holding “it was not objectively unreasonable” for an officer to “push[] [an arrestee] to the ground while maintaining a hold on [his] left arm and releasing it as she slowly descends to the ground” following the arrestee’s vocal but non-physical belligerence
How later courts described this case
- holding “it was not objectively unreasonable” for an officer to “push[] [an arrestee] to the ground while maintaining a hold on [his] left arm and releasing it as she slowly descends to the ground” following the arrestee’s vocal but non-physical belligerence
- holding that a police officer who took a resisting handcuffed suspect to the ground and then stood up and kicked her in the leg in order to put her into a police car did not constitute excessive force
- reversing the denial of qualified immunity because the plaintiff’s allegations were “blatantly” contradicted by the video evidence
- “Physical force may be necessary to ensure compliance when a suspect ‘refus[es] to comply with instructions.’” (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009))
Written by the judges who cited it.
The opinion
Case: 19-10013 Document: 00516465054 Page: 1 Date Filed: 09/08/2022
United States Court of Appeals United States Court of Appeals
Fifth Circuit
for the Fifth Circuit FILED
September 8, 2022
Lyle W. Cayce
No. 19-10013 Clerk
Jacqueline Craig, Individually and on behalf of minors J.H., K.H.,
and A.C.; Brea Hymond,
Plaintiffs—Appellees,
versus
William D. Martin,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CV-1020
ON PETITION FOR REHEARING EN BANC
Before Richman, Chief Judge, and Barksdale and Duncan, Circuit
Judges.
Priscilla Richman, Chief Judge:
The petition for rehearing en banc has been denied. We withdraw the
prior opinion that issued February 15, 2022, and substitute the following
opinion.
This case concerns the denial of qualified immunity to a police officer.
Jacqueline Craig and four of her children sued Officer William D. Martin,
Case: 19-10013 Document: 00516465054 Page: 2 Date Filed: 09/08/2022
No. 19-10013
asserting claims for unlawful arrest, bystander injury, and excessive use of
force. 1 The district court denied Martin’s motion for summary judgment on
the excessive force claims on qualified immunity grounds. 2 This
interlocutory appeal followed. 3 We reverse the district court’s denial of
qualified immunity on the excessive force claims and render judgment in
Martin’s favor as to those claims. We express no opinion regarding the
district court’s dismissal of the plaintiffs’ other claims, which are not part of
this appeal.
I
On December 21, 2016, Officer Martin received a call dispatching him
to a “disturbance” in the South Division of Fort Worth. 4 The initial 9-1-1
call came from a middle-aged male, stating that several people were on his
property arguing, had refused to leave, and were intentionally throwing trash
in his yard. 5 A subsequent 9-1-1 call came from the man’s neighbor,
Jacqueline Craig, complaining that the man had grabbed her son by the neck
because the boy had allegedly littered. 6
Martin responded to the call alone. 7 He activated his body camera as
soon as he arrived at the scene. 8 One of Craig’s daughters, Brea Hymond,
1
ROA.10-11, 31.
2
ROA.465-66.
3
ROA.485-86.
4
ROA.348.
5
ROA.348, 361.
6
ROA.15, 348, 361.
7
ROA.348.
8
ROA.349.
2
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No. 19-10013
also recorded the event on her cell phone. 9 We detail the record evidence as
to what transpired during Martin’s encounter with Craig and her children in
analyzing each of their respective claims.
As a result of the incident, Craig, individually and on behalf of her
minor children J.H. and K.H., and Hymond (collectively plaintiffs) sued
Martin for unlawful arrest and excessive use of force. 10 Craig also sued
Martin on behalf of her minor child A.C., alleging injuries suffered as a
bystander to the incident. 11 The district court dismissed A.C.’s claim as
incognizable; it dismissed all of the remaining plaintiffs’ claims for unlawful
arrest, holding Martin was entitled to qualified immunity as to those claims.12
Martin later moved for summary judgment on the remaining excessive force
claims, but the district court denied Martin qualified immunity, concluding
that the video evidence submitted by Martin was “too uncertain” to
determine whether he was entitled to qualified immunity as to those claims.13
Martin’s interlocutory appeal accordingly concerns only the excessive force
issue.
II
“The denial of a motion for summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine ‘to
9
ROA.17, 349, 423.
10
ROA.10-11.
11
ROA.31.
12
ROA.285, 292, 294.
13
ROA.314, 465-66.
