Ramirez v. Escajeda

Case: 21-50858 Document: 00516427300 Page: 1 Date Filed: 08/10/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 10, 2022

No. 21-50858

Lyle W. Cayce

Clerk

Maria Ramirez, as Representative of the Estate and Statutory Death

Beneficiary of Daniel Antonio Ramirez; Pedro Ramirez, as Representative

of the Estate and Statutory Death Beneficiary of Daniel Antonio Ramirez,

Plaintiffs—Appellees,

versus

Ruben Escajeda, Jr.,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:17-CV-193

Before Jones, Stewart, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Rushing to the scene of an ongoing suicide, El Paso Police Officer

Ruben Escajeda, Jr., found Daniel Ramirez in the process of hanging himself

from a basketball hoop. But it was dark, Escajeda was afraid Daniel might

have a weapon, and Daniel did not respond to Escajeda’s orders to show his

hands. So Escajeda tased Daniel once, took down his body, and performed

CPR. To no avail. Daniel soon after died in the emergency room from the

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hanging. His parents sued Escajeda for using excessive force, the district

court denied qualified immunity, and Escajeda appealed.

The evidence is conflicting on whether the tasing contributed to

Daniel’s death. We therefore lack jurisdiction to weigh Escajeda’s argument

that the sole expert medical opinion ruled out tasing as a cause of death. We

do have jurisdiction, however, to consider whether Escajeda’s conduct

violated clearly established law. It did not. The district court and the plaintiffs

rely on our cases holding that officers may not use force against arrestees who

are already subdued and in police custody. This case is markedly different.

The reason Escajeda tased Daniel was that he was not in custody and Escajeda

was afraid he might have a weapon. Even if that fear turned out to be

groundless—something we cannot decide here—Escajeda still did not

transgress any clearly established law.

We therefore reverse the district court’s decision and render

judgment granting Escajeda qualified immunity.

I.

Around 10:36 p.m. on June 23, 2015, Maria Ramirez called 9-1-1 to

report that her 30-year-old son Daniel was preparing to hang himself from

the basketball hoop in their back yard. Dispatch informed the El Paso Police

Department of a suicide in progress. Neither Maria’s call nor the dispatch

stated that Daniel had a weapon. El Paso Police Officer Ruben Escajeda, Jr.,

received the dispatch and rushed to the house.

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When Escajeda arrived minutes later, at 10:40 p.m., he found the

lights off. 1 He became concerned, asking himself “Why [was] the house so

dark, inside and . . . outside?” Without announcing his presence, he

proceeded to the back yard, gun drawn. He decided not to wait for other

officers because he felt “urgency to prevent a suicide.” Scanning with his

flashlight, Escajeda saw Daniel standing on his tiptoes with a rope around his

neck connected to a basketball hoop. Daniel was staring forward with his

hands clenching the rope around his neck.

Concerned he could be walking into an “ambush,” Escajeda

repeatedly ordered Daniel to show his hands to ensure he had no weapon.

Daniel’s hands stayed around the rope. So, Escajeda holstered his gun,

moved closer, and tased Daniel in the abdomen for five seconds. 2 Daniel’s

body tensed and Escajeda saw Daniel’s fists squeeze harder and heard a

“crunch” or “gargle.” Escajeda then removed the rope from around

Daniel’s neck and lowered him to the ground. He administered CPR on

Daniel and felt a faint pulse in his neck. Other officers arrived seconds later

and assisted Escajeda with CPR. Paramedics arrived soon after and took

Daniel to a nearby emergency room where he was pronounced dead at 11:24

p.m. An autopsy concluded Daniel’s death was caused by hanging.

Daniel’s parents sued Escajeda under 42 U.S.C. § 1983 alleging the

tasing constituted excessive force in violation of their son’s Fourth and

1

The plaintiffs contend there was “sufficient lighting conditions for Escajeda to

observe Daniel” but do not otherwise dispute that the lights were off and that Escajeda had

to use a flashlight.

2

Escajeda maintains he did not wait the full five-second taser cycle before

attempting to rescue Daniel. For purposes of this appeal, however, we accept the plaintiffs’

claim that Daniel was tased for five seconds.

