“Even assuming Ducksworth committed a crime, it was at most failing to leave the car wash when Welch commanded him to do so. Welch cites no authority to suggest such a ‘crime’ is severe enough to warrant tasing a man. Even on the (aggressive) assumption that Ducksworth could be arrested, he posed no threat.”
How later courts described this case
- “Even assuming Ducksworth committed a crime, it was at most failing to leave the car wash when Welch commanded him to do so. Welch cites no authority to suggest such a ‘crime’ is severe enough to warrant tasing a man. Even on the (aggressive) assumption that Ducksworth could be arrested, he posed no threat.”
- discussing the current state of obvious-case doctrine
Written by the judges who cited it.
The opinion
Case: 21-60830 Document: 00516672466 Page: 1 Date Filed: 03/10/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 10, 2023
No. 21-60830
Lyle W. Cayce
Clerk
Mekale Ducksworth,
Plaintiff—Appellee,
versus
Justin Landrum, individually and in his official capacity; Clint
Hedgepeth, individually and in his official capacity; Josh Welch,
individually and in his official capacity; John Windsor, individually and
in his official capacity,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:20-CV-114
Before Higginbotham, Higginson, and Oldham, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Four police officers unlawfully arrested Mekale Ducksworth.
Ducksworth sued under 42 U.S.C. § 1983. The officers appeal the district
court’s denial of their summary judgment motion as to (1) excessive force
(Officer Welch), (2) false arrest (all officers), and (3) fabrication of evidence
(Officer Landrum). We lack jurisdiction over the appeal and dismiss.
Case: 21-60830 Document: 00516672466 Page: 2 Date Filed: 03/10/2023
No. 21-60830
I.
This case arises from an incident at a Rainforest Carwash in Laurel,
Mississippi. On March 15, 2018, defendants Justin Landrum, Josh Welch,
Clint Hedgepeth, and John Windsor—officers of the Laurel Police
Department—responded to a call about an unruly customer, Mekale
Ducksworth, at the car wash. Before seeing him, the officers believed that
Ducksworth was a man with open warrants named Kenny Rogers Jr. When
they arrived, the car wash attendant told them that Ducksworth (unnamed to
the officers at this point) had pulled his truck into a vacuum bay before paying
for a car wash and became belligerent when she told him that he had to pay
first. She told the officers that Ducksworth apologized before they arrived
and when the officers asked if she wanted Ducksworth to leave, she
responded, “As long as he stays out there and he does what he’s doing now,
he’s fine.” The officers went to talk to Ducksworth.
After walking to Ducksworth’s truck, one of the officers told him to
exit his truck. As soon as he exited, the officers knew he was not Rogers, the
individual with open warrants. Ducksworth explained that he apologized to
the attendant but that he saw someone else pull into the vacuum bay without
paying for a car wash first. Welch told Ducksworth, “Get in your vehicle,
leave, and don’t come back. You’re banned from this place.” Ducksworth
responded, “I’m gonna vacuum my truck out first. I paid for my service.”
Welch continued to tell him to leave, and he refused. Landrum took a step
toward Ducksworth, and Ducksworth said, “Don’t put your hands on me,
brah. Don’t put your hands on me, man.” Landrum stated, “What you gonna
do is put your hands behind your back.” At the same time, Landrum
immediately drew his taser and ordered Ducksworth to turn around and place
his hands behind his back. Ducksworth refused and said, “I’m gonna get in
my truck and leave, bro.” Landrum continued to order Ducksworth to put
his hands behind his back and Ducksworth asked, “What’s your name,
2
Case: 21-60830 Document: 00516672466 Page: 3 Date Filed: 03/10/2023
No. 21-60830
man?” Landrum then shot Ducksworth with the taser, but the taser failed.
Ducksworth looked down at the defective taser coils, looked up at Landrum,
then turned and moved toward his truck.
Simultaneously, Hedgepeth and Windsor moved in, stopping
Ducksworth from entering his truck and pulling him towards the ground.
With Ducksworth a few feet from the open truck door, Welch said, “Taser!
Taser!” as he shot coils into Ducksworth’s back and then applied the taser
gun itself to his left quadricep while Ducksworth screamed. Welch continued
to tase Ducksworth as he fell to the ground, and Hedgepeth and Windsor put
cuffs on him. Welch exclaimed: “When we tell you to do something, you do
it! I don’t care who you think you are!” The officers arrested Ducksworth.
That day, Landrum submitted an affidavit stating Ducksworth
“unlawfully and willfully refuse[d] to comply with the commands of Officer
Justin Landrum . . . by failing to leave the business when asked to do so . . . .”
