The opinion
Case: 19-10013 Document: 00516203774 Page: 1 Date Filed: 02/15/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 15, 2022
No. 19-10013 Lyle W. Cayce
Clerk
Jacqueline Craig, Individually and on behalf of minors
J.H., K.H., and A.C.; Brea Hymond,
Plaintiffs—Appellees,
versus
William D. Martin,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CV-1020
Before Owen, Chief Judge, and Barksdale and Duncan, Circuit
Judges.
Priscilla R. Owen, Chief Judge:
This case concerns the denial of qualified immunity to a police officer
accused of using excessive force. Jacqueline Craig and four of her children
sued Officer William D. Martin asserting claims for unlawful arrest,
bystander injury, and excessive use of force. The district court denied
Martin’s motion for summary judgment on the excessive force claims on
qualified immunity grounds. This interlocutory appeal followed. We reverse
the district court’s denial of qualified immunity on the excessive force claims
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No. 19-10013
and render judgment in Martin’s favor as to those claims. We express no
opinion on the district court’s dismissal of the plaintiffs’ other claims, which
are not part of this appeal.
I
Officer Martin received a call dispatching him to a “disturbance” in
the South Division of Fort Worth. The initial 9-1-1 call came from a middle-
aged male, stating that several people were on his property arguing, had
refused to leave, and were intentionally throwing trash in his yard. A
subsequent 9-1-1 call came from the man’s neighbor Jacqueline Craig,
complaining that the man had grabbed her son by the neck because the boy
had allegedly littered.
Martin responded to the call alone. He activated his body camera as
soon as he arrived at the scene. One of Craig’s daughters, Brea Hymond,
also recorded the event on her cell phone. Martin first spoke with the male
complainant; Martin then approached Craig to obtain her version of the
events. Craig told Martin that the man had grabbed her son, A.C., after A.C.
had allegedly littered. In response, Martin asked: “Why don’t you teach your
son not to litter?” Craig, visibly agitated, told Martin that it did not matter
whether her son had littered; the man did not have the right to put his hands
on her son. Martin replied: “Why not?”
Craig started to shout at Martin after this provocation. Martin asked
why she was shouting at him, to which Craig responded: “Because you just
pissed me off telling me what I teach my kids and what I don’t.” Martin
replied in a calm voice: “If you keep yelling at me, you’re going to piss me
off, and I’m going to take you to jail.” Immediately after this exchange, J.H.,
Craig’s fifteen-year-old daughter, stepped between Craig and Martin and put
her hands on Craig’s forearms. Martin grabbed J.H. and pulled her away
from her mother.
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Moments later, K.H., Craig’s fourteen-year-old daughter, began to
walk around Martin’s right side; K.H. then pushed Martin in the left side of
his back, using most—if not all—of her body weight. Martin pulled his taser
and yelled, “Get on the ground!” Martin then allegedly “shov[ed]” his taser
into the middle of Craig’s back and “threw her to the ground.” Craig claims
that, as she was going to the ground, her “left arm and shoulder blade [were]
still suspended in [Martin’s] grip—causing [her] severe pain.” The video
does not show any throwing or slamming motion; however, it does show
Martin holding Craig’s left arm and releasing it as Craig slowly descends to
the ground.
Martin handcuffed Craig and then walked over to J.H. Again, he
shouted: “Get on the ground!” J.H., who was initially still standing, squatted
to the ground as Martin moved closer to her. Martin approached her,
grabbed her left arm and the back of her neck, and placed her on the ground.
Martin then walked Craig and J.H. to his vehicle. As Martin
approached the rear passenger door of the vehicle, K.H. appeared from
behind the back of the vehicle. She stood in front of the passenger door in an
apparent attempt to block Martin from placing Craig and J.H. in the vehicle.
Martin shouted: “Get back, or you’re going to jail too,” to which K.H.
responded: “I don’t care.” Martin allegedly “struck” K.H. in the throat,
moving her out of the way. Martin then attempted to get J.H. into the vehicle.
