Justin Scott v. City of Austin

Case: 19-50028 Document: 00515394052 Page: 1 Date Filed: 04/24/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-50028

FILED

April 24, 2020

Lyle W. Cayce

JUSTIN SCOTT, Clerk

Plaintiff - Appellee

v.

OFFICER GREGORY WHITE, also known as Greg White,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:16-CV-1287

Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Appellant Sergeant Gregory White appeals from the district court’s order

denying him summary judgment based on qualified immunity. We DISMISS

for want of jurisdiction.

BACKGROUND

Appellee Justin Scott filed a 42 U.S.C. § 1983 action against White in

federal district court, alleging that White violated his Fourth Amendment

* 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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No. 19-50028

rights to be free from unreasonable search, unreasonable seizure, and the use

of excessive force, and Fourteenth Amendment right to due process. Scott also

brought § 1983 claims against the City of Austin, Texas, based on an alleged

policy and practice of permitting the use of excessive force and an alleged

failure to adequately train or supervise its officers.

The district court dismissed each of Scott’s claims except for his excessive

force claim against White. On that claim, White’s motion for summary

judgment based on qualified immunity was denied.

SUMMARY JUDGMENT EVIDENCE 1

In February 2015, White, a sergeant with the Austin Police Department,

responded to a 911 call about a suspicious person. On arrival at the scene,

White saw Scott. White asked Scott several questions, such as whether Scott

had an identification card and whether he was with anyone else. Scott was

generally unresponsive. However, when asked whether he had a weapon on

him, Scott said, “No.” During this exchange, Scott held a circular object with

both hands at his stomach. 2

After Scott said that he did not have any weapons on him, White moved

to Scott’s left side and grabbed Scott’s left hand. White did not grab the circular

object, which Scott continued to hold with his right hand at his stomach. White

then instructed Scott to drop the circular object. In response, Scott moved his

1 The facts recounted in this Section are gleaned from the record on appeal,

particularly an audiovisual recording of the encounter from White’s police vehicle dashcam

and a transcript of the recording. The video may be accessed via the following internet link:

http://www.ca5.uscourts.gov/opinions/unpub/19/19-50028.mp4.

2 The Austin Police Department’s General Offense Hardcopy—a type of police report—

regarding the incident includes a supplement to the initial incident report in which Joseph

Herman Hebbe states that he gathered Scott’s personal belongings and retrieved from the

scene “a[n] unknown plastic/metallic object approximately 3” to 4” in diameter and .5” in

height which may have weighed approximately 1 pound.” Hebbe adds, “The unknown object

was similar in size and shape of a coaster used for drinking glasses.”

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right hand from his stomach down to his right side, continuing to hold onto the

object. The video does not depict Scott actively resisting White’s hold on his

left hand. It is at this point that White hit Scott’s head or neck from behind,

grabbed Scott’s abdomen with both hands from behind, pushed Scott onto the

ground, and rolled on top of Scott. White’s use of force up until this point is his

initial use of force. 3

Once on the ground, Scott twisted and turned underneath White as

White repeatedly punched, elbowed, and kneed Scott. Contemporaneously,

Scott covered his head with his hands, screamed, and—at times—curled his

legs inward. Meanwhile, White repeatedly instructed Scott to put his hands

behind his back. White then held Scott down and tasered him. As he was

being tasered, Scott moved his hands onto White’s left arm.

Afterward, White continued hitting Scott. White then said, “Let go of

my taser,” punched Scott repeatedly, rolled Scott back onto his stomach, and

then resumed punching Scott as Scott screamed. (Later, White told another

officer who arrived on the scene that he “got tased” and that “[Scott] took my

taser from me and tased me.”) 4 White repeated, “Put your hands behind your

3 There are two distinct times when White uses force: (1) before Scott is on the ground,

and (2) once Scott is on the ground. To distinguish between these uses of force, we—as did

the district court—refer to White’s use of force before Scott is on the ground as White’s “initial

use of force” and White’s uses of force once Scott is on the ground as White’s “subsequent use

of force.”

4 During his deposition, Scott stated that, “while I was being tased[,] . . . my hand

grabbed [White’s] arm at the same time, and it went through him, got him.” When asked

whether he had the taser in his hand, he said, “yeah, it was in my hand at that point.” But

when asked why he picked up the taser, he said, “I didn’t pick it up. It was kind of – I don’t

know how to describe how it happened.” When asked again whether he had the taser in his

hand, Scott said, “No . . . . I said at one point I grabbed his arm, and he got tased through me.