He also filed an Offense / Incident Report and a Use of Force Report where
he claimed car wash staff “stated that the suspect refused to leave the
carwash . . . .” The City of Laurel charged Ducksworth with failure to
comply with an officer’s order or direction, and a municipal judge found
Ducksworth not guilty. At Ducksworth’s trial, Landrum admitted that both
statements were false.
Ducksworth sued the individual officers and the City of Laurel under
42 U.S.C. § 1983 and state law. The defendants moved for summary
judgment on all claims. The district court largely granted the motion, denying
summary judgment only as to Ducksworth’s claims of excessive force by
Officer Welch, false arrest by all officers, and fabrication of evidence by
Officer Landrum. The officers timely appealed each surviving claim.
3
Case: 21-60830 Document: 00516672466 Page: 4 Date Filed: 03/10/2023
No. 21-60830
II.
“The denial of a motion for summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine to the
extent that it turns on an issue of law.” 1 Where the district court determines
that genuine issues of material fact preclude a determination of qualified
immunity, we have jurisdiction only to address the legal question of whether
the genuinely disputed factual issues are material for the purposes of
summary judgment. 2 We have no jurisdiction to consider the correctness of
the plaintiff’s version of the facts and cannot review the district court’s
factual determination that a genuine factual dispute exists. 3 Within this
limited appellate jurisdiction, we review denial of a motion for summary
judgment on the basis of qualified immunity in a § 1983 suit de novo. 4
III.
We address Ducksworth’s claims in turn, starting with excessive
force, then false arrest, and finally fabrication of evidence.
1
Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (internal quotation
omitted).
2
Lytle v. Bexar County, Texas, 560 F.3d 404, 408 (5th Cir. 2009).
3
See Edwards v. Oliver, 31 F.4th 925, 930 (5th Cir. 2022) (dismissing appeal for
lack of jurisdiction where the appellant “giv[es] lip service to the correct legal standard”
but instead “assumes fact different from those assumed” below (quoting Reyes v. City of
Richmond, 287 F.3d 346, 350 (5th Cir. 2002)); Amador v. Vasquez, 961 F.3d 721, 726 (5th
Cir. 2020) (“We have no jurisdiction to hear an interlocutory appeal . . . when a district
court’s denial of qualified immunity rests on the basis that genuine issues of material fact
exist.” (quoting Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir. 2005))); Winfrey v. Pikett,
872 F.3d 640, 643–44 (5th Cir. 2017).
4
Winfrey, 872 F.3d at 644.
4
Case: 21-60830 Document: 00516672466 Page: 5 Date Filed: 03/10/2023
No. 21-60830
A.
Ducksworth alleged the four officers violated his Fourth Amendment
rights by using excessive force during arrest. The district court granted
summary judgment to Hedgepeth, Windsor, and Landrum, only denying it
as to Welch, who appeals here. In reviewing a denial of summary judgment,
we must first determine if we have jurisdiction over the appeal. We lack
jurisdiction over Welch’s appeal because “his appeal boils down to a
challenge of the genuineness, not the materiality, of factual disputes.” 5
The district court denied Welch’s motion for summary judgment as
to excessive force because a “reasonable jury could conclude, after viewing
the body camera video, that Windsor and Hedgepeth had [Ducksworth]
under reasonable control at the time that Welch used the ta[s]er, and,
therefore, he posed no threat to the safety of the officers or others.” In
viewing the officer’s bodycam video, the district court identified these facts
as genuinely disputed. We agree. The video demonstrates that Ducksworth
exited his vehicle in a friendly manner with his cell phone in hand and greeted
the officers, explaining that he saw someone else use the car wash without
paying as he then attempted to do. The officers then told him he was banned
from the car wash and must leave. Ducksworth responded peacefully that he
had since paid for his car wash and that he wanted to finish cleaning his car.
At that point, the officers attempted to seize him, first by tasing him and then
by seizing him as Ducksworth turned to leave. On appeal, Welch recounts
these facts of genuine dispute in his own favor. He argues that Ducksworth
took a defensive and threatening posture, resisted being pulled from the
vehicle, struggled after being removed, and willfully and aggressively refused
to follow commands while resisting the officer’s detainment. Contrary to
5
Id.
5
Case: 21-60830 Document: 00516672466 Page: 6 Date Filed: 03/10/2023
No. 21-60830
Welch’s argument, those facts are of genuine dispute. Welch fails to take the
facts in a light most favorable to Ducksworth, instead relying on facts
different from those assumed by the district court. 6 We lack jurisdiction to
consider Welch’s appeal of the genuineness of the district court’s factual
determinations. 7
B.