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Fourteenth Amendment rights. 3 Escajeda invoked qualified immunity 4 and

moved for summary judgment. 5

The district court denied his motion. As to the first qualified immunity

prong, the court found two material fact disputes that precluded it from

deciding whether Escajeda used constitutionally excessive force, namely

(1) whether the tasing contributed to Daniel’s death, and (2) whether the

tasing was unreasonable under the circumstances. As to the second prong,

the court concluded it was clearly established at the time of the incident that

“officers may not use a taser against a subdued person who neither

committed any crime nor who resisted the officers’ authority.” Escajeda

timely appealed.

II.

We review the district court’s denial of summary judgment based on

qualified immunity de novo. Walsh v. Hodge, 975 F.3d 475, 481 (5th Cir. 2020).

3

They also sued the City of El Paso for municipal liability, but those claims are not

before us.

4

We disagree with the plaintiffs that Escajeda failed to properly raise qualified

immunity in the district court. Escajeda first raised qualified immunity in a motion to

dismiss. Having done so, the burden shifted to the plaintiffs to “show that the defense is

not available.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (internal quotation marks

and citation omitted). So it is of no moment that Escajeda also raised the defense in his

reply in support of summary judgment. And, in any event, the district court reached and

decided qualified immunity. The issue has therefore been preserved. See Keelan v. Majesco

Software, Inc., 407 F.3d 332, 339–40 (5th Cir. 2005) (“An argument must be raised to such

a degree that the district court has an opportunity to rule on it.”) (internal quotation marks

and citation omitted)).

5

Escajeda previously moved to dismiss under Rule 12(b)(6), invoking qualified

immunity and arguing the plaintiffs had failed to state a plausible claim. The district court

denied his motion. Escajeda appealed but did not brief his qualified immunity arguments.

Our court dismissed the appeal for lack of jurisdiction. Ramirez v. Escajeda, 921 F.3d 497,

500–01 (5th Cir. 2019).

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Summary judgment is warranted when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). “However, a good-faith

assertion of qualified immunity alters the usual summary judgment burden of

proof, shifting it to the plaintiff to show that the defense is not available.”

Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020) (quotation omitted).

On an interlocutory appeal invoking qualified immunity, we consider

“only whether the district court erred in assessing the legal significance of

the conduct that [it] deemed sufficiently supported for purposes of summary

judgment.” Keller v. Fleming, 952 F.3d 216, 220 (5th Cir. 2020) (quoting

Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc)). “[W]e lack

jurisdiction to review the district court’s decision that a genuine issue of fact

exists.” Ramirez v. Martinez, 716 F.3d 369, 373 (5th Cir. 2013). “[W]e accept

the [plaintiff’s] version of the facts as true.” Juarez v. Aguilar, 666 F.3d 325,

332 (5th Cir. 2011) (quoting Kinney, 367 F.3d at 348).

III.

Qualified immunity shields an officer from liability if his “conduct

does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To

overcome qualified immunity, the plaintiffs must show that Escajeda

(1) violated a constitutional right and (2) that “the right at issue was ‘clearly

established’ at the time of [the] alleged misconduct.” Id. at 232 (quotation

omitted). Courts have discretion to address either or both prongs. Id. at 236.

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A.

Escajeda argues for reversal on prong one because the plaintiffs failed

to show the tasing caused Daniel’s death. We lack jurisdiction to consider

this issue, however, because the district court found causation subject to a

genuine fact dispute.

“To establish a claim of excessive force under the Fourth

Amendment, plaintiffs must demonstrate: ‘(1) injury, (2) which resulted

directly and only from a use of force that was clearly excessive, and (3) the

excessiveness of which was clearly unreasonable.’” Solis v. Serrett, 31 F.4th

975, 981 (5th Cir. 2022) (quoting Trammell v. Fruge, 868 F.3d 332, 340 (5th

Cir. 2017)). The district court found conflicting evidence as to the second

part of this test. 6 In the opinion of Escajeda’s medical expert, Dr. Mario

Rascon, 7 Daniel died solely by hanging and the tasing did not contribute to

his injuries. But the plaintiffs’ expert in biomechanical engineering, Dr.

Victoria Ngai, 8 opined that the taser “set off forces and motions” that could

have caused the kinds of neck injuries Daniel suffered. The court thus found

a “genuine dispute of material fact as to whether Escajeda’s use of force

caused [Daniel’s] death.”

