holding 7 Case: 21-40803 Document: 00516688109 Page: 8 Date Filed: 03/24/2023 No. 21-40803 that officers were not entitled to qualified immunity when they used a taser and nightstick on individual who did not actively resist but made an “off- color joke”
How later courts described this case
- holding 7 Case: 21-40803 Document: 00516688109 Page: 8 Date Filed: 03/24/2023 No. 21-40803 that officers were not entitled to qualified immunity when they used a taser and nightstick on individual who did not actively resist but made an “off- color joke”
- concluding officer was not entitled to qualified immunity when officer “forcefully slammed [the plaintiff’s] face into a nearby vehicle during her arrest” when she was handcuffed and subdued
- holding that an officer inflicted excessive force during a DUI arrest by declining to release his police dog’s bite until after he had handcuffed the suspect
- stating that a case relied on by the plaintiff “is unpublished” and so “cannot clearly establish the law”
Written by the judges who cited it.
The opinion
Case: 21-40803 Document: 00516688109 Page: 1 Date Filed: 03/24/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 24, 2023
No. 21-40803 Lyle W. Cayce
____________ Clerk
Aaron A. Soto,
Plaintiff—Appellee,
versus
Ulysses Bautista, in his individual and official capacities as police officer
and as agent of the City of McAllen; Luis Zuniga, in his individual
and official capacities as police officer and as agent of the City of
McAllen,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CV-151
______________________________
Before Smith, Clement, and Haynes, Circuit Judges.
Per Curiam: *
This appeal arises out of two City of McAllen police officers’ alleged
use of excessive force during a 2016 DWI arrest. The district court orally
denied the officers’ motions for summary judgment, and they separately
appealed. We DISMISS part of the appeal for lack of jurisdiction. We
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-40803
AFFIRM the denial of summary judgment in part and REVERSE and
REMAND in part.
I. Facts
While on patrol around 1:00 a.m. on May 13, 2016, Officer Luis Zuniga
noticed Plaintiff-Appellee Aaron Soto driving the wrong way down a one-way
street and pulled him over. Zuniga administered a field sobriety test, which
Soto failed, and then used a portable breathalyzer to assess Soto’s blood
alcohol concentration. After the test revealed that Soto was intoxicated,
Zuniga arrested him. Zuniga then handcuffed Soto’s hands behind his back
and escorted him to the police cruiser.
As Zuniga attempted to place Soto into the vehicle, a derogatory
exchange ensued in which Soto insulted Zuniga’s girlfriend, and Zuniga
criticized Soto’s mother. When Zuniga tried to secure Soto’s seatbelt, Soto
leaned toward Zuniga and spit. Zuniga immediately reacted by wrapping his
arms around Soto’s body, pulling him from his seated position, and thrusting
him face first onto the ground. He then leaned over Soto and asked, “[d]id
you just spit on me?” as he forcefully dropped his knee onto Soto’s upper
back. Officer Ulysses Bautista, who was standing nearby, then kicked Soto
in his midsection, causing him to cry out. Zuniga continued to press his knee
into Soto’s upper body for several additional minutes as Soto repeatedly
groaned in pain, exclaiming at one point, “[t]hat hurt.”
Shortly thereafter, a sergeant arrived with a spit guard and RedMan
helmet. 1 Despite the fact that Soto’s face was plainly injured, Zuniga and the
sergeant placed the spit guard over Soto’s mouth and the helmet on his head.
_____________________
1
A RedMan helmet is a “protective helmet” which is “worn by students and
instructors who are participating in real world defensive tactics training.” It is “designed
to fit snugly.”
2
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After Soto refused medical care at the scene, he was transported to the
McAllen Police Department jail. Later, Soto was treated at a hospital where
doctors informed him that he had a hairline fracture on his cheekbone and an
orbital injury. He was also diagnosed with possible nerve damage and a
fractured tooth at other doctor’s visits.
Soto subsequently filed the instant § 1983 suit, alleging that Zuniga
and Bautista (collectively, the “Officers”) (1) used excessive force in
violation of his Fourth and Fourteenth Amendment rights, and (2) were each
liable as a bystander to the other’s use of force. 2 The Officers each moved
for summary judgment based on qualified immunity. The district court orally
denied both motions due to the existence of genuine issues of material fact.
The Officers each appealed.
We initially remanded the case to the district court “for the limited
purpose of specifying what fact disputes exist[ed] as to each defendant.” The
district court held a hearing in which it attempted to orally clarify which
genuine issues of material fact formed the basis for its denial of summary
judgment. We now consider whether we have jurisdiction over this
interlocutory appeal in light of that clarification, and, to the extent we do, we
address the merits of this appeal.
