asking, but not answering, “How close is ‘too close’ such that the filming, however well-intentioned, becomes hazardous, diverting officers’ attention and impeding their ability to perform their duties in fast-moving, highly charged situations?”
How later courts described this case
- asking, but not answering, “How close is ‘too close’ such that the filming, however well-intentioned, becomes hazardous, diverting officers’ attention and impeding their ability to perform their duties in fast-moving, highly charged situations?”
- affirming dismissal of First Amendment retaliatory arrest claim because officers had probable cause to arrest plaintiff exercising First Amendment right in manner that interfering with officers’ official duties
- holding that abrasions to the face, head and tricep bruises, and mental trauma were minor injuries
- distinguishing Richard and finding qualified immunity because Richard “involved more severe and less appropriate uses of force” than used by the Buehler officers
Written by the judges who cited it.
The opinion
Case: 20-50822 Document: 00516222935 Page: 1 Date Filed: 03/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50822 March 3, 2022
Lyle W. Cayce
Clerk
Antonio Buehler,
Plaintiff—Appellee Cross-Appellant,
versus
Randy Dear, in his individual and official capacities, Aljoe Garibay,
in his individual and official capacities; Wesley Devries, in his individual
and official capacities; Monika McCoy, in her individual and official
capacities,
Defendants—Appellants Cross-Appellees,
City of Austin, Quint Sebek, in his individual and official capacities;
John Leo Coffey, in his individual and official capacities; Ryan
Adams, in his individual and official capacities; Allen Hicks, in his
individual and official capacities; Reginald Parker, in his individual and
official capacities,
Defendants—Cross-Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC 1:17-CV-724
Case: 20-50822 Document: 00516222935 Page: 2 Date Filed: 03/03/2022
No. 20-50822
Before Clement, Southwick, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
This appeal concerns the line between filming the police, which is
legal, and hindering the police, which is not. Without question, video footage
plays a major role in exposing incidents of police brutality. The ubiquity of
smartphone cameras has made eyewitnesses of us all; as smartphones
proliferate, so do recordings of police interactions (some commendable,
others condemnable). The rub is figuring out when filming veers from
documenting to interfering. For example, how far away should a citizen-
videographer be so as not to get in the way? How close is “too close” such
that the filming, however well-intentioned, becomes hazardous, diverting
officers’ attention and impeding their ability to perform their duties in fast-
moving, highly charged situations?
In the wee hours of August 2, 2015, Antonio Buehler, a police-
accountability activist, was arrested on crowded Sixth Street in downtown
Austin while “cop watching” (video-recording police activity). Buehler
insists he was just filming; the officers insist he was interfering. In short,
Buehler and the officers had repeated verbal confrontations about how close
to them he was permitted to stand while recording. The bickering escalated,
with Buehler ultimately arrested for misdemeanor interference with
performance of official duties. Four Austin police officers took Buehler to the
ground and handcuffed him, with Buehler suffering minor bruises and lesions
as a result.
Buehler brought various constitutional claims against the City of
Austin and nine officers of the Austin Police Department. Buehler alleged
false arrest and excessive force in violation of the Fourth Amendment and
retaliation for the exercise of his First Amendment right to film the police.
The district court ruled mostly for the Defendants, but not fully. It dismissed
Buehler’s municipal-liability and First Amendment claims and granted
summary judgment to the individual Defendants on Buehler’s false-arrest
2
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No. 20-50822
claim, while denying summary judgment on his excessive-force claim.
Defendants filed this interlocutory appeal of the partial denial of their
summary judgment motion, and Buehler cross-appealed the district court’s
unfavorable rulings of all but his excessive-force claim.
We hold that none of the officers involved in Buehler’s arrest used
excessive force in violation of the Fourth Amendment. We also conclude that
summary judgment for the officers on Buehler’s false-arrest claim was
proper; the officers were entitled to qualified immunity on Buehler’s First
Amendment claim; and Buehler’s bystander- and municipal-liability claims
fail for lack of an underlying constitutional violation. Accordingly, we
REVERSE the district court’s denial of summary judgment as to Buehler’s
excessive-force claim and AFFIRM the district court in all other respects.
I
Cross-Appellant Antonio Buehler leads the Peaceful Streets Project
(PSP), a watchdog organization with the stated mission of holding police
accountable for official misconduct. In the early morning hours of August 2,
2015, Buehler and several other PSP members were cop watching in
downtown Austin. Buehler regularly filmed the Austin police, and many
officers were familiar with him. In footage taken by Buehler, Officer Randy
Dear can be seen talking to a passerby while Buehler films the encounter.
Afterwards, Dear turns away, at which point Buehler shouts at Dear to get
his attention and then begins arguing with Dear about the extent of Buehler’s
right to film the police. Buehler repeatedly interrupts Dear’s answers to
questions, and Dear tries several times to walk away while Buehler follows
with his camera. Towards the end of the clip, Buehler can be heard saying,
“I’m going after Dear. F***ing pigs. I hate pigs.”
Other footage shows that, as of around 1:30 a.m., Buehler was standing
next to a group of police officers standing in the middle of Sixth Street.
3
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No. 20-50822
Buehler is positioned extremely close to (though not physically touching)
Officer Dear, and the two can be heard arguing contentiously from time to
time. Officers Garibay and DeVries also can be seen arguing with Buehler
about whether he was maintaining a sufficient distance while filming. In
footage taken by Buehler, Dear can be seen turning to Buehler and telling
him, “just going to let y’all know, the next time we go to a disturbance and
y’all get in the way . . . . The next time you’re interfering, you’re going to be
arrested.” As he walks away from Buehler, Dear then adds, “You’ve been
warned, sir.” Buehler follows him briefly before pointing his camera at the
other officers and asking several times, “What does that mean? Can you
explain that?” Officer Sebek responds, “arm’s length, please. Arm’s length,
please.” Footage taken from another angle shows that Buehler continued to
stand closer to the officers than an arm’s length away (certainly no more than
two feet, and probably no more than one).
After nearly two minutes pass with little movement by the officers or
Buehler, Dear turns to Buehler to give further orders, telling Buehler,
“you’re interfering with my space here so I can monitor the crowd,” and,
“I’m going to ask you one more time.” Buehler then takes several steps and
pivots such that he is directly facing Dear, but standing about the same
distance away. A few seconds later, Dear tells Buehler, “Go ahead and turn
around, sir. Go ahead and turn around,” and “You’re under arrest.” While
Dear is giving these orders, Buehler begins taking steps backward away from
the officers, even as Dear is walking forward towards Buehler. Buehler then
turns his back on the officers and takes one or two additional steps away from
them. Officer Garibay grabs Buehler’s wrists from behind in an attempt to
restrain him. Footage of the incident taken at ground level appears to show
Buehler taking another step after being grabbed, lurching forward as Garibay
attempts to make the arrest, though aerial (“x”) footage taken by an APD
camera suggests that Buehler’s sudden motion was most likely an attempt to
throw the device with which he was filming to someone else so as to preserve
4
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No. 20-50822
his footage. At that point, Dear, Garibay, and DeVries take Buehler to the
ground and hold him in a prone position while placing him in handcuffs.
Officer McCoy also ran to assist after Buehler was taken down, holding
Buehler’s legs still while the other officers carry out the arrest. Buehler
remained on the ground for between 40 and 45 seconds.
Afterwards, the officers took him to the Travis County jail and booked
him for misdemeanor interference with official duties and resisting arrest.
Buehler claims to have suffered mental pain, bruises on his tricep and head,
and abrasions to his face as a result of the arrest (though any facial injuries he
suffered were apparently not serious enough to be visible in photographs of
him taken soon after the incident).