Our analysis of Ducksworth’s false arrest claim mirrors his excessive
force claim. While the district court only denied summary judgment as to
Welch for excessive force, it denied summary judgment as to all officers for
false arrest. As with excessive force, we dismiss the officers’ appeal because
it only challenges the genuineness of the factual dispute.
In discussing this claim, the district court identified a factual
dispute—that Ducksworth “did not become physically combative until after
Defendants first used force on him.” Again, the officers invite us to assume
facts different from those assumed by the district court, 8 including that
“Ducksworth made a defensive gesture and closed his fists when
approached.” We lack jurisdiction to consider the officers’ appeal of the
genuineness of the district court’s factual determinations. 9
6
Reyes, 287 F.3d at 351.
7
Edwards, 31 F.4th at 932 (“Because the factual dispute is material, ‘we lack
jurisdiction to consider the propriety of the summary judgment denial.’” (quoting Bazan
v. Hidalgo County, 246 F.3d 481, 493 (5th Cir. 2001)); Winfrey, 872 F.3d at 644.
8
Edwards, 31 F.4th at 930.
9
Winfrey, 872 F.3d at 644.
6
Case: 21-60830 Document: 00516672466 Page: 7 Date Filed: 03/10/2023
No. 21-60830
C.
Finally, we must address the basis of our jurisdiction over Landrum’s
appeal, 10 which does not invoke qualified immunity. Federal courts of appeal
have jurisdiction of “appeals from all final decisions of the district courts.” 11
Denial of summary judgment is not a final decision. Orders that resolve a fact-
related dispute of evidence sufficiency, i.e. which facts a party may or may
not be able to prove at trial, however, are not immediately appealable and
must await final judgment to be appealed. 12 The district court based its denial
of summary judgment for this issue on a genuine dispute of material fact:
whether Landrum fabricated evidence to secure a charge against
Ducksworth. We lack jurisdiction over Landrum’s appeal of this claim.
IV.
For the foregoing reasons, we DISMISS the appeal for lack of
jurisdiction.
10
Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir. 1996).
11
28 U.S.C. § 1291.
12
Cantu, 77 F.3d at 802.
7
Case: 21-60830 Document: 00516672466 Page: 8 Date Filed: 03/10/2023
No. 21-60830
Andrew S. Oldham, Circuit Judge, concurring in part and dissenting in
part:
I agree that the officers are not entitled to qualified immunity on
Mekale Ducksworth’s false arrest and excessive force claims. But I
respectfully disagree with the majority’s understanding of interlocutory
appellate jurisdiction and the relevant qualified immunity inquiry.
I.
First, the facts. Two officer body cameras captured the entire event.
We therefore must “view[ ] the facts in the light depicted by the videotape.”
Scott v. Harris, 550 U.S. 372, 381 (2007); see also Salazar v. Molina, 37 F.4th
278, 280 (5th Cir. 2022) (applying Scott); 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)). I’ll do my best to
summarize the footage, with the caveat that one must see the videos to
believe them.
Shortly before noon on March 15, 2018, four police officers responded
to a call from a car wash manager in Laurel, Mississippi. The manager
reported that she had a brief squabble with a customer. The manager
explained that the customer pulled into the vacuum bay without first paying
for a car wash. After briefly quarreling with her, the customer paid and later
apologized. The officers asked where the customer was. She told them he was
in the vacuum bay cleaning his car. One officer asked: “You want him to
leave?” The manager said he was free to stay: “As long as he stays out there
8
Case: 21-60830 Document: 00516672466 Page: 9 Date Filed: 03/10/2023
No. 21-60830
and he does what he’s been do—what he’s doing now, he’s fine. But like I
told him there was no need [for] him [to] do[ ] all that . . . crap.”
You might think that was the end of this case. But for reasons unclear
from the record, the four officers—Justin Landrum, Clint Hedgepeth, Josh
Welch, and John Windsor—nonetheless decided to confront the then-
peaceful customer. One said: “We gonna go over here and talk to him. Find
out what his problem is.”
All four officers approached Ducksworth’s truck, parked in a vacuum
bay. Ducksworth was sitting in the driver’s seat. One officer said: “Step out,
man.” Ducksworth quickly and cheerfully complied.
Ducksworth explained to the officers what happened with the car
wash manager. As he chatted with the officers, Ducksworth leaned against
the side of his truck. His posture was relaxed. The videos show both of his
hands throughout the conversation. He held his phone in one hand and
gesticulated with the other. The officers could also see Ducksworth’s
children sitting in the backseat of the truck.