. . .” In a recorded interview, Scott also said that he grabbed the taser, but then explained,

“I don’t – I wasn’t in control, like, at that point. I was just, like – my body was, like shaking.

Like, I – I was – I was protecting myself.” Scott’s expert Kimberly Bustos, relying in part on

the video of the incident, interprets Scott’s actions once he was on the ground as defensive

rather than resistive. Bustos states that it appears that Scott attempted to comply with

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No. 19-50028

back” several times, and Scott said, “I can’t.” White then put his whole body

on top of Scott and remained on Scott until other officers arrived on the scene.

White’s use of force once Scott was on the ground is White’s subsequent use of

force.

White and Scott were treated for injuries after the incident. White broke

his right ring finger during his encounter with Scott. White states that he

“believe[s]” he broke his finger when “we were struggling over my Taser.”

However, he also states that the broken finger “possibly occurred from

delivering strikes.” 5 Scott complained of throbbing to his forehead, and

emergency medical services (EMS) personnel noted “various facial abrasions”

without significant bleeding. EMS personnel also removed a taser probe

embedded in Scott’s chest. At a hospital after the incident, Scott was diagnosed

with “[f]acial abrasion” and “[h]ead contusion.”

STANDARD OF REVIEW

This court has jurisdiction over appeals from a district court’s final

decision. 28 U.S.C. § 1291. “Ordinarily, we do not have jurisdiction to review

a denial of a summary judgment motion because such a decision is not final

within the meaning of 28 U.S.C. § 1291.” Perniciaro v. Lea, 901 F.3d 241, 250

(5th Cir. 2018) (citation and internal quotation marks omitted). But “the

denial of qualified immunity on a motion for summary judgment is

immediately appealable if it is based on a conclusion of law.” Id. (citation and

internal quotation marks omitted). “We have no jurisdiction to hear an

interlocutory appeal, however, when a district court’s denial of qualified

immunity rests on the basis that genuine issues of material fact exist.”

Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir. 2005).

White’s commands, but “it [was] physically impossible for . . . Scott to place his hands behind

his back,” and “Scott [was] not seen attempting to use the Taser against [White].”

5 White told other officers, “I was punching the sh[*]t out of [Scott].”

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“Because of this case’s posture, . . . review is limited to determining

whether the factual disputes that the district court identified are material to

the application of qualified immunity.” Samples v. Vadzemnieks, 900 F.3d 655,

660 (5th Cir. 2018) (emphasis omitted). The plaintiff carries the burden to

rebut the defense of qualified immunity. Brown v. Callahan, 623 F.3d 249, 253

(5th Cir. 2010). Nonetheless, “[w]e accept the plaintiff’s version of the facts as

true and review it through the lens of qualified immunity.” Samples, 900 F.3d

at 660; see also Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (“[T]he facts [must

be] taken in the light most favorable to the party asserting the injury[.]”)

(internal quotation marks, citation, and brackets omitted). “If the defendant

would still be entitled to qualified immunity under this view of the facts, then

any disputed fact issues are not material, the district court’s denial of summary

judgment was improper, and we must reverse; otherwise, the disputed factual

issues are material and we lack jurisdiction over the appeal.” Lytle v. Bexar

Cty., 560 F.3d 404, 409 (5th Cir. 2009). Put another way, “[i]f a factual dispute

must be resolved to make the qualified immunity determination, that fact issue

is material and we lack jurisdiction over the appeal.” Manis v. Lawson, 585

F.3d 839, 843 (5th Cir. 2009). The court reviews the materiality of factual

disputes and the district court’s legal conclusions de novo. Hampton v.

Oktibbeha Cty. Sheriff Dep’t, 480 F.3d 358, 364 (5th Cir. 2007).

DISCUSSION

White raises three issues on appeal: whether the district court erred in

(1) relying on unsupported allegations and evidence outside the summary

judgment record, (2) holding that Scott’s physical injuries are not categorically

de minimis, and (3) holding that White is not entitled to qualified immunity at

the summary judgment stage. We address each issue.