* * *
In August 2017, Buehler sued the City of Austin and nine APD
officers (Dear, Garibay, DeVries, McCoy, Sebek, Coffey, Adam, Hicks, and
Parker1) under 42 U.S.C. § 1983, alleging false arrest and excessive force in
violation of the Fourth Amendment, and retaliation for exercise of his First
Amendment right to film police. Buehler also brought municipal-liability
claims against the City and bystander-liability claims against the officers not
directly involved in his arrest. Defendants moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court
granted Defendants’ motion in part, holding that they were entitled to
qualified immunity on the First Amendment claim; and that Buehler had
failed to state claims for either bystander- or municipal-liability, or for
excessive force against Defendants Coffey, Sebek, Hicks, or Adam. But the
1
For reasons it did not make clear, the district court dismissed Buehler’s claims
against Parker, who was not present when Buehler was arrested but, according to Buehler,
violated the Constitution by inadequately investigating the arrest. None of Buehler’s
appellate briefing challenges or even mentions the dismissal of Parker as a defendant. The
issue has thus been abandoned, see Akuna Matata Investments, Ltd. v. Tex. Nom Ltd. P’ship,
814 F.3d 277, 282 n.6 (5th Cir. 2016), and we do not consider it.
5
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No. 20-50822
district court denied Defendants’ 12(b)(6) motion as to Buehler’s false-arrest
and excessive-force claims against the four officers who participated in his
arrest (Dear, Garibay, DeVries, and McCoy, hereinafter “Officers”).2
The arresting Officers subsequently moved for summary judgment on
Buehler’s remaining claims. The district court granted the Officers’ motion
as to the false-arrest claim but held that Buehler had established a genuine
dispute of material fact as to whether they were entitled to qualified immunity
on the excessive-force claim, thus precluding summary judgment.3 The
district court subsequently denied both Buehler’s motion for reconsideration
and the Officers’ motion to alter or amend judgment. The Officers then filed
this interlocutory appeal of the denial of summary judgment on the excessive-
force claim, and the district court granted Buehler’s request for certification
of partial final judgment so that he could cross-appeal that court’s judgment
in all other respects.4
II
The standards of review governing Buehler’s cross-appealed claims
are straightforward. He appeals the dismissals of his First Amendment and
municipal-liability claims, as well as the grant of summary judgment to
Defendants on his false-arrest claim. We review both de novo.5 “To survive
2
See Buehler v. City of Austin, No. 1:17-CV-724-LY, 2018 WL 4225046 (W.D. Tex.
Sept. 5, 2018).
3
See No. 1:17-CV-724-DAE, 2020 WL 5793008 (W.D. Tex. Mar. 27, 2020).
4
We have jurisdiction over the Officers’ appeal because, notwithstanding the
general rule that only final judgments are immediately appealable, a denial of summary
judgment on qualified-immunity grounds is immediately appealable under the collateral-
order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). Similarly, we have
jurisdiction over Buehler’s cross-appeal under 28 U.S.C. § 1291 because the district court
granted Buehler’s request for certification of partial final judgment so that he could cross-
appeal the court’s disposition of his other claims. See FED. R. CIV. P. 54(b).
5
Magee v. Reed, 912 F.3d 820, 822 (5th Cir. 2019).
6
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No. 20-50822
a [12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its
face.”6 And a motion for summary judgment should be granted if “there is
no genuine dispute as to any material fact and the movant is entitled to a
judgment as a matter of law.”7
A different standard, however, governs the Officers’ interlocutory
appeal. On interlocutory appeal from an order denying qualified immunity,
we review de novo the district court’s legal determinations as to the
materiality of factual disputes, but lack jurisdiction to review its
determinations that factual disputes are “genuine.”8 The distinction
between permissible “materiality” review and impermissible “genuineness”
review can be hazy in practice, but in this case, the parties agree that the facts
are not in question. The issue presented by the Officers’ interlocutory appeal
is simply “whether the district court erred in assessing the legal significance
of the conduct that the district court deemed sufficiently supported for
purposes of summary judgment.”9
It is also noteworthy for purposes of appellate review that the record
here includes extensive video evidence of Buehler’s arrest and the events
leading up to it from several different angles. “Although we review evidence
in the light most favorable to the nonmoving party” on appeal from a district
court’s disposition of a summary-judgment motion, “we assign greater
weight, even at the summary judgment stage, to the facts evident from video
6
Id. (quoting Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017)).
7
FED. R. CIV. P. 56(a).
8
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015).
9
Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004).
7
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No. 20-50822
recordings taken at the scene.”10 “[W]e are not required to accept factual
allegations that are ‘blatantly contradicted’” by such evidence.11 Instead, we
“view[] the facts in the light depicted by the videotape.”12
A
We begin by considering the question presented by the Officers’
interlocutory appeal—namely, whether Dear, Garibay, DeVries, and McCoy
(the four APD officers involved in Buehler’s arrest) were entitled to
summary judgment on his excessive-force claim. The Officers moved for
summary judgment on the ground that their use of force in arresting Buehler
did not violate the Fourth Amendment or, in the alternative, that they were
at least entitled to qualified immunity on this issue. The district court denied
the motion, finding that genuine disputes of material fact existed as to
whether the Officers had used excessive force or were protected by qualified
immunity. As we explain below, we disagree.13
10
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
11
Tucker v. City of Shreveport, 998 F.3d 165, 170 (5th Cir. 2021) (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)).
12
Id. (quoting Scott, 550 U.S. at 381).
13
The district court, after “f[inding] that there is a genuine issue of material fact
as to whether” the Officers’ use of force violated the Fourth Amendment, concluded that
it “need not conduct a full analysis as to whether the right was clearly established or not.”
Buehler v. Dear, 2020 WL 5793008, at *11 n.5 (W.D. Tex. Mar. 27, 2020). We agree with
the Officers that this is an incorrect statement of the law. “To deny qualified immunity at
the summary judgment stage, [a] district court must answer ‘yes’ to two questions.”
McDonald v. McClelland, 779 F. App’x 222, 225 (5th Cir. 2019) (per curiam). If the court
finds that “the alleged conduct amounts to a constitutional violation,” then it must also
determine “whether the right was clearly established at the time of the conduct.” Lytle v.
Bexar Cnty. 560 F.3d 404, 410 (5th Cir. 2009). Here, since the district court’s opinion
erroneously skipped the second inquiry, we perhaps could remand for the district court to
consider the clearly-established-law question in the first instance. That was how we
disposed of a case involving an interlocutory appeal of a denial of summary judgment where
8
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No. 20-50822
Governing Law. The Fourth Amendment prohibits police from using
more force than is reasonably necessary to effect an arrest.14 As one American
court admonished 180 years ago, “[a] person having authority to arrest
another must do it peaceably, and with as little violence as the case will admit
of. . . . [I]f resisted he may use force sufficient to effect his purpose; but if no
resistance be offered or attempt at escape, he has no right rudely and with
violence, to seize and collar his prisoner.”15 Nevertheless, it is hornbook law
that “the right to make an arrest . . . necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.”16
A plaintiff arguing that a public official has used excessive force in
violation of the Fourth Amendment thus “must show: (1) injury, (2) which
resulted directly and only from a use of force that was clearly excessive, and
the district court erroneously “failed to address [the second] half of the qualified-immunity
inquiry.” McDonald, 779 F. App’x at 225.
In this case, however, we believe that remand is unnecessary. After the Officers
pointed out the district court’s mistake of law in their motion to alter or amend judgment,
the district court addressed the second step of the qualified-immunity analysis in its order
denying that motion. And the Officers have appealed both the original denial of summary
judgment and its denial of their motion to alter or amend judgment. We “generally
review[s] a decision on [such] a motion to . . . for abuse of discretion,” except “[t]o the
extent” that the decision was based on “a question of law,” in which case “the standard of
review is de novo.” Pioneer Nat. Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy
Workers Int’l Union Loc. 4-487, 328 F.3d 818, 820 (5th Cir. 2003). Here, the district court
apparently denied the Officers’ motion to alter or amend judgment on the purely legal
ground that the unconstitutional conduct in which they allegedly engaged violated clearly
established law. We therefore are satisfied that both steps of the qualified-immunity inquiry
are properly presented for our de novo review.
14
Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020).
15
State v. Mahon, 3 Del. 568, 569 (1842); accord Golden v. State, 1 S.C. 292, 302
(1870).
16
Graham v. Connor, 490 U.S. 386, 396 (1989); see also Fulton v. Staats, 41 N.Y.
498, 499 (1869) (Officers may “use as much force as [i]s necessary to make the arrest.”).
9
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No. 20-50822
(3) the excessiveness of which was clearly unreasonable.”17 “‘The test of
reasonableness under the Fourth Amendment is not capable of . . .
mechanical application,’” but instead “requires careful attention” to each
case’s facts.18 Among the “considerations that inform the need for force:
[are] (1) the severity of the crime at issue, (2) whether the suspect posed an
immediate threat to the safety of officers or others, and (3) whether the
suspect was actively resisting . . . or attempting to evade arrest.”19 Still, at the
end of the day, the touchstone of our inquiry is simply the reasonableness of
the force employed. “To be reasonable is not to be perfect, and so the Fourth
Amendment allows for some mistakes on the part of . . . officials, giving them
“‘fair leeway for enforcing the law in the community’s protection.’”20
“‘Not every push or shove, even if it may later seem unnecessary in the peace
of a judge’s chambers,’ violates the Fourth Amendment.”21
In addition, even if the Officers violated the Fourth Amendment,
Buehler’s claims against them cannot proceed unless he overcomes qualified
immunity, which shields officials performing discretionary functions from
“liability for civil damages insofar as their conduct does not violate clearly
established . . . constitutional rights of which a reasonable person would have
known.”22 The plaintiff has the burden of showing that the unlawfulness of
17
Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).
18
Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
19
Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020).
20
Heien v. North Carolina, 574 U.S. 54, 60–61 (2014) (quoting Brinegar v. United
States, 338 U.S. 160, 176 (1949)).
21
Graham, 490 U.S. at 396–97 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir. 1973)).
22
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
10
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No. 20-50822
the defendant’s conduct was clearly established at the time it occurred.23
Although the plaintiff need not identify “a case directly on point” in order to
make such a showing, he or she must point to “authority at a sufficiently high
level of specificity to put a reasonable official on notice that his conduct is
definitively unlawful.”24 “[T]he qualified immunity analysis in an excessive
force case” such as this one “involves two distinct reasonableness
inquiries. One is whether the officer’s use of force was objectively reasonable
in light of Fourth Amendment standards. The other is whether the right was
clearly established such that a reasonable officer would know that the
particular level of force used was excessive.”25
The Supreme Court formerly “mandated a two-step sequence” for
resolving qualified immunity claims: “First, a court [had to] decide whether
the facts . . . alleged . . . make out a violation of a constitutional right. Second,
if the plaintiff . . . satisfied this first step, the court [had to] decide whether
the right at issue was ‘clearly established’ at the time of defendant's alleged
misconduct.”26 Today, however, “[c]ourts of appeal are free to decide which
of the two prongs of the qualified immunity analysis to address first.”27
Moreover, although we now may also “leapfrog” the first prong and resolve
cases solely on the basis that defendants’ conduct—even if unlawful—did
not violate clearly established law, “we think it better to address both steps
in order to provide clarity and guidance for officers and courts.”28
23
Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015).
24
Id.
25
Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013).
26
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
27
Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (per curiam).
28
Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020).
11
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No. 20-50822
* * *
Application. The Officers first argue that Buehler’s excessive-force
theory fails as a matter of law because his injuries were too minor. It is true
that, “[t]o state a claim for excessive use of force, the plaintiff’s asserted
injury must be more than de minimis.”29 We have tossed out an excessive-
force allegation where, for example, “the most substantial injury claimed by
[the arrestee] [wa]s that she suffered bruising on her wrists and arms because
the handcuffs were applied too tightly,” reasoning 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.”30
Nevertheless, the injury requirement is a sliding scale, not a hard
cutoff. “[T]he amount of injury necessary to satisfy [the] requirement of
‘some injury’ . . . is directly related to the amount of force that is
constitutionally permissible under the circumstances.”31 “[A]s 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.”32 Here, Buehler suffered abrasions
to his face, as well as bruises on his tricep and head, as a result of the arrest.
He also alleges that the incident caused him mental trauma. We therefore
conclude that Buehler’s injuries, while minor, are not so minor that his
excessive-force claim necessarily fails as a matter of law.
29
Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007).
30
Id. at 417.
31
Ikerd v. Blair, 101 F.3d 430, 434–35 (5th Cir. 1996).
32
Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (quoting Brown
v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013)).
12
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No. 20-50822
Still, a reviewing court “should . . . consider the seriousness of the
alleged injuries in determining whether the officer’s conduct was objectively
reasonable.”33 The district court determined that Buehler had produced
enough evidence that “a reasonable jury could conclude that [he] had
suffered an injury as a result of his arrest.”34 As for the extent of the alleged
bruises, abrasions, and mental pain, the district court remarked only that
Buehler’s “injuries appear relatively minor” and “are the type that the Fifth
Circuit has held to be de minimis.”35 We agree. By consulting the largely
undisputed evidence in the record that relates to this issue,36 we conclude
that Buehler’s injuries are properly characterized as “minor” for purposes
of excessive-force analysis. Photographs taken of Buehler’s face immediately
after the incident reveal that any lacerations he suffered were so minor as to
be essentially invisible. The security camera footage of Buehler’s booking at
the Travis County Jail show him moving around comfortably with no signs of
physical injury or mental distress. What is more, Buehler admitted in his
deposition that he did not physically suffer “anything beyond . . . bruising
and pain,” for which he did not seek medical attention while in jail or the day
he was released (and apparently was never prescribed any treatment except
“self-care” and “ibuprofen or something”). The limited extent of Buehler’s
injuries tends to support the Officers’ argument that they acted reasonably.
33
Harper v. Harris Cty., 21 F.3d 597, 601 (5th Cir. 1994); accord Deville v. Marcantel,
567 F.3d 156, 168 (5th Cir. 2009).
34
2020 WL 5793008, at *9.
35
Id.
36
“[W]here a district court does not set out the factual basis underlying its legal
determinations related to a claim of qualified immunity, the court of appeals”—even in an
interlocutory appeal such as this one—may “review the record to determine what facts the
district court assumed.” Beltran v. City of El Paso, 367 F.3d 299, 302 (5th Cir. 2004).
