Ginette Bone v. Kelli Dunnaway

Case: 15-30846 Document: 00513625287 Page: 1 Date Filed: 08/05/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-30846 FILED

August 5, 2016

Lyle W. Cayce

GINETTE BONE, Clerk

Plaintiff - Appellant

v.

KELLI DUNNAWAY, Police Officer; BRYAN JONES,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

U.S.D.C. No. 2:14-CV-2788

Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Ginette Bone appeals the district court’s summary judgment for

defendants, Officers Kelli Dunnaway and Bryan Jones, which granted them

qualified immunity from Bone’s claims of excessive force and false arrest under

42 U.S.C. § 1983. For the reasons set forth below, we AFFIRM as to Dunnaway

and VACATE and REMAND as to Jones.

* Pursuant to 5TH CIR. R. 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

CIR. R. 47.5.4.

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I

The following facts are set forth in the light most favorable to Bone. Bone

was eating at a restaurant in the French Quarter of New Orleans, Louisiana

around 10:00 p.m. on a Saturday night, December 14, 2013. She and her dining

companions noticed an SUV parked in the no-parking zone outside of the

restaurant. One of the passengers threw trash onto the sidewalk. In response,

Bone’s companion approached the SUV and discussed what he witnessed with

the passengers. Bone then witnessed a passenger throw more trash onto the

ground. This time, Bone walked outside, picked up the trash, and placed it on

the hood of the SUV. One of the passengers got out of the SUV and confronted

Bone. An argument ensued, during which the driver of the SUV threatened to

call the police.

Bone’s companion flagged down Officer Dunnaway. When Dunnaway

arrived, the driver of the SUV began screaming at Dunnaway. Officer Jones

drove by, saw the encounter, and pulled over to assist Dunnaway. During that

time, Bone remained leaning against the nearby building until Dunnaway

approached her and asked if she placed trash onto the SUV. Bone told

Dunnaway that she put trash that the passengers had thrown onto the ground

on the hood of the SUV. Bone then waited in Dunnaway’s vehicle to stay warm

until Dunnaway approached Bone and asked her to sign a summons to appear

in court. Bone refused to sign the summons, stated “I’ve done nothing wrong[;]

you must be joking,” and turned around to walk away. Jones then “forcefully”

grabbed Bone and “violently” slammed her face against a nearby window.

Neither Dunnaway nor Jones warned Bone that she could be arrested if she

did not sign the summons. 1

1 As we discuss more fully below, Jones’s version of these events is dramatically

different. He contends that Bone refused to sign the summons and started walking away,

running into Jones as she did so. Jones states that he advised her that she needed to stop or

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The officers arrested Bone and took her to Orleans Parish Prison.

Dunnaway cited Bone for disturbing the peace by tumultuous behavior in

violation of section 54-403 of the New Orleans Municipal Code, and resisting

an officer in violation of section 54-441. Bone was the only person arrested at

the scene, although the passengers of the vehicle were also issued summonses

for disturbing the peace and littering. Jones’s force resulted in bruising around

Bone’s wrists, fingerprints on her arms, and a swollen cheek. Bone did not go

to the doctor because she did not have medical insurance.

Bone filed claims under 42 U.S.C. § 1983, alleging that Jones and

Dunnaway violated her Fourth Amendment rights. Bone alleged that Jones

used excessive force and that Dunnaway falsely arrested her. Bone also filed

several state law claims against Jones, Dunnaway, and the City of New

Orleans. The district court granted summary judgment for Jones and

Dunnaway, concluding that both defendants were entitled to qualified

immunity. The district court dismissed Bone’s state law claims, declining to

exercise supplemental jurisdiction. Bone appeals the district court’s grant of

summary judgment, arguing that Jones and Dunnaway were not entitled to

qualified immunity.

II

A

We review the grant of summary judgment de novo and apply the same

standard as the district court. Thompson v. Mercer, 762 F.3d 433, 435 (5th Cir.

2014), cert. denied, 135 S. Ct. 1492 (2015). “Summary judgment is appropriate

where the record and evidence, taken in the light most favorable to the

non-moving party, show ‘that there is no genuine dispute as to any material

she would be arrested, and that she kept walking. He contends that it was only then that he

grabbed Bone by the wrist, and that in doing so, he accidentally pushed her into a wall.

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fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting

FED. R. CIV. P. 56(a)).