The officers moved in closer, surrounding him so his back was against
the truck. Ducksworth said: “I’m gonna be real with you. . . . You aren’t
arresting me.” To which, several officers shouted: “Are we arresting you?!”
Ducksworth responded: “I’m just saying; you guys come up [inaudible] and
all that; I mean, how we gonna handle this situation, what would you all like
to do? I mean, how may I help you? She [the carwash manager] just said
something. I mean I seen her on the phone calling the police. You know what
I’m saying? I apologized to the young lady. But I seen a young man— he
didn’t go through the car wash and he pulling in here and it ain’t nothing.”
Then one officer ordered: “Well get in your vehicle and leave and
don’t come back. You’re banned from this place.” Ducksworth responded:
“Hey, imma vacuum my truck out first. Sir, I paid for my service.” Officer
9
Case: 21-60830 Document: 00516672466 Page: 10 Date Filed: 03/10/2023
No. 21-60830
Welch ordered: “Let’s go. Right now.” To which Ducksworth replied: “I
paid for my service, man. I paid for my service. Imma vacuum my truck out.”
Welch then took a step toward Ducksworth and said: “You done causing no
problem over here?” Ducksworth replied: “Nah, I ain’t causing no problems.
I’m gonna finish my service.” One officer said: “I’m telling you what you’re
gonna do.” The officers then closed in on Ducksworth. Ducksworth looked
at Officer Landrum standing less than two feet from him and said: “Don’t
put your hands on me, bruh. Don’t put your hands on me, man.”
Suddenly Landrum raised his taser, pointed it at Ducksworth, and
shouted: “What you’re gonna do is put your hands behind your back!”
Ducksworth continued to stand with his hands relaxed, unclenched, and
visible at his sides. The officers all started yelling: “Put your hands behind
your back!” Ducksworth said: “Nah, man. Nah, man. Imma get in my truck
and leave, bruh.” Then gesturing at Landrum, he asked: “What’s your
name? What’s your name?”
Landrum yelled “taser, taser” and tried to tase Ducksworth. But one
of the prongs hit and attached to Ducksworth’s zipper so the taser failed.
Ducksworth flinched but otherwise did not respond. Then, he slowly turned
away from the officers and toward the truck.
Things went downhill from there. A flurry of officers charged at
Ducksworth and grabbed him. They dragged him by the arms away from the
truck. Ducksworth cried: “What are y’all doing? Hey, I got my kids in the
truck, man. I got my kids in the truck. Don’t tase me!” The officers did
anyway. Two officers held him by the arms as Welch tased him in the back.
This time the taser worked. Ducksworth’s legs buckled. And Welch pressed
the taser to Ducksworth’s leg to shoot him again for good measure.
Ducksworth screamed, fell to the ground, and lost control of his bladder.
10
Case: 21-60830 Document: 00516672466 Page: 11 Date Filed: 03/10/2023
No. 21-60830
The officers pinned him to the ground, pressing his face against the
pavement. One officer ordered: “Put your hands behind your back!” In
between his screams, Ducksworth cried: “Okay, yeah, okay, okay!” The
officers held him down and clasped handcuffs on him. One officer shouted:
“When we tell you to do something, you do it! I don’t care who you think
you are! When we tell you to leave, that’s what you have to do.” Ducksworth
responded: “I was gonna do that, bruh. . . . I got my kids in the truck man.”
The officers forced Ducksworth to lie on the pavement for several minutes
in his own urine despite his repeated requests to see his children.
Eventually, the officers let Ducksworth get up from the pavement. He
called someone to pick up his children. The police put him in a squad car.
Ducksworth was charged with disorderly conduct and resisting arrest.
At Ducksworth’s municipal trial Landrum submitted an affidavit claiming
that Ducksworth unlawfully refused to follow Landrum’s commands to leave
the car wash. ROA.125. But on the stand, Landrum admitted that this
affidavit was inaccurate because he had not ordered Ducksworth to leave the
premises—only Welch had. ROA.170–71. Landrum also submitted an
incident report, which said the car wash manager told the officers that
Ducksworth refused to leave the car wash. ROA.113. At the municipal trial,
Landrum testified that this portion of the report was “somewhat”
inaccurate. ROA.175. Ducksworth was found not guilty on all counts.
Ducksworth brought multiple constitutional claims under 42 U.S.C.
§§ 1983 and 1985 against the City of Laurel, Mississippi, and Officers
Landrum, Hedgepeth, Welch, and Windsor, each in their individual and
official capacities. He sought money damages.