13
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No. 20-50822
Moreover, we believe Buehler’s self-reported mental suffering is
entitled to relatively little weight in our Fourth Amendment reasonableness
analysis, given that we have noted in another case that “any non-physical
injury [the plaintiff-arrestee] may have suffered due to the time spent
handcuffed lasted at most 20 seconds and was therefore de minimis,” and
thus supported the ultimate conclusion that the arresting officer’s use of
force in that case did not violate the Fourth Amendment.37 That reasoning
applies with almost as much force here, as Buehler spent fewer than 45
seconds on the ground while the Officers handcuffed him. Indeed, we have
rejected similar attempts by excessive-force plaintiffs to parlay their minimal
injuries into more serious ones by tacking on allegations of psychological
suffering.38
The Officers and Buehler further dispute whether interfering with
officers’ public duties is a “severe” offense.39 But we have already spoken to
this issue in a precedential case—holding that, for excessive-force analysis
purposes, “interference with public duties” under Texas law is “a minor
offense.”40 This consideration favors Buehler’s position for purposes of the
Fourth Amendment reasonableness inquiry.
37
Johnson v. Hollins, 716 F. App’x 248, 254 (5th Cir. 2017).
38
See Tarver, 410 F.3d at 752; Mesa v. Prejean, 543 F.3d 264, 272–73 (5th Cir.
2008); Brooks v. City of W. Point, 639 F. App’x 986, 990 (5th Cir. 2016).
39
Buehler also attempts to bolster his excessive force-claim by arguing that “no
crime [was] taking place” when he was arrested. This argument fails to appreciate that
excessive-force and false-arrest claims are “separate and distinct,” such that an “excessive
force claim” must be “analyze[d] . . . without regard to whether the arrest itself was
justified.” Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007).
40
Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018).
14
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No. 20-50822
The Officers and Buehler also disagree as to whether Buehler’s
actions can be characterized as resisting arrest. According to Garibay’s
affidavit, when Dear told Buehler to turn around and that he was under
arrest, Buehler “turned around” and began “walking away.” Buehler, on the
other hand, asserts that he was merely turning around in preparation for his
arrest, in accordance with Dear’s orders. Footage of the incident, consistent
with Garibay’s description, depicts Buehler taking several steps backwards
away from officers immediately after Dear tells Buehler to turn around and
informs him that he is under arrest. Buehler turns his back on the Officers
and begins to walk away. Based on the video evidence, we conclude that, at
the very least, the Officers could reasonably have believed that Buehler was
turning to walk away rather than complying with their orders. We “must
measure the force used under the facts as a reasonable officer would perceive
them, not necessarily against the historical facts.”41 And we have
acknowledged that, as the Officers in this case duly point out, a “suspect
[who] . . . back[s] away from the arresting officers” is “actively resist[ing]
arrest”—albeit mildly.42
The Officers further contend that when Garibay grabbed Buehler’s
wrists from behind in an effort to restrain him, Buehler lurched forward in an
attempt to get away—a maneuver the Officers characterize as another form
of resistance by Buehler. Again, the street-level video tends to support this
account. And “[t]he great weight of Texas authority indicates that pulling
out of an officer’s grasp is sufficient to constitute resisting arrest” for
41
Griggs v. Brewer, 841 F.3d 308, 313 (5th Cir. 2016).
42
Cadena v. Ray, 728 F. App’x 293, 296 (5th Cir. 2018) (per curiam) (cleaned up)
(quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).
15
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No. 20-50822
purposes of Texas Penal Code § 38.03(a)43—and, it stands to reason, for
purposes of excessive-force analysis. While the HALO footage tends to
suggest (and the district court apparently believed44) that Buehler’s jerking
motion was probably an attempt to hand off his recording device, the Officers
likely thought at the time that Buehler’s sudden motion was an effort to break
free of Garibay’s grasp. And once again, 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.”45
Finally, yet another consideration bearing upon the reasonableness of
an arresting officer’s use of force is whether “it involved ‘measured and
ascending responses’ to a [suspect’s] noncompliance.”46 We held in one
case, for instance, that arresting officers’ use of force to subdue a suspect did
not violate the Fourth Amendment, emphasizing that “the Officers spoke
calmly to [the suspect] for several minutes despite his attempt to interfere
with his wife’s arrest and his erratic behavior throughout the interaction.
Furthermore, [the suspect] not only disobeyed the Officers’ order to submit
to arrest, he had disobeyed their prior order to leave the [hotel] lobby” where
43
Ramirez v. Martinez, 716 F.3d 369, 376 (5th Cir. 2013).
44
The district court described the relevant chain of events as follows: “The video
footage shows [the Officers] each physically restraining Plaintiff mere moments after Dear
instructed Plaintiff to turn around and stated to Plaintiff that he was under arrest. Plaintiff
turned around and took maybe a step or two away from Dear, yet certainly does not appear
to be resisting or evading arrest. He appears to be mostly focused on passing his camera to
someone else.” 2020 WL 5793008, at *11. We do not take issue with the district court’s
literal description of the events depicted in the video; rather, we disagree with the district
court’s “assess[ment] [of] the legal significance” of those events. Kinney, 367 F.3d at 348.
45
Graham v. Connor, 490 U.S. 386, 396–97 (1989).
46
Poole, 691 F.3d at 629 (quoting Galvan v. City of San Antonio, 435 F. App’x 309,
311 (5th Cir. 2010) (per curiam) (unpublished)).
16
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No. 20-50822
these events were taking place.47 This reasoning lends support to the
Officers’ position in this case. While Buehler’s conduct leading to his arrest
was perhaps not as “erratic,” he relentlessly followed around officers for
hours, disobeying their repeated and unambiguous commands that he step
back at least arm’s length away so as not to block the Officers’ field of vision.
We believe their conduct in dealing with Buehler can accurately be described
as “measured and ascending.”
Based on these considerations, we are quite certain at the outset that
at least Officer McCoy is entitled to summary judgment on the excessive-
force claim. Where such claims are brought against multiple officers in
connection with a single arrest, a reviewing court of course “must analyze
the officers’ actions separately.”48 And in our view, it is beyond reasonable
debate that McCoy did not violate the Fourth Amendment, let alone “clearly
established” Fourth Amendment caselaw. She explains in her affidavit that,
consistent with what footage of the arrest appears to show, she merely placed
her knee on Buehler’s legs to hold them still while he was handcuffed, (or, in
his words, “grabbed one of my legs”) and, as he admits, did not “cause [him]
any injury.”
Precedent confirms the commonsense notion that McCoy, in so
doing, did not violate the Fourth Amendment. We held, in an arrestee’s
similar excessive-force suit against the two officers who arrested her, that the
officer who threw her to the ground and injured her spine was not entitled to
summary judgment, but the other officer (who restrained the arrestee once
she was on the ground) was so entitled: “the reasonable cause of [the
plaintiff’s spinal] injury is [the first officer’s] body-slam and not [the second
47
Cadena, 728 F. App’x at 296.
48
Darden v. City of Fort Worth, 880 F.3d 722, 731 (5th Cir. 2018).
17
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officer’s] assistance in holding [the plaintiff] on the ground. [The plaintiff’s]
other injuries, including the abrasions and bruises, bloody urine, and high
blood pressure and heart rate, which may have been caused by [the second
officer’s] actions, are . . . de minimis.”49 So too with McCoy’s actions here.50
As for the other three arresting Officers (Dear, Garibay, and DeVries),
the excessive-force analysis is slightly closer. On the one hand, working in
Buehler’s favor is the fact he was not being arrested for a “serious” offense,
nor did he pose an obvious danger to the Officers or to passersby. On the
other hand, however, the Officers rightly point out that Buehler’s conduct
amounted to active resistance to arrest, that they used gradually ascending
means of attempting to gain control of the situation before resorting to force,
and that Buehler’s injuries were extremely minor. We think the balance tips
in the Officers’ favor. Still, in an abundance of caution, we turn to caselaw
for further guidance as to whether the Officers’ use of force was reasonable.
On that score, Buehler directs our attention to several of our decisions that
supposedly clearly establish that the use of force in this case violated the
Fourth Amendment. We examine each in turn.
