Salazar v. Molina

Case: 20-40334 Document: 00516359701 Page: 1 Date Filed: 06/16/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 16, 2022

No. 20-40334

Lyle W. Cayce

Clerk

Juan Carlos Salazar,

Plaintiff—Appellee,

versus

Juan Rene Molina, Deputy, Zapata County Sheriff’s Office,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:16-cv-292

Before Smith, Elrod, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

Juan Salazar led police on a high-speed chase through a residential

neighborhood. After Salazar stopped his vehicle, a sheriff’s deputy tased and

handcuffed him. Salazar sued the deputy, arguing that the tasing violated his

Fourth Amendment rights. At summary judgment, the district court denied

qualified immunity to the deputy. We reverse and render.

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I.

A.

This case involves a high-speed car chase, which officers captured on

a dashcam video. We therefore “view[] the facts in the light depicted by the

videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007); see also Betts v. Brennan,

22 F.4th 577, 582 (5th Cir. 2022) (“[W]e assign greater weight, even at the

summary judgment stage, to the video recording taken at the scene.”

(quotation omitted)); Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.

2011) (“A court of appeals need not rely on the plaintiff’s description of the

facts where the record discredits that description but should instead consider

the facts in the light depicted by the videotape.” (quotation omitted)).

Around 2:00 a.m. on March 1, 2014, a Zapata County sheriff’s deputy

tried to pull over Juan Carlos Salazar for speeding. Instead of stopping,

Salazar accelerated and led police on a high-speed chase for approximately

five minutes. At one point, Salazar traveled in excess of 70 miles per hour on

a narrow residential street.

Eventually, two vehicles pulled in front of Salazar’s path, blocking his

way forward. Salazar abruptly stopped his vehicle. He quickly got out,

dropped to his knees next to the car, and raised his hands. He then lay on the

ground with arms above his head and legs crossed. Five seconds after

stopping his car, Salazar was lying prone on the ground.

Just as Salazar finished lowering himself to the ground, Deputy Juan

Molina brought his patrol car to a stop behind Salazar’s vehicle. Molina

exited his vehicle and ran toward Salazar. Salazar remained on the ground but

uncrossed his legs two seconds before Molina got to him. Upon reaching

Salazar—eight seconds after Salazar had stopped his car—Molina fired his

taser at Salazar’s back.

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The video shows that Salazar tensed up and his upper body shook for

approximately six seconds. Molina says he deployed his taser just once,

shocking Salazar for one five-second cycle. Salazar contends that Molina kept

his finger on the taser and triggered a second cycle, tasing Salazar for a total

of ten seconds.

After the tasing, Molina removed the taser prongs from Salazar’s back

and handcuffed Salazar. Then he helped Salazar up and walked him to a

patrol car. Salazar was back on his feet less than a minute after lying down

next to his car.

B.

Salazar sued Molina, along with various other officers and

governmental entities. As relevant to this appeal, Salazar alleged that

Molina’s use of the taser constituted excessive force and therefore violated

his Fourth Amendment right against unreasonable seizures. See U.S.

Const. amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 655 (1961)

(incorporating the Fourth Amendment against the States). Salazar sought

damages under 42 U.S.C. § 1983.

Molina moved for summary judgment on Salazar’s excessive-force

claim, arguing that he was entitled to qualified immunity. The district court

denied Molina’s motion. The court held there were material factual disputes

as to whether a reasonable officer would have viewed Salazar as an immediate

threat; whether Salazar’s apparent surrender was a ploy to evade arrest; and

whether Salazar was tased once or twice. The court also concluded that the

“law on the excessive use of force as it applies to tasers was clearly

established” at the time of the tasing.

Molina timely appealed the denial of his summary-judgment motion.

Our review is de novo. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).

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II.

Salazar seeks money damages from a law enforcement officer. To win

them, he must overcome qualified immunity. That means he must show

(A) that Molina violated his constitutional rights and (B) that the right at

issue was “clearly established” at the time of the alleged misconduct.