Defendants moved for summary judgment, raising qualified immunity
as a defense to some but not all of Ducksworth’s claims. The district court
granted their summary judgment motion in part. But the court denied the
11
Case: 21-60830 Document: 00516672466 Page: 12 Date Filed: 03/10/2023
No. 21-60830
motion for the (1) § 1983 excessive force claim against Welch; (2) § 1983 false
arrest claim against Landrum, Hedgepeth, Welch, and Windsor; and
(3) § 1983 due process claim against Landrum for fabrication of evidence.
Defendants appealed. Our review is de novo. Salazar, 37 F.4th at 281.
II.
“Jurisdiction is always first.” Carswell v. Camp, 54 F.4th 307, 310 (5th
Cir. 2022) (quotation omitted). Under the collateral order doctrine
applicable to qualified immunity appeals, we must assess our jurisdiction on
a claim-by-claim basis. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)
(holding that only some claims are “appealable final decision[s]” (quotation
omitted)).
I agree with the majority that we lack jurisdiction over Landrum’s
attempt to appeal the denial of summary judgment on Ducksworth’s
fabrication of evidence claim. Landrum did not move for qualified immunity
on that claim. Therefore, as to that claim, he does not get the benefit of an
immediate interlocutory appeal. See, e.g., Plumhoff v. Rickard, 572 U.S. 765,
771 (2014) (“An order denying a motion for summary judgment is generally
not a final decision within the meaning of § 1291 and is thus generally not
immediately appealable.”).
As to Ducksworth’s false arrest and excessive force claims, however,
we do have jurisdiction. The officers moved for qualified immunity on those
claims. The district court denied it. Therefore, the officers were entitled to
an immediate appeal, and they timely exercised their right to it. See ibid.
The majority’s contrary jurisdictional analysis is puzzling. True, the
Supreme Court has held that interlocutory appellate jurisdiction does not
attach when a district court denies an officer’s qualified immunity motion
based solely on “evidence sufficiency.” Johnson v. Jones, 515 U.S. 304, 313
12
Case: 21-60830 Document: 00516672466 Page: 13 Date Filed: 03/10/2023
No. 21-60830
(1995). But as the Supreme Court subsequently clarified, Johnson is a narrow
exception to the otherwise applicable rule that officers get immediate appeals
to challenge qualified immunity denials. See Plumhoff, 572 U.S. at 771–73.
Here, as in Plumhoff, the district court did not deny qualified immunity based
on “evidence sufficiency”; here, as there, no one disputes who used force
against whom and under what circumstances. The dispute is a purely legal
one regarding Ducksworth’s clearly established rights under the Fourth
Amendment. As in Plumhoff, we have interlocutory appellate jurisdiction.
III.
Let’s start with false arrest. Here, as in all qualified immunity cases,
the plaintiff must show (A) the violation of a constitutional right that (B) was
clearly established at the time of the officers’ conduct.
A.
The right to be free of false arrests arises from the Fourth
Amendment, which prohibits “unreasonable . . . seizures.” U.S. Const.
amend. IV. An arrest is a seizure. See Dunaway v. New York, 442 U.S. 200,
208 (1979). To effectuate a lawful arrest, an officer must act reasonably, i.e.
the officer must have probable cause that the suspect committed a crime. See
id. at 213. Thus, to bring a claim of false arrest, Ducksworth must show he
was (1) seized (2) without probable cause at the time of the arrest.
Obviously, Ducksworth was seized. Id. at 208 (arrest is a seizure). The
more interesting question is when this seizure took place. An arrest takes
place when an officer uses “physical force to restrain movement, even when
it is ultimately unsuccessful.” California v. Hodari D., 499 U.S. 621, 626
(1991); see also Torres v. Madrid, 141 S. Ct. 989, 1003 (2021) (“[T]he
application of physical force to the body of a person with intent to restrain is
a seizure even if the person does not submit and is not subdued.”).
Ducksworth was seized when Landrum shot him with the taser, and the taser
13
Case: 21-60830 Document: 00516672466 Page: 14 Date Filed: 03/10/2023
No. 21-60830
hit Ducksworth’s zipper, even though the taser failed. In that moment,
Landrum applied “physical force to restrain” Ducksworth. Hodari D., 499
U.S. at 626. It’s irrelevant that the officers didn’t subdue him.
The next question is whether officers had probable cause to arrest
Ducksworth. To determine whether probable cause exists, “we examine the
events leading up to the arrest, and then decide whether these historical facts,
viewed from the standpoint of an objectively reasonable police officer,
amount to probable cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003)
(quotation omitted). In other words, the officers must reasonably believe they
have probable cause before the arrest.