J.H. resisted, leaving her left leg hanging out of the vehicle. Martin
repeatedly told her to get in the police cruiser, but she refused. He then
allegedly “kick[ed]” J.H.’s left leg into the vehicle.
Martin next went to arrest Hymond, who had been verbally harassing
him throughout his arrests of Craig and J.H. Martin grabbed Hymond by the
wrist, put her up against the side of the police vehicle, and attempted to
wrangle her cell phone out of her hands. He handcuffed her and then put her
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up against the vehicle a second time. Hymond refused to respond to Martin’s
questions about her name and age, so Martin raised her handcuffed arms
behind her back in an attempt to obtain compliance. Hymond claims this
maneuver caused “[e]xcruciating pain”; however, the video shows that the
maneuver had little to any effect on Hymond. She continued to yell at Martin
as he raised her arms and immediately after he lowered them. Martin then
escorted Hymond into a second police vehicle that had just arrived at the
scene.
Craig, individually and on behalf of her minor children—J.H. and
K.H.—and Brea Hymond (collectively plaintiffs) sued Martin for unlawful
arrest and excessive use of force. Craig also sued Martin on behalf of her
minor child A.C. alleging injuries suffered as a bystander to the incident. The
district court dismissed A.C.’s claim as incognizable; it dismissed all of the
remaining plaintiffs’ claims for unlawful arrest, holding Martin was entitled
to qualified immunity as to those claims. However, the district court denied
Martin qualified immunity on the excessive force claims, concluding that the
video evidence submitted by Martin was “too uncertain” to determine
whether he was entitled to qualified immunity on that claim. Martin’s
interlocutory appeal accordingly concerns only the excessive force issue.
II
“The denial of a motion for summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine ‘to
the extent that it turns on an issue of law.’” 1 “[W]e can review the
materiality of any factual disputes, but not their genuineness.” 2
1
Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)).
2
Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).
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“We review the materiality of fact issues de novo.” 3 When the district
court does not specify what fact issues precluded a grant of summary
judgment, as is the case here, “[w]e can either scour the record and
determine what facts the plaintiff may be able to prove at trial and proceed to
resolve the legal issues, or remand so that the trial court can clarify the
order.” 4 Given the limited record in this case and the availability of video
evidence capturing the incident, we have reviewed the record rather than
remanding, in order to “resolv[e] immunity questions at the earliest possible
stage in litigation.” 5
Normally, “[t]he plaintiff’s factual assertions are taken as true to
determine whether they are legally sufficient to defeat the defendant’s
motion for summary judgment.” 6 However, if there is video evidence that
“blatantly contradict[s]” the plaintiffs’ allegations, the court should not
adopt the plaintiffs’ version of the facts; instead, the court should view those
facts “in the light depicted by the videotape.” 7 At oral argument, plaintiffs’
counsel conceded that the uses of force at issue are captured in the video
evidence. 8
Once a defendant properly pleads qualified immunity, the burden of
proof shifts to the plaintiffs to negate the defense. 9 To meet this burden, the
3
Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017).
4
Thompson v. Upshur Cnty., 245 F.3d 447, 456 (5th Cir. 2001).
5
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); see also Manis v. Lawson,
585 F.3d 839, 843 (5th Cir. 2009).
6
Manis, 585 F.3d at 843.
7
Scott v. Harris, 550 U.S. 372, 380-81 (2007); see also id. at 378.
8
Oral Argument at 33:08-33:35.
9
King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016).
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plaintiffs must establish “(1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time
of the challenged conduct.” 10
III
The plaintiffs allege that Martin’s use of force violated their Fourth
Amendment right to be free from excessive force during a seizure. To prevail
on a Fourth Amendment excessive force claim, a plaintiff must show “(1) an
injury (2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable.” 11
“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.’” 12
“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.” 13 “Factors to consider include, ‘the severity of
the crime at issue; whether the suspect poses an immediate threat to the
safety of the officers or others, and whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight.’” 14 “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
10
Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014) (internal quotation marks
omitted) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011)).