II. Jurisdiction and Standard of Review
As a threshold matter, we explain our limited jurisdiction over this
appeal. In considering a denial of summary judgment based on qualified
immunity, we typically may only review the “material[ity],” but not the
_____________________
2
Soto also originally named the City of McAllen as a defendant, but the City was
later dismissed. Soto does not appeal that dismissal.
3
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“genuine[ness],” of those factual disputes identified by the district court.
Joseph ex. rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020).
We normally may not—as the Officers repeatedly urge—accept the
defendants’ version of facts the district court deemed “disputed.” Rather,
in this posture, we must accept the district court’s determination that certain
factual disputes exist and, in determining whether they are material, resolve
the disputes in the plaintiff’s favor. Walsh v. Hodge, 975 F.3d 475, 481 (5th
Cir. 2020).
There is, however, one exception to this general rule implicated here.
When “there is video evidence that ‘blatantly contradict[s]’” certain factual
allegations, we do “not adopt the plaintiffs’ version of the facts.” Craig v.
Martin, 49 F.4th 404, 409 (5th Cir. 2022) (quoting Scott v. Harris, 550 U.S.
372, 380–81 (2007)). Rather, we “view those facts ‘in the light depicted by
the videotape.’” Id. at 409 (quoting Scott, 550 U.S. at 381).
III. Excessive Force Claims
We begin by considering Soto’s excessive force claims. On remand,
the district court identified the following factual disputes precluding
summary judgment for the Officers as to these claims: As to Zuniga, the
court concluded that there were genuine issues of material fact regarding
(1) whether Soto spit on Zuniga, and (2) whether Soto resisted arrest before
Zuniga placed him into the squad car. As to Bautista, it determined a genuine
issue of material fact existed regarding whether Soto was resisting arrest
when Bautista kicked him. 3
_____________________
3
The district court also suggested that genuine issues of material fact existed as to
whether the force used to restrain Soto was reasonably necessary, whether Zuniga violated
clearly established law, and whether Bautista’s use of force was objectively reasonable.
4
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As a preliminary matter, we address whether the video recordings of
the encounter undermine any of these determinations. 4 See Martin, 49 F.4th
at 409. First, while the video evidence does not definitively demonstrate that
Soto intended to spit on Zuniga, it does conclusively record Soto making a
spitting gesture and the noise of him spitting towards Zuniga. Accordingly,
the district court erred in concluding that there was a genuine issue of
material fact as to whether Soto actually spit (whether directly at Zuniga or
randomly).
However, we agree with the district court that the video evidence is
inconclusive as to whether Soto resisted or evaded arrest either before Zuniga
thrust him to the ground or prior to Bautista’s kick. Accordingly, to the
extent the Officers ask us to further “second-guess” the genuineness of these
factual disputes, their appeal is dismissed for lack of jurisdiction. Joseph, 981
F.3d at 335. We may, however, review whether these remaining genuine
issues of fact are “material” when construed in Soto’s favor. Id.
“We review the materiality of fact issues de novo.” Melton v. Phillips,
875 F.3d 256, 261 (5th Cir. 2017) (en banc). To assess whether a genuine
factual dispute is material, “we take [Soto’s] version of the facts as true and
view those facts through the lens of qualified immunity.” Cunningham v.
Castloo, 983 F.3d 185, 190 (5th Cir. 2020). If the Officers “would still be
entitled to qualified immunity under this view of the facts, then any disputed
_____________________
However, these are issues of law—not fact—and are properly resolved by the court on
summary judgment. See, e.g., Mangieri v. Clifton, 29 F.3d 1012, 1015-16 (5th Cir. 1994).
4
Two videos depict the interactions between the Officers and Soto: one recording
the scene in front of Zuniga’s dashboard, which captured the initial stop and Zuniga’s
administration of the field sobriety test; and another recording the back of the squad car,
showing aspects of the Officers’ challenged applications of force. Because only the latter
video undermines disputed facts identified by the district court, the phrase “video
evidence” refers to it exclusively.
5
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No. 21-40803
facts are not material, the district court’s denial of summary judgment was
improper,” and reversal is warranted. Id.
To determine if the Officers would be entitled to qualified immunity
based on Soto’s version of the remaining disputed facts, we ask two
questions: (1) whether the Officers’ actions “violated a constitutional right,”
and (2) “whether the right was clearly established.” Id. at 190–91 (internal
quotation marks and citation omitted).