Morrow, 917 F.3d at 874. Salazar can’t make either showing.

A.

The Fourth Amendment prohibits “unreasonable . . . seizures.”

Salazar concedes that Molina had the right to seize—i.e., arrest—him after

his high-speed flight from police. But Salazar contends that Molina’s seizure

was unreasonable because Molina used excessive force.

In Graham v. Connor, 490 U.S. 386 (1989), the Court emphasized that

our excessive-force inquiry must be fact-intensive. See id. at 396–97. It

“requires careful attention to the facts and circumstances of each particular

case, including the severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.

We must also account for “the degree of force” the officer used, because

“the permissible degree of force depends on the Graham factors.” Cooper v.

Brown, 844 F.3d 517, 524–25 (5th Cir. 2016) (quotation omitted). Moreover:

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. . . . The

calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary

in a particular situation.

Graham, 490 U.S. at 396–97.

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The first Graham factor is “the severity of the crime at issue.” Id. at

396. Salazar led police on a dangerous car chase through a residential area

and was charged with the felony of evading arrest with a vehicle. The district

court accordingly found that the first Graham factor weighed against a finding

of excessive force. It further noted that “leading law enforcement in a high-

speed chase through a heavily populated area is a serious crime that puts at

risk not only the lives of Plaintiff and the officers but also those of the general

public.” This finding comports with our cases, which have found far less

dangerous offenses to be “serious” for purposes of the first Graham factor.

E.g., Cooper, 844 F.3d at 522 (DUI); Brothers v. Zoss, 837 F.3d 513, 519 (5th

Cir. 2016) (DUI and interfering with the duties of a public servant). Salazar

does not dispute the severity of his offense.

The second Graham factor is “whether the suspect poses an

immediate threat to the safety of the officers or others.” 490 U.S. at 396.

Salazar argues that a jury could easily find that he posed no threat to anyone’s

safety when Molina tased him. That’s so, on Salazar’s view, because

(1) Salazar was not suspected of a violent offense; (2) Salazar adopted a non-

threatening position of surrender after exiting his vehicle; and (3) Molina

could see Salazar’s hands and tell that he was not wielding a weapon. The

district court agreed and held that “there are genuine factual disputes as to

whether [Salazar] posed an immediate threat to the safety of anyone at the

scene.”

We disagree because Salazar’s position comports with neither

common sense nor our precedent. First, as a matter of common sense, what

preceded the surrender matters. A reasonable officer will have little cause to

doubt the apparent surrender of a compliant suspect who has not engaged in

dangerous or evasive behavior. But when a suspect has put officers and

bystanders in harm’s way to try to evade capture, it is reasonable for officers

to question whether the now-cornered suspect’s purported surrender is a

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ploy. That’s especially true when a suspect is unrestrained, in close proximity

to the officers, and potentially in possession of a weapon.

Second, precedent forecloses Salazar’s argument that Molina could

no longer reasonably fear for his safety and justifiably use any force once

Salazar purported to surrender. To the contrary, we’ve repeatedly refused to

hold that “any application of force to a compliant arrestee is per se

unreasonable.” Escobar v. Montee, 895 F.3d 387, 394–95 (5th Cir. 2018)

(quotation omitted); Cooper, 844 F.3d at 524. Escobar is instructive. There,

an officer allowed his police dog to bite a suspect for a full minute—even after

the suspect, “in an attempt to convey his surrender,” “dropped his knife and

la[id] flat on the ground ‘like a parachute man.’” 895 F.3d at 390–91. We still

granted the officer qualified immunity. That’s because, despite the apparent

surrender, other circumstances indicated the suspect might still be a threat.