11
Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009) (quoting Freeman
v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).
12
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)).
13
Graham, 490 U.S. at 396.
14
Deville, 567 F.3d at 167 (quoting Graham, 490 U.S. at 396).
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tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” 15 Viewing the evidence in the light most
favorable to the plaintiffs, Martin’s use of force against each plaintiff was not
objectively unreasonable.
We first consider Martin’s use of force against Craig. Martin initially
grabbed Craig as he was attempting to restrain J.H., after J.H. had stepped in
between Martin and Craig. Martin physically separated J.H. and Craig and
let go of them both. Right then, Martin was pushed from behind by K.H.
Immediately after, Martin grabbed Craig again, drew his taser, and pushed
her toward the ground while maintaining a grip on her arm. As Craig went to
the ground, Martin shoved the taser into her back. Although Craig initially
pled that Martin “threw” her to the ground, Craig’s affidavit states that
Martin “shov[ed]” her to the ground, and the video of the incident shows
Martin pushing Craig onto the ground while maintaining a hold on her arm.
Under the circumstances, it was not objectively unreasonable for Martin to
grab Craig and force her to the ground to effectuate her arrest. Martin was
the only police officer at the scene, he had just been pushed from behind, and
he was facing numerous people who were shouting and jostling as he
attempted to separate Craig from the crowd and arrest her.
With regard to J.H., the plaintiffs argue that Martin violated J.H.’s
Fourth Amendment rights when he took her to the ground, and when he
allegedly kicked her leg into the police vehicle. In both instances, J.H. was
not complying with Martin’s commands. Physical force may be necessary to
ensure compliance when a suspect “refus[es] to comply with instructions.” 16
However, “officers must assess not only the need for force, but also ‘the
15
Graham, 490 U.S. at 396-97.
16
Deville, 567 F.3d at 167.
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relationship between the need and the amount of force used.’” 17 A use of
force is reasonable if an officer uses “‘measured and ascending actions’ that
correspond[] to [a suspect’s] escalating verbal and physical resistance.” 18
Martin’s actions were sufficiently measured in relation to J.H.’s
resistance. Martin had commanded J.H. and others to get on the ground.
Although J.H. initially complied, she stood back up while Martin was
handcuffing Craig. Martin approached J.H. and again ordered her to get on
the ground, at which point J.H. squatted. Martin then took J.H. to the
ground, applying the necessary force to restrain and handcuff her. With
regard to the alleged “kicking,” Martin had commanded J.H. to get into the
police vehicle. J.H. continued to argue with Martin and kept her left leg
outside of the vehicle. Martin used his foot to force J.H.’s leg into the vehicle
because he was holding Craig with one arm and the door of the vehicle with
the other. There is no indication that Martin’s use of force was excessive.
The plaintiffs do not allege that J.H. suffered any injury as a result of the kick.
Martin’s use of force in response to J.H.’s resistance was not objectively
unreasonable.
We reach a similar conclusion with respect to K.H. The relevant
conduct occurred just as Martin was attempting to place Craig and J.H. into
his police cruiser. K.H. appeared from behind the vehicle and placed herself
immediately in front of Martin, preventing Martin from placing Craig and
J.H. in the vehicle. Martin yelled, “Get back, or you’re going to jail, too!”
K.H. stood her ground, responding, “I don’t care.” After this response,
Martin allegedly struck K.H. in the throat. Martin’s use of force moved K.H.
17
Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)).
18
Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (quoting Galvan v.
City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (unpublished) (per curiam)).
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out of his way, but otherwise had limited visible effect on her. On these facts,
Martin’s use of force was not objectively unreasonable. K.H. had assaulted
Martin—pushing him in the back—earlier in the altercation, and she was
interfering with the lawful arrests of Craig and J.H. at the time Martin made
physical contact with her. K.H. refused to move and Martin used a relatively
minimal amount of force to move her out of the way. Such conduct does not
violate the Fourth Amendment.