3
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No. 19-10013
the extent that it turns on an issue of law.’” 14 “[W]e can review the
materiality of any factual disputes, but not their genuineness.” 15
“We review the materiality of fact issues de novo.” 16 When the district
court does not specify what fact issues precluded a grant of summary
judgment, as is the case here, 17 “[w]e can either scour the record and
determine what facts the plaintiff may be able to prove at trial and proceed to
resolve the legal issues, or remand so that the trial court can clarify the
order.” 18 Given the limited record in this case and the availability of video
evidence capturing the incident, we have reviewed the record rather than
remanding, in order to “resolv[e] immunity questions at the earliest possible
stage in litigation.” 19
Normally, “[t]he plaintiff’s factual assertions are taken as true to
determine whether they are legally sufficient to defeat the defendant’s
motion for summary judgment.” 20 However, if there is video evidence that
“blatantly contradict[s]” the plaintiffs’ allegations, the court should not
adopt the plaintiffs’ version of the facts; instead, the court should view those
facts “in the light depicted by the videotape.” 21 At oral argument, plaintiffs’
14
Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)).
15
Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).
16
Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc).
17
ROA.465-66.
18
Thompson v. Upshur Cnty., 245 F.3d 447, 456 (5th Cir. 2001).
19
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); see also Manis v. Lawson,
585 F.3d 839, 843 (5th Cir. 2009).
20
Manis, 585 F.3d at 843.
21
Scott v. Harris, 550 U.S. 372, 380-81 (2007); see also id. at 378.
4
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No. 19-10013
counsel acknowledged that the uses of force at issue are captured in the video
evidence. 22
Once a defendant properly pleads qualified immunity, the burden of
proof shifts to the plaintiffs to negate the defense. 23 To meet this burden, the
plaintiffs must establish “(1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time
of the challenged conduct.” 24
The plaintiffs allege that Martin’s use of force violated their Fourth
Amendment right to be free from excessive force during a seizure. 25 To
prevail on a Fourth Amendment excessive force claim, a plaintiff must show
“(1) an injury (2) which resulted directly and only from a use of force that
was clearly excessive, and (3) the excessiveness of which was clearly
unreasonable.” 26 “Excessive force claims are necessarily fact intensive;
whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts
and circumstances of each particular case.’” 27
“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
22
Oral Argument at 33:08-33:35.
23
King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (quoting Collier v. Montgomery,
569 F.3d 214, 217 (5th Cir. 2009)).
24
Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014) (internal quotation marks
omitted) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011)).
25
ROA.24, 26.
26
Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009) (quoting Freeman
v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).
27
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)).
5
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No. 19-10013
20/20 vision of hindsight.” 28 “Factors to consider include ‘the severity of
the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight.’” 29 “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.” 30 Viewing the evidence in the light most
favorable to the plaintiffs, Martin’s use of force against each plaintiff was not
objectively unreasonable.
A
We first consider Martin’s use of force against Craig. When Martin
arrived at the scene, he spoke with the male complainant; Martin then
approached Craig to obtain her version of the events. 31 Craig told Martin that
the man had grabbed her son, A.C., after A.C. had allegedly littered. 32 In
response, Martin asked: “Why don’t you teach your son not to litter?” 33
Craig, visibly agitated, told Martin that it did not matter whether her son had
28
Graham, 490 U.S. at 396.
29
Deville, 567 F.3d at 167 (quoting Graham, 490 U.S. at 396).
30
Graham, 490 U.S. at 396-97.
31
ROA.349; Martin Body Camera at 00:36-00:56.
32
ROA.349, 421.
33
ROA.421; Compilation Video at 00:51-00:53.
6
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No. 19-10013
littered, asserting that the man did not have the right to put his hands on her
son. 34 Martin replied: “Why not?” 35
Craig started to shout at Martin after this provocation. 36 Martin asked
why she was shouting at him, to which Craig responded: “Because you just
pissed me off telling me what I teach my kids and what I don’t.” 37 Martin
replied in a calm voice: “If you keep yelling at me, you’re going to piss me
off, and I’m going to take you to jail.” 38 Immediately after this exchange,
J.H., Craig’s fifteen-year-old daughter, stepped between Craig and Martin
and put her hands on Craig’s forearms. 39 Martin grabbed J.H. and pulled her
away from her mother. 40
Moments later, K.H., Craig’s fourteen-year-old daughter, began to
walk around Martin’s right side; K.H. then pushed Martin in the left side of
his back, using most—if not all—of her body weight. 41 Martin pulled his
taser and yelled, “Get on the ground!” 42 Martin then allegedly “shov[ed]”
his taser into the middle of Craig’s back. 43 Although Craig initially pled that
Martin then “threw her to the ground,” 44 Craig’s affidavit states that Martin
34
ROA.350; Compilation Video at 00:56-01:00.
35
ROA.350; Compilation Video at 01:00-01:02.
