granting qualified immunity to high school coaches where case involved minor child
How later courts described this case
- granting qualified immunity to high school coaches where case involved minor child
- granting qualified immunity to officers where case involved seven-month- old child
- “The district court’s denial of summary judgment is immediately appealable ‘to the extent it turns on an issue of law.’”
- observing that the plaintiff must show that “the right was ‘clearly established’ at the time of the challenged conduct”
Written by the judges who cited it.
The opinion
Case: 22-50196 Document: 00516719709 Page: 1 Date Filed: 04/20/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 20, 2023
No. 22-50196 Lyle W. Cayce
____________ Clerk
April Johnson, an individual and as next friend of A.N.E.R., a minor;
A.N.E.R., a minor child, an individual,
Plaintiffs—Appellants/Cross-Appellees,
versus
The City of San Antonio; Daniel Groce, Officer, Badge #1182,
individually and in his official capacity; Does 1 through 25,
Defendants—Appellees,
Gary Tuli, Officer, Badge #517, individually and in his official capacity;
Jessica Osoria, Officer, Badge #1422, individually and in her official
capacity,
Defendants—Appellees/Cross-Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-733
______________________________
Before Wiener, Stewart, * and Engelhardt, Circuit Judges.
_____________________
*
Judge Stewart concurs in the judgment only.
Case: 22-50196 Document: 00516719709 Page: 2 Date Filed: 04/20/2023
No. 22-50196
Per Curiam: **
In 2017, A’Mynae Roberts attended her friend’s quinceañera and
found herself in the back of a police car, in disheveled clothes and handcuffed,
for the alleged assault of a police officer. She asserted various § 1983 and
state-law claims against three officers, Officer Tuli, Officer Osoria, and
Officer Groce, 1 and the City of San Antonio (the “City”). 2 She appeals the
district court’s grant of summary judgment in favor of the City and the
court’s dismissal of her state-law claims. Officer Tuli and Officer Osoria
appeal the district court’s denial of their summary-judgment motions. For
the reasons set forth below, we DISMISS in part and REVERSE in part.
_____________________
**
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
Officer Groce and Officer Osoria jointly moved for summary judgment. Upon
finding that there was no direct interaction between Roberts and Officer Groce and that
there was no evidence indicating Officer Groce played any role in either effecting or
witnessing Roberts’ arrest, the district court granted summary judgment in favor of Officer
Groce, but not Officer Osoria. In her appellate-court briefing, Roberts briefs the district
court’s “reversible errors as to officer Daniel Groce.” But, according to her notice of
appeal, Roberts did not appeal the district court’s order granting in part and denying in part
Officer Groce and Officer Osoria’s joint motion for summary judgment. Rather, Roberts
appealed “the Order Granting the City of San Antonio’s Motion for Summary Judgment”
and “the Order dismissing the Texas Tort Claims.” Roberts argues: “[t]o the extent that
Officer[] Daniel Groce and Officer[] Jessica Osoria acted in concert with Officer Gary Tuli
in the manufacturing of the ‘False Report’, the District Court erred by unwittingly ignoring
the genuine disputed issue of material fact which precludes the entry of Summary
Judgment in favor of Officer Dani[e]l Groce.” This is the extent of briefing dedicated to
her claims against Officer Groce. Assuming that Roberts appealed the district court’s
disposition of her state-law claims asserted against Officer Groce, her failure to properly
brief the claims results in forfeiture of her argument. See United States v. Scroggins, 599
F.3d 433, 446-47 (5th Cir. 2010) (“It is not enough to merely mention or allude to a legal
theory. … We have often said that a party must ‘press’ its claims.”) (citations omitted).
In any event, as explained below, we lack jurisdiction to review the state-law claims.
2
At oral argument, Roberts’ attorney confirmed that Roberts is the only plaintiff
in the action.
2
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No. 22-50196
I. Facts & Procedural History
On May 20, 2017, Officer Tuli, Officer Groce, Officer Osoria, and
approximately six other officers of the San Antonio Police Department
(“SAPD”) responded to an assault in progress between partygoers outside
of a quinceañera. Upon arrival, they met a large, angry crowd of about fifty
to sixty people. People were yelling at one another, and fights, brawls, and
arguments broke out between different groups in multiple areas. Roberts
(then 14 years old) and her mother, April Johnson, were part of the crowd
and allegedly engaged in the fighting. Despite there being only eight or nine
officers present (including Officers Tuli, Groce, and Osoria), the officers
attempted to control the unruly crowd and separate fighting individuals. At
some point amidst the chaos, Officer Tuli told Johnson to “shut up” in an
“aggressive way.” What happened next is disputed.