Bone asserts claims of false arrest and excessive force under section

1983. “Section 1983 provides a private cause of action against those who,

under color of law, deprive a citizen of the United States of ‘any rights,

privileges, or immunities secured by the Constitution and laws.’” Goodman v.

Harris Cty., 571 F.3d 388, 394–95 (5th Cir. 2009) (quoting 42 U.S.C. § 1983).

A plaintiff can bring a claim under section 1983 against an officer in his or her

individual or official capacity. Id. If, as in this case, a plaintiff sues a person

in his or her individual capacity, the defendant may be protected by the

doctrine of qualified immunity. Pearson v. Callahan, 555 U.S. 223, 231 (2009).

“A public official is entitled to qualified immunity unless his conduct violates

constitutional law that was ‘clearly established at the time of the defendant’s

actions.’” Thompson, 762 F.3d at 435 (quoting Freeman v. Gore, 483 F.3d 404,

411 (5th Cir. 2007)). A constitutional violation is clearly established if no

reasonable officer could believe the act was lawful. See Manis v. Lawson, 585

F.3d 839, 846 (5th Cir. 2009).

B

Bone claims that Dunnaway violated her Fourth Amendment right to be

free from false arrest. The district court granted summary judgment for

Dunnaway, concluding that she was entitled to qualified immunity because

“Dunnaway was not objectively unreasonable in concluding that plaintiff

committed or attempted to commit the offense of disturbing the peace by

tumultuous behavior.”

“The constitutional claim of false arrest requires a showing of no

probable cause.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).

Probable cause is defined as “facts and circumstances within the officer’s

knowledge that are sufficient to warrant a prudent person, or one of reasonable

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caution, in believing, in the circumstances shown, that the suspect has

committed, is committing, or is about to commit an offense.” Id. (quoting

Piazza v. Mayne, 217 F.3d 239, 245–46 (5th Cir. 2000)). “If an officer has

probable cause to believe that an individual has committed even a very minor

criminal offense in his presence, he may, without violating the Fourth

Amendment, arrest the offender.” Lockett v. New Orleans City, 607 F.3d 992,

998 (5th Cir. 2010) (quoting Atwater v. City of Lago Vista, 532 U.S. 318, 354

(2001)). The right to be free from false arrest without probable cause is clearly

established. See Club Retro, 568 F.3d at 206. However, to overcome qualified

immunity, Bone must show that no reasonable officer would have believed that

there was probable cause to arrest Bone. See id. at 206–07; Manis, 585 F.3d

at 846. Probable cause and the ensuing qualified immunity turn on

Dunnaway’s reasonable beliefs and knowledge, including information received

from eye witnesses. See Cooper v. City of La Porte Police Dep’t, 608 F. App’x

195, 200 (5th Cir. 2015) (citing United States v. Nunez-Sanchez, 478 F.3d 663,

666 (5th Cir. 2007)).

Dunnaway arrested Bone for disturbing the peace by tumultuous

behavior in violation of a New Orleans municipal ordinance that prohibits

“act[ing] in a violent or tumultuous manner toward another whereby the

property of any person is placed in danger of being destroyed or damaged.”

NEW ORLEANS, LA., MUN. CODE § 54-403(b)(7). The Municipal Code also makes

it a criminal offense to attempt to violate a provision of the code. See id. § 54-

61(a). At the time of the arrest, Dunnaway responded to an excited

confrontation among strangers at 10 p.m. on a Saturday night in the French

Quarter. Additionally, when she arrived on the scene, the driver of the SUV

immediately screamed at Dunnaway. One passenger told Dunnaway that

Bone had placed trash on the car, although the passenger and Bone gave

conflicting stories regarding where the trash came from. Considering the

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totality of the circumstances, it was reasonable for Dunnaway to believe that

Bone either violated or attempted to violate section 54-503 when she interacted

with the passengers of an unknown car by intentionally depositing trash on

that vehicle’s hood. As a result, the district court correctly held that Dunnaway

was entitled to qualified immunity.

C

Bone also claims that Jones violated her Fourth Amendment right to be

free from excessive force. A plaintiff must meet three elements to establish an

excessive force claim: (1) the plaintiff suffered an injury, (2) the injury “resulted

directly and only from the use of force that was excessive to the need,” and

(3) the force was objectively unreasonable. Ballard v. Burton, 444 F.3d 391,

402 (5th Cir. 2006) (quoting Flores v. City of Palacios, 381 F.3d 391, 396 (5th

Cir. 2004)). The right to be free from excessive force is clearly established, but

the degree of force that is reasonable varies based on the totality of the

circumstances. See Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013).