The officers are flat wrong to contend they can manufacture probable
cause by giving Ducksworth an ultra vires order to leave the car wash and
daring him to ignore it. The closest relevant source of state law is
Mississippi’s disorderly conduct statute. See Miss. Code Ann. § 97-35-
7. But to prove a violation, the State must prove:
(1) [the citizen]—with the intent to provoke a breach of the
peace, or under circumstances as may lead to a breach of the
peace, or which may cause or occasion a breach of the peace—
refused to promptly comply with or obey a request, command,
or order to act or do or refrain from acting or doing something;
(2) the purpose of the request, command, or order was to avoid
a breach of the peace; (3) the person giving the command was
a law-enforcement officer; and (4) the law-enforcement
officer—at the time of giving the command, order, or
request—had the authority to then and there arrest him for a
violation of the law.
Mastin v. State, 180 So. 3d 732, 737 (Miss. Ct. App. 2015) (en banc) (citing
Miss. Code Ann. § 97-35-7(1)).
No reasonable officer—and no reasonable jurist looking at the video—
could conclude the State could come close to showing the first, second, or
14
Case: 21-60830 Document: 00516672466 Page: 15 Date Filed: 03/10/2023
No. 21-60830
fourth of these elements, much less all of them. (1) At the time Welch ordered
Ducksworth to leave the car wash, Ducksworth had done nothing to evince
intent to breach the peace. He was peacefully vacuuming his truck and
chatting with the officers. (2) The purpose of Welch’s command is unclear
because the car wash manager specifically told all four officers that
Ducksworth was welcome to stay. But regardless, there is zero evidence to
suggest Welch had any purpose to prevent (as opposed to provoke) a breach of
the peace when he gave the command. (4) The officers had no authority to
arrest Ducksworth when Welch ordered him to leave. He hadn’t violated any
law. The video reveals that immediately before Welch gave that order,
Ducksworth was merely chatting with officers, recounting his apology to the
carwash manager, and asking the officers “how may I help you?” The
officers’ real contention appears to be that they are free to order citizens to
do anything any time and that refusal to obey creates probable cause for
breach of the peace. But that is not the law, and no reasonable officer could
believe otherwise.
The officers also argue they had probable cause because Ducksworth
resisted their attempts to arrest him. True, state law forbids resisting a lawful
arrest. See Miss. Code Ann. § 97-9-73 (“It shall be unlawful for any
person to obstruct or resist . . . his lawful arrest . . . .”). But to trigger this law,
officers must have probable cause to arrest before the citizen resists; such
cause was plainly absent. It would be the ultimate bootstrapping for officers
to effectuate an unlawful arrest and then charge someone for resisting it. See
S.M.K.S. v. Youth Ct. of Union Cnty., 155 So. 3d 876 (Miss. Ct. App. 2014),
aff’d, 155 So. 3d 747 (Miss. 2015) (“The offense of resisting arrest
presupposes a lawful arrest. A person has a right to use reasonable force to
resist an unlawful arrest.” (quoting Taylor v. State, 396 So. 39, 42 (Miss.
1981))).
15
Case: 21-60830 Document: 00516672466 Page: 16 Date Filed: 03/10/2023
No. 21-60830
The videos show a plain violation of the Fourth Amendment. The
Supreme Court has made clear that plaintiffs “generally recover damages
that are proximately caused by any Fourth Amendment violation.” County of
Los Angeles v. Mendez, 137 S. Ct. 1539, 1548 (2017). That means Ducksworth
can seek damages for his injuries unless the officers are entitled to qualified
immunity.
B.
They’re not.
Qualified immunity protects a law enforcement officer from personal
liability in a lawsuit unless a plaintiff shows that the officer’s conduct violates
a clearly established constitutional right. As I recently explained, here’s how
I understand the relevant inquiry:
Clearly established law is all about fair notice. For there to be
fair notice, the clearly-established-law standard requires that
the legal principle clearly prohibit the officer’s conduct in the
particular circumstances before him. That is, the rule’s
contours must be so well defined that it is clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted. There are generally two different paths to show
this: (1) an on-point case and (2) the obvious-case exception.
McMurry v. Brunner, No. 21-50888, 2022 WL 17493708, at *7 (5th Cir. Dec.
7, 2022) (Oldham, J., concurring in the judgment) (quotation omitted). “The
Supreme Court recently made clear that for the obvious-case exception,
there are two necessary conditions: (1) particularly egregious facts and (2) no
evidence that the official’s actions were compelled by necessity or exigency.”
Id. at *8 (Oldham, J., concurring in the judgment) (quotation omitted).
Ducksworth made both showings for the obvious-case exception.
First, these circumstances were particularly egregious so that “any
reasonable officer should have realized” that this arrest was unconstitutional.