These included: (1) the suspect had committed a felony; (2) he had sought to

evade police for 20 minutes; (3) it was nighttime; (4) the suspect had a knife

within reach, even though he had dropped it; and (5) the officer had been

warned that the suspect was dangerous. See id. at 394–95; see also Crenshaw

v. Lister, 556 F.3d 1283, 1293 (11th Cir. 2009) (per curiam) (determining in

similar circumstances that “[e]ven assuming, as we must, that Crenshaw was

legitimately attempting to surrender, it was objectively reasonable for Lister

to question the sincerity of Crenshaw’s attempt to do so” because Crenshaw

“up to that point, had shown anything but an intention of surrendering”).

As Escobar illustrates, a suspect cannot refuse to surrender and instead

lead police on a dangerous hot pursuit—and then turn around, appear to

surrender, and receive the same Fourth Amendment protection from

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intermediate force 1 he would have received had he promptly surrendered in

the first place. Like Escobar, this case involves a fleeing felony suspect who

eventually decided to surrender and was then temporarily subjected to

intermediate force.

Salazar makes several attempts to distinguish Escobar, but none is

persuasive. First, Salazar argues that unlike in Escobar, he didn’t pose a threat

to officers because he “unambiguously surrender[ed]” before being tased.

But again, the rule is not that an “unambiguous surrender” negates any

threat posed by a previously hostile suspect. If that were the case, Escobar

would have come out the other way, because Escobar laid down with his

hands visible and complied with the officer’s commands before being bitten.

See 895 F.3d at 394–95. Rather, the relevant inquiry is whether—despite the

appearance of unambiguous surrender—“an officer [would] have reason to

doubt the suspect’s compliance and still perceive a threat.” Id. at 395.

Second, Salazar relies on Lytle v. Bexar County, 560 F.3d 404 (5th Cir.

2009), where we stated that “an exercise of force that is reasonable at one

moment can become unreasonable in the next if the justification for the use

of force has ceased.” Id. at 413; see also Amador v. Vasquez, 961 F.3d 721, 730

(5th Cir. 2020) (citing Lytle for this same principle). In Lytle, we denied

qualified immunity to an officer who shot and killed a passenger in a vehicle

driving away from the officer some three or four houses down a residential

block. 560 F.3d at 412–13. Seconds earlier, the vehicle had been much closer

and backing up toward the officer. But, we held, that didn’t justify shooting

at the vehicle after the vehicle was moving away from the officer and was

several hundred feet away. See id. at 413–14.

1

This broad category of non-deadly force includes weapons such as police dogs and

tasers.

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Notably, Lytle reaffirmed that the relevant “justification for the use of

force” is the officer’s reasonable perception of a threat of harm. Ibid. And

this does not always require that a suspect be actively resisting, fleeing, or

attacking an officer at the precise moment force is used. See id. at 414 (noting

that it’s reasonable to use defensive force where insufficient time has elapsed

“for the officer to perceive new information indicating the threat was past”

(quotation omitted)). Instead, the relevant inquiry is whether the officer used

a justifiable level of force in light of the continuing threat of harm that a

reasonable officer could perceive. In Lytle, we said deadly force was

unjustified because the vehicle was hundreds of feet away and driving away

from the officer. See ibid.; see also Amador, 961 F.3d at 730 (similar analysis

where officers shot and killed a suspect standing motionless 30 feet away with

his hands in the air). But that says little about the reasonableness of using a

taser on a previously noncompliant suspect in close physical proximity to

officers.

Finally, Salazar tries to distinguish Escobar on the facts. He correctly

points out several factual differences between this case and Escobar—most

significantly, Molina couldn’t see a weapon nearby, and Molina had not been

warned that Salazar was dangerous before the incident. But on the other

hand, cartel activity near the scene and the presence of bystanders made the

situation Molina confronted more dangerous than the one in Escobar. And the

force deployed here was substantially less than that used in Escobar—a 10-

second tasing before handcuffing rather than 60 seconds of dog biting that

continued until the suspect was fully handcuffed. See also Cooper, 844 F.3d at

521 (denying qualified immunity where an officer subjected a DUI suspect

who had previously fled on foot to more than a full minute of dog biting).

Accordingly, Salazar’s efforts to distinguish Escobar are unpersuasive, and

that precedent reinforces our conclusion that the second Graham factor

favors Deputy Molina.

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The third Graham factor is “whether [the suspect] is actively resisting

arrest or attempting to evade arrest by flight.” 490 U.S. at 396. The parties

agree that the second and third Graham factors implicate the same facts,

including whether Molina could have reasonably been concerned that

Salazar’s surrender was not genuine. See Escobar, 895 F.3d at 396 (“[T]he

third Graham factor . . . largely folds into the second. If [the suspect] may

have posed a threat, then he also might have attempted to flee.”). To the

extent that there are considerations uniquely relevant to the third factor, they

support the reasonableness of the tasing. Salazar had just spent five minutes

“attempting to evade arrest by flight” in a highly dangerous manner.

Graham, 490 U.S. at 396. And after stopping his car, Salazar quickly exited it

without a command and looked toward an open area—rather than staying in

his vehicle and awaiting a command. If anything, these facts made it just as

reasonable for Molina to fear that Salazar still sought to escape as it was for

Molina to fear that Salazar was a threat to his or others’ safety. The third

Graham factor thus also supports the reasonableness of Molina’s use of his

taser.

When Molina made the split-second decision to deploy his taser,

Salazar had just committed a dangerous felony and was unrestrained at night

in the open. Because of the preceding high-speed chase, Molina could

reasonably be concerned about the sincerity of Salazar’s purported

surrender. And the totality of the force deployed—a 10-second tasing—was

comparatively modest and not grossly disproportionate to the threat Molina

could have reasonably perceived. We hold that Molina’s conduct did not

amount to an unreasonable seizure under the Fourth Amendment.

B.

On the undisputed facts before us, Salazar cannot show that Molina

violated his Fourth Amendment rights. But even if he could, Molina would

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nonetheless be entitled to qualified immunity because Salazar can’t show a

violation of clearly established law. 2 We (1) explain what it takes to show

clearly established law, and then we (2) hold that Salazar hasn’t made that

showing.

1.

Qualified immunity allows law enforcement officers to avoid personal

liability and the burdens of defending suit unless their conduct violates a

clearly established constitutional right. It “protects all but the plainly

incompetent or those who knowingly violate the law.” City of Tahlequah v.

Bond, 142 S. Ct. 9, 11 (2021) (per curiam) (quotation omitted). To overcome

a qualified immunity defense, the “plaintiff has the burden to point out

clearly established law” and also “bears the burden of raising a fact issue as

to its violation.” Tucker v. City of Shreveport, 998 F.3d 165, 173 (5th Cir. 2021)

(quotation omitted).

“[T]he Supreme Court has repeatedly instructed that clearly

established law is not to be defined at a high level of generality. This is

particularly true in recent years.” Ibid. A panel of our court wrote those

words in May 2021. Five months later, the Supreme Court reinforced that

instruction in two strongly worded summary reversals holding that

defendants in excessive-force § 1983 suits were entitled to qualified

immunity because their conduct did not violate clearly established law. The

first, City of Tahlequah, reiterated:

We have repeatedly told courts not to define clearly established

law at too high a level of generality. It is not enough that a rule

be suggested by then-existing precedent; the rule’s contours

2

“This circuit follows the rule that alternative holdings are binding precedent and

not obiter dictum.” Jarkesy v. SEC, 34 F.4th 446, 459 n.9 (5th Cir. 2022) (quotation

omitted).

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must be so well defined that it is clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.

142 S. Ct. at 11 (quotation omitted). The second case, Rivas-Villegas v.

Cortesluna, 142 S. Ct. 4 (2021) (per curiam), explained:

A right is clearly established when it is sufficiently clear that

every reasonable official would have understood that what he

is doing violates that right. Although this Court’s case law does

not require a case directly on point for a right to be clearly

established, existing precedent must have placed the statutory

or constitutional question beyond debate. This inquiry must be

undertaken in light of the specific context of the case, not as a

broad general proposition.

Id. at 7–8 (quotation omitted).