“‘To gauge the objective reasonableness of the force used by a law enforcement

officer, we must balance the amount of force used against the need for force,’

paying ‘careful attention to the facts and circumstances of each particular

case.’” Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (quoting Flores,

381 F.3d at 399). The Supreme Court has instructed that courts determining

the objective reasonableness of force must consider “the facts and

circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).

Although Bone’s allegation of injury could be characterized as de

minimis—bruising and a swollen cheek—whether an injury is cognizable

depends on the reasonableness of the force, not just the extent of injury. See

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Freeman, 483 F.3d at 416–17; see also Williams v. Bramer, 180 F.3d 699, 704

(5th Cir. 1999) (“What constitutes an injury in an excessive force claim is

therefore subjective—it is defined entirely by the context in which the injury

arises.”); Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013) (“Any force found

to be objectively unreasonable necessarily exceeds the de minimis

threshold . . . .” (footnote omitted)). 2 At the very least, there is a fact question

about the degree of injury. 3 Therefore, we must determine the reasonableness

of Jones’s force.

To withstand Jones’s motion for summary judgment, Bone must show

that a genuine dispute of material fact exists as to whether: (1) Jones’s use of

force violated Bone’s Fourth Amendment right to be free from excessive force;

and (2) Jones’s use of force was objectively unreasonable in light of then clearly

established law. Newman v. Guedry, 703 F.3d 757, 766 (5th Cir. 2012).

Jones does not make much of an attempt to meet the first prong, perhaps

because, considering the evidence in the light most favorable to Bone, none of

the Graham factors favors Jones in this case. See Graham, 490 U.S. at 396.

Perhaps, also, Jones does not seek to justify Bone’s version of events, because

in his version, the “wrist grab” was to stop Bone from fleeing and the “slam”

was accidental. Bone’s alleged crime was very minimal, and there is no

evidence that she was a threat to the safety of others or even perceived as such.

See id. Although the district court concluded that it was reasonable for Jones

to believe Bone was “attempting to evade arrest by flight,” this conclusion is

2 This court has said that “minor, incidental injuries that occur in connection with the

use of handcuffs to effectuate an arrest do not give rise to a constitutional claim for excessive

force.” Freeman, 483 F.3d at 417. Bone has alleged injuries that resulted from conduct that

exceeded the use of handcuffs.

3Thus, we need not address the extent to which the reasoning of Wilkins v. Gaddy,

559 U.S. 34 (2010), an Eighth Amendment case, may apply to a Fourth Amendment case.

See United States v. Rodella, 804 F.3d 1317, 1327–28 (10th Cir. 2015), petition for cert. filed,

No. 15-1158 (U.S. Mar. 14, 2016).

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based on Jones’s version of the facts. Bone has shown a genuine dispute of fact

as to both whether the officers were attempting to arrest her at the time she

turned around and whether the refusal to sign and turning around constituted

“flight.” Bone testified that she was not told she was under arrest before she

turned away from the officers and that the “slam against the window” took

place immediately after she turned away. Considering the facts in the light

most favorable to Bone, there is a genuine dispute of material fact as to

whether Bone was evading arrest when Jones acted. Hence, there is a genuine

dispute as to whether any Graham factor justified Jones’s use of force, and

therefore, whether Jones’s force violated Bone’s constitutional rights.

Turning to the question of “clearly established law,” 4 this same factual

dispute prevents us from answering the question in Jones’s favor at summary

judgment. Given that this case does not involve a serious crime, any perception

that the suspect posed a risk of injury to anyone, or any active physical

“resistance,” the only possible justification for the use of force was Jones’s

perception that Bone was “fleeing” at the time of the use of force (and his

argument that the “slam” was accidental). We have distinguished, for

purposes of qualified immunity, cases in which officers face verbal resistance

but no fleeing suspect, from those in which officers face some form of verbal or

physical resistance and a fleeing suspect. In the former cases, we have denied

qualified immunity at the summary judgment stage. See Deville v. Marcantel,

567 F.3d 156, 169 (5th Cir. 2009) (rejecting summary judgment on qualified

immunity grounds where an individual was stopped for a minor traffic offense,

did not attempt to flee, and did not engage in active resistance); Bush v. Strain,

4 The burden is on Bone to show that it was clearly established at the time of her

arrest that Jones’s use of force was unconstitutional. See Club Retro, 568 F.3d at 194 (“When

a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the

inapplicability of the defense.”).

