michael was detained. Def. Ex. E at 05:07-18.8
Immediately before Michael drove his truck at them, the SWAT unit members were assessing
how to deal with the threat and taking precautions lest the man in the crane begin shooting
at them. See Def. Ex. F at 09:45-10:10. While Michael was being detained, SWAT unit
members positioned themselves between Michael and the crane to protect Michael and the
officers detaining him from a potential threat from the crane. See Def. Ex. D. at 12:00—15.
One man was even holding a shield. Jd.
Plaintiffs advance various arguments that the Court should not consider the threat
from the man in the crane when analyzing whether Defendants used excessive force, but
none have merit. First, they argue many units were concerned about the crane, including a
surveillance helicopter. ECF No. 40 at 19. It is not clear to the Court how this argument helps
Plaintiffs—in fact, it tends to make the threat from the crane appear more serious. Moreover,
a gunman in the crane could obviously cause massive damage with minimal warning. Next,
they argue the evidence shows the man in the crane was unarmed. ECF No. 40 at 19-20. Of
course, the officers did not know this at the time of Michael’s apprehension, so it is irrelevant
8 The Court finds it hard to believe the Plaintiffs’ lawyers watched the same videos as the Court and
genuinely concluded that “the crane does not appear to be with the line of sight” of the area where
Michael was apprehended. ECF No. 40 at 20. The crane is clearly visible from the armored vehicle in
the body camera footage while Michael is being arrested, and more importantly multiple SWAT unit
members are taking defensive precautions against a potential threat from the crane. See, e.g., Def. Ex.
D at 12:07-14.
20
to the Court’s analysis here. See Graham, 490 U.S. at 396 (“The ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”). Finally, Plaintiffs argue Defendants’
concern about the threat from the crane is inconsistent during the execution of the search
warrant. Jd. at 20-21. Even assuming Plaintiffs are correct, the Defendants’ inconsistency
does not mitigate the real threat the officers perceived during Michael’s apprehension.
The potential threat from the man in the crane is part of the “totality of the
circumstances” the Court must consider when determining whether Defendants used
excessive force. The potential threat contributes to the reasonableness of Defendants’
decisions to act quickly and forcefully—they were concerned for the safety of themselves and
Michael. Thus, Wheeler removed Michael from the vehicle quickly and aggressively from the
vehicle, and Rice and Cochran moved him quickly and forcefully away from the area. Their
actions caused some injury to Michael, but they thought they may have been removing him
and themselves from the line of sight of a potential shooter. In another hypothetical scenario,
under different facts, using this level of aggression with an elderly man might have been
unreasonable. But “[t]he calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396-97. The Court declines to second guess the
reasonable decisions of officers facing multiple threats in a quickly evolving, dangerous
situation, including a potential gunman. The risk to the officers and others strongly weighs
against excessive force.
The third Graham factor—whether Plaintiff was actively resisting arrest—also favors
Defendants. Michael ignored commands to comply from not one, but two tactical police units
in armored vehicles. Despite loud sirens, repeated commands over the armored vehicles’
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intercoms, and two rounds fired at his truck, Michael never voluntarily stopped driving his
truck. Plaintiffs assert Michael suffered from “significant hearing loss” and suggest he
therefore did not know police were trying to apprehend him. ECF No. 40 at 6, 17. Even
assuming—perhaps beyond credulity—that Michael did not know the police were trying to
apprehend him, the third Graham factor still favors Defendants. The reasonableness
analysis is an objective analysis from the perspective of the officers. See Graham, 490 U.S. at
396-97. Thus, what matters is whether the Defendants reasonably could have thought
Michael was evading arrest. Given Michael’s actions, they of course could have. Plaintiffs
further assert that Michael was “not actively resisting or attempting to evade by flight”
because he put his hands in the air after crashing his truck into the SWAT unit truck. ECF
No. 40 at 18. But Michael’s raised his hands with his palms facing in toward him, a gesture
more akin to confusion than surrender. And besides, a suspect who (1) flees from multiple
armored police vehicles; (2) does not stop until a truck rams into him; and (3) never even
parks his truck; and (4) refuses to comply with other police commands cannot plausibly claim
he was “actively trying to surrender.” The actively resisting arrest factor weighs against
excessive force.
Taking these considerations together, the Defendants did not use excessive force
against Michael. Each of the three Graham factors favors Defendants. Considering Michael's
actions leading up to his detainment, and the threat officers perceived from the man in the
crane, their decision to remove him from the truck and move him to a different area quickly
was not clearly excessive or objectively unreasonable. Thus, Plaintiffs have failed to establish
a genuine issue of fact as to whether Defendants used excessive force against Michael. See
Ramirez, 716 F.3d at 377.
99
B. Whether the Right at Issue was Clearly Established
Although the Court concluded at prong one of the qualified immunity inquiry that the
Defendants did not violate a constitutional right, it considers prong two in the alternative.
Even if the Plaintiffs had created a genuine fact issue as to whether Defendants used
excessive force against them, they have not shown that the right was “clearly established” at
the time. Thus, Defendants are entitled to qualified immunity under prong two as well.
To overcome a qualified immunity defense, in addition to showing the Defendants
violated the constitution, Plaintiffs must show “the right at issue was clearly established at
the time of the alleged misconduct.” Morrow, 917 F.3d at 874 (citation omitted); see also
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (“The doctrine of qualified immunity shields officials
from civil liability so long as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” (internal marks
omitted)). “A clearly established right is one that is sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Mullenix, 577 U.S.
at 11 (2015) Gnternal marks omitted).