“Specificity 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.” Id. at 8 (quotation omitted). “Use of excessive force

is an area of the law in which the result depends very much on the facts of

each case, and thus police officers are entitled to qualified immunity unless

existing precedent squarely governs the specific facts at issue.” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (quotation omitted). So “to

show a violation of clearly established law, [Salazar] must identify a case that

put [Molina] on notice that his specific conduct was unlawful.” Rivas-

Villegas, 142 S. Ct. at 8. As we put it in another excessive-force case involving

a high-speed chase, “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 it immediately.” Morrow, 917 F.3d at 876.

Salazar frames the applicable inquiry somewhat differently. He points

to Hope v. Pelzer, 536 U.S. 730 (2002), an Eighth Amendment case, as well as

Fifth Circuit decisions that relied on Hope and predated City of Tahlequah and

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Rivas-Villegas. For example, Salazar relies on Ramirez v. Martinez, 716 F.3d

369 (5th Cir. 2013), which emphasized Hope’s statement that law can be

clearly established “despite notable factual distinctions between the

precedents relied on and the cases then before the Court.” Id. at 379

(quotation omitted). Salazar similarly relies on Amador, which quoted Hope

for the propositions that “[t]he salient question is . . . fair warning” and

“[g]eneral statements of the law are not inherently incapable of giving fair

and clear warning” to officers. Amador, 961 F.3d at 729–30 (quoting Hope,

536 U.S. at 741) (alteration omitted).

Salazar is correct to some extent. It’s true Hope established that a

plaintiff need not identify an on-point case to overcome qualified immunity

when a violation is “obvious.” 536 U.S. at 741; see also Kisela, 138 S. Ct. at

1153. But Salazar does not argue that this case is obvious. Accordingly,

Molina is “entitled to qualified immunity unless existing precedent ‘squarely

governs’ the specific facts at issue.” Kisela, 138 S. Ct. at 1153. Moreover,

Salazar must identify precedent placing the constitutional question “beyond

debate” such that the answer would immediately be apparent to every

reasonable officer. Rivas-Villegas, 142 S. Ct. at 8; see also Morrow, 917 F.3d at

876–77.

2.

We proceed to consider whether Salazar has made the required

showing to overcome qualified immunity. By citing no factually similar

Supreme Court cases, Salazar effectively concedes that Supreme Court

precedent offers him no help. He turns instead to Fifth Circuit excessive-

force cases. Even on the assumption that Fifth Circuit precedent can create

clearly established law, see Rivas-Villegas, 142 S. Ct. at 7 (assuming the

proposition), none of Salazar’s cases is a close enough fit.

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Three of Salazar’s cases are unpublished and non-precedential. See

Clark v. Massengill, 641 F. App’x 418 (5th Cir. 2016); Byrd v. City of Bossier,

624 F. App’x 899 (5th Cir. 2015) (per curiam); Anderson v. McCaleb, 480 F.

App’x 768 (5th Cir. 2012) (per curiam). For a right to be clearly established,

however, “existing precedent must have placed the statutory or constitutional

question beyond debate.” Rivas-Villegas, 142 S. Ct. at 8 (emphasis added)

(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). “Because

nonprecedential opinions do not establish any binding law for the circuit, they

cannot be the source of clearly established law for qualified immunity

analysis.” Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019) (quotation

omitted); see also Bell v. City of Southfield, --- F.4th ---, --- (6th Cir. 2022)

(Thapar, J.) (holding that “a plaintiff cannot point to unpublished decisions”

to show clearly established law).

Salazar’s fourth case, Poole v. City of Shreveport, 691 F.3d 624 (5th Cir.