6

The court also found a fact dispute as to the third part, namely whether Escajeda

reasonably believed Daniel posed a threat given Escajeda’s “misapprehension of the

dispatch that there was ‘a suicidal suspect with a weapon.’” Escajeda does not contest that

issue on appeal and has therefore abandoned it. Cinel v. Connick, 15 F.3d 1338, 1345 (5th

Cir. 1994).

7

Dr. Rascon was the coroner who performed Daniel’s autopsy.

8

The district court allowed Dr. Ngai to testify as a biomechanical engineer

regarding whether “the energy, forces, and motions” involved in the tasing were

“sufficient to have caused the type of injuries” Daniel suffered. But the court did not allow

Dr. Ngai to testify that the tasing caused Daniel’s “specific diagnosed injuries” because

she was “not a qualified medical doctor.”

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On interlocutory appeal of the denial of qualified immunity, “we lack

the authority to review the district court’s decision that a genuine factual

dispute exists.” Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013)

(citing Kinney, 367 F.3d at 348); see, e.g., Maldonado v. Rodriguez, 932 F.3d

388, 396–97 (5th Cir. 2019). To be sure, we may review whether fact disputes

are material to the underlying constitutional issue. See Melton v. Phillips, 875

F.3d 256, 261 (5th Cir. 2017) (en banc) (citation omitted). But Escajeda does

not challenge the materiality of any fact dispute, instead arguing “the entirety

of the issue in this matter is whether [Daniel] was already dead or whether

Officer Escajeda killed him by deploying his taser.” We therefore lack

jurisdiction to review the district court’s prong one decision.

B.

Escajeda next argues that, fact disputes aside, he is still entitled to

qualified immunity because his use of force did not violate any clearly

established constitutional right. We agree.

“The clearly established inquiry is demanding, especially in claims for

excessive force.” Harmon v. City of Arlington, 16 F.4th 1159, 1167 (5th Cir.

2021) (citing Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019)).

Excessive force cases often involve officers’ “mak[ing] split-second

decisions” and “[t]he results depend ‘very much on the facts of each case.’”

Id. at 1166 (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per

curiam)); see Plumhoff v. Rickard, 572 U.S. 765, 774 (2014) (observing

“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” (quoting Graham v. Connor, 490

U.S. 386, 396–97 (1989))). This means existing precedent must “squarely

govern the specific facts at issue, such that only someone who is plainly

incompetent or who knowingly violates the law would have behaved as the

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official did.” Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir.

2020) (cleaned up). For the same reason, courts must “frame the

constitutional question with specificity and granularity,” Morrow, 917 F.3d at

874–75, rather than “at a high level of generality,” Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011). An officer can be stripped of qualified immunity only

when “the violative nature of the particular conduct is clearly

established . . . in light of the specific context of the case, not as a broad

general proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)

(internal quotation marks and citations omitted). In sum, controlling

precedent must have placed the question “beyond debate,” with “the right’s

contours . . . sufficiently definite that any reasonable official in the [officer’s]

shoes would have understood that he was violating it.” Plumhoff, 572 U.S. at

778–79 (quoting al-Kidd, 563 U.S. at 741).

In denying Escajeda qualified immunity, the district court reasoned it

was clearly established “that officers may not use a taser against a subdued

person who neither committed any crime nor who resisted the officers’

authority.” The court relied on three of our cases, which the plaintiffs also

advance on appeal: Bush v. Strain, 513 F.3d 492 (5th Cir. 2008); Newman v.

Guedry, 703 F.3d 757 (5th Cir. 2012); and Ramirez v. Martinez, 716 F.3d 369

(5th Cir. 2013).

At the outset, we note that “[b]y citing no factually similar Supreme

Court cases, [the plaintiffs] effectively concede[] that Supreme Court

precedent offers [them] no help.” Salazar v. Molina, 37 F.4th 278, 286 (5th

Cir. 2022). Additionally, the plaintiffs’ argument requires us to assume that

Fifth Circuit precedent alone can clearly establish the law for qualified

immunity purposes, something the Supreme Court has left open. See Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam) (“assuming” the

proposition that “controlling Circuit precedent clearly establishes law for

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purposes of § 1983”). 9 Those caveats aside, the three circuit cases cited by

the plaintiffs are not factually similar enough to the situation Escajeda faced

to have placed the lawfulness of his taser use beyond debate.