A. Violation of a Constitutional Right
We begin by addressing the first question—that is, if we assume Soto
did not resist or evade arrest, did the Officers violate Soto’s constitutional
right to be free from excessive force?
To establish an excessive force claim, Soto must show that he
“suffer[ed] an injury that result[ed] directly and only from a clearly excessive
and objectively unreasonable use of force.” Joseph, 981 F.3d at 332. “In
determining whether the use of force was clearly excessive and clearly
unreasonable, we evaluate each officer’s actions separately, to the extent
possible.” Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012).
Accordingly, we begin with Soto’s claim that Zuniga used excessive force
when he forcefully thrust Soto face first onto the ground and dropped his
knee onto his upper body.
Soto has submitted evidence showing that he suffered several injuries
as a direct result of Zuniga’s conduct, including a hairline fracture, broken
tooth, (possible) nerve damage, 5 and an orbital injury. Therefore, the
_____________________
5
Soto testified that a neurologist told him he might have nerve damage on the side
of his cheekbone, but the doctor couldn’t say for sure. However, Soto contends that ever
since the incident he has felt a tingling sensation on the side of his cheekbone during certain
activities.
6
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No. 21-40803
primary issue is whether, under Soto’s version of the disputed facts, Zuniga
nonetheless acted reasonably. Several factors guide this inquiry, including
“(1) the severity of the crime at issue, (2) whether [Soto] posed an immediate
threat to the safety of officers or others, and (3) whether [Soto] was actively
resisting arrest or attempting to evade arrest by flight.” Joseph, 981 F.3d at
332 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
Our analysis of the first and third Graham factors is straightforward.
Soto was arrested for drunk driving, which is undoubtedly a serious crime.
Therefore, the first factor weighs in favor of Zuniga’s reasonableness.
However, we’ve already concluded that we must assume Soto was not
resisting or evading arrest, so the third factor cuts strongly against Zuniga’s
reasonableness.
The only remaining factor to assess, then, is whether Soto “posed an
immediate threat” to Zuniga. See Joseph, 981 F.3d at 332. We conclude that
he did not. It’s undisputed that Soto was unarmed. Additionally, prior to
Zuniga’s removing Soto from the car, he was seated in the backseat with his
hands restrained behind his back. These facts strongly suggest Zuniga was
not at risk of harm, and, therefore, his substantial use of force was
unreasonable.
Indeed, this conclusion is consistent with our case law. It is axiomatic
under our precedents that applying violent force to an unarmed person who
is “restrained and subdued” violates the Constitution. See Bush v. Strain,
513 F.3d 492, 502 (5th Cir. 2008) (concluding officer was not entitled to
qualified immunity when officer “forcefully slammed [the plaintiff’s] face
into a nearby vehicle during her arrest” when she was handcuffed and
subdued). This is true even when evidence establishes that the plaintiff acted
disrespectfully toward the defendant-officer or engaged in passive resistance.
See, e.g., Newman v. Guedry, 703 F.3d 757, 762–63 (5th Cir. 2012) (holding
7
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No. 21-40803
that officers were not entitled to qualified immunity when they used a taser
and nightstick on individual who did not actively resist but made an “off-
color joke”).
Zuniga, however, urges that Soto’s conduct wasn’t merely
disrespectful. Rather, per Zuniga, Soto’s spitting threatened his safety by
putting him at risk of contracting “a communicable disease.” Yet, we are
unconvinced that spitting a single time poses more than a de minimis risk to
an officer’s safety. To be sure, it’s possible that Zuniga could’ve caught a
virus from Soto. But given that Soto showed no signs of sickness, and this
incident predated the COVID-19 pandemic, that risk seems very low.
Moreover, Zuniga’s own behavior belies his contention that he was afraid of
catching an illness. After Soto spit, Zuniga wrapped himself around Soto,
thrust him to the ground, and later leaned over and “wipe[d] [Soto’s] face
with his arm.” This seems like an excellent way to contract a virus—not avoid
one.
But even if Soto’s spitting had posed a non-negligible threat to his
safety, it still wouldn’t have warranted Zuniga’s response. While our
precedents recognize that sometimes “officers may need to use physical
force to effectuate a suspect’s compliance,” they nonetheless require officers
to “assess the relationship between the need and the amount of force used.”
Newman, 703 F.3d at 763 (alterations adopted)(internal quotation marks and
citation omitted). Zuniga’s actions suggest he made no such calculation.