36
Compilation Video at 01:05-01:12.
37
Compilation Video at 01:22-01:27.
38
Compilation Video at 01:27-01:30.
39
ROA.350, 374, 443; Compilation Video at 01:32-01:33.
40
Compilation Video at 01:32-01:37.
41
Compilation Video at 01:37-01:41.
42
ROA.353, 375; Compilation Video at 01:40-01:41.
43
ROA.422; Compilation Video at 01:41-01:48.
44
ROA.422.
7
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No. 19-10013
“shov[ed]” her to the ground. 45 Craig claims that, as she was going to the
ground, her “left arm and shoulder blade [were] still suspended in [Martin’s]
grip—causing [her] severe pain.” 46 The video does not show any throwing
or slamming motion; however, it does show Martin pushing Craig to the
ground while maintaining a hold on Craig’s left arm and releasing it as she
slowly descends to the ground. 47 Martin then handcuffed Craig. 48
Under the circumstances, it was not objectively unreasonable for
Martin to grab Craig and force her to the ground to effectuate her arrest.
Martin was the only police officer at the scene, he had just been pushed from
behind, and he was facing numerous people who were shouting and jostling
as he attempted to separate Craig from the crowd and arrest her.
B
After Martin handcuffed Craig, he walked over to J.H. 49 As recounted
above, before Martin arrested Craig, J.H. stepped between Craig and Martin
and put her hands on Craig’s forearms. 50 Martin pulled J.H. away from her
mother, 51 and after K.H. pushed Martin in the side, Martin ordered all of
them to “get on the ground.” 52 After Martin arrested Craig, he again
shouted, “Get on the ground.” 53 J.H., who was initially still standing,
45
ROA.444.
46
ROA.443-44.
47
See Compilation Video at 01:41-01:49.
48
ROA.353; Compilation Video at 01:58-02:06.
49
ROA.353-55; Compilation Video at 02:04-02:07.
50
ROA.350, 374, 443; Compilation Video at 01:32-01:33.
51
Compilation Video at 01:32-01:37.
52
ROA.353, 375; Compilation Video at 01:40-01:50.
53
Compilation Video at 02:05-02:08.
8
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No. 19-10013
squatted to the ground as Martin moved closer to her. 54 Martin approached
her, grabbed her left arm and the back of her neck, and placed her on the
ground. 55
Martin then walked Craig and J.H. to his vehicle. 56 As Martin
approached the rear passenger door of the vehicle, K.H. appeared from
behind the back of the vehicle. 57 She stood in front of the passenger door in
an apparent attempt to block Martin from placing Craig and J.H. in the
vehicle. 58 Martin shouted: “Get back, or you’re going to jail too,” to which
K.H. responded: “I don’t care.” 59 Martin allegedly “struck” K.H. in the
throat, moving her out of the way. 60 Martin then attempted to get J.H. into
the vehicle. 61 J.H. resisted, leaving her left leg hanging out of the vehicle. 62
Martin repeatedly told her to get in the police cruiser, but she refused. 63 He
then allegedly “kicked” J.H.’s left leg into the vehicle. 64
The plaintiffs argue that Martin violated J.H.’s Fourth Amendment
rights when he took her to the ground and when he allegedly kicked her leg
54
ROA.355; Compilation Video at 02:04-02:07.
55
Compilation Video at 02:06-02:11.
56
ROA.355, 375-76; Compilation Video at 02:24-03:08.
57
ROA.355-56, 376; Compilation Video at 03:06-03:08.
58
ROA.355-56, 376; Compilation Video at 03:06-03:08.
59
ROA.356, 376; Compilation Video at 03:09-03:11.
60
ROA.356, 423; Compilation Video at 03:10-03:11.
61
ROA.377; Compilation Video at 03:33-03:35.
62
ROA.377; Compilation Video at 03:36-03:43.
63
Compilation Video at 03:36-03:43.
64
ROA.393, 423, 429, 446; Compilation Video at 03:42.
9
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No. 19-10013
into the police vehicle. 65 In both instances, J.H. was not complying with
Martin’s commands. Physical force may be necessary to ensure compliance
when a suspect “refus[es] to comply with instructions.” 66 However,
“officers must assess not only the need for force, but also ‘the relationship
between the need and the amount of force used.’” 67 A use of force is
reasonable if an officer uses “‘measured and ascending’ actions that
correspond[] to [a suspect’s] escalating verbal and physical resistance.” 68
Martin’s actions were sufficiently measured in relation to J.H.’s
resistance. Martin had commanded J.H. and others to get on the ground. 69
Although J.H. initially complied, she stood back up while Martin was
handcuffing Craig. 70 Martin approached J.H. and again ordered her to get on
the ground, at which point J.H. squatted. 71 Martin then took J.H. to the
ground, 72 applying the necessary force to restrain and handcuff her. With
regard to the alleged “kicking,” Martin had commanded J.H. to get into the
police vehicle. 73 J.H. continued to argue with Martin and kept her left leg
outside of the vehicle. 74 Martin used his foot to force J.H.’s leg into the
vehicle because he was holding Craig with one arm and the door of the vehicle
65
ROA.16-17, 20-21.
66
Deville, 567 F.3d at 167.
67
Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)).
68
Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (quoting Galvan v.
City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (unpublished) (per curiam)).
69
ROA.353; Compilation Video at 01:40-01:50.
70
Compilation Video at 01:49-02:07.
71
Compilation Video at 02:04-02:07.
72
Compilation Video at 02:06-02:11.
73
Compilation Video at 03:40-03:42.
74
Compilation Video at 03:40-03:45.
10
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No. 19-10013
with the other. 75 There is no indication that Martin’s use of force was
excessive. The plaintiffs do not allege that J.H. suffered any injury as a result
of the kick. 76 Martin’s use of force in response to J.H.’s resistance was not
objectively unreasonable.
C
We reach a similar conclusion with respect to K.H. Fourteen-year-
old K.H. had pushed Martin in his back using most—if not all—of her body
weight before Martin arrested her mother, Craig. 77 As stated above, after
Martin had handcuffed and arrested Craig, and just as Martin was attempting
to place Craig and J.H. into his police cruiser, K.H. appeared from behind the
vehicle and placed herself immediately in front of Martin, preventing Martin
from placing Craig and J.H. in the vehicle. 78 Martin yelled, “Get back, or
you’re going to jail, too!” 79 K.H. stood her ground, responding, “I don’t
care.” 80 After this response, Martin allegedly struck K.H. in the throat.81
Martin’s use of force moved K.H. out of his way, but otherwise had limited
visible effect on her. 82
On these facts, Martin’s use of force was not objectively unreasonable.
K.H. had assaulted Martin—pushing him in the back—earlier in the
75
See Compilation Video at 03:42.
76
See ROA.130, 142 (noting that plaintiffs make no claim of any injury relating to
Martin’s use of force against J.H.).
77
Compilation Video at 01:37-01:41.
78
See Compilation Video at 03:07-03:11.
79
ROA.356; Compilation Video at 03:09-03:11.
80
ROA.356, 376; Compilation Video at 03:09-03:11.
81
ROA.423; Compilation Video at 03:10-03:11.
82
Compilation Video at 03:09-03:16.
11
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No. 19-10013
altercation, and she was interfering with the lawful arrests of Craig and J.H.
at the time Martin made physical contact with her. K.H. refused to move,
and Martin used a relatively minimal amount of force to move her out of the
way. Such conduct does not violate the Fourth Amendment.
D
We come to Hymond’s claim. Throughout Martin’s encounters with
and arrests of Craig and J.H., Hymond shouted at him while photographing
what was transpiring from a close range. 83 After placing Craig and J.H. in the
back of his police car, Martin turned to Hymond to arrest her for
interfering. 84 He grabbed her by the wrist, put her up against the side of the
police vehicle, and attempted to wrangle her cell phone out of her hands, 85
which he eventually did. 86 As he attempted to restrain her, Hymond tried to
raise her hands and continued to scream at him. 87 He handcuffed her and
then put her up against the vehicle a second time. 88 Although Hymond was
in handcuffs, she continued to resist. Martin told Hymond that she was
under arrest and asked if she understood, but she continued shouting without
answering. 89 Hymond shouted for someone to “come here” and then “come
around here.” 90 There were other people on the scene, including at least one
83
See, e.g., Compilation Video at 02:50-03:00.
84
ROA.358, 379; Compilation Video at 04:05-04:15.
85
ROA.358, 379; Compilation Video at 04:15-04:28.
86
See, Compilation Video at 04:30-04:47.
87
Compilation Video at 04:28-04:46.
88
ROA.358; Compilation Video at 04:43-05:30.
89
Compilation Video at 05:05-05:10.
90
ROA.358, Compilation Video at 05:08-05:16.
12
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No. 19-10013
of Craig’s family members who had not been arrested. 91 Hymond was also
twisting her body as she shouted, and she walked away from the squad car at
one point. 92 Martin moved her back. 93 Hymond continued shouting and
twisting. 94 She turned her head halfway to her left in an attempt to look at
Martin. 95 Martin then began asking Hymond for her name and age. 96 As
Martin continued to ask, Hymond began twisting her body more
aggressively, her body briefly moved up and down as if she were jumping, and
she moved her head even more to her left to look squarely at Martin. 97 All
the while she continued to shout at Martin. 98
Martin’s sworn declaration filed in the district court states that after
Hymond was handcuffed, she “continue[d] to yell and squirm,” and Martin
“beg[a]n to try to control her by applying leverage and slightly raising her
arms, but the effort is in effective [sic].” 99 The declaration says that Martin
then “lift[ed] Brea Hymond’s handcuffs slightly further. 100 I never felt any
particular resistance as she was clearly quite flexible, and I applied very little
force when I raised her arms.” 101 His declaration continues, “If I had had to
apply much force to raise her arms it would have forced her to bend forward
91
See Compilation Video at 04:34-04:50 (depicting K.H. and others).
92
ROA.358, 379; Compilation Video at 05:11-05:28.
93
Compilation Video at 05:26-05:30.
94
ROA.358-59; Compilation Video at 05:30-05:48.
95
ROA.358; Compilation Video at 05:47-05:54.
96
Compilation Video at 05:53-06:02.
97
Compilation Video at 05:53-06:02.
98
Compilation Video at 05:52-06:01.
99
ROA.359.
100
ROA.359.
101
ROA.359.
13
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No. 19-10013
at the waist, which never happened.” 102 Martin asserted in this declaration,
“I was trying to use the technique to elicit some level of compliance from
her . . . .” 103
Hymond’s briefing in district court in response to Martin’s motion for
summary judgment asserted that Martin “hyper-extended” her arms when
she did not respond to questions about her name and age. 104 Her briefing in
our court did not make such an assertion until a motion for rehearing was
filed after our initial opinion issued. 105 Hymond’s affidavit filed in the district
court states that Martin “thrust” her arms up but does not attribute a motive
or reason for his doing so. 106
In Hymond’s motion for a rehearing, she argues for the first time that
Martin’s use of force was excessive because he did it to force Hymond to
answer his questions. 107 The issue is whether, from an objective standpoint,
Martin’s use of force was reasonable given all of the facts and circumstances
surrounding the arrest, not whether, subjectively, Martin raised Hymond’s
arms to obtain answers to his questions. 108
102
ROA.359.
103
ROA.359.
104
ROA.423.
105
Compare Plaintiff’s Br. at 1-22 (not making this allegation), with Pet. for Reh’g
En Banc at 8 (“When [Hymond] failed to respond suitably, Martin hyper-extended her
handcuffed arms by flexing them above her head in order to cause pain.”).
106
ROA.453.
107
Pet. for Reh’g En Banc at 8.
108
See id. at 628 (quoting Graham, 490 U.S. at 397) (explaining that “[c]rucially,”
the excessive force analysis “must be objective,” requiring consideration of the officer’s
actions “without regard to their underlying intent or motivation.”).
14
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No. 19-10013
The video evidence shows that in the sixty seconds before Martin
lifted up Hymond’s arms, Hymond was resisting arrest: Hymond pulled and
twisted her body back and forth while she was handcuffed; 109 repeatedly
yelled for someone to “come around here” as several individuals who were
not detained were nearby; 110 attempted to walk away from the police car;111
shouted progressively louder as she twisted and turned more aggressively; 112
refused to answer Martin’s questions about her name and age; 113 briefly
jumped up and down; 114 and turned her head to the left to look directly at
Martin. 115 Martin stated in a sworn declaration that he took Hymond’s
request for others to “[c]ome around here” to mean that “she was maybe
trying to call others to come assist her and to somehow interfere with [his]
arrest of her.” 116 He also testified that he has “personally had more than one
suspect attempt to escape while handcuffed, and [he] ha[s] had one female
juvenile suspect head-butt [him] while in handcuffs.” 117
Taken in totality, Hymond’s actions—twisting her body, walking
away, screaming, jumping up and down, turning her head, and calling for
others to “[c]ome around here”—reflect that Hymond was resisting arrest.
The use of force was objectively reasonable as a means of restraining an
109
Compilation Video at 05:06-05:09.
110
Compilation Video at 05:08-05:16.
111
Compilation Video at 05:11-05:26.
112
Compilation Video at 05:30-05:54.
113
Compilation Video at 05:53-06:02.
114
Compilation Video at 05:58-06:02.
115
Compilation Video at 06:01-06:02.
116
ROA.358.
117
ROA.358-59.
15
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No. 19-10013
arrestee. The video evidence reflects that Martin lifted Hymond’s arms for a
total of eight seconds. 118 She did not bend at the waist. 119 Hymond claims
this maneuver caused “[e]xcruciating pain”; however, the video shows that
the maneuver had little to any effect on Hymond. 120 She repeated statements
numerous times in a continuous stream as Martin raised her arms and
immediately after he lowered them. 121 Neither her tone of voice nor her
cadence changed. 122 Martin then placed Hymond into a second police
vehicle that had just arrived at the scene. 123 Hymond’s answers to written
interrogatories state that she was “forced” into the police car, 124 which
indicates that she resisted and did not willingly enter that vehicle.
The procedural posture of this case must be borne in mind. We are
not reviewing a motion to dismiss, in which we would look only at the
plaintiff’s allegations. Martin filed a motion for summary judgment, and he
supported that motion with video evidence and with his own declaration and
that of his commanding officer. He stated in detail how Hymond responded
to his efforts to arrest her, 125 and he and his commanding officer explained
that, in their experiences as police officers, they had each been headbutted by
a suspect while under arrest and handcuffed. 126 In Martin’s case, he was
118
Compilation Video at 06:02-06:10.
119
Compilation Vide oat 06:02-06:10.
120
ROA.453.
121
Compilation Video at 06:03-06:15.
122
Compilation Video at 06:03-06:15.
123
ROA.359; Compilation Video at 06:14-06:27.
124
ROA.384.
125
ROA.358-59.
126
ROA.359, 379.
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headbutted by a juvenile who was handcuffed. 127 In the face of this summary
judgment evidence, it was then incumbent upon Hymond to produce
evidence, not mere allegations, that raised a genuine dispute of material fact.128
Hymond failed to produce that evidence. Her response to Martin’s
motion for summary judgment primarily quoted the allegations in her
complaint, 129 but those unsworn allegations are not evidence. They cannot
defeat summary judgment in the face of sworn statements of fact that, if true,
would entitle the movant to judgment. The only relevant evidence that
Hymond presented, other than the videos, regarding the specifics of her
encounter with Martin, was her affidavit. In the affidavit, she made the
conclusory statements that “I was not resisting arrest or refusing to comply
with any commands,” “I was not confrontational and I fully complied with
the commands of the [sic] Officer Martin,” and “I was not actively resisting
or noncompliant.” 130 Hymond did not deny that she pulled, twisted, turned,
or walked—all of which is shown on the video while she is handcuffed. She
did not suggest that her movements on the video were attributable to
Martin’s conduct rather than her own in the face of Martin’s declaration.
Stated another way, she did not controvert the specific facts set forth in
Martin’s declaration, which, if believed, would mean that Hymond was
resisting arrest and that there was a legitimate concern that her movements
could lead to an assault on the arresting officer. Instead, she insisted that she
was wrongfully arrested, and in her answers to written interrogatories, she
127
ROA.359.
128
See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Fed. R. Civ. P. 56(a).
129
ROA.17, 423.
130
ROA.453-54.
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maintained that she was “forced” into a squad car. 131 Asserting that she was
“forced” into a squad car is directly contrary to her conclusory assertions
that she complied with all requests Martin made of her and that she was not
resisting arrest.
Nothing in our opinion should be construed as suggesting, much less
holding, that officers may use pain maneuvers to force non-resisting
individuals to respond to questioning. We hold only that, consistent with our
precedent, an officer may use reasonable force on someone “actively”
resisting arrest. 132 “The timing, amount, and form of a suspect’s resistance
are key to determining whether the force used by an officer was appropriate
or excessive.” 133 Here, the video shows that Hymond actively resisted
Martin’s arrest, Martin waited more than a minute before using force, 134 and
his force was relatively minimal with Hymond visibly experiencing little to
any pain. 135 Physical force may be necessary to ensure compliance when a
131
ROA.384.
132
Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 333 (5th Cir. 2020); see
also Graham, 490 U.S. at 396.
133
Joseph, 981 F.3d at 332.
134
Cf. Trammell v. Fruge, 868 F.3d 332, 342 (5th Cir. 2017) (holding that the
plaintiff alleged enough for an excessive force claim when “only three seconds elapsed”
between the suspect’s resistance and the officers’ use of force); Newman v. Guedry, 703
F.3d 757, 763 (5th Cir. 2012) (same, with the use of force coming “immediately” after the
suspect’s resistance); Deville v. Marcantel, 567 F.3d 156, 168 (5th Cir. 2009) (per curiam)
(same, with the force coming “quickly”); see also Compilation Video at 04:22-06:02.
