Batyukova v. Doege

Case: 20-50425 Document: 00515830276 Page: 1 Date Filed: 04/21/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 21, 2021

No. 20-50425 Lyle W. Cayce

Clerk

Inessa G. Batyukova,

Plaintiff—Appellant,

versus

Brandon Lee Doege, #1282,

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:19-CV-391

Before Davis, Southwick, and Costa, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Inessa Batyukova appeals from the district court’s grant of qualified

immunity and summary judgment to an off-duty sheriff’s deputy on her

Section 1983 claims. The deputy had been driving his own vehicle when he

encountered another vehicle stopped in a traffic lane of a four-lane divided

highway. Batyukova emerged from the stopped vehicle and would not follow

the deputy’s commands. She brought suit for the deputy’s use of deadly

force when he perceived she might be reaching for a weapon, and for his

alleged failure to provide her medical assistance for the injuries she sustained.

We AFFIRM the grant of qualified immunity and summary judgment.

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No. 20-50425

FACTUAL AND PROCEDURAL BACKGROUND 1

Brandon Doege was a deputy of the Bexar County, Texas Sheriff’s

Office who worked in the county’s adult-detention center. He was not a

patrol officer and had not undergone the same training as patrol officers. He

was, though, commissioned as a peace officer and had received basic training

for that role.

Shortly before midnight on June 28, 2018, Deputy Doege was driving

westbound on U.S. Highway 90 on his way home from a shift. He was in his

uniform and driving his personal vehicle, which was equipped with red and

blue police-style lights. After he crossed the line from Bexar County into

Medina County, Deputy Doege encountered Batyukova’s vehicle stopped in

the left-hand lane of the highway. Deputy Doege activated his red and blue

lights and parked behind her so he could render aid. At that time, he called

911 and informed the Medina County dispatcher that he was an off-duty

deputy, that he had encountered a vehicle in the middle of the road with its

hazard lights on, that he was in his personal vehicle with red and blue lights,

and that he had not yet approached the vehicle.

Batyukova then began to exit her vehicle. Deputy Doege opened his

door and yelled out to Batyukova, “let me see your hands” and “get out of

the vehicle.” She stepped out of the vehicle, which prompted Deputy Doege

to yell “put your hands on the hood.” Instead of complying with the

commands, Batyukova gave Deputy Doege the middle finger, shouted “f**k

1

The summary-judgment record includes: (1) a composite of the audio from

Deputy Doege’s 911 call with video from a nearby security camera; (2) excerpts from

Deputy Doege’s deposition; (3) excerpts from Batyukova’s deposition; (4) an audio

recording of Batyukova’s interview with the Medina County Sheriff’s Office; (5) the

Medina County Sheriff’s Office Incident Report; (6) Batyukova’s deemed admissions;

(7) a news article; and (8) Batyukova’s medical records. The security-camera video is of

poor quality, revealing little that is helpful regarding the few disputed events.

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you,” and said that she hated America. Still on the line with 911, Deputy

Doege asked the dispatcher to send a police unit.

It is undisputed that, over the course of the short encounter,

Batyukova yelled “f**k you,” “f**k America,” and “I hate America.” The

parties dispute whether Batyukova also said “death to America” and

“you’re going to f**king die tonight.” Deputy Doege testified that

Batyukova made those statements and that they contributed to his fearing for

his life, but Batyukova denies doing so.

After requesting a police unit, Deputy Doege again yelled “put your

hands on the hood.” He also asked her “what is going on” as she continued

to shout expletives. After ignoring almost every command Deputy Doege

gave, Batyukova began to walk towards Deputy Doege’s vehicle. Deputy

Doege quickly put his vehicle in reverse and backed up to maintain distance.

Batyukova stopped her approach when Deputy Doege exited his

vehicle and drew his weapon. Standing behind his door, Deputy Doege yelled

“get down now” and “let me see your hands.” At that point, with a cigarette

in one hand, Batyukova reached her other hand towards the waistband of her

pants. Her hand went behind her back and disappeared from Deputy

Doege’s view. An instant later, Deputy Doege fired five shots. Bullets struck

her wrist, leg, and abdomen.

The video evidence shows that, immediately after shooting, Deputy

Doege told the dispatcher “shots fired, shots fired . . . she reached behind her

back.” In his deposition, he testified that it was the combination of her saying

“you’re going to f**king die tonight” and her hand reaching behind her back

towards her waistband that made him fear for his life. According to his

statement to the Medina County Sheriff’s Office, when Batyukova “reached

behind her towards her waistband,” Deputy Doege “thought she was

reaching for a weapon to kill [him]” and “was in fear for [his] life.”