Slamming an arrestee to the ground hard enough to break his bones is simply
not a proportional response to being spit at. Neither, for that matter, is
repeatedly dropping one’s knees on a prone suspect’s spine when he is
handcuffed and compliant.
Moreover, Zuniga’s use of force was not only inappropriately
violent—it was also too immediate. Zuniga did not implement any other
8
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strategy to address Soto’s spitting before employing physical force. See
Deville v. Marcantel, 567 F.3d 156, 167–68 (5th Cir. 2009) (per curiam).
Indeed, he “immediately resort[ed] to force without any attempt to de-
escalate the [] situation.” Joseph, 981 F.3d at 334 (quotation omitted). Such
conduct does not amount to the “measured and ascending actions” required
by our caselaw. See Poole, 691 F.3d at 629. Rather, it reflects an impulsive,
violent response to perceived disrespect. Therefore, we conclude that on
these facts, Zuniga’s use of force was “clearly excessive.” 6 See Deville, 567
F.3d at 167.
Based on the prior analysis, it’s also clear that Bautista acted
unreasonably by kicking Soto in the side. The district court concluded that
it was undisputed that this conduct contributed to Soto’s injuries.
Additionally, as explained above, our precedents are clear that using
objectively unreasonable force on a restrained, compliant individual violates
the Fourth Amendment. Bush, 513 F.3d at 501. Therefore, given the
assumption that Soto wasn’t resisting arrest, we conclude that Bautista also
violated Soto’s right to be free from excessive force.
B. Clearly Established Law
We now turn to the second prong of the qualified immunity inquiry.
Notwithstanding the prior analysis, Zuniga and Bautista are still “entitled to
qualified immunity unless” Soto demonstrated that the right in question was
“clearly established at the time of the challenged conduct.” Plumhoff v.
_____________________
6
Zuniga and Bautista also emphasize that Soto was drunk, and therefore he was
more likely to behave unpredictably. While Soto’s intoxication is a relevant factor, it is not
dispositive in light of the evidence that Soto was handcuffed and subdued during the
relevant events, and therefore, “[n]o reasonable officer could conclude [he] posed an
immediate threat” to the Officers’ safety. See Cooper v. Brown, 844 F.3d 517, 522–24 (5th
Cir. 2016) (holding that an officer inflicted excessive force during a DUI arrest by declining
to release his police dog’s bite until after he had handcuffed the suspect).
9
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Rickard, 572 U.S. 765, 778 (2014) (internal quotation marks and citation
omitted). A right is clearly established only if it is “sufficiently clear that
every reasonable official would have understood that what he is doing violates
that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quotation
omitted). In making this determination, the Supreme Court and this court
have indicated that we may consult “controlling authority” or a robust
“consensus of cases of persuasive authority.” 7 Wilson v. Layne, 526 U.S.
603, 617 (1999); Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en
banc) (same).
In his opening brief, Soto cites several cases which he claims “clearly
establish” that the Officers’ actions were objectively unreasonable. 8 Our
survey of the law indicates that as of May 13, 2016, at least two of these—
Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013), and Deville, 567 F.3d 156
(5th Cir. 2009)—provided “fair warning” to any reasonable officer that it
was unconstitutional to thrust Soto to the ground (after already arresting and
handcuffing him), drop a knee on his upper spine, and kick him. In fact, based
on Soto’s version of the facts, the Officers’ conduct was less justifiable than
the conduct found to violate clearly established law in Ramirez and Deville.
In Ramirez, we held that a reasonable jury could conclude that the
defendant-officer violated clearly established law by tasing a handcuffed
individual who had merely passively resisted arrest. 716 F.3d at 378. We
_____________________
7
We have suggested that such “persuasive authority” includes precedent from
other circuit courts, Swanson, 659 F.3d at 372 & n.26 (indicating that a consensus of cases
from other circuit courts is sufficient, so long as the circuits are in agreement), but likely
not unpublished cases, Garcia v. Blevins, 957 F.3d 596, 601 (5th Cir. 2020) (stating that a
case relied on by the plaintiff “is unpublished” and so “cannot clearly establish the law”).
8
Doss v. Helpenstell, 626 F. App’x 453 (5th Cir. 2015) (per curiam) (unpublished);
Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013); Newman, 703 F.3d at 757; Deville, 567
F.3d at 156; Goodson v. City of Corpus Christi, 202 F.3d 730 (2000).