First, the court lacks jurisdiction to consider White’s arguments that the

district court erred in relying on mere allegations and evidence outside the

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summary judgment record. Behrens v. Pelletier, 516 U.S. 299, 313 (1996)

(“[D]eterminations of evidentiary sufficiency at summary judgment are not

immediately appealable merely because they happen to arise in a qualified-

immunity case[.]”) (citing Johnson v. Jones, 515 U.S. 304, 313–318 (1995));

Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000) (“In deciding an

interlocutory appeal of a denial of qualified immunity, we can review the

materiality of any factual disputes, but not their genuineness.”) (emphasis in

original).

Second, White’s argument that Scott’s physical injuries are categorically

de minimis as a matter of law is unavailing. White relies on Westfall v. Luna

for this proposition. 903 F.3d 534 (5th Cir. 2018). White reads Westfall too

broadly. In Sam v. Richard, for example, we held:

Although a de minimis injury is not cognizable, the extent of injury

necessary to satisfy the injury requirement is directly related to

the amount of force that is constitutionally permissible under the

circumstances. Any force found to be objectively unreasonable

necessarily exceeds the de minimis threshold, and, conversely,

objectively reasonable force will result in de minimis injuries only.

. . . In short, as long as a plaintiff has suffered some injury, even

relatively insignificant injuries and purely psychological injuries

will prove cognizable when resulting from an officer’s

unreasonably excessive force.

887 F.3d 710, 713 (5th Cir. 2018) (quoting Alexander v. City of Round Rock,

854 F.3d 298, 309 (5th Cir. 2017)) (emphasis and italics omitted). Accordingly,

Scott’s physical injuries are not categorically de minimis as a matter of law. 6

6 Relatedly, White argues that his initial uses of force caused no injury. But the

medical records are silent as to the cause of Scott’s injuries and are consistent with Scott’s

account that the injuries he sustained are related to both White’s initial and subsequent uses

of force. See Anderson v. McCaleb, 480 F. App’x 768, 772 (5th Cir. 2012) (unpublished) (right-

hand fracture a plaintiff sustained was “arguably consistent” with the plaintiff’s account that

the fracture was related to his arrest where the “medical records [were] silent as to the cause

of the fracture” and additionally showed “an abrasion and contusion” of the plaintiff’s right

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Third, the district court correctly determined that disputes of material

fact exist, precluding summary judgment. The district court considered the

totality of the circumstances, construed the evidence in the light most

favorable to Scott, and viewed Scott’s version of events as a reasonable officer

on the scene would have to correctly hold that a reasonable jury could

determine that White’s use of force was objectively unreasonable and therefore

in violation of Scott’s Fourth Amendment right to be free from excessive force.

See Darden v. City of Fort Worth, 880 F.3d 722, 728–29 (5th Cir. 2018). The

video evidence does not “utterly discredit[]” Scott’s allegations regarding

White’s initial and subsequent uses of force such that “no reasonable jury could

have believed [Scott].” Scott v. Harris, 550 U.S. 372, 380 (2007); see also

Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (“A court of

appeals need not rely on [a] description of the facts where the record discredits

that description but should instead consider the facts in light depicted by the

videotape.”) (citation and internal quotation marks omitted).

Further, the district court correctly determined that clearly established

law at the time of White’s violation prohibited his use of force given the

circumstances and construing the evidence in the light most favorable to Scott.

See Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 (2018); see also Darden, 880

F.3d at 729–32 (describing clearly established law as of May 2013 and stating

that “a constitutional violation occurs when an officer tases, strikes, or

violently slams an arrestee who is not actively resisting arrest”); Hanks v.

Rogers, 853 F.3d 738, 747 (5th Cir. 2017) (describing clearly established law as

of February 2013 and stating that excessive force is established where an

officer “abruptly resorts to overwhelming physical force rather than continuing

wrist, even though the plaintiff said “at the time that the fracture was an old injury”). “At

this stage and without evidence that blatantly contradicts [Scott’s] account, [we are] required

to take [Scott’s] version of events as true.” Id. (citing Lytle, 560 F.3d at 409).

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verbal negotiations with an individual who poses no immediate threat or flight

risk, [and] who engages in, at most, passive resistance”); Trammell v. Fruge,

868 F.3d 332, 343 (5th Cir. 2017) (holding that “the law [as of January 2013]

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”) (citing Goodson v.

City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)).

Accordingly, issues of material fact exist, and we lack jurisdiction over

this appeal.

CONCLUSION

For the foregoing reasons, we DISMISS this appeal for want of

jurisdiction.

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