First, Buehler cites a case where we held that “a reasonable jury could
find that [an arrestee’s] pulling his arms away from the officers, along with
49
Westfall v. Luna, 903 F.3d 534, 549–50 (5th Cir. 2018).
50
The district court, despite conceding “that it is a close[] call whether Plaintiff
has an excessive force claim against McCoy, particularly considering here that he does not
allege any injury to his knees or legs,” reasoned that her “physical restraint . . . contributed
to [Buehler’s] overall injuries and certainly to his alleged psychological injuries.” 2020 WL
5793008, at *9. We do not know what led the district court to conclude that McCoy
“contributed to [Buehler’s] overall injuries,” a finding that is contradicted by the evidence.
But even if the district court’s remark to that effect is a factual “genuineness” holding that
we may not second-guess on interlocutory appeal, we are still confident based on the record
that any “contribut[ion]” by McCoy to Buehler’s injuries was de minimis as a matter of law.
18
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No. 20-50822
the other circumstances of [his] arrest, did not justify the officers’ decision
to tackle [him] to the ground.”51 The use of force in that case, however, was
far more extreme than the force used against Buehler.52 Buehler also cites a
decision in which we held that an arresting officer violated the clearly
established law governing excessive force when he “rushed towards [a
suspect] and administered a blow to [his] upper back or neck,” and then
“took [the suspect] to the ground” to handcuff him, even though the suspect
engaged in no “active resistance or an attempt to flee” during the whole
encounter.53 The suspect visited the hospital later that day for treatment,
where he was diagnosed with fairly serious injuries54—certainly more serious
than those sustained by Buehler in this case. Buehler similarly points to a case
where we held that arresting officers were not entitled to qualified immunity
from the excessive-force claim of an arrestee who “suffered a broken
shoulder as a result of being tackled” by the officers, “from whom he was not
fleeing.”55 Once again, however, a closer look at the facts reveals that the
injuries sustained by this unfortunate suspect were orders of magnitude
greater than those suffered by Buehler as a result of his arrest.56
51
Trammell v. Fruge, 868 F.3d 332, 342 (5th Cir. 2017).
52
The force in that case included repeated strikes to the arrestee’s arms, thighs,
and ribs, and resulted in him suffering “‘mildly displaced right L1, L2, and L3 transverse
process fractures” that required him to “use[] a wheelchair while at home.” Id. at 338.
53
Hanks v. Rogers, 853 F.3d 738, 743, 746, 745 (5th Cir. 2017).
54
He had suffered “contusions, acute strains, and bruised ribs” and “received two
prescriptions for pain medication and a form releasing him from work for two days.” Id.
55
Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000).
56
The arrestee in that case “spent 8 days in the hospital, at a cost of almost
$32,000. He needed a plate and screws inserted into his shoulder,” “missed a year of
work,” and was “likely [to] need his entire shoulder replaced in the future.” Id. at 734.
19
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In our view, the forced used in each of these cases was far more
egregious than that used by the Officers in arresting Buehler—who actively
resisted (albeit mildly) and whose injuries were far less severe. Since “[t]he
extent of an injury is an element of an excessive force claim that must be
clearly established in . . . the qualified immunity analysis,”57 we disagree with
Buehler that these decisions would have put the Officers on notice that the
comparatively negligible injury suffered by Buehler during his arrest
rendered the force used to carry out that arrest unconstitutional.
With that said, some of the cases Buehler cites involved facts closer to
those here. First, he cites Ramirez v. Martinez, where we held that it “was
objectively unreasonable” for “several officers [to] force[] [a misdemeanor
arrestee] to the ground” and tase him twice (including once after he was
already handcuffed), resulting in burns—particularly given the absence of
“resistance on [the arrestee’s] part,” except for “pulling his arm out of [an
officer’s] grasp.”58 Still, this was an appreciably more severe use of force than
what was employed by the Officers who arrested Buehler (which did not
involve a taser59); the arrestee in Ramirez alleged, and the Officer-Defendants
in that case did not contest, that he “‘sustained numerous injuries to his
body, including, but not limited to, contusions and abrasions to his body, and
burn marks from the taser probes.’”60 Further, our reasoning in Ramirez
focused on the fact that the forceful arrest measures in question were
57
Flores v. City of Palacios, 381 F.3d 391, 400 n.7 (5th Cir. 2004).
58
716 F.3d 369, 378 (5th Cir. 2013).
59
This is a meaningful distinction. As we have observed in the past, the use of “a
taser can cause death or serious injury.” Pena v. City of Rio Grande City, 816 F. App’x 966,
972 n.8 (5th Cir. 2020).
60
716 F.3d at 377.
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employed “after [the] arrestee ha[d] been restrained and handcuffed,”61
whereas here the Officers took Buehler to the ground and held him there face-
down for only as long as it took to handcuff him. It therefore seems quite a
stretch to say that Ramirez alone “clearly established” that the lesser degree
of force used by the Officers in arresting Buehler violated the Fourth
Amendment.
Similarly, Buehler points to our decision in Sam v. Richard, where we
held that an arresting officer’s “use of force was objectively unreasonable at
the summary judgment stage. Although [the suspect] initially ran, . . . he was
lying face down on the ground with his hands on his head when [the officer]
kneed him in the hip and pushed him against a patrol car.”62 Even though the
suspect’s injuries were mild (though still marginally more serious than
Buehler’s),63 we concluded in that case that “[s]uch a use of force on a
compliant suspect is excessive and unreasonable,” and also “it was clearly
established . . . that pushing, kneeing, and slapping a suspect who is neither
fleeing nor resisting is excessive.”64 To be sure, Sam lends some support to
Buehler’s argument, yet we think the decision is ultimately distinguishable.
The Officers here did not “knee” or “slap” Buehler at all, let alone while he
was already face down on the ground. They only brought him to the ground
61
Id. at 378 (emphasis added).
62
887 F.3d 710, 714 (5th Cir. 2018).
63
The force used against the arrestee in Sam “cause[d] him to bleed on the scene
and ‘left a scab.’ . . . [O]ne of [his] friends stated in deposition that, after the incident, [the
arrestee] ‘looked like he got hit’ and ‘his face was a little red and bruised.’ Finally,
according to medical records generated from a medical appointment about six weeks after
the incident, [he] complained of lingering pain in his left hip.” Id. at 712–13.
64
Id. at 714.
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in response to movements by Buehler that the Officers reasonably believed
to be resistance to arrest.
In our view, of the five cases relied upon by Buehler and discussed
above, only Ramirez and Sam are similar enough to this case to lend any
support to his claim that the Officers (or at least Dear, DeVries, and Garibay)
violated clearly established law, and still Ramirez and Sam involved more
severe and less appropriate uses of force than that used by the Officers here.65
On the other hand, there is ample circuit authority supporting the
Officers’ position that their use of force did not violate the Fourth
Amendment, or at least not clearly established Fourth Amendment law.66 We
have frequently held that officers were either constitutionally justified or
entitled to qualified immunity for taking suspects to the ground in response
to forms of physical resistance similar to those in which Buehler engaged.67
65
Moreover, because Sam was decided long after Buehler’s arrest, the case plays a
limited role in a qualified-immunity inquiry, which turns on whether the unlawfulness of a
defendant’s conduct was clearly established at the time it occurred. Harlow, 457 U.S. at 818.
66
“In determining what constitutes clearly established law,” we first look to
“Supreme Court precedent and then to our own,” but “[i]f there is no directly controlling
authority,” we “may rely on decisions from other circuits to the extent” they have reached
a consensus on an issue. Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018). We
have similarly consulted other circuits’ caselaw in determining whether arresting officers’
uses of force violated the Fourth Amendment. See Sam, 887 F.3d at 714 n.2.