In Bush, an officer bashed the plaintiff’s face into a car, breaking two

of her teeth, even though her hands were cuffed behind her back. 513 F.3d at

496. Denying qualified immunity, we held the officer “should have known

that he could not forcefully slam [the plaintiff’s] face into a vehicle while she

was restrained and subdued.” Id. at 502.

In Newman, an officer was frisking the plaintiff during a traffic stop

when he made a suggestive comment to the officer. 703 F.3d at 760. Officers

beat the plaintiff with batons, tased him twice, and tased him again after he

fell to the ground. Ibid. We denied qualified immunity because “the officers

immediately resorted to taser and nightstick without attempting to use

physical skill, negotiation, or even commands” when the plaintiff was in

custody, “committed no crime, posed no threat to anyone’s safety, and did

not resist the officers or fail to comply with a command.” Id. at 763–64.

Finally, in Martinez, the plaintiff confronted officers who were at his

business executing a warrant for his sister-in-law’s arrest. 716 F.3d at 372.

When the plaintiff refused to put his hands behind his back and batted an

officer’s hand away, the officer tased him and other officers forced him face-

down on the ground and handcuffed him. Id. at 373. The plaintiff stopped

resisting, but the officer tased him again. Id. at 372–73. We relied on Bush and

Newman to deny qualified immunity, reasoning the plaintiff allegedly “posed

9

See, e.g., Betts v. Brennan, 22 F.4th 577, 584–85 n.6 (5th Cir. 2022) (assuming

without deciding that circuit precedent can clearly establish the law); Crittindon v. LeBlanc,

37 F.4th 177, 199 n.4 (5th Cir. 2022) (Oldham, J., dissenting) (“The Supreme Court has

never said that we can hold . . . officers liable under § 1983 for violating the commands of

our precedent (as opposed to theirs).”).

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no threat to the officers and yet was tased twice, including once after he was

handcuffed and subdued while lying face down on the ground, in violation of

clearly established law.” Id. at 379.

These cases do not clearly establish Escajeda’s conduct was unlawful.

All three involved plaintiffs already under police control (either handcuffed

or submitting to a frisk) who were nevertheless subjected to gratuitous

violence (face slammed into a car, beaten with batons, tased). Those cases

are not this one. Contrary to the plaintiffs’ arguments, Escajeda did not have

Daniel “subdued” and under his control when he used the taser. To the

contrary, Escajeda faced a “tense, uncertain, and rapidly evolving” situation,

Plumhoff, 572 U.S. at 774, wholly unlike those faced by the officers in Bush,

Newman, and Martinez.

Escajeda used the taser precisely because Daniel was not in custody

and Escajeda was unsure whether the strange scenario he faced posed a threat

to his safety. Perhaps his fear that he might be walking into an “ambush” was

unfounded; in that event, the tasing could be excessive under prong one of

the analysis. See supra. But even so, no authority cited by the plaintiffs

remotely addresses the situation Escajeda faced. It follows, then, that

Escajeda could not have been on notice that his single use of the taser was

clearly unlawful. See, e.g., Brosseau v. Haugen, 543 U.S. 194, 198 (2004)

(explaining “the focus [of qualified immunity] is on whether the officer had

fair notice that her conduct was unlawful”).

Furthermore, the district court did not “frame the constitutional

question with specificity and granularity.” Morrow, 917 F.3d at 874–75. The

court asked about the proper use of tasers “against a subdued person.” That

is too general. It is one thing to ask whether police may tase someone after

they have handcuffed him and put him face-down on the ground. Cf.

Martinez, 716 F.3d at 372. It is quite another to ask whether an officer may

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tase someone who may be hanging himself, who may or may not have a

weapon, who does not respond to the officer’s commands—all when the

officer approaches him rapidly, alone, and in the dark.

“These multiple factual distinctions matter.” Betts, 22 F.4th at 586.

Even viewing the facts most favorably to the plaintiffs, as we must, the

unusual setting separates this case from routine pat-downs and arrests gone

wrong where officers pointlessly or sadistically use force. Existing precedent

did not put the lawfulness of Escajeda’s actions “beyond debate,” al-Kidd,

563 U.S. at 741, and so his use of a taser under these unique circumstances

did not violate clearly established law.

***

Accordingly, we REVERSE the district court’s judgment and

RENDER judgment granting Officer Escajeda qualified immunity.

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