According to Roberts, she yelled to Officer Tuli, “don’t talk to her
like that!” and “made a gesture toward Officer Tuli” with her finger. Then
Officer Tuli punched her in the face. The punch caused her to spin around
and lose her balance. As a result, her strapless dress fell, exposing her breasts.
She was handcuffed, placed in the back of an SAPD car, and taken to jail. She
was charged with assaulting a police officer. Roberts states that she never hit
Officer Tuli, made any movements with her arms in his proximity, or – as he
says she did – called him a “white mother fucker.”
According to Officer Tuli, Roberts yelled at him and attempted to
instigate a fight. He described Roberts as “being loud,” “not following
orders,” and “an obvious threat based on her demeanor.” After Officer Tuli
allegedly commanded Roberts to back away, Roberts moved closer to him,
which provoked Officer Tuli to “lightly push[] her back.” Then, Roberts
allegedly balled up her fists, took a bladed stance, struck the left side of
Officer Tuli’s face with her right fist, and called him a “white mother
3
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No. 22-50196
fucker.” After being hit, Officer Tuli says that he punched Roberts in the
face with a closed fist and pulled her arms behind her back. Despite Roberts’
continued fighting, pulling away, and struggling, Officer Tuli says that he and
Officer Osoria effected the arrest and placed her in the police car.
According to Officer Osoria, Roberts was “definitely hostile.”
Roberts was allegedly not listening to lawful orders, was interfering with
police duties, and was being loud. She then took a “fighter stance,” says
Officer Osoria, “charged towards [Officer Tuli],” and struck him on the left
side of his face with a right closed fist. Officer Tuli then allegedly struck
Roberts with a closed fist and attempted to arrest her. Officer Osoria’s police
report states that Roberts was uncooperative, disobeyed lawful orders, and
refused to place her hands behind her back. Officer Osoria assisted Officer
Tuli in the arrest by grabbing Roberts’ arm, pulling it behind her back, and
securing her up against a nearby vehicle. Because Roberts allegedly “caused
a struggle” while the officers detained her, her top fell down and exposed her
breasts. Officer Osoria says she attempted to cover Roberts by fixing
Roberts’ top, but was not able to do so because of Roberts’ continuous
struggling and failure to cooperate. Officer Osoria then allegedly walked
Roberts over to a police vehicle and, once Roberts stopped struggling,
deemed it was “safe” for her to adjust her top, which Officer Osoria did for
Roberts in the back of the car. Afterwards, Officer Osoria reported that
Officer Tuli complained of pain and minor swelling to his face.
This suit followed. Against Officer Tuli, Roberts brought claims for
excessive force, assault and battery, and unlawful arrest and false
imprisonment, all under § 1983; and state-law claims of intentional infliction
of emotional distress and defamation. Against Officer Groce and Officer
Osoria, Roberts brought claims for unlawful arrest and false imprisonment
under § 1983 and state-law claims of intentional infliction of emotional
distress and defamation. Against the City, Roberts brought claims for
4
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No. 22-50196
unlawful arrest and false imprisonment, intentional infliction of emotional
distress, and negligent hiring, supervision, training, and retention. All parties
moved for summary judgment.
Citing genuine issues of material fact, the district court denied Robert’s
motion for summary judgment, granted the City’s cross-motion for summary
judgment, and granted in part and denied in part Officer Tuli’s and Officers
Groce and Osoria’s cross-motions for summary judgment. The district court
dismissed all state-law claims and all claims against Officer Groce and the
City. The court then “terminated” Officer Groce and the City as parties to
the suit as a result of its granting their respective motions for summary
judgment. Following the district court’s disposition of those motions, these
claims remained: (1) an excessive force claim brought under 1983 against
Officer Tuli; (2) unlawful-arrest and false-imprisonment claims brought
under § 1983 against Officer Tuli; and (3) unlawful-arrest and false-
imprisonment claims brought under § 1983 against Officer Osoria.
Roberts timely appealed the district court’s: (1) grant of summary
judgment in favor of the City; and (2) dismissal of her state-law claims.
Officer Tuli and Officer Osoria timely appealed the district court’s denial of
their summary-judgment motions premised on qualified immunity.
II. Roberts’ appeal:
A. The grant of summary judgment in favor of the City:
Roberts challenges the dismissal of her claims against the City. But
our jurisdiction over Roberts’ appