Byrd v. Cornelius

Case: 21-20654 Document: 00516528578 Page: 1 Date Filed: 10/31/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

October 31, 2022

No. 21-20654 Lyle W. Cayce

Clerk

Malea Byrd,

Plaintiff—Appellee,

versus

Johnny Cornelius; George Sweetin,

Defendants—Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-4473

Before Clement, Duncan, and Wilson, Circuit Judges.

Edith Brown Clement, Circuit Judge:

In the 2019 school year, Appellant police officers Johnny Cornelius

and George Sweetin allegedly used excessive force in removing and arresting

Malea Byrd, a student, from a high school basketball game. The district court

denied summary judgment based on qualified immunity, finding a dispute of

material fact regarding the events surrounding Byrd’s arrest. The officers

filed an interlocutory appeal challenging the district court’s decision.

Because our jurisdiction is limited to reviewing the materiality of any factual

disputes identified by the district court, we DISMISS the appeal for lack of

jurisdiction.

Case: 21-20654 Document: 00516528578 Page: 2 Date Filed: 10/31/2022

No. 21-20654

I

In the fall of 2017, Byrd was a student at Madisonville High School,

which is operated by the Madisonville Consolidated Independent School

District. On November 14, 2017, Byrd, with some of her friends and family,

attended a basketball game and decided to sit on the visitors’ side of the gym.

Officers Sweetin and Cornelius approached Byrd’s group and asked them to

move to the home side of the court. The teenagers complied with their

request.

Later in the evening, Byrd and her cousin decided to go to the

concession stand to buy some pizza. On the way, Kathleen Golden, an

assistant principal at MHS, stopped Byrd and asked her about her nose ring.

Following this encounter, Byrd rejoined her cousin in line at the visitors’

concession stand. Golden then re-engaged with Byrd, admonishing her not

to go to the visitors’ section of the gym. Golden then asked Byrd to talk

outside. During the conversation, Byrd became uncomfortable and decided

to call her mother. Golden refused to speak to Byrd’s mother and asked Byrd

to leave the game. Because she did not have a coat and it was cold, Byrd

refused to leave the building and waited inside of the gym for her mother to

pick her up. The parties disagree regarding what exactly occurred at this

point.

Byrd alleges that she was calmly talking to her mother on her cell

phone near the doorway when Golden suddenly grabbed her shirt and

forcefully pulled her. Byrd claims Golden then called Officers Cornelius and

Sweetin over to assist her in removing Byrd from the game. Byrd alleges that

Cornelius then violently handled her, spilled his hot coffee on her, ripped her

shirt, and threw her to the ground. She then apparently felt Cornelius press

his knee into her back and painfully twist her arm before placing her in

handcuffs. Byrd alleges that while Cornelius undertook these actions,

2

Case: 21-20654 Document: 00516528578 Page: 3 Date Filed: 10/31/2022

No. 21-20654

Sweetin handled her very roughly and ripped her shirt. Byrd lastly claims that

after Cornelius had her in custody, Sweetin kicked her arm and broke her cell

phone by throwing it on the ground.

The officers’ account of the event differs markedly. Cornelius and

Sweetin claim they witnessed Byrd yell at and start a physical confrontation

with Golden. Cornelius claims he asked Byrd to leave the gym but that she

refused his order. Cornelius states he took Byrd by the arm to escort her from

the building, but Byrd resisted by pulling away, thrashing, and kicking. They

allege Byrd’s elbow hit Cornelius on the cheek. Cornelius states it was at this

point that he swept Byrd’s legs out from under her, placed her on her

stomach, and handcuffed her.

The officers turned Byrd over to the Madisonville Police Department,

who eventually released her. Byrd then sought treatment at the Madisonville

St. Joseph Hospital for injuries to her elbow and shoulder, bruising, and

multiple lacerations. MHS ultimately expelled Byrd for assaulting a school

administrator and police officers during the events of November 14, 2017.

Byrd filed suit against the Officers and the MCISD on November 13,

2019. On December 16, 2019, she submitted her Second Amended

Complaint. The MCISD moved to dismiss the excessive force claims in her

Second Amended Complaint, and the district court granted the motion. On

April 14, 2021, Defendants moved for summary judgment premised on

qualified immunity and on the merits of Byrd’s due process claim. 1

The magistrate judge found a genuine dispute of material fact between

the evidence provided by the officers, namely their recollection of events and

a short security video, and the evidence supplied by Byrd in her declaration.

1

The district court’s decision denying summary judgment on Byrd’s due process

claim is not reviewable on interlocutory appeal.

3

Case: 21-20654 Document: 00516528578 Page: 4 Date Filed: 10/31/2022

No. 21-20654

Specifically, the magistrate judge found the video to be unclear and wrote

that it provided “no evidence at all that would support Defendants’

arguments.” Therefore, she turned to Byrd’s declaration and the

Defendants’ declarations and found them to be in conflict regarding what

happened on November 14, 2017. The magistrate judge concluded that these

genuine issues of fact were material to the reasonableness of the force used

against Byrd and recommended that the district court deny summary

judgment. On November 17, 2021, the district court summarily adopted the

magistrate judge’s memorandum and recommendation. Defendant officers

then timely filed their interlocutory appeal on December 8, 2021.

II

We have jurisdiction over the district court’s denial of summary

judgment, which is not a final decision, “only to the extent that the denial of

summary judgment turns on an issue of law.” Kinney v. Weaver, 367 F.3d 337,

346 (5th Cir. 2004) (en banc) (internal quotation marks and brackets

omitted). A district court’s determination that a factual dispute exists in the

record is not an issue of law that we can address during an interlocutory

appeal. See id. at 346–47. When reviewing the district court’s denial of

qualified immunity on summary judgment, we “review the materiality of any

factual disputes, but not their genuineness.” Wagner v. Bay City, 227 F.3d 316,

320 (5th Cir. 2000). Consequently, we do not apply the standard of Federal

Rule of Civil Procedure 56 but consider only whether the district court erred

in its assessment of the legal significance of any factual disputes it found in

the record on summary judgment. See Kinney, 367 F.3d at 348.

III

Cornelius and Sweetin argue that we should reverse the district court

and grant them qualified immunity. The officers argue that we should

disregard the district court’s factual findings because the video evidence

4

Case: 21-20654 Document: 00516528578 Page: 5 Date Filed: 10/31/2022

No. 21-20654

conclusively contradicts Byrd’s sworn statement and shows her striking

Cornelius, threatening Golden, and kicking Sweetin. They also contend Byrd

has failed in her burden to demonstrate that the officers violated clearly

established law. Finally, Cornelius and Sweetin argue that their undisputed

actions show they were objectively reasonable in arresting Byrd and that she,

regardless, suffered only a de minimis legal injury. We address these

arguments in turn.

A. Excessive Force and Qualified Immunity

The Fourth Amendment creates a “right to be free from excessive

force during a seizure.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.

2012). “To establish a claim of excessive force under the Fourth Amend-

ment, 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.’” Deville v. Marcantel, 567 F.3d 156, 167

(5th Cir. 2009) (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir.

2005)).

The test used to determine whether a use of force was reasonable un-

der the Fourth Amendment “is not capable of precise definition or mechan-

ical application.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Bell

v. Wolfish, 441 U.S. 520, 559 (1979)). Instead, “its proper application re-

quires careful attention to the facts and circumstances of each particular case,

including” (1) “the severity of the crime at issue,” (2) “whether the suspect

poses an immediate threat to the safety of the officers or others,” and (3)

“whether he is actively resisting arrest or attempting to evade arrest by

flight.” Id. “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.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20–22

(1968)). Thus, the overarching question is “whether the officers’ actions are

5

Case: 21-20654 Document: 00516528578 Page: 6 Date Filed: 10/31/2022

No. 21-20654

‘objectively reasonable’ in light of the facts and circumstances confronting

them.” Id. at 397 (citing Scott v. United States, 436 U.S. 128, 137–39 (1978)).

When a plaintiff sues police officers for alleged violations of her con-

stitutional rights, qualified immunity protects government officials “from li-

ability for civil damages insofar as their conduct does not violate clearly es-

tablished statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To de-

termine whether qualified immunity applies, courts generally engage in a

two-part inquiry asking: first, whether “[t]aken in the light most favorable to

the party asserting the injury, . . . the facts alleged show the officer’s conduct

violated a constitutional right”; and second, “whether the right was clearly

established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). However, the order

of this test is not mandatory, and “judges of the district courts and the courts

of appeals [are] permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be ad-

dressed first . . . .” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

For a right to be clearly established, “[t]he contours of the right must

be sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Although this does not mean that “a case directly on point” is required, “ex-

isting precedent must have placed the statutory or constitutional question be-

yond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “The central con-

cept is that of ‘fair warning’: The law can be clearly established ‘despite no-

table factual distinctions between the precedents relied on and the cases then

before the [c]ourt, so long as the prior decisions gave reasonable warning that

the conduct then at issue violated constitutional rights.’” Ramirez v. Mar-

tinez, 716 F.3d 369, 379 (5th Cir. 2013) (quoting Kinney, 367 F.3d at 350).

6

Case: 21-20654 Document: 00516528578 Page: 7 Date Filed: 10/31/2022

No. 21-20654

Applying the above tests, the magistrate judge concluded first that

there was a genuine dispute of material fact, which precluded granting sum-

mary judgment. Second, she found the Graham factors were sufficiently sat-

isfied by Byrd’s presumed true allegations to show her constitutional rights

were clearly established and violated. Cornelius and Sweetin attack the mem-

orandum and recommendation on both conclusions.

1. The Video Evidence

The magistrate judge found the officers’ video to be unpersuasive.

She concluded that due to the video’s low quality and short duration—the

footage does not depict the arrest or events shortly after the arrest—it does

not clarify the factual dispute. Indeed, the magistrate judge claimed the video

further reinforced her conclusion regarding the Graham factors because of

Byrd’s petite size.

The officers argue that the footage shows that the magistrate judge’s

view of the events is conclusively erroneous; therefore, they contend we

should disregard her factual findings. Specifically, Cornelius and Sweetin

claim the security video exhibits Byrd swinging her arm at Cornelius, at-

tempting to bump Golden, and kicking Sweetin. They cite Scott v. Harris, 550

U.S. 372, 380–81 (2007) in support of the proposition that appellate courts

should rely on video evidence rather than the district court’s factual findings

when the two are in tension. Cornelius and Sweetin conclude that, consider-

ing Byrd’s actions in the video, their use of force was objectively reasonable.

As requested by the Defendants, we have viewed the video in question

numerous times. The footage is only fifteen seconds long and lacks audio. 2 It

shows Byrd talking on her phone when the officers confront her, and

2

The video seems to be a cell phone recording of security footage. The viewer can

hear the person making the video during the recording.

7

Case: 21-20654 Document: 00516528578 Page: 8 Date Filed: 10/31/2022

No. 21-20654

Cornelius grabs her arm. In response, Byrd appears to swat at or strike Cor-

nelius. The video becomes unclear as the officers and Byrd move their con-

frontation outside.

For us to review the genuineness of a factual dispute identified by a

district court on interlocutory review, the video evidence must conclusively

resolve the dispute of material fact. See Curran v. Aleshire, 800 F.3d 656, 664

(5th Cir. 2015). Although we find the video far more supportive of the offic-

ers’ description of the events than the magistrate judge did, it does not con-

clusively resolve the factual disputes identified by the district court. The video

is of low quality and fails to show Byrd’s arrest, but contrary to the magistrate

judge’s report, the video plainly shows Byrd resisting as she was being re-

moved from the gym’s lobby. The video, however, does not depict when, or

if, Byrd ceased resisting or what happened during the arrest. It also fails to

show the events after Cornelius restrained Byrd. Therefore, under our stand-

ard of review on interlocutory appeal, we defer to the district court’s findings

that there is a genuine dispute of material fact regarding whether the officers

used excessive force during the evening of November 14, 2017.

2. Clearly Established Right

Next, we address, taking the facts in the light most favorable to Byrd,

whether the officers violated clearly established law when they allegedly used

excessive force to arrest a student at a high school basketball game. Defend-

ants first argue that the undisputed facts of this case warranted Byrd’s arrest

and that arrests inherently entail a certain amount of force. suspect’s active

resistance is a critical factor in the Fourth Amendment’s “objective reason-

ableness” test. See Graham, 490 U.S. at 396. Accordingly, the Fifth Circuit’s

qualified immunity case law recognizes the need for officers to use reasonable

force to subdue and handcuff suspects who hit them or otherwise resist. But

the Fifth Circuit has also recognized that the reasonableness of any use of

8

Case: 21-20654 Document: 00516528578 Page: 9 Date Filed: 10/31/2022

No. 21-20654

force changes substantially once that resistance ends. See Curran, 800 F.3d

at 661 (“[T]he force calculus changes substantially once that resistance

ends.”).

As stated above, we are bound on interlocutory review to the facts as

decided by the district court on summary judgment. There, the magistrate

judge identified genuine disputes of fact regarding whether Byrd was resist-

ing arrest, when any resistance may have ceased, and whether the officers

used excessive force during or after the arrest. Because of our limited review,

we dismiss the officers’ first argument as an improper attack on the genuine-

ness of the district court’s factual findings.

Cornelius and Sweetin next fault Byrd for failing to identify a case that

clearly establishes that they could not forcefully remove and violently arrest

a rowdy teenager at school. However, during the proceedings before the dis-

trict court, Byrd cited Curran v. Aleshire, where we addressed a near identical

factual situation. See generally id. In Curran, a school police officer confronted

a teenage girl using her cell phone to call her mother on school grounds. Id.

at 658. According to the school’s policy, students were prohibited from using

cell phones at school. Id. The officer reached for a lanyard on the student’s

neck to check her identification. Id. The student jerked away from the officer,

so he allegedly threw her against the wall headfirst and handcuffed her. Id.

After the student was in custody, the officer allegedly slammed her into a wall

to dislodge her hidden cell phone. Id. The district court in Curran found a

genuine dispute of fact regarding the officer’s conduct and that the dispute

was material as to whether the officer violated clearly established law. Id. at

661.

On interlocutory appeal, we held that the video and photographic ev-

idence were inconclusive; therefore, we had to limit our review to the mate-

riality of the factual dispute identified by the district court. Id. at 661–64. We

9

Case: 21-20654 Document: 00516528578 Page: 10 Date Filed: 10/31/2022

No. 21-20654

concluded that the dispute was material and based our logic on our decision

in Newman v. Guedry, where we held that a reasonable officer should have

realized utilizing force against a non-resisting plaintiff is an “obvious” case

in which the Graham factors alone provide fair warning. Id. at 661–62 (citing

703 F.3d 757, 764 (5th Cir. 2012)).

Sweetin and Cornelius attempt to distinguish Curran by pointing to

the video evidence in this case and the temporal differences between Byrd’s

allegations and the claims made by Curran’s plaintiff. We have already ad-

dressed the video evidence above and will not reiterate our analysis here. Re-

garding the alleged temporal differences, namely that the plaintiff in Curran

was handcuffed and then allegedly suffered excessive force, the facts identi-

fied by the district court, in this case, do not support the argument that there

was no temporal gap between the events that took place in the video and those

that took place after the officers and Byrd move off camera. First, Byrd bases

her excessive force claim on events from before, during, and shortly after

Cornelius took her into custody. Second, Byrd alleges a specific temporal gap

when Cornelius restrained her, and then Sweetin kicked her and broke her

cell phone by throwing it on the ground. Thus, we reject the officers’ at-

tempts to distinguish Curran.

In support of their argument, the officers ask us to see this case as

more analogous to Poole v. City of Shreveport, 691 F.3d 624 (5th Cir. 2012). In

that case, a district court granted summary judgment in favor of officers

where the plaintiff resisted arrest, and the police responded by tasering him.

Id. at 625–26. However, the procedural posture of that case and its facts are

distinct from the matter before us on interlocutory appeal. In Poole, the dis-

trict court granted summary judgment, whereas the district court in this case

denied summary judgment. Id. at 626. Accordingly, the applicable standard

of review constrains our analysis to the materiality of the district court’s

10

Case: 21-20654 Document: 00516528578 Page: 11 Date Filed: 10/31/2022

No. 21-20654

factual findings. This contrasts with Poole, where we could thoroughly inter-

rogate the factual record. Id. We, consequently, do not see Poole as applicable.

Constrained to analyzing the materiality of the district court’s factual

findings, we agree with the district court that its identified disputes of fact

are material to Byrd’s excessive force claim. Applying the Graham factors to

Byrd’s allegations as we did in Curran, we see a teenager who claims she was

not committing a crime, not a threat to others, and not resisting or attempting

to flee the police when the officers allegedly used excessive force. We, there-

fore, agree with the district court that the officers’ alleged conduct, taking

the facts in the light most favorable to Byrd, clearly violated federal law.

3. De Minimis

The officers’ final argument in support of reversing the district

court’s decision on summary judgment is that Byrd suffered no legally signif-

icant injury from her arrest. “[A]lthough a de minimis injury is not cognizable,

the extent of injury necessary to satisfy the injury requirement is directly re-

lated to the amount of force that is constitutionally permissible under the cir-

cumstances.” Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir.

2017) (alterations in original) (citations and quotation marks omitted) “Any

force found to be objectively unreasonable necessarily exceeds the de minimis

threshold, and, conversely, objectively reasonable force will result in de min-

imis injuries only.” Id. (citation and quotation marks omitted). “Conse-

quently, ‘only one inquiry is required to determine whether an officer used

excessive force in violation of the Fourth Amendment.’” Id. (quoting Ikerd

v. Blair, 101 F.3d 430, 434 n.9 (5th Cir. 1996)). That is, “as long as a plaintiff

has suffered ‘some injury,’ even relatively insignificant injuries and purely

psychological injuries will prove cognizable when resulting from an officer’s

unreasonably excessive force.” Id. (citations and quotation marks omitted).

11

Case: 21-20654 Document: 00516528578 Page: 12 Date Filed: 10/31/2022

No. 21-20654

Here, Byrd alleges that during her encounter with the officers, she was

so afraid and in so much pain that she believed the officers would kill her. She

claims her physical injuries required a hospital to treat her for shoulder and

elbow trauma that necessitated a sling. Byrd also alleges that the hospital

treated her for severe bruising and multiple lacerations. These injuries, alleg-

edly caused by unnecessary excessive force, satisfy the de minimis threshold.

IV

The video evidence does not conclusively resolve the factual disputes

identified by the district court in its summary judgment proceedings. These

factual disputes are material to Cornelius’ and Sweetin’s qualified immunity

defense. Thus, we DISMISS the appeal for lack of jurisdiction.

12