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After the incident, Batyukova told news reporters that she was

attempting to “moon” Deputy Doege. Similarly, she told Medina County

investigators that she was attempting to show Deputy Doege her “beautiful

a**.” In her deposition nearly two years later, she contradicted her previous

accounts and claimed that she never attempted to moon Deputy Doege.

Regardless, it is conclusively established by deemed admission that

Batyukova “reached toward[s] [her] waistband because [she] intended to

lower [her] pants in order to display [her] buttocks to Deputy Doege.”

Other undisputed facts are that after Deputy Doege shot Batyukova,

he immediately informed the dispatcher that shots had been fired, that

Batyukova was injured, and that he needed assistance. He told the dispatcher

“I need someone now” and “she is not moving.” The dispatcher responded

that “units are on their way.”

A few seconds later, Batyukova’s vehicle horn began to blare, which

caused Deputy Doege to believe someone else was in the vehicle. Deputy

Doege approached her vehicle to check for others but did not see anyone

inside the vehicle or in the nearby median.

Deputy Doege returned to his vehicle to search for a first aid kit but

soon remembered that he did not have one with him. While he was behind

his vehicle, Batyukova began to move slightly. Her movements prompted

Deputy Doege to order her again to show her hands. A few moments later,

officers from the Medina County Sheriff’s Office and the Castroville Police

Department arrived. Deputy Doege told them he had not fully cleared the

vehicle, the surrounding area, or Batyukova. Other officers apparently

handled traffic control, and Deputy Doege and a Medina County deputy

proceeded to check Batyukova’s vehicle again but found nobody else. The

Medina County deputy then approached Batyukova, determined that she was

breathing and responsive, and stayed with her until EMS arrived. EMS

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arrived about 15 minutes after she was shot. Batyukova had several gunshot

wounds, a fractured wrist, and an exposed bone. She had also lost

approximately 1,500 mL of blood. She survived her wounds.

Batyukova brought suit against Deputy Doege under 42 U.S.C.

§ 1983. She then amended her complaint to add several defendants —

including both Bexar and Medina Counties and their sheriff departments —

and new factual allegations and claims. The district court eventually

dismissed her claims against every other defendant, which left only Deputy

Doege. Her claims against Deputy Doege included: (1) Fourth Amendment

excessive force based on pointing his weapon at her; (2) Fourth Amendment

excessive force based on shooting her; (3) First Amendment retaliation for

shooting her in response to her engagement in protected activity; and

(4) Fourteenth Amendment deliberate indifference for failing to render

adequate medical assistance.

During discovery, Batyukova failed to respond to Deputy Doege’s

first set of requests for admission within the 30-day deadline set by Federal

Rule of Civil Procedure 36(a)(3). After discovery closed, Deputy Doege filed

a motion for summary judgment that asserted qualified immunity. His

motion relied on many of the facts deemed admitted by Batyukova’s failure

to respond to the admission requests in a timely manner. The next day,

Batyukova filed her own motion for summary judgment on one of her

excessive-force claims and finally produced responses to Deputy Doege’s

discovery requests. Two weeks later, Batyukova moved for leave to amend

her discovery responses, i.e., to withdraw her deemed admissions. The

magistrate denied the motion.

The district court granted Deputy Doege’s motion for summary

judgment. Relying in large part on the deemed-admitted facts, the court

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found no Fourth, First, or Fourteenth Amendment violations. 2 It did not

analyze whether the law was clearly established for any of her claims.

Batyukova timely appealed.

DISCUSSION

“We review a grant of summary judgment de novo, applying the same

standard as the district court.” Valderas v. City of Lubbock, 937 F.3d 384, 388

(5th Cir. 2019). Summary judgment is appropriate “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 dispute is

genuine if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Dyer v. Houston, 964 F.3d 374, 379 (5th Cir.

2020). “A fact is material if its resolution could affect the outcome of the

action.” Id. at 379 (quotation marks omitted).

On appeal from summary judgment, we view the facts in the light most

favorable to the nonmoving party and draw all reasonable inferences in that

party’s favor. Joseph v. Bartlett, 981 F.3d 319, 325 (5th Cir. 2020).

“Conclusory allegations and denials, speculation, improbable inferences,

unsubstantiated assertions, and legalistic argumentation” will not survive

summary judgment. Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016).

Whenever possible, we will “give greater weight . . . to the facts evident from

video recordings.” Valderas, 937 F.3d at 388. However, the facts deemed

admitted by Batyukova’s failure to respond in a timely manner “are

2

The district court combined Batyukova’s two Fourth Amendment claims. On

appeal, Batyukova does not contest summary judgment on her claim based on Deputy

Doege pointing his weapon at her. She therefore waives appellate review of that claim.

Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004).

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conclusive as to the matters admitted.” In re Carney, 258 F.3d 415, 420 (5th

Cir. 2001). Those facts “cannot be overcome” at the summary-judgment

stage by pointing to contradictory evidence. Id.

The defense of qualified immunity “alters the usual summary

judgment burden of proof.” Valderas, 937 F.3d at 389. Once a defendant

properly raises the defense, the burden shifts to the plaintiff to demonstrate

that the defendant is not entitled to the defense’s protection. Garza v.

Briones, 943 F.3d 740, 744 (5th Cir. 2019). An officer is entitled to qualified

immunity if the officer’s conduct either did not violate a federal right of the

plaintiff or that right was not clearly established at the time of the relevant

events. Dyer, 964 F.3d at 380. We can base a decision to allow the immunity

on either part of the analysis alone. Morrow v. Meachum, 917 F.3d 870, 874

(5th Cir. 2019). The district court reached only the issue of whether any

constitutional violation occurred. Because we review the grant of a summary

judgment using the same standards as the district court, Valderas, 937 F.3d

at 388, we can and do resolve the appeal of Batyukova’s excessive-force claim

based on the other qualified-immunity consideration: whether the law was

clearly established that the deputy’s actions violated Batyukova’s Fourth

Amendment right to be free from excessive force. 3

I. Fourth Amendment excessive force

Batyukova’s excessive-force claim “is governed by the Fourth

Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 572 U.S.

765, 774 (2014). An officer violates the right to be free from excessive force

3

No questions have been raised in this case regarding the possible effect on the

usual analysis of qualified immunity of the fact that the deputy was off duty, was employed

at a detention facility, and may not have been trained to make traffic stops, to decide

whether to detain individuals, or to respond to firearms-based emergencies. In light of such

questions not being posed, we do not answer them today.

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“when a seized person suffers an injury that results directly and only from a

clearly excessive and objectively unreasonable use of force.” Joseph, 981 F.3d

at 332. We conduct a “‘necessarily fact-intensive’ and case-specific

inquiry.” Id. (quoting Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir.

2012)).

The reasonableness of an officer’s use of force “requires careful

attention to the facts and circumstances of each particular case.” Graham v.

Connor, 490 U.S. 386, 396 (1989). This usually includes consideration of

“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.” Id. In cases involving

the use of deadly force, though, “our ‘objective reasonableness’ balancing

test is constrained.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.

2004). “The use of deadly force violates the Fourth Amendment unless ‘the

officer has probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others.’” Romero v. City of

Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Tennessee v. Garner, 471

U.S. 1, 11 (1985)). Stated differently, “[a]n officer’s use of deadly force is

not excessive, and thus no constitutional violation occurs, when the officer

reasonably believes that the suspect poses a threat of serious harm.” Manis

v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).

“[W]e are careful to avoid ‘second-guessing a police officer’s

assessment, made on the scene, of the danger presented by a particular

situation.’” Garza, 943 F.3d at 745 (quoting Ryburn v. Huff, 565 U.S. 469,

477 (2012)). “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 rapidly evolving — about

the amount of force that is necessary in a particular situation.” Graham, 490

U.S. at 396–97.

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In this case, Batyukova’s deemed admissions conclusively establish

the following facts. She ignored Deputy Doege’s commands to show her

hands and to place her hands on the hood of her vehicle. Instead, she gave

him the middle finger and shouted expletives at him. She then started

walking towards Deputy Doege, which prompted him to reverse his vehicle

to maintain distance. She failed to comply with his subsequent command to

“get down.” Then, Batyukova reached for her waistband.

Other uncontroverted summary-judgment evidence shows that

Deputy Doege observed Batyukova reach behind her back, that her hand

disappeared from view, and that Deputy Doege feared that she was reaching

for a weapon. 4

The district court determined that “a reasonable officer in Doege’s

position would have believed Batyukova posed an immediate threat to his

safety” and that his “decision to use deadly force was objectively reasonable

under the circumstances.” The court concluded that Batyukova failed to

demonstrate a Fourth Amendment violation, a conclusion that resulted in the

grant of qualified immunity without needing to consider whether the law

supporting a violation was clearly established.

We resolve the appeal of Batyukova’s excessive-force claim on

whether the right she claims was clearly established at the time of the alleged

misconduct. See Dyer, 964 F.3d at 380. Batyukova must show that the law

was “sufficiently clear” at that time “that every reasonable official would

4

Although Batyukova testified that she never attempted to moon Deputy Doege,

her deemed admissions and her own statements to investigators and reporters said

otherwise. Regardless, she has not argued in this appeal that her hand never went behind

her back or disappeared from view. Accordingly, she has not genuinely disputed Deputy

Doege’s testimony that she reached behind her back and that her hand disappeared from

his view. Her undisputed reach “towards her waistband” mandates the same result.