Nor did Martin violate Hymond’s Fourth Amendment rights.
Hymond was shouting at Martin throughout the entire confrontation. She
did not comply with any of Martin’s commands or instructions. Only after
Hymond refused to provide Martin with her name did Martin employ any
force against her. Martin’s use of force—lifting Hymond’s handcuffed arms
behind her back—was relatively minimal. Hymond continued to verbally
deride Martin while Martin was lifting her arms and immediately after he put
her arms down. Given Hymond’s continued resistance, Martin’s use of force
against Hymond was not objectively unreasonable.
In sum, Martin’s conduct in this case was not objectively
unreasonable and did not violate any of the plaintiffs’ respective Fourth
Amendment rights. On this basis alone, Martin is entitled to qualified
immunity. However, even assuming the plaintiffs could show that Martin
committed a constitutional violation, Martin is nonetheless entitled to
qualified immunity under the second step of the qualified immunity analysis.
IV
At the second step of the qualified immunity analysis, we consider
whether Martin’s use of force “violated clearly established statutory or
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constitutional rights of which a reasonable [officer] would have known.” 19
For a right to be clearly established, “existing precedent must have placed
the . . . constitutional question beyond debate.” 20 “[N]o reasonable officer
could believe the act was lawful.” 21 “That is because qualified immunity is
inappropriate only where the officer had ‘fair notice’—‘in light of the
specific context of the case, not as a broad general proposition’—that his
particular conduct was unlawful.” 22 Thus, “police officers are entitled to
qualified immunity unless existing precedent ‘squarely governs’ the specific
facts at issue.” 23 “[S]pecificity is especially important in the Fourth
Amendment context, where . . . it is sometimes difficult for an officer to
determine how the relevant legal doctrine, here excessive force, will apply to
the factual situation the officer confronts.” 24
Here the plaintiffs have failed to provide any controlling precedent
showing that Martin’s particular conduct violated a clearly established right.
Instead, they have pointed to several cases that discuss the excessive force
issue at a “high level of generality”—precisely what the Supreme Court has
19
Bush v. Strain, 513 F.3d 492, 500 (5th Cir. 2008) (quoting Flores v. City of Palacios,
381 F.3d 391, 395 (5th Cir. 2004)).
20
Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011).
21
Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018); see also Morrow
v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019) (explaining that “the law must be so clearly
established that—in the blink of an eye, in the middle of a high-speed chase—every
reasonable officer would know . . . immediately” that the conduct was unlawful).
22
Morrow, 917 F.3d at 875 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(per curiam)).
23
Id. at 876 (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)).
24
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (quoting Mullenix
v. Luna, 577 U.S. 7, 12 (2015) (per curiam)); see also City of Tahlequah v. Bond, 142 S. Ct. 9,
11-12 (2021) (per curiam).
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repeatedly advised courts they cannot do in analyzing qualified immunity
claims. 25
The first case the plaintiffs identify is Sam v. Richard. 26 In Sam, the
plaintiff presented evidence that he was on the ground with his hands behind
his head when the officer slapped him across the face, kneed him in the hip,
and then pushed him against a patrol car. 27 The court concluded such a use
of force on a compliant suspect was “excessive and unreasonable,” noting
that “it was clearly established at the time of the incident that pushing,
kneeing, and slapping a suspect who is neither fleeing nor resisting is
excessive.” 28
The second case the plaintiffs rely on to show that Martin’s particular
conduct violated clearly established law is Darden v. City of Fort Worth. 29 In
Darden, an officer threw a suspect to the ground after the suspect had placed
his hands into the air in surrender. 30 Officers tased the man multiple times. 31
They choked him and repeatedly punched and kicked him in the face. 32 Not
long after these actions, the man’s body fell limp. 33 He had suffered a heart
attack and died. 34 The court concluded that the officers’ particular conduct
25
See, e.g., Kisela, 138 S. Ct. at 1152-53 (quoting City and Cnty. of S.F. v. Sheehan,
575 U.S. 600, 613 (2015)).
26
887 F.3d 710 (5th Cir. 2018).
27
Id. at 712, 714.