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513 F.3d 492, 502 (5th Cir. 2008) (rejecting qualified immunity where an

individual was not resisting arrest or attempting to flee); Goodson v. City of

Corpus Christi, 202 F.3d 730, 734, 740 (5th Cir. 2000) (finding a fact issue

precluded summary judgment on qualified immunity grounds where officers

tackled an individual who pulled his arm away during arrest attempt, but was

not fleeing); see also Massey v. Wharton, 477 F. App’x 256, 263 (5th Cir. 2012)

(rejecting qualified immunity where an individual was arrested for disorderly

conduct, was not a threat to officers, and was not attempting to flee). In the

latter cases, we have affirmed grants of qualified immunity. See Pratt v. Harris

Cty., 822 F.3d 174, 182–85 (5th Cir. 2016) (affirming grant of qualified

immunity where suspect physically resisted officers’ commands and initially

attempted to flee); Poole v. City of Shreveport, 691 F.3d 624, 629, 631 & n.5

(5th Cir. 2012) (same); Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009)

(same).

This distinction also drove the outcome for one plaintiff in Tolan v.

Cotton, 573 F. App’x 330, 330 (5th Cir.) (no qualified immunity where officers

shot suspect who was neither physically resisting officers nor attempting to

flee), on remand from 134 S. Ct. 1861 (2014), 5 while resulting in a different

outcome for his mother, see Tolan v. Cotton, 713 F.3d 299, 308 (5th Cir. 2013)

(holding that officer’s “grabbing [the plaintiff’s] arm and shoving her against

the garage door” after she refused to comply with verbal commands to facilitate

a search was not unconstitutional under clearly established law), vacated on

other grounds, 134 S. Ct. 1861 (2014), aff’d in relevant part, 573 F. App’x 330,

5 The Supreme Court concluded that the Fifth Circuit improperly failed to credit the

son’s evidence and remanded for consideration of whether the officer’s actions violated clearly

established law. Tolan, 134 S. Ct. at 1868. On remand, the Fifth Circuit held that a genuine

dispute of material fact existed that precluded qualified immunity at summary judgment for

the son’s excessive force claim. Tolan, 573 F. App’x at 330. His mother’s claim was not

considered by the Supreme Court.

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331 (2014) (“It goes without saying that all other [than the son’s] dismissals . . .

are not affected by [the Supreme Court’s] holding.”).

A case directly on point is not required to show that it is clearly

established that certain force is a constitutional violation; nonetheless,

existing precedent must “define[ ] the contours of the right in question with a

high degree of particularity.” Hogan, 722 F.3d at 735 (quoting Morgan v.

Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc)). These cases define

parameters for officers like Jones. Under his version of the facts, Bone had

resisted verbal commands to come back and submit to an arrest and was

attempting to flee (and the “slam” was accidental), which is arguably within

the parameters of the cases in which we have granted qualified immunity. 6 On

the other hand, if Bone’s version of the events is true, there was no verbal

command that she stop, no arrest, and no flight, and Jones’s degree of force

was clearly prohibited under our precedent. Given this factual dispute, which

turns on the credibility of Jones and Bone, we cannot resolve the qualified

immunity question as a matter of law. Accordingly, we conclude that Jones is

not entitled to summary judgment on qualified immunity grounds. See

Newman, 703 F.3d at 766.

As a result of its ruling on Bone’s federal claims, the district court

declined to exercise supplemental jurisdiction over the state law claims. We

leave in place that action as to Dunnaway, but vacate and remand as to Jones

so that the district court can examine anew the question of supplemental

6 But to conclude that it was reasonable for Jones to believe Bone was evading arrest,

the district court must have credited Jones’s testimony that she walked twenty feet after she

turned away and was told that “she needed to stop or she’d be arrested for failure to be issued

a summons.” Even when deciding the clearly established prong, “courts must take care not

to define a case’s ‘context’ in a manner that imports genuinely disputed factual propositions.”

Tolan, 134 S. Ct. at 1866.

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jurisdiction over the state law claims in light of the pendency of this federal

claim.

III

In conclusion, we AFFIRM the district court’s judgment as to Dunnaway.

We VACATE the judgment in favor of Jones and REMAND to the district court

for further proceedings consistent with this opinion.

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