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have understood that what he [was] doing violate[d] that right.” Mullenix v.

Luna, 577 U.S. 7, 11 (2015). There are two ways to demonstrate clearly

established law. Under the first approach, the plaintiff may “identify a case”

or “body of relevant case law” in which “an officer acting under similar

circumstances . . . was held to have violated the [Constitution].” Joseph, 981

F.3d at 330 (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)).

This approach “do[es] not require a case directly on point,” but “existing

precedent must have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In the excessive-force

context, “officers are entitled to qualified immunity unless existing

precedent ‘squarely governs’ the specific facts at issue.” Kisela v. Hughes,

138 S. Ct. 1148, 1153 (2018) (quoting Mullenix, 577 U.S. at 13).

Under the second approach, “there can be the rare ‘obvious case,’

where the unlawfulness of the officer’s conduct is sufficiently clear even

though existing precedent does not address similar circumstances.” Wesby,

138 S. Ct. at 590 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). As

for the potential for an obvious violation of rights, Batyukova argues that all

reasonable officers would have known they could not use deadly force against

someone who clearly posed no threat. Because that does not describe the

facts of this case, we will say no more about the category of an obvious

constitutional violation.

To overcome qualified immunity in this case, Batyukova must show

that clearly established law prohibited using deadly force against a person

who (1) repeatedly ignored commands, such as to show her hands, to place

her hands on the hood of her vehicle, or to get down; and then (2) reached

her hand behind her back towards her waistband, which the officer perceived

to be a reach for a weapon to use against him.

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Batyukova discusses quite a few precedents. We will discuss the

significant ones in groups of somewhat-similar fact patterns.

1. Force against suspects not resisting or attempting to flee

Our first group of precedents includes those in which this court

recognized that officers violate the Fourth Amendment when they tase, slam,

or strike suspects or arrestees who are not actively resisting arrest or

attempting to flee. In one, officers executing an arrest warrant threw a

suspect to the ground, tased him twice, choked him, punched and kicked him,

pressed his face into the ground, and pulled his hands behind his back to

handcuff him. Darden v. City of Fort Worth, 880 F.3d 722, 725 (5th Cir. 2018).

The evidence was that the suspect had complied with the officers’ orders and

never resisted arrest. Id. at 731. We held that “it was clearly established that

violently slamming or striking a suspect who is not actively resisting arrest

constitutes excessive use of force.” Id. at 733. Similarly, in the precedent on

which the Darden court relied, we held that it violated clearly established law

to “forcefully slam [an arrestee’s] face into a vehicle while she was restrained

and subdued.” Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008). The

evidence viewed in the light most favorable to the plaintiff in Bush showed

that “she was not resisting arrest or attempting to flee.” Id.

Neither Darden nor Bush clearly establish a constitutional violation in

this case. Those cases did not involve, as this case does, an adversarial and

non-compliant person’s reach for what might have been a weapon.

2. Deadly force against someone not posing an imminent threat

Batyukova also asserts substantial similarity of the facts here with a

precedent in which, after a 12-minute encounter, deputies shot and killed a

knife-wielding suspect who was 30 feet away from everyone and standing in

a surrender pose. Amador v. Vasquez, 961 F.3d 721, 724–26 (5th Cir. 2020).

We held that at the time of the 2015 encounter, “[e]very reasonable officer

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would have understood that using deadly force on a man holding a knife, but

standing nearly thirty feet from the deputies, motionless, and with his hands

in the air for several seconds, would violate the Fourth Amendment.” Id. at

730.

Amador does not clearly establish a constitutional violation in this

case, either. It is distinguishable in two material respects. First, the suspect

was wielding a knife while standing too far away to be an immediate danger.

See id. Second, by the time the deputies in Amador shot, the suspect “had

his hands in the air in a surrender position; and stood stationary in the

officers’ line of sight.” Id. at 729. Surrender diminished, if not dispelled, the

threat the suspect posed. Those facts are not comparable to the situation of

Deputy Doege, who believed that Batyukova was reaching for a weapon that

could endanger him, and there was no evidence of surrender.