16
Case: 21-60830 Document: 00516672466 Page: 17 Date Filed: 03/10/2023
No. 21-60830
Taylor v. Riojas, 141 S. Ct. 52, 54 (2020). Supreme Court cases clearly
establish that arresting someone without probable cause violates the Fourth
Amendment. See, e.g., Dunaway, 442 U.S. at 213 (“Fourth Amendment
seizures are ‘reasonable’ only if based on probable cause.”). That’s the end
of this case: The officers not only lacked probable cause; they had no cause
whatsoever to arrest Ducksworth. Ducksworth was at a private business. He
was a paying customer. The car wash manager told the officers he could stay.
Any argument between Ducksworth and the manager was over before the
officers arrived. He wasn’t causing a disturbance. The officers had no reason
to approach him in the first place. Ducksworth remained calm and even
cheerful. Nonetheless, the officers gave him unlawful orders to leave, shot
him with a taser, and then complained that Ducksworth resisted their
obviously unlawful commands and arrest. These facts are egregious.
Second, no exigency or necessity justified the unlawful arrest. There’s
no indication that Ducksworth was violent or threatening. He did not escalate
the situation. The police did. They surrounded and purported to ban him from
the premises. They commanded him to put his hands behind his back. If there
was an exigency, it was police-created. And police-created exigencies receive
no deference under the Fourth Amendment. See Kentucky v. King, 563 U.S.
452, 462 (2011).
The purpose of the qualified immunity doctrine is to prevent litigants
and courts from using 20/20 hindsight to second-guess law-enforcement
decisions made in exigent circumstances and in the fog of uncertainty. The
doctrine encourages officers to vigorously protect the public (and
themselves) by eliminating personal liability for reasonable efforts and even
mistakes. But the doctrine has never protected “the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). This case falls comfortably outside the ambit of qualified immunity.
17
Case: 21-60830 Document: 00516672466 Page: 18 Date Filed: 03/10/2023
No. 21-60830
IV.
Ducksworth’s excessive force claim is related to, but analytically
distinct from, his false arrest claim. Even if the police had probable cause to
arrest Ducksworth—a premise refuted in Part III, supra—it does not follow
that they could reasonably tase Ducksworth to effectuate that arrest. In my
view, (A) Welch’s decision to tase Ducksworth was plainly unreasonable
under any reasonable viewing of the bodycam videos. And (B), Welch is not
entitled to qualified immunity.
A.
Welch used a taser to seize—i.e., to arrest—Ducksworth. Ducksworth
alleges that constituted excessive force. “To establish excessive force under
the Fourth Amendment, a plaintiff must demonstrate (1) an injury, which (2)
resulted directly and only from the use of force that was clearly excessive to
the need; and the excessiveness of which was (3) objectively unreasonable.”
Jackson v. Gautreaux, 3 F.4th 182, 186 (5th Cir. 2021) (quotation omitted).
The second and third prongs go hand-in-hand.
First, injury. To bring a claim for excessive force, Ducksworth must
demonstrate that he suffered an injury. It need not be significant, but it must
be more than de minimis. See Solis v. Serrett, 31 F.4th 975, 981 (5th Cir. 2022).
But the injury requirement is “a sliding scale, not a hard cutoff.” Ibid.
(quotation omitted). The degree of injury he must prove is directly related to
the constitutionally permissible level of force under these circumstances.
Ibid. Thus, “as long as [Ducksworth] has suffered some injury, even
relatively insignificant injuries and purely psychological injuries will prove
cognizable when resulting from [Welch’s] unreasonably excessive force.” Id.
at 982 (quotation omitted).
Ducksworth obviously incurred injuries. The videos show
Ducksworth screaming in agony, as anyone would, when he’s tased. And the
18
Case: 21-60830 Document: 00516672466 Page: 19 Date Filed: 03/10/2023
No. 21-60830
police reports show that Ducksworth incurred puncture wounds from the
taser prongs. That’s injury. *
Second, to determine if Welch’s force violated the Fourth
Amendment, we look to whether the force was “objectively reasonable”—
without regard to Welch’s motives. Scott, 550 U.S. at 381. This inquiry
involves balancing “the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion.” Id. at 383 (quotation omitted). In
doing so, we consider (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.” Graham v. Connor, 490 U.S. 386, 396 (1989). We judge the use of
force “from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Ibid. This is a fact-intensive inquiry. Id.
at 396–97. The so-called Graham factors are notoriously difficult to balance.
See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (“Of
course, general statements of the law are not inherently incapable of giving
fair and clear warning to officers. But the general rules set forth in . . . Graham
do not by themselves create clearly established law outside an obvious case.”