2012), cannot clearly establish the law because the court found no Fourth

Amendment violation. Id. at 629; see Nerio v. Evans, 974 F.3d 571, 575 (5th

Cir. 2020) (“[T]o clearly establish the violative nature of an officer’s

conduct, a prior decision must at least hold there was some violation of the

Fourth Amendment.”). His fifth case, Amador, was decided in 2020 and

addressed a 2015 incident. 961 F.3d at 724. So Amador cannot show clearly

established law at “the time of the violation” Salazar alleges here—March 1,

2014. Id. at 727; see also Kisela, 138 S. Ct. at 1154 (“[A] reasonable officer is

not required to foresee judicial decisions that do not yet exist in instances

where the requirements of the Fourth Amendment are far from obvious.”).

And Salazar’s sixth case, Peña v. City of Rio Grande City, 879 F.3d 613 (5th

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Cir. 2018), is irrelevant because the court did not address the issue of

qualified immunity. Id. at 621. 3

Two more of Salazar’s cases do not involve tasing or fleeing; Salazar

instead relies on them for general statements of the law governing excessive-

force claims. See Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (applying

the Graham factors to deny qualified immunity to an officer who “forcefully

slam[med arrestee’s] face into a vehicle while she was restrained and

subdued”); Deville v. Marcantel, 567 F.3d 156, 168 (5th Cir. 2009) (applying

the Graham factors to deny qualified immunity on an excessive-force claim

where an officer, after “very little, if any, negotiation” with an arrestee,

“resorted to breaking her driver’s side window and dragging her out of [her]

vehicle”). From these cases, Salazar infers a rule that an officer violates

clearly established law if he uses intermediate force before negotiating when

a suspect is restrained, subdued, and not fleeing. This rule, even if correct,

wouldn’t apply here because Salazar wasn’t restrained when he was tased.

Just as importantly, positing this kind of general rule is insufficient to show

clearly established law. See Kisela, 138 S. Ct. at 1153 (“[O]fficers are entitled

to qualified immunity unless existing precedent squarely governs the specific

facts at issue.” (quotation omitted)).

That leaves Salazar with four cases: Ramirez; Carroll v. Ellington, 800

F.3d 154 (5th Cir. 2015); Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012);

3

Even if the threshold barriers to considering these six cases could be overcome,

it’s doubtful that any involves sufficiently similar facts to this case to clearly establish that

Molina’s conduct was unlawful. Two of them—Massengill and Anderson—involved the use

of a taser against a previously fleeing suspect. But both cases involved far more extreme

uses of force than here. See Massengill, 641 F. App’x at 421 (suspect had already been bitten

repeatedly by a police dog and submitted before the tasing); Anderson, 480 F. App’x at 769

(suspect tased five or six times, hit with a closed fist, and slammed on the ground—all after

attempting to surrender).

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and Darden v. City of Fort Worth, 880 F.3d 722 (5th Cir. 2018). The key

question is whether those decisions would have made it clear to every

reasonable officer that he could not tase Salazar in the specific circumstances

Molina confronted. See Morrow, 917 F.3d at 876.

According to Salazar, Ramirez establishes that tasing a suspect who is

not actively resisting is unlawful. Ramirez involved the execution of an arrest

warrant for Reynaldo Ramirez’s sister-in-law at Ramirez’s business. 716 F.3d

at 372. Ramirez arrived at his business while the warrant was being executed

and began arguing with a deputy. Ibid. The deputy told Ramirez to turn

around and put his hands behind his back; when Ramirez refused, the deputy

tased him and (with the help of other deputies) forced him to the ground. Id.

at 372–73. The deputy restrained him and then “tased Ramirez a second time

while lying face-down on the ground in handcuffs.” Id. at 373. The court

found that the deputy was not entitled to qualified immunity, relying

primarily on the fact that “a reasonable officer could not have concluded

Ramirez posed an immediate threat to the safety of the officers by

questioning their presence at his place of business or l[y]ing on the ground in

handcuffs.” Id. at 378. Although Ramirez also involved the tasing of a suspect

resisting arrest, the facts in that case are not similar enough to those here.

Unlike here, Ramirez found deputies at his business and questioned them—

he did not lead officers on a dangerous high-speed car chase. And unlike here,

the officers tased Ramirez even after he was restrained with handcuffs. Both

distinctions are material to the Graham analysis, which considers the severity

of the crime at issue and the threat posed by the suspect. Ramirez thus does

not show that any reasonable officer would have known tasing Salazar under

these circumstances was unlawful.

Salazar’s reliance on Carroll is similarly misplaced. In Carroll, an

officer followed Herman Barnes into his home because he suspected Barnes

of vandalizing mailboxes. 800 F.3d at 162–63. When Barnes refused to get

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onto the ground, that officer and subsequently arriving officers engaged in a

long struggle to subdue Barnes, including 35 taser cycles and numerous

strikes. Id. at 165–66. Barnes died after the altercation. Id. at 166. The court

granted the officers qualified immunity for the force used before “Barnes was

tackled to the ground, handcuffed, and held down and surrounded by several

deputies.” Id. at 176; see also id. at 174–76. But because there was a fact issue

as to whether the use of force persisted after that point, the court found that

“the deputies are not entitled to qualified immunity as a matter of law for

injuries Barnes sustained after he was handcuffed and restrained and after he

stopped resisting arrest.” Id. at 177. As with Ramirez, Carroll does not

support Salazar’s position because Salazar was not subjected to the use of

additional force after he was handcuffed and subdued.

Salazar’s next case is Newman. Derrick Newman was a passenger in a

vehicle that was pulled over for failing to yield. 703 F.3d at 759. An officer

discovered that a different passenger in the car had an outstanding warrant

for unpaid traffic tickets and began to arrest him. Ibid. Newman exited the car

and consented to a protective pat-down search. Id. at 759–60. On Newman’s

telling, he complied with all commands, but after he merely made an off-color

joke, the officers beat him 13 times with a baton and tased him three times.

Id. at 760. This court held that the officers were not entitled to qualified

immunity, noting that “[n]one of the Graham factors justifie[d] . . . tasering

Newman.” Id. at 764. Specifically, “on Newman’s account, he committed

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

or fail to comply with a command.” Ibid. Because Newman involved a plaintiff

who committed no crime and obeyed all commands, that case cannot clearly

establish that using a taser was unlawful in the circumstances Molina

confronted here.

Salazar’s last case is Darden. In that case, while making an arrest at a

private residence, “officers allegedly threw [the arrestee] to the ground,

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No. 20-40334

tased him twice, choked him, punched and kicked him in the face, pushed

him into a face-down position, pressed his face into the ground, and pulled

his hands behind his back to handcuff him.” Darden, 880 F.3d at 725. As a

result, the arrestee had a heart attack and died during the arrest. Ibid. The

force used in Darden—causing the death of the arrestee—is obviously much

more extreme than the 10-second tasing at issue here. Moreover, the arrestee

in Darden “was not suspected of committing a violent offense.” Id. at 729

(quoting Cooper, 844 F.3d at 522). Given that Molina encountered a more

threatening situation—outside at night, with a suspect who had just

committed a dangerous felony—and used far less force, Darden cannot

clearly establish that Molina’s conduct in these specific circumstances was

unlawful.

To generalize a bit, all four of Salazar’s tasing-related cases share two

characteristics that make them materially different from this case. First, they

all involved far less-threatening circumstances than here—in none of them

was the plaintiff suspected of a dangerous felony, and in two of them the

plaintiff was suspected of no crime at all. Nor had the plaintiff just attempted

to flee from officers. Second, all four involved far more force than was

deployed here—so much force, in fact, that it killed two of the arrestees.

Salazar points to no case where officers used a similar level of force in

similarly threatening circumstances. And because this is an excessive-force

case that required a split-second judgment, Salazar can only win if “the law

[was] so clearly established that—in the blink of an eye, in the middle of a

high-speed chase—every reasonable officer would know it immediately.”

Morrow, 917 F.3d at 876. Salazar cannot meet that burden, so Molina is

entitled to qualified immunity.

* * *

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No. 20-40334

The judgment of the district court is REVERSED, and judgment is

RENDERED for Deputy Molina.

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