135
Cf. Darden v. City of Fort Worth, 880 F.3d 722, 726, 732-33 (5th Cir. 2018)
(holding that the plaintiff alleged enough for an excessive force claim when officers killed a
suspect after tasing him twice and putting him in a choke hold); Newman, 703 F.3d at 760,
763 (same, but with officers “str[iking] Newman a total of thirteen times in about nine
seconds” with a nightstick and then tasing him three times); Joseph, 981 F.3d at 325, 327
(same, but with “Joseph endur[ing] twenty-six blunt-force injuries to his face, chest, back,
extremities, scrotum, and testes” over an “eight-minute encounter”); Deville, 567 F.3d at
168 (same, but when the plaintiff suffered “contusions to both wrists, neuropathy of her
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suspect “refus[es] to comply with instructions.” 136 However, “officers must
assess not only the need for force, but also ‘the relationship between the need
and the amount of force used.’” 137 A use of force is reasonable if an officer
uses “‘measured and ascending’ actions that correspond[] to [a suspect’s]
escalating verbal and physical resistance.” 138
In sum, Martin’s conduct in this case was not objectively
unreasonable and did not violate Hymond’s or any of the other plaintiffs’
Fourth Amendment rights. On this basis alone, Martin is entitled to qualified
immunity.
III
Even assuming the plaintiffs could show that Martin committed a
constitutional violation, Martin is nonetheless entitled to qualified immunity
under the second prong of the qualified immunity analysis. Analysis of that
prong requires that we determine whether Martin’s uses of force “violated
‘clearly established statutory or constitutional rights of which a reasonable
[officer] would have known.’” 139 For a right to be clearly established,
“existing precedent must have placed the . . . constitutional question beyond
hands, [a] right shoulder strain, left shoulder bruising (with hand prints), and multiple cuts
caused by broken glass” that required “four surgeries and multiple other injections.”); see
also Compilation Video at 06:03-06:15.
136
Deville, 567 F.3d at 167.
137
Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)).
138
Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (quoting Galvan v.
City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (unpublished) (per curiam)).
139
Bush v. Strain, 513 F.3d 492, 500 (5th Cir. 2008) (quoting Flores v. City of
Palacios, 381 F.3d 391, 395 (5th Cir. 2004)).
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debate.” 140 “[N]o reasonable officer could believe the act was lawful.” 141
“That is because qualified immunity is inappropriate only where the officer
had ‘fair notice’—‘in light of the specific context of the case, not as a broad
general proposition’—that his particular conduct was unlawful.” 142 Thus,
“police officers are entitled to qualified immunity unless existing precedent
squarely governs the specific facts at issue.” 143 “[S]pecificity is especially
important in the Fourth Amendment context, where . . . it is sometimes
difficult for an officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer confronts.” 144
The plaintiffs have failed to provide controlling precedent showing
that Martin’s particular conduct violated a clearly established right. They
also forfeited the argument that this case falls within the “obvious[ness]”
exception to providing controlling precedent, as they did not raise it in the
district court. 145 Instead, they have pointed to several cases that discuss the
140
Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011).
141
Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018); see also Morrow
v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019) (explaining that “the law must be so clearly
established that—in the blink of an eye, in the middle of a high-speed chase—every
reasonable officer would know . . . immediately” that the conduct was unlawful).
142
Morrow, 917 F.3d at 875 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(per curiam)).
143
Id. at 876 (internal quotation marks omitted) (quoting Kisela v. Hughes, 138 S.
Ct. 1148, 1153 (2018) (per curiam)).
144
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (alterations in
original) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)); see also City of
Tahlequah v. Bond, 142 S. Ct. 9, 11-12 (2021) (per curiam).
145
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[I]n other instances a general
constitutional rule already identified in the decisional law may apply with obvious clarity to
the specific conduct in question, even though ‘the very action in question has [not]
previously been held unlawful.’” (alteration in original) (quoting Anderson v. Creighton, 483
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excessive force issue at a “high level of generality”—precisely what the
Supreme Court has repeatedly advised courts they cannot do in analyzing
qualified immunity claims. 146
The first case the plaintiffs identify is Sam v. Richard. 147 In Sam, the
plaintiff presented evidence that he was on the ground with his hands behind
his head when the officer slapped him across the face, kneed him in the hip,
and then pushed him against a patrol car. 148 The court concluded such a use
of force on a compliant suspect was “excessive and unreasonable,” noting
that “it was clearly established at the time of the incident that pushing,
kneeing, and slapping a suspect who is neither fleeing nor resisting is
excessive.” 149
The second case the plaintiffs rely on to show that Martin’s particular
conduct violated clearly established law is Darden v. City of Fort Worth. 150 In
Darden, an officer threw a suspect to the ground after the suspect had placed
his hands into the air in surrender. 151 Officers tased the man multiple
times. 152 They choked him and repeatedly punched and kicked him in the
U.S. 635, 640 (1987))); see also Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021);
ROA.431-33.