The Plaintiffs’ burden is heavy: “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 (2011)). The Supreme Court’s cases “teem
with warnings about the difficulty of placing a question beyond debate.” Jd.; see also
generally, e.g., Ziglar v. Abbasi, 582 U.S. 120 (2017); Aaron L. Nielson & Christopher J.
Walker, A Qualified Defense of Qualified Immunity, 93 NOTRE DAME L. REV. 1853 (2018).
While Plaintiffs do not need to point to a case “directly on point,” “existing precedent must
have placed the . . . constitutional question beyond debate.” Ashcroft, 563 U.S. at 741. The
Supreme Court has repeatedly warned lower courts “not to define clearly established law at
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a high level of generality.” Jd. at 742 (“The general proposition, for example, that an
unreasonable search or seizure violates the Fourth Amendment is of little help in
determining whether the violative nature of particular conduct is clearly established.”).
If that didn’t set the bar high enough, “overcoming qualified immunity is especially
difficult in excessive-force cases.” Morrow, 917 F.3d at 876. “This ‘is an area of the law in
which the result depends very much on the facts of each case, and thus police officers are
entitled to qualified immunity unless existing precedent squarely governs the specific facts
at issue.” Jd. (quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curiam)). And because
“excessive-force claims often turn on ‘split-second decisions’ to use . . . force,” the law must be
“so clearly established that—in the blink of an eye—every reasonable officer would know it
immediately.” Id. (quoting Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 582 (5th Cir. 2009)
(citation modified)).
Plaintiffs cannot meet the high bar of establishing that Defendants’ conduct clearly
violated their constitutional rights. Each Plaintiffs’ primary argument is that Graham clearly
established the right to be free from excessive force and the framework under which courts
evaluate the reasonableness of force. ECF No. 40 at 23, 28. Plaintiffs’ Graham argument does
nothing more than establish the proposition that excessive force violates the Fourth
Amendment, which “is of little help in determining whether the violative nature of particular
conduct is clearly established.” Ashcroft, 563 U.S. at 742. True, the Fifth Circuit has
sometimes used Graham to supply “clearly established law” in qualified immunity analyses.
See Westfall v. Luna, 903 F.3d 534, 549 (5th Cir. 2018). But Graham can only supply the
clearly established law in “an obvious case.” Hanks, 853 F.3d at 747. Outside of the obvious
case, “clearly established law must be particularized to the facts of the case.” Jd. (internal
marks omitted). This case, where multiple law enforcement agencies were executing a high-
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risk search warrant and faced multiple threats and potential threats, is not “obvious” such
that Graham can supply the clearly established law.
Michael argues Joseph v. Bartlett supplies clearly established law for his excessive
force claims. ECF No. 40 at 24. But in that case, officers “inflicted twenty-six blunt-force
injuries on [plaintiff] and tased him twice, all while he pleaded for help.” Bartlett, 981 F.3d
at 336. Michael’s situation was far different: he had just crashed his truck into a police vehicle
and was not following instructions, all while police faced the threat of a potential shooter in
acrane. Bartlett does not establish that Defendants’ conduct against Michael clearly violated
the Fourth Amendment.
Alton and James argue Ramirez v. Martinez and Bush v. Strain supply clearly
established law for their excessive force claims. ECF No. 40 at 28. But in Ramirez, an officer
tased the plaintiff “while lying face-down on the ground in handcuffs.” 716 F.3d 369, 373 (5th
Cir. 2013). Moreover, the plaintiff had merely pulled his arm away from the officer. Jd. at
378-379. Harris's use of force against Alton and James was more subdued (an elbow
compared to a taser), and it was more justified by Alton and James’s resistance and force.
Bush v. Strain is even further afield. In that case, an officer “slammed [plaintiff's] face into a
vehicle when [plaintiff] was handcuffed and subdued,” resulting in significant injury and
medical expenses. 513 F.3d 492, 501 (5th Cir. 2008). Here, the use of force and resulting
injuries were significantly milder, and Alton and James were resisting and pushing back, not,
“subdued.”
Plaintiffs point to no other cases showing the Defendants’ conduct violated their
clearly established right to be free from excessive force. Accordingly, they have failed to create
a material fact issue as to whether Defendants’ conduct violated a clearly established
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constitutional right. Thus, Defendants are entitled to qualified immunity at step two of the
analysis.
II. Bystander Claims
“(B]lystander liability arises only where the plaintiff can allege and prove another
officer's use of excessive force.” Buehler v. Dear, 27 F.4th 969, 989 (5th Cir. 2022). Here,
Plaintiffs’ bystander claims are related to their allegations of excessive force against Michael.
ECF No. 20 at 19-21. Because the Court finds no officer used excessive force against Michael,
Plaintiffs’ bystander claims fail as well.
CONCLUSION
For the reasons above, the Defendants in this Motion are entitled to qualified
immunity. Thus, their Motion for Summary Judgment (ECF No. 32) is GRANTED and all
claims against them are DISMISSED. Alton Whetstone’s claim against Unidentified
Officer #3 remains pending.
SO ORDERED.
September i. 2026
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE
partie DW ncbreeeeth meee about Alton’s interaction with Unidentified Officer #3, who is
not a party to this Motion. The Court cannot determine on this record whether Unidentified Officer #3
is entitled to qualified immunity.
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