More factually comparable are two precedents in which the use of

deadly force was held to be reasonable because the officer had reason to

perceive a threat of serious harm. In one, it was reasonable to use deadly

force when the officer perceived a suspect’s sudden reach towards his

waistband “to be consistent with a suspect retrieving a weapon.” Salazar-

Limon v. City of Hous., 826 F.3d 272, 275, 278 (5th Cir. 2016). We have also

held that the use of deadly force is reasonable when a person, “in defiance of

the officers’ contrary orders, reached under the seat of his vehicle and

appeared to retrieve an object that [one officer] reasonably believed to be a

weapon.” Manis, 585 F.3d at 845. Similarly to the facts of this case, the

person in Manis was not suspected of criminal activity but, rather, was

approached because his vehicle was idling on railroad tracks at an

intersection. Id. at 841. Though there are factual distinctions to be made,

both Salazar-Limon and Manis involved the use of deadly force following a

person’s reach for what reasonably could have been a weapon. In both, the

use of deadly force was held to be reasonable.

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3. Sudden escalation without justification

Batyukova also cites several cases in which this court concluded that

police officers violated the Fourth Amendment by quickly resorting to force

without adequate justification or provocation.

In one precedent, officers struck, put in a headlock, and pulled to the

ground an apparently intoxicated person who pulled his arm away from

officers who were trying to grab his arm. Trammell v. Fruge, 868 F.3d 332,

337 (5th Cir. 2017). We held that that law was clearly established as of that

time “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.” Id. at 343.

In another decision, an officer performed a physical takedown on a

motorist who had passively resisted the officer’s commands throughout the

encounter. Hanks v. Rogers, 853 F.3d 738, 742 (5th Cir. 2017). We held that

the law was clearly established “that an officer violates the Fourth

Amendment if he abruptly resorts to overwhelming physical force rather than

continuing verbal negotiations with an individual who poses no immediate

threat or flight risk, who engages in, at most, passive resistance, and whom

the officer stopped for a minor traffic violation.” Id. at 747.

Batyukova also relies on a precedent in which we held that clearly

established law prohibited striking and tasing a suspect who “committed no

crime, posed no threat to anyone’s safety, and did not resist the officers or

fail to comply with a command.” Newman v. Guedry, 703 F.3d 757, 764 (5th

Cir. 2012). Pivotal to the decision was the fact that “the officers immediately

resorted to [using a] taser and nightstick without attempting to use physical

skill, negotiation, or even commands.” Id. at 763.

The final precedent in this group is one in which a suspect refused to

exit her vehicle during a traffic stop. Deville v. Marcantel, 567 F.3d 156, 161

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(5th Cir. 2009). There was evidence that the officers “engaged in very little,

if any, negotiation with her — and . . . quickly resorted to breaking her

driver’s side window and dragging her out of the vehicle.” Id. at 168. We

held that “a jury could reasonably find that the degree of force the officers

used . . . was not justifiable under the circumstances.” Id.

These decisions do not, individually or collectively, clearly establish a

constitutional violation here. None involved an officer using deadly force

against a non-compliant individual who reaches for what might have been a

weapon. There is little factual support to say that Deputy Doege abruptly

resorted to force. In fact, he did not use any force against Batyukova until

she initiated her reach behind her back towards her waistband, which Deputy

Doege perceived to be a reach for a weapon. “[W]e have never required

officers to wait until a defendant turns towards them, with weapon in hand,

before applying deadly force to ensure their safety.” Salazar-Limon, 826

F.3d at 279 n.6.

4. Deadly force against a suspect without sufficient warning

Batyukova describes the next group of precedents as ones that

prohibited the “use of deadly force without warning where the suspect posed

no immediate threat to the officer[] or others.”

In one of those precedents, officers were searching a wooded area for

a 17-year-old male reported to be walking around with a handgun. Cole v.

Carson, 935 F.3d 444, 448 (5th Cir. 2019) (en banc). The officers found the

teenager holding a gun to his head and shot him. Id. at 448–49. We held that

it violated the law clearly established at that time to shoot a suicidal teenager

who was armed but made no threatening or provocative gestures, posed no

immediate threat of harm to them, was facing away from the officers, and was

not warned even though it was feasible to do so. Id. at 455.

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That decision relied on a 1996 decision of this court. Baker v. Putnal,

75 F.3d 190 (5th Cir. 1996). There, after gunfire caused chaos on a crowded

beach, officers found and shot a suspect sitting inside a vehicle. Id. at 193.

We held that it violated the Fourth Amendment to shoot someone four times

who took no threatening action, was not holding a gun, was not warned, and

who “may have barely had an opportunity to see [the officer] before [the

officer] fired his gun.” Id. at 198. As the court explained, “[c]haos on the

beach and [the suspect’s] mere motion to turn and face [the officer] are not

compelling reasons” to justify deadly force. Id. The court also explained that

“[t]he number of shots and the nature of the wounds raise[d] a serious

question as to the reasonableness of [the officer’s] conduct.” Id. The

suspect received four gunshot wounds in areas of his body that indicated that

he was not facing the officer at the time he was shot. Id.