10
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noted that the fact that the plaintiff had pulled his arm away when officers
initially attempted to restrain him was “insufficient” to show that he posed
“an immediate threat to the safety of the officers.” Id. We further explained
that though we “ha[d] not addressed a fact pattern precisely on point,” we
had previously “held that use of certain force after an arrestee has been
restrained and handcuffed is excessive and unreasonable.” Id. Additionally,
we distinguished another case, Poole, 691 F.3d at 626, on the grounds that
there, “the use of a taser was not excessive” as “the arrestee was resisting
arrest and the officers ceased use of the taser once the arrestee was handcuffed and
subdued.” Ramirez, 716 F.3d at 378 (emphasis added).
Here, as in Ramirez, both officers applied force while Soto was
“restrained and handcuffed.” Id. In fact, based on Soto’s version of the
facts, Soto was more obedient than the Ramirez plaintiff—the video does not
conclusively demonstrate that Soto made any attempt to evade arrest.
Moreover, Soto’s spitting—like the Ramirez plaintiff’s shouting—was
disrespectful, but plainly did not “pose[] an immediate threat” to the
Officers’ safety (at least pre-pandemic). Id.
In Deville, we similarly concluded that an officer was not entitled to
qualified immunity when he used substantial force in response to the
plaintiff’s mere “passive resistance.” 567 F.3d at 169. We emphasized that
based on the plaintiff’s evidence, the officer “engaged in very little, if any
negotiation” before “quickly resort[ing]” to force. Id. We also highlighted
the paucity of evidence suggesting that the plaintiff planned to flee or
otherwise resist arrest. Id.
Like the plaintiff in Deville, Soto was either confined inside the police
cruiser or held down on the ground during the relevant events. In fact,
Soto—unlike the Deville plaintiff—was handcuffed when the Officers
applied force. Additionally, while Soto was undoubtedly crass, there is no
11
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No. 21-40803
evidence he tried to physically harm the Officers or flee the scene. Yet, like
the officer in Deville, Zuniga and Bautista “quickly resorted” to physical
force without providing Soto with any meaningful opportunity to correct his
disrespectful behavior. Id. at 168. Zuniga thrust Soto out of the car without
so much as asking him to stop spitting, and Bautista kicked Soto mere
moments later. In fact, the central facts of this case—which took place within
fifteen seconds—evince an even quicker resort to substantial force than in
Deville. 9
In sum, based on the video evidence and assuming Soto’s version of
the facts, the Officers’ use of force was “disproportionate to the situation, in
violation of the Fourth Amendment and the clearly established law.” Joseph,
981 F.3d at 342. Therefore, the district court did not err in denying the
Officers’ motions for summary judgment as to the excessive force claims.
IV. Bystander Liability
Finally, we address the district court’s denial of summary judgment
as to Soto’s bystander liability claims. Under our precedents, to establish
bystander liability, a plaintiff must show that (1) another officer was engaged
in the use of excessive force, and (2) the observing officer had “a reasonable
opportunity to realize the excessive nature of the force and to intervene to
stop it.” Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). We’ve already
concluded that Soto has produced sufficient evidence to preclude summary
judgment for the Officers as to the first prong.
_____________________
9
By way of contrast, Griggs v. Brewer, 841 F.3d 308 (5th Cir. 2016), provides a
helpful counterexample. There, we held that the defendant-officer did not violate clearly
established law when he performed a “takedown maneuver” on an intoxicated arrestee and
subsequently punched him in the head. Id. at 311, 316. Notably, however, in Griggs, the
officer employed the “takedown” after Griggs attempted to “lurch[]” away—before he was
handcuffed or otherwise restrained. Id. at 311, 313.
12
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However, we conclude that the video evidence conclusively
demonstrates that (1) Bautista could not have reacted quickly enough to
prevent Zuniga from thrusting Soto to the ground or dropping his knee on
Soto’s neck, and, in turn, (2) Zuniga could not have prevented Bautista from
kicking Soto. Thus, even assuming that both Zuniga and Bautista used
excessive force, they each lacked a “reasonable opportunity” to prevent each
other’s unconstitutional conduct. See id. Therefore, the district court erred
in denying the Officers’ motions for summary judgment on these claims.
V. Conclusion
For the foregoing reasons, we DISMISS the appeal as to the
Officers’ challenges to the genuineness of the factual disputes identified by
the district court due to lack of jurisdiction. With respect to the parts of the
appeal addressing questions of law, we AFFIRM the district court’s denial
of summary judgment as to Soto’s excessive force claims. We REVERSE
the district court’s denial of summary judgment as to Soto’s bystander claims
and REMAND for entry of summary judgment in favor of Officers Zuniga
and Bautista and for proceedings consistent with this opinion.
13