(quotation omitted)); Salazar, 37 F.4th at 286–87 (similar).
But in this case, the Graham inquiry is obvious. Even assuming
Ducksworth committed a crime, it was at most failing to leave the car wash
when Welch commanded him to do so. Welch cites no authority to suggest
such a “crime” is severe enough to warrant tasing a man. Even on the
*
Solis also says that “purely psychological injuries will prove cognizable . . . .” 31
F.4th at 981. If that’s true, then Ducksworth has at least met his burden to go to trial based
on the fact that Welch’s taser caused Ducksworth to lose control of his bladder and urinate
on himself in front of his children in a public parking lot.
19
Case: 21-60830 Document: 00516672466 Page: 20 Date Filed: 03/10/2023
No. 21-60830
(aggressive) assumption that Ducksworth could be arrested, he posed no
threat. The manager even said he was “fine” and free to stay. He had no
weapon. He was cheerful and not threatening anyone. There was no
legitimate governmental interest in ensuring public safety. Scott, 550 U.S. at
383. And at the moment Welch tased him, Ducksworth did not “actively
resist[ ] arrest or attempt[ ] to evade arrest by flight.” Graham, 490 U.S. at
396 (emphasis added). At most, Ducksworth passively resisted arrest by
failing to immediately heed the officers’ (unlawful) commands. And even
then, before the officers tased him, Ducksworth tried to deesclate the situation
by agreeing to leave the carwash in accordance with the (unlawful)
commands. The use of force in this case was plainly unreasonable.
Finally, it’s important to account for possible exigencies. Kentucky,
563 U.S. at 466 (“[T]he 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.”). Here, there were no such exigencies. The situation unfolded
slowly. Ducksworth did not make sudden movements. He remained calm. If
anything, the officers—not Ducksworth—escalated matters. They have
offered no reason for approaching Ducksworth in the first place. They
ordered him off the premises in direct contravention of the manager’s
instructions. And Landrum pulled out his taser and shouted “put your hands
behind your back” without cause. These police-created exigencies receive no
deference under the Fourth Amendment. Id. at 462.
Thus, the totality of the circumstances clearly show that Welch’s use
of force was unreasonable under the Fourth Amendment.
B.
Welch is not entitled to qualified immunity for his use of excessive
force. That’s because this case fits neatly into the obvious-case exception.
20
Case: 21-60830 Document: 00516672466 Page: 21 Date Filed: 03/10/2023
No. 21-60830
See, e.g., White v. Pauly, 137 S. Ct. 548, 552 (2017) (noting that qualified
immunity doesn’t bar excessive force claims in “an obvious case” (quotation
omitted)). Again, we ask whether Ducksworth has shown particularly
egregious facts and no exigencies compelling the force. McMurry, 2022 WL
17493708, at *8 (Oldham, J., concurring in the judgment).
First, particularly egregious facts. After Landrum arrested
Ducksworth by unsuccessfully tasing him, Ducksworth turned toward his
truck. Suddenly two officers grabbed and wrangled him into a tight grip.
Then Welch swooped in with his taser. He tased Ducksworth first in the
back. As Ducksworth fell, Welch pressed the taser to Ducksworth’s leg and
tased him again. Because Welch had no constitutional authority to arrest
Ducksworth, he had no authority to use force to effectuate that arrest.
And even if the officers had grounds to effectuate the arrest, this did
not open the door to any and all force. At the time Welch tased Ducksworth,
the officers held him tightly. They knew Ducksworth didn’t have weapons in
his hands. Cf. Kisela, 138 S. Ct. at 1153 (concluding that the obvious case
exception did not apply when an officer used force against a woman wielding
a knife). Ducksworth hadn’t made threatening movements or actively
resisted. This force was entirely unjustified.
Second, no exigency or necessity. Ducksworth posed no threat to the
officers or the public. There was no pressing need to incapacitate or restrain
him. The only exigency was police-created. See supra Part III.B. And police-
created exigencies do not excuse excessive force. See Kentucky, 563 U.S. at
462. Thus, Welch is not entitled to qualified immunity.
* * *
I agree with the majority that we lack jurisdiction over Landrum’s
appeal of the due process claim because he did not assert qualified immunity
in the district court. I also agree that the officers are not entitled to qualified
21
Case: 21-60830 Document: 00516672466 Page: 22 Date Filed: 03/10/2023
No. 21-60830
immunity on Ducksworth’s Fourth Amendment claims. I respectfully
disagree, however, with my learned colleagues regarding our appellate
jurisdiction over the Fourth Amendment claims; I would affirm the denial of
qualified immunity rather than dismiss.
22