146
See, e.g., Kisela, 138 S. Ct. at 1152 (quoting City and Cnty. of S.F. v. Sheehan, 575
U.S. 600, 613 (2015)).
147
887 F.3d 710 (5th Cir. 2018).
148
Id. at 712, 714.
149
Id. at 714 (citing Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)).
150
880 F.3d 722 (5th Cir. 2018).
151
Id. at 725.
152
Id. at 725-26.
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face. 153 Not long after these actions, the man’s body fell limp. 154 He had
suffered a heart attack and died. 155 The court concluded that the officers’
particular conduct violated a clearly established right. 156 The court
concluded that it was clearly established at the time of the incident that “a
police officer uses excessive force when the officer strikes, punches, or
violently slams a suspect who is not resisting arrest.” 157
The plaintiffs also cite Joseph ex rel. Estate of Joseph v. Bartlett. 158 In
Joseph, multiple police officers physically struck Joseph twenty-six times. 159
The officers also tased him twice. 160 During the incident, Joseph was lying in
the fetal position, was not actively resisting, and was continuously calling out
for help. 161 Joseph eventually became unresponsive and died in the hospital
two days later. 162 The court concluded that the officers used excessive force,
and that their conduct violated a clearly established right. 163 The court noted
that “Darden repeated what had long been established in our circuit: Officers
153
Id. at 726.
154
Id.
155
Id.
156
Id. at 731-33.
157
Id. at 732.
158
981 F.3d 319 (5th Cir. 2020).
159
Id. at 327.
160
Id. at 326-27.
161
Id. at 336.
162
Id. at 327.
163
Id. at 342.
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engage in excessive force when they physically strike a suspect who is not
resisting arrest.” 164
None of these decisions, nor any of the other decisions identified by
the plaintiffs, 165 provided Martin fair notice that his particular conduct was
unlawful. To begin with, each of these decisions was issued after the events
in question occurred on December 21, 2016. In any event, the decisions in
Sam, Darden, and Joseph would not have provided fair notice because the
plaintiffs in each case were not resisting arrest when the alleged unlawful
conduct occurred. 166 In all three cases, the plaintiffs had either signaled their
surrender by placing their hands in the air and ceasing further movements or
were lying on the ground before the alleged unlawful conduct occurred. 167 In
contrast, the plaintiffs in this case—except for Craig—were still resisting
when the alleged unlawful conduct occurred.
Martin’s use of force in this case is also far less severe than the use of
force in any of the cases the plaintiffs have identified. For instance, the
plaintiffs point to a case from this court in which the officer slammed a
nonresistant suspect’s face into a nearby vehicle, breaking two of her teeth. 168
They point to a decision from another circuit in which multiple officers
punched, kneed, and kicked a suspect—while he was handcuffed on the
ground—severely enough to fracture the suspect’s neck. 169
164
Id.
165
See Plaintiffs’ Br. at 6 n.16.
166
Sam v. Richard, 887 F.3d 710, 714 (5th Cir. 2018); Darden v. City of Fort Worth,
880 F.3d 722, 732 (5th Cir. 2018); Joseph, 981 F.3d at 342.
167
Sam, 887 F.3d at 714; Darden, 880 F.3d at 725-26; Joseph, 981 F.3d at 326.
168
Bush v. Strain, 513 F.3d 492, 496 (5th Cir. 2008).
169
Krout v. Goemmer, 583 F.3d 557, 561-63, 566 (8th Cir. 2009).
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Although the plaintiffs need not point to a factually identical case to
demonstrate that the law is clearly established, they nonetheless must
provide some controlling precedent that “squarely governs the specific facts
at issue.” 170 The plaintiffs have not provided such precedent here and thus
have failed to show that the law clearly established that Martin’s particular
conduct was unlawful at the time of the incident. Moreover, as we have noted
before, the plaintiffs’ reliance on the cases above “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.” 171
Regardless, the plaintiffs have not overcome Martin’s qualified immunity
defense.
* * *
For these reasons, we REVERSE the district court’s denial of
qualified immunity on the excessive force claims and RENDER summary
judgment in Martin’s favor as to those claims.
170
Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019) (internal quotation marks
omitted) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)).
171
Ramirez v. Escajeda, __ F.4th __, 2022 WL 3225405, at *4 (5th Cir. 2022)
(citing Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam) (“[A]ssuming that
controlling Circuit precedent clearly establishes law for purposes of § 1983 . . . .”)); see also
Betts v. Brennan, 22 F.4th 577, 585 n.6 (5th Cir. 2022) (quoting Rivas-Villegas, 142 S. Ct. at
8) (assuming without deciding that circuit precedent can clearly establish the law).
24