67
See Griggs v. Brewer, 841 F.3d 308, 314 (5th Cir. 2016) (holding that arresting
officers did not violate clearly established law by using “‘takedown’ maneuver” against
arrestee because “under the totality of the circumstances—that is, a late-night traffic stop
involving a clearly drunk and obstinate individual, lurching to the side and stating ‘no,
no,’ in the act of being handcuffed, immediately following the command to ‘put your hands
behind your back’—[the arrestee’s] actions . . . amount to resistance to arrest”); Priest v.
Grazier, 860 F. App’x 343, 347 (5th Cir. 2021) (holding that arresting officers “did not
violate clearly established law by forcing [arrestee] to the ground to handcuff him” after
arrestee failed to “comply with their repeated instructions to roll down his window, open
his door, [or] get out of his car.”); Ibarra v. Harris Cty., 243 F. App’x 830, 835 (5th Cir.
2007) (similar); Tennyson v. Villarreal, 801 F. App’x 295, 296 (5th Cir. 2020) (per curiam)
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Likewise, a survey of our sister circuits’ precedent on this issue turns up
“[m]any decisions [that] hold that there is no clearly established rule
forbidding a clean takedown [of a suspect] to end mild resistance.”68 To be
sure, arrestees in some of the cases to which we have referred were suspected
of more serious crimes than Buehler’s. But other such cases either involved
petty crimes or were apparently decided without regard to the severity of the
suspected offenses,69 suggesting that this consideration ought not affect the
outcome here. And as we have previously noted in response to an excessive-
force plaintiff’s emphasis on “the minor nature of the crime that [a suspect]
had allegedly committed,” “neither the Supreme Court nor this Court has
(similar, though unclear whether holding in defendant officers’ favor was based on qualified
immunity or lack of Fourth-Amendment violation); Mathews v. Davidson, 674 F. App’x
394, 396 (5th Cir. 2017) (per curiam) (finding similar use of force did not violate Fourth
Amendment); Cadena, 728 F. App’x at 296 (same); cf. Poole v. City of Shreveport, 691 F.3d
624, 629 (5th Cir. 2012) (similar use of force by officers did not violate Fourth Amendment;
arrestee’s resistance was greater than Buehler’s, but at the same time his injuries due to
officers’ use of force were more serious than Buehler’s); Robles v. Ciarletta, 797 F. App’x
821, 827–28 (5th Cir. 2019) (per curiam) (holding that, although assault suspect “only
passively resisted” arrest, arresting officer did not violate clearly established law by putting
suspect’s “arm[] behind [his] back, press[ing] him against a fence,” and bringing him “to
the ground where [the officer] put [him] in handcuffs”); Fontenot v. Cormier, 56 F.3d 669,
675 (5th Cir. 1995) (holding that arresting officer’s use of force did not violate Fourth
Amendment by tackling arrestee in a manner that caused “no significant injury”—
although that suspect, unlike Buehler, had a “history of violence”).
68
Johnson v. Rogers, 944 F.3d 966, 969 (7th Cir. 2019); see Kelsay v. Ernst, 933 F.3d
975 (8th Cir. 2019) (en banc) (officer entitled to qualified immunity for a bear-hug
takedown when an agitated suspect walked away from the officer for the second time);
Hedgpeth v. Rahim, 893 F.3d 802 (D.C. Cir. 2018) (same for an arm takedown and knee to
the leg of suspect who had pulled his hands away as officer attempted to handcuff him).
69
See Griggs, 841 F.3d at 314; Priest, 860 F. App’x at 347; Cadena, 728 F. App’x at
296; Poole, 691 F.3d at 628–29; see also Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th
Cir. 2017); Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003); Schliewe v. Toro, 138
F. App’x 715, 722 (6th Cir. 2005); Horn v. Barron, 720 F. App’x 557, 565 (11th Cir. 2018);
Kelsay, 933 F.3d at 980; Hedgpeth, 893 F.3d at 809–10.
23
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ever held that all of the Graham factors must be present for an officer’s
actions to be reasonable.”70
Ultimately, we conclude that the Officers stayed not only within the
bounds of “clearly established law,” but also within those of the Fourth
Amendment. Looking beyond our circuit, there is a wealth of appellate cases
where comparable force by arresting officers under similar circumstances
was held not violative of the Fourth Amendment. In case after case, courts
upheld officers’ use of takedowns to gain control of suspects who had
disregarded lawful police orders or mildly resisted arrest, even when
arrestees were suspected of minor offenses and the force employed appeared
greater than necessary in retrospect—at least when officers’ tactics caused
arrestees only minimal injuries.71 Considering this decisional authority, as
well as the totality of the factors discussed thus far in our excessive-force
analysis, we conclude that none of the four Officers involved in arresting
Buehler (Officers Dear, Garibay, DeVries, and McCoy) used excessive force
in violation of the Fourth Amendment. The district court thus erred in
denying their motion for summary judgment on the excessive-force claims.
Accordingly, Buehler’s bystander-liability claims against the other
individual Defendants (Officers Sebek, Coffey, Adam, and Hicks) necessarily
fail, since “[b]ystander liability arises only where the plaintiff can allege and
70
Rockwell v. Brown, 664 F.3d 985, 992 (5th Cir. 2011).
71
See, e.g., Charles v. Johnson, 18 F.4th 686, 700 (11th Cir. 2021); Horn v. Barron,
720 F. App’x 557, 564, 565 (11th Cir. 2018); Ehlers v. City of Rapid City, 846 F.3d 1002,
1011 (8th Cir. 2017); Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003); Griffin v.
Hardrick, 604 F.3d 949, 954–55 (6th Cir. 2010); Jackson v. City of Bremerton, 268 F.3d 646,
652 (9th Cir. 2001); Gomez v. City of Whittier, 211 F. App’x 573, 576 (9th Cir. 2006); Bozung
v. Rawson, 439 F. App’x 513, 520–21 (6th Cir. 2011); Kohorst v. Smith, 968 F.3d 871, 877
(8th Cir. 2020); Earnest v. Genesee County, 841 F. App’x 957, 960–61 (6th Cir. 2021); see
also Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013); Schliewe v. Toro, 138 F. App’x
715, 722 (6th Cir. 2005).
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prove another officer’s use of excessive force.”72 For similar reasons,
Buehler’s conspiracy and municipal-liability claims also fail insofar as they
relate to excessive force, given that both theories likewise require the plaintiff
to point to an underlying violation of his or her constitutional rights.73
B
We now consider the issues raised by Buehler’s cross-appeal,
beginning with his argument that the district court erred in entering summary
judgment for the Officers on his false-arrest claims.
Buehler asserts false-arrest claims against Officers Dear, Garibay,
DeVries, and McCoy, alleging that they lacked probable cause to arrest him
for either interfering with peace officers’ official duties in violation of Texas
Penal Code § 38.15(a)(1)74 or resisting arrest in violation of § 38.03(a).75 The
Officers argue in response that, because they subsequently obtained arrest
warrants signed by a magistrate, they are shielded from liability by the
72
Windham v. Harris County, 875 F.3d 229, 243 n.19 (5th Cir. 2017) (quoting
Kitchen v. Dallas County, 759 F.3d 468, 481 (5th Cir. 2014)).
73
Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013); Hale v. Townley, 45 F.3d 914,
920 (5th Cir. 1995) (“[A] conspiracy claim is not actionable without an actual violation
of section 1983.”) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990)).