Both Cole and Baker are distinguishable. Batyukova was undoubtedly

aware of Deputy Doege’s presence. She repeatedly ignored his commands,

walked towards him, was actually facing him, and then made a movement

towards her waistband as if she was reaching for a weapon to use against

Deputy Doege.

Batyukova argues that no reasonable officer could have believed that

it was constitutional to “us[e] deadly force, five gunshots, against an

individual not suspected of a crime, who posed little to no threat to the officer

or others, was not fleeing or resisting arrest, and was holding a cigarette.”

That is not a fair characterization of the facts. Deputy Doege made a split-

second decision to use deadly force against a non-compliant person who

made a movement consistent with reaching for a weapon. We cannot say that

Batyukova posed “little to no threat” to Deputy Doege.

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We conclude that Batyukova failed to identify clearly established law

prohibiting Deputy Doege’s use of deadly force. The district court’s grant

of summary judgment on her excessive-force claim is affirmed.

II. First Amendment retaliation

Batyukova claims that Deputy Doege shot her in retaliation for her

engagement in activity protected by the First Amendment. The district court

determined that Batyukova failed to show a constitutional violation.

“‘[A]s a general matter the First Amendment prohibits government

officials from subjecting an individual to retaliatory actions’ for engaging in

protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting

Hartman v. Moore, 547 U.S. 250, 256 (2006)). “If an official takes adverse

action against someone based on that forbidden motive, and ‘non-retaliatory

grounds are in fact insufficient to provoke the adverse consequences,’ the

injured person may generally seek relief by bringing a First Amendment

claim.” Id. (quoting Hartman, 547 U.S. at 256).

There is some uncertainty as to whether Graham v. Connor, 490 U.S.

386 (1989), precludes a First Amendment retaliation claim based on an

officer’s use of excessive force during a seizure. 5 In Graham, the Supreme

5

District courts in our circuit have reached competing conclusions. Compare

Ybarra v. Davis, 489 F. Supp. 3d 624, 632 (W.D. Tex. 2020) (holding that a plaintiff may

bring a First Amendment claim for post-arrest retaliation that is “[s]eparate from the

Fourth Amendment excessive force claim”), with Price v. Elder, 175 F. Supp. 3d 676, 679

(N.D. Miss. 2016) (holding “that the Fourth Amendment functions as the exclusive

remedy”).

We do not find clarity in out-of-circuit precedents, either. The Eighth Circuit held

in one case that force applied after a plaintiff asked an officer if he had a warrant

“implicate[d] the protections of the Fourth Amendment and that no cognizable § 1983

First Amendment claim ha[d] been asserted.” Anderson v. Franklin Cnty., 192 F.3d 1125,

1132 (8th Cir. 1999). Since then, it has allowed a First Amendment claim for retaliatory use

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Court rejected the argument that excessive force could be asserted “under a

‘substantive due process’ approach.” Id. at 395. In doing so, the Court

explicitly held “that all claims that law enforcement officers have used

excessive force — deadly or not — in the course of an arrest, investigatory

stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard.” Id. In this case, neither

party has addressed whether Graham forecloses a First Amendment claim for

retaliatory use of force. The district court did not address that possibility.

We leave the question for another day because it is not necessary to our

resolution of this appeal.

For a First Amendment retaliation claim, a plaintiff must

demonstrate: (1) she was engaged in constitutionally protected activity;

(2) the officer’s action caused her to suffer an injury that would chill a person

of ordinary firmness from continuing to engage in that activity; and (3) the

officer’s adverse actions were substantially motivated against her exercise of

constitutionally protected activity. Alexander v. City of Round Rock, 854 F.3d

298, 308 (5th Cir. 2017).

“To prevail on such a claim, a plaintiff must establish a ‘causal

connection’ between the government defendant’s ‘retaliatory animus’ and

the plaintiff’s ‘subsequent injury.’” Nieves, 139 S. Ct. at 1722 (quoting

Hartman, 547 U.S. at 259). The officer’s retaliatory motive “must cause the

injury.” Id. “Specifically, it must be a ‘but-for’ cause, meaning that the

adverse action against the plaintiff would not have been taken absent the

of force to proceed where an officer pepper sprayed a plaintiff in response to asking for the

officer’s badge number. See Peterson v. Kopp, 754 F.3d 594, 603 (8th Cir. 2014).

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retaliatory motive.” Id. A First Amendment retaliation claim fails if the

“action would have been taken anyway.” Hartman, 547 U.S. at 260.

The first two elements are not in dispute. Batyukova was engaged in

protected activity during her encounter with Deputy Doege and being shot

would chill a person of ordinary firmness from engaging in protected activity.