28
Id. at 714 (citing Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)).
29
880 F.3d 722 (5th Cir. 2018).
30
Id. at 725.
31
Id. at 725-26.
32
Id. at 726.
33
Id.
34
Id.
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violated a clearly established right. 35 The court concluded that it was clearly
established at the time of the incident that “a police officer uses excessive
force when the officer strikes, punches, or violently slams a suspect who is
not resisting arrest.” 36
The plaintiffs also cite Joseph ex rel. Estate of Joseph v. Bartlett. 37 In
Joseph, multiple police officers physically struck Joseph twenty-six times. 38
The officers also tased him twice. 39 During the incident, Joseph was lying in
the fetal position, was not resisting, and was continuously calling out for
help. 40 Joseph eventually became unresponsive and died in the hospital two
days later. 41 The court concluded that the officers used excessive force, and
that their conduct violated a clearly established right. 42 The court noted that
“Darden repeated what had long been established in our circuit: Officers
engage in excessive force when they physically strike a suspect who is not
resisting arrest.” 43
None of these decisions, nor any of the other decisions identified by
the plaintiffs, provided Martin fair notice that his particular conduct was
unlawful. The decisions in Sam, Darden, and Joseph would not have provided
fair notice because the plaintiffs in each case were not resisting arrest when
35
Id. at 731-33.
36
Id. at 732.
37
981 F.3d 319 (5th Cir. 2020).
38
Id. at 327.
39
Id. at 326-27.
40
Id.
41
Id. at 327.
42
Id. at 342.
43
Id.
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the alleged unlawful conduct occurred. In all three cases, the plaintiffs had
either signaled their surrender by placing their hands in the air and ceasing
further movements or were lying on the ground before the alleged unlawful
conduct occurred. In contrast, the plaintiffs in this case—except for Craig—
were still resisting when the alleged unlawful conduct occurred. J.H. refused
to get into the police vehicle when Martin allegedly kicked her leg into the
vehicle. K.H. was intentionally obstructing Martin’s access to the back door
of his vehicle when he pushed her out of the way. Hymond was cursing,
shouting, and twisting throughout Martin’s attempt to effectuate her arrest.
The clearly established law as identified in Sam, Darden, and Joseph is
applicable only in situations in which the suspect is not resisting arrest. That
is not the case for J.H., K.H., or Hymond here.
Martin’s use of force in this case is also far less severe than the use of
force in any of the cases the plaintiffs have identified. For instance, the
plaintiffs point to a case from this court in which the officer slammed a
nonresistant suspect’s face into a nearby vehicle, breaking two of her teeth. 44
They point to a decision from another circuit in which multiple officers
punched, kneed, and kicked a suspect—while he was handcuffed on the
ground—severely enough to fracture the suspect’s neck. 45
Although the plaintiffs need not point to a factually identical case to
demonstrate that the law is clearly established, they nonetheless must
provide some controlling precedent that “squarely governs the specific facts
at issue.” 46 The plaintiffs have not provided such precedent here and thus
44
Bush v. Strain, 513 F.3d 492, 496 (5th Cir. 2008).
45
Krout v. Goemmer, 583 F.3d 557, 561-63 (8th Cir. 2009).
46
Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019) (internal quotation marks
omitted) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)).
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fail to show that the law clearly established that Martin’s particular conduct
was unlawful at the time of the incident. They have not overcome Martin’s
qualified immunity defense.
* * *
For these reasons, we REVERSE the district court’s denial of
qualified immunity on the excessive force claims and RENDER summary
judgment in Martin’s favor as to those claims.
14