It is not entirely clear whether Buehler’s complaint set forth a conspiracy-based theory of
liability. The complaint does not use that term, though it makes scattered allegations that,
in substance, amount to conspiracy claims, and Buehler’s briefing on appeal repeatedly
accuses Defendants of conspiracy. We need not decide whether Buehler has adequately
raised a conspiracy claim, however, since any such claim obviously fails anyway for the
reasons explained in the text to which this footnote is appended.
74
That section provides, “A person commits an offense if the person with criminal
negligence interrupts, disrupts, impedes, or otherwise interferes with a peace officer while
the peace officer is performing a duty or exercising authority imposed or granted by law.”
75
That section provides, “A person commits an offense if he intentionally prevents
or obstructs a person he knows is a peace officer or a person acting in a peace officer's
presence and at his direction from effecting an arrest, search, or transportation of the actor
or another by using force against the peace officer or another.”
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independent intermediary doctrine—which holds that “if facts supporting
an arrest are placed before an independent intermediary such as a magistrate
. . . , the intermediary’s decision breaks the chain of causation for false arrest,
insulating the initiating party,”76 even if the warrant application was sought
and granted after the arrest took place.77 This doctrine is derived from the
time-honored rule that “a constable . . . cannot be held liable” for acts
authorized by a “warrant . . . regular on its face, and . . . issued by a magistrate
having jurisdiction over the subject matter”—which “affords a full
justification for all acts done by [the officer] in its lawful execution.”78 The
district court sided with the Officers and granted their motion for summary
judgment on Buehler’s false-arrest claims. We agree.
Buehler challenges the district court’s rejection of his false-arrest
claims on several grounds. First, he argues that the independent-
intermediary doctrine should be rejected as inconsistent with the Fourth
Amendment. But we have “consistently applied the doctrine in published
opinions”79 and are bound by those holdings.80 Buehler attempts to sidestep
our precedent, suggesting that those cases’ underpinnings were called into
doubt by the Supreme Court’s 1986 decision in Malley v. Briggs.81 There, in a
footnote, the Court “conceded that the appellant police officer’s argument
that he could not have proximately caused a defendant’s unlawful arrest by
filing an affidavit unsupported by probable cause was not before it on
76
Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds,
Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc).
77
Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 554 (5th Cir. 2016).
78
Clarke v. May, 68 Mass. 410, 413 (1854).
79
Buehler, 824 F.3d at 554.
80
See Cent. Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001) (“one
panel of this Court may not overrule another”).
81
475 U.S. 335 (1986).
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appeal,” but nonetheless suggested in dicta “that it would not have been
receptive to this contention.”82 The problem for Buehler, however, is that
we have reaffirmed the independent-intermediary doctrine in multiple
precedential cases in the 36 years since Malley, repeatedly rejecting litigants’
arguments that we should “disregard firmly ensconced circuit precedent in
favor of . . . a cursory analysis of Malley’s dicta.”83 And just as we are bound
by our precedent recognizing the independent-intermediary doctrine, so too
are we bound by our precedent holding that the doctrine survived Malley.
Second, Buehler argues that, even if we adhere to the independent-
intermediary doctrine, his false-arrest claims are still viable because the
Officers’ conduct in arresting him fell within the doctrine’s “taint”
exception. Under that rule, “arrest warrants do not insulate” arresting
officers from false-arrest liability if their own “false and misleading affidavits
tainted the magistrate’s deliberations.”84 Buehler argues that Officer
Garibay’s affidavits, which formed the basis for the magistrate’s approval of
both warrants, were tainted by materially false statements. But, with one
inconsequential exception,85 Buehler did not bring these supposed
inaccuracies to the district court’s attention. He has therefore forfeited the
82
Murray v. Earle, 405 F.3d 278, 291 (5th Cir. 2005) (citing 475 U.S. at 345 n.7).
83
Id. at 292.
84
McLin v. Ard, 866 F.3d 682, 691 (5th Cir. 2017).
85
Buehler’s filings in the district court identified just “one specific fact . . . in
support of his [“taint”] argument,” which was his allegation that “Garibay falsely claimed
that [Buehler] tried to put his arm underneath himself” while being held face-down during
his arrest. 2020 WL 5793008, at *7. Buehler’s contention that Garibay misrepresented
what occurred during the arrest, even if true, would at best be relevant to the validity of the
resisting-arrest charge, but “certainly . . . not . . . [to that of] the Interference with Public
Duties warrant.” Id. That dooms Buehler’s attempt at a false-arrest claim, which “does
not cast its primary focus on the validity of each individual charge . . . . If there was probable
cause for any of the charges . . . then the arrest was supported by probable cause, and the
claim for false arrest fails.” Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).
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opportunity to rely on them on appeal.86 “It is a well settled rule that a party
opposing a summary judgment motion must inform the trial judge of the
reasons, legal or factual, why summary judgment should not be entered. If it
does not do so, . . . it cannot raise such reasons on appeal.”87 “It is not enough
to merely mention or allude to a legal theory in order to raise an argument.
Rather, a party must press its claims, which entails clearly identifying a theory
as a proposed basis for deciding the case.”88
Moreover, even if Buehler’s supposed examples of
misrepresentations in Garibay’s affidavit were properly presented for our
consideration, they would not affect our conclusion, for none are inaccuracies
of a sort that would taint the arrest warrant. All of the affidavit’s claims to
which Buehler objects either were substantially accurate, were “not material
to the [magistrate’s] findings of probable cause,” or were merely “different
interpretations” of events on which “[t]here [wa]s plainly room to
86
Buehler attempts to dodge the forfeiture problem by contending that, “Although
the district court incorrectly stated that [he] provided only ‘one specific fact’” to support
his “taint” argument, “Buehler attempted to correct this mistake by filing a Motion for
Reconsideration,” which included other purported examples of misrepresentations in
Garibay’s affidavit. But this does not help Buehler one whit, since “[t]his court will
typically not consider an issue or a new argument raised for the first time in a motion for
reconsideration in the district court,” U.S. Bank Nat. Ass’n v. Verizon Commc’ns, Inc., 761
F.3d 409, 425 (5th Cir. 2014), especially given that Buehler has offered no explanation for
why he did not set forth the other allegations supporting his “taint” argument at an earlier
stage of the district-court proceedings.
87
Savers Fed. Sav. & Loan Ass’n v. Reetz, 888 F.2d 1497, 1501 (5th Cir. 1989)
(emphasis added) (quoting Liberles v. Cook Cty., 709 F.2d 1122, 1126 (7th Cir. 1983)).
88
U.S. Bank Nat. Ass’n, 761 F.3d at 425 (cleaned up) (quoting United States v.
Scroggins, 599 F.3d 433, 446 (5th Cir. 2010)).
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disagree.”89 And an affiant’s presentation of one plausible “version of . . .
disputed facts to the magistrate judge” does not taint the resulting warrant.90
Indeed, even were we to discard the independent-intermediary
doctrine, or to accept Buehler’s argument that the arrest warrant was tainted
by false statements in Garibay’s affidavit, the result would simply be that we
would decide ourselves whether Buehler’s arrest for interference with
official duties was supported by probable cause. It obviously was. We have
held, based on caselaw from Texas courts interpreting the relevant provision,
that conduct extremely similar to that in which Buehler was engaged—that
is, refusing to obey police officers’ repeated and unambiguous warnings to
step back so as not to interfere with officers’ official duties—establishes
probable cause to arrest for a violation of Texas Penal Code § 38.15(a)(1).91
For these reasons, we conclude that the district court properly entered
summary judgment for Defendants Dear, Garibay, DeVries, and McCoy on
Buehler’s false-arrest claim. And as with Buehler’s claim against the City
relating to its excessive-force policies, his false-arrest claim against the City,
fails for lack of an underlying constitutional violation, since “a municipality
cannot be liable ‘[i]f a person has suffered no constitutional injury at the
hands of the individual police officer.’”92
C
We now turn to Buehler’s First Amendment claim against the
individual Defendants. Buehler asserts that the officers arrested him in
89
Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 556 (5th Cir. 2016).