Focusing on causation, the district court concluded that “Batyukova did not

present evidence that her speech and expressive conduct was a but-for cause

of the shooting.”

The undisputed evidence shows that, during the encounter,

Batyukova said “f**k you,” “f**k America,” and “I hate America.” She

also engaged in the expressive conduct of displaying her middle finger to the

deputy.

The parties dispute whether Batyukova also said “death to America”

and “you’re going to f**king die tonight.” In her deposition and in her

motion for summary judgment, Batyukova denied saying either. At oral

argument in this appeal, Batyukova’s counsel denied any reliance on these

statements for her First Amendment claim. Her counsel expressly conceded

that her First Amendment claim only asserts that she was shot because she

said “f**k you,” “f**k America,” and “I hate America,” and because she

gave Deputy Doege the middle finger.

On appeal from summary judgment, we are required to view the facts

in the light most favorable to the nonmovant; here, Batyukova. See Joseph,

981 F.3d at 325. We are to analyze whether the facts alleged or shown by the

plaintiff make out a claim for First Amendment retaliation. See Pasco v.

Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009). Accordingly, the question

before us is whether any of the speech or expressive conduct that Batyukova

alleges to have engaged in was a but-for cause of being shot.

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In his deposition, Deputy Doege testified that he shot Batyukova

because he feared for his life on account of her saying “you’re going to

f**king die tonight” and reaching her hand behind her back towards her

waistband. At another point in his deposition, he testified that the two

statements that contributed to his fears were “you’re going to f**king die

tonight” and “death to America.” Batyukova has repeatedly denied making

these statements and rejected any reliance on them during oral argument.

Thus, these statements are not a component of her First Amendment claim.

There is no record evidence to support the conclusion that the

protected activity Batyukova alleges she engaged in was a but-for cause of

being shot. Deputy Doege testified that Batyukova saying “f**k America”

did not cause him to fear. Nor did her saying “f**k you.” Further, there is

nothing in the record to suggest that her saying “I hate America” or giving

Deputy Doege the middle finger caused him to fear for his life. As a result,

Batyukova has not presented any summary-judgment evidence that her

engagement in protected speech caused Deputy Doege to shoot her. She

therefore cannot show that she would not have been shot absent her

engagement in protected activity.

The timeline of events also supports this conclusion. Deputy Doege

did not discharge his firearm at Batyukova when she began shouting

expletives at him. He did not fire at Batyukova as she was walking towards

him. Rather, he shot her when she reached her hand behind her back towards

the waistband of her pants. The temporal gap between the protected activity

on which Batyukova relies and being shot, as well as the intervening reach

towards her waistband, supports the conclusion that her protected activity

was not a but-for cause of being shot. Her First Amendment claim therefore

fails. Nieves, 139 S. Ct. at 1722; Alexander, 854 F.3d at 308.

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The district court’s grant of summary judgment on Batyukova’s First

Amendment claim is affirmed.

III. Fourteenth Amendment deliberate indifference

Batyukova also challenges summary judgment on her Fourteenth

Amendment claim for deliberate indifference to her medical needs. The

district court granted summary judgment because it found no evidence that

Deputy Doege was deliberately indifferent and no evidence that she suffered

harm as a result of any delay in receiving medical care.

The Due Process Clause of the Fourteenth Amendment guarantees

detainees the right “not to have their serious medical needs met with

deliberate indifference on the part of the confining officials.” Thompson v.

Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001). This guarantee “require[s]

the responsible government or governmental agency to provide medical care

to persons . . . who have been injured while being apprehended by the police.”

Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 279 (5th Cir. 2015).

These protections usually apply to pretrial detainees who have been

apprehended on account of criminal activity. See Dyer, 964 F.3d at 380.

Deputy Doege was in his uniform, in a vehicle displaying red and blue police-

style lights, identified himself to the dispatcher as an off-duty deputy, and

restrained Batyukova’s liberty by shooting her. That is enough to conclude

that the Fourteenth Amendment required the “confining officials” to

provide reasonable medical care. Thompson, 245 F.3d at 457–58; see also

Hernandez v. Tex. Dep’t of Prot. & Regul. Servs., 380 F.3d 872, 880 & n.1 (5th

Cir. 2004) (explaining that these duties fall on “state actors”).

To prevail on a claim of deliberate indifference under the Fourteenth

Amendment, “[t]he plaintiff must show that an officer acted with subjective

knowledge of a substantial risk of serious medical harm, followed by a

response of deliberate indifference.” Mason, 806 F.3d at 279 (quoting Hill v.

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Carroll Cnty., 587 F.3d 230, 238 (5th Cir. 2009)). “[The] plaintiff must show

that the officials refused to treat [her], ignored [her] complaints, intentionally

treated [her] incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs.” Id. (quotation

marks omitted) (quoting Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752,

756 (5th Cir. 2001)). If the plaintiff relies on delay as the basis of the claim,

then the plaintiff must show that the delay “results in substantial harm.”

Westfall v. Luna, 903 F.3d 534, 551 (5th Cir. 2018). Pain suffered during that

delay, though, can constitute substantial harm. Id.

Deputy Doege had “subjective knowledge of a substantial risk of

serious medical harm.” See Mason, 806 F.3d at 279. Deputy Doege shot

Batyukova several times. Batyukova fell to the ground and lay motionless.

Deputy Doege immediately requested assistance, which evinces his

awareness of Batyukova’s need for medical care. At issue is whether Deputy

Doege responded with deliberate indifference. See id.

Viewing the facts in the light most favorable to Batyukova, even

though Deputy Doege did not personally render medical treatment to

Batyukova, he immediately informed emergency dispatch that shots had been

fired, that Batyukova was injured, and that she needed assistance. We cannot

say he ignored Batyukova, refused to treat her, or displayed wanton disregard

for her medical needs. See Mason, 806 F.3d at 279.

In contrast is one of our decisions in which deliberate-indifference

claims arose from officers’ failure to inform jail personnel of a pretrial

detainee’s injuries when they delivered him to the jail. Dyer, 964 F.3d at 381–

82. We held that a reasonable jury could find that the officers “acted with

deliberate indifference by failing to seek medical attention, by failing to

inform jail personnel about [the detainee’s] injuries, and by informing jail

personnel only that [the detainee] had been ‘medically cleared’ before

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arriving at the jail.” Id. at 382. Here, Deputy Doege immediately sought

medical attention.

Batyukova relies on the fact that Deputy Doege did not “individually”

provide medical care. Although that is true, a Medina County deputy did

render aid. That deputy approached Batyukova, determined that she was

breathing and responsive, and stayed with her until EMS arrived. In Mason,

the fact that one officer “did not personally participate” in the rendering of

medical care did not constitute deliberate indifference. 806 F.3d at 279.

There, three officers responded to a reported armed robbery at an apartment,

and one of the officers shot the person suspected of the robbery. Id. at 272–

73. After the shooting, the defendant–officer called an ambulance, left the

apartment to return a police canine to the patrol vehicle, and returned to find

other officers addressing the suspect’s wounds. Id. at 279. We consider the

facts of Mason to be closely analogous. Accordingly, that Deputy Doege was

not the officer personally to approach Batyukova does not amount to

deliberate indifference.

The only possibly meaningful difference between Mason and this case

is the delay between the shooting and the moment the Medina County deputy

approached Batyukova. At most, the delay was 15 minutes, which is the

amount of time between Batyukova being shot and EMS arriving. We

acknowledge that 15 minutes appears to be a long time to be left on the ground

while bleeding from gunshot wounds. It does not, however, amount to a

legally cognizable claim for deliberate indifference because Batyukova has not

presented any evidence that the delay resulted in “substantial harm.”

Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

There is no indication that the delay between being shot and being

approached, either by the Medina County deputy or EMS, increased

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Batyukova’s risk of bodily harm or death. 6 Nor is there any indication that

the delay caused pain that would have been alleviated had she been

approached by an on-scene deputy at an earlier time. Further, the time taken

to clear the scene, both initially and subsequently, is a “legitimate

governmental objective” preventing that delay from being a basis for

deliberate indifference. Baldwin v. Dorsey, 964 F.3d 320, 327 (5th Cir. 2020)

(“Pre-trial detainees must be provided with reasonable medical care, unless

the failure to supply it is reasonably related to a legitimate government

objective.” (quotation marks omitted)). Finally, EMS arrived within 15

minutes of the shooting, and there is no indication that it could have arrived

any sooner.

Batyukova has not shown that Deputy Doege responded to her

medical needs with deliberate indifference.

AFFIRMED.

6

Batyukova cites Estate of Baker ex rel. Baker v. Castro, No. H-15-3495, 2018 WL

4762984 (S.D. Tex. Aug. 31, 2018). It is distinguishable as well as non-binding. There,

after shooting a suspect, the officer did not provide any medical care, but he did handcuff

the suspect after he was shot and as he was lying on his face. Id. at *13. The suspect died

due to blood loss a few minutes later. Id. The court held that jury issues existed as to

whether the officer was deliberately indifferent. Id. Here, though, there is no evidence that

the delay between being shot and being treated by the Medina County sheriff or EMS

resulted in substantial harm. Mendoza, 989 F.2d at 195.

23