90
Anderson v. City of McComb, 539 F. App’x 385, 387 (5th Cir. 2013).
91
See, e.g., Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017) (citing cases);
Haggerty v. Tex. S. Univ., 391 F.3d 653, 657 (5th Cir. 2004); see also Holt v. State, No. 05-
08-00134-CR, 2009 WL 311451, at *2 (Tex. App. Feb. 10, 2009).
92
Bustos v. Martini Club Inc., 599 F.3d 458, 467 (5th Cir. 2010) (quoting City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)).
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retaliation for filming the officers in a public setting, an activity protected by
the First Amendment’s freedom-of-speech guarantee. The district court,
relying on our 2017 decision in Turner v. Lieutenant Driver,93 held that the
officers were entitled to qualified immunity from Buehler’s retaliation claim,
since it was not clearly established at the time of his arrest in August 2015
that the right to publicly film police was protected by the First Amendment.
The district court properly dismissed Buehler’s First Amendment
retaliation claim. Buehler is correct that the First Amendment guarantees,
subject to reasonable limitations, a right to publicly film police. We are
bound, however, by our holding in Turner (a published opinion) that the First
Amendment right to film police was not clearly established in this circuit as
of September 2015.94 And it follows a fortiori from Turner’s holding that
neither was such a right clearly established a month earlier. Buehler’s First
Amendment claims against the Officers thus cannot proceed.
D
Finally, we consider Buehler’s municipal-liability claims against the
City of Austin. Buehler alleged that the City was liable under § 1983 because
(1) the APD’s policy governing police treatment of citizens filming officers
in public violated such citizens’ rights under the First Amendment, and (2)
the City failed to train or discipline officers who used excessive force in
conducting arrests. The district court dismissed both of Buehler’s theories of
municipal liability for failure to state claims. First, the district court reasoned
that because the First Amendment right to film police was not clearly
established as of August 2015, the claim against the City based on its policies
governing filming of police could not proceed. The district court also rejected
Buehler’s failure-to-train and failure-to-discipline theory as insufficiently
93
848 F.3d 678.
94
Id. at 686.
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supported by factual allegations.95 We agree with the district court, albeit for
different reasons, that Buehler failed to state claims against the City under
either theory.
For one, as we have already explained, Buehler’s claims against the
City fail at the outset insofar as they are based on APD policies or practices
relating to use of force in carrying out arrests. A “policy, practice, or custom
claim[]” against a municipality cannot proceed unless the plaintiff has
suffered “an underlying constitutional violation,”96 and the force used in
effectuating Buehler’s arrest did not violate the Constitution.
That leaves only Buehler’s First Amendment claim against the City.
The district court dismissed this claim based on its conclusion that the right
to film police was not clearly established as of August 2015. The district
court’s reasoning appears to have rested on the incorrect assumption that
municipalities are entitled to qualified immunity. They are not.97 And of
course our conclusion above that the individual Defendants are entitled to
qualified immunity on Buehler’s First Amendment claim does not dispose of
his corresponding claim against the City, since “a municipality may [still] be
liable if a plaintiff states a claim against an official but the official is protected
by qualified immunity.”98
Nevertheless, we “may affirm a district court’s Rule 12(b)(6)
dismissal on any grounds . . . supported by the record,”99 and here there is an
obvious alternate ground on which to affirm dismissal of Buehler’s First
95
2018 WL 4225046, at *7–8.
96
Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013).
97
See Owen v. City of Independence, 445 U.S. 622, 638 (1980).
98
Bustos, 599 F.3d 458, 467 n.50.
99
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007).
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Amendment claim against the City. Such a claim, just to reiterate, cannot
succeed unless the harm he claims to have suffered as a result of the City’s
policies or practices (his August 2, 2015 arrest) violated the First
Amendment. It did not. As the Supreme Court recently held, a “plaintiff
pressing a [First Amendment] retaliatory arrest claim must plead and prove
the absence of probable cause for the arrest.”100 (An exception exists “when
a plaintiff presents objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected
speech had not been,”101 but Buehler points to no such evidence.102) And as
we have already explained in affirming summary judgment for Defendants on
Buehler’s false-arrest claims, the arresting Officers had probable cause to
arrest Buehler for interference with official duties. The arrest therefore did
not violate his First Amendment rights, and his municipal-liability claim
premised on the contrary notion necessarily fails.
III
Buehler followed the Officer-Defendants for hours that night for
purposes of filming them, as is his right. But in the minutes leading up to his
arrest, Buehler had positioned himself less than arms’ length away from the
group of officers, obstructing their view and performance of their duties—
and disregarding their warnings of his conduct’s unlawfulness. The Officers
100
Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019).
101
Id. at 1727.
102
Buehler cites several purported examples of other passersby who the Officers
permitted to “get close” without arresting them shortly before Buehler was arrested. None
of these individuals, however, continued to stand within arms’ length of the Officers for a
prolonged period after being ordered to stand back, as Buehler did. We therefore do not
consider these individuals “similarly situated,” id., and so the Officers’ failure to arrest
them does not raise suspicion that Buehler’s contemporaneous arrest was made in
retaliation for his filming of the Officers.
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then informed Buehler he was under arrest, at which point he turned and
began walking away (or so a reasonable officer would have believed). When
the Officers reached for his wrists, he suddenly lurched forward. Reasonably
believing him to be resisting, the Officers brought him to the ground, where
they held him for fewer than 45 seconds—only as long as it took to handcuff
him. He suffered only bruises and lesions so minor they cannot be seen in
mugshots taken minutes afterwards. Perhaps it was not strictly necessary for
the Officers to take Buehler down to effect the arrest. But the seizure, even if
imperfect, was not unreasonable.
Summing up: None of the Officers involved in Buehler’s arrest used
excessive force in violation of the Fourth Amendment; summary judgment
for the Officers on Buehler’s false-arrest claim was proper; the Officers were
entitled to qualified immunity on his First Amendment claim; and Buehler’s
bystander- and municipal-liability claims, as well as his conspiracy claim, fail
for lack of an underlying constitutional violation. We therefore REVERSE
the district court’s denial of Defendants’ summary-judgment motion as to
Buehler’s excessive-force claim and RENDER judgment for Defendants on
that claim.103 We AFFIRM the district court’s judgment in all other
respects.
103
“[W]hen the Rule 56 standard has been met, [a] reviewing court may direct the
entry of summary judgment . . . . The appellate court either can include the order as part of
its opinion or remand the case with directions to enter a summary judgment.” 10A
CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. CIV. § 2716 (April 2021 update).
Here, we opt for the former path. Defendants have specifically requested rendition, and we
see no need for a remand given that nothing remains to be done in this case other than entry
of judgment—which we can do ourselves. Our cases reversing denials of summary-
judgment motions have sometimes remanded for entry of judgment, sometimes rendered
judgment outright, and sometimes merely reversed without specifying further procedural
steps. Compare Keller v. Fleming, 952 F.3d 216, 227 (5th Cir. 2020) (rendering), with Tucker,
998 F.3d at 185 (remanding), and Joseph, 981 F.3d at 346 (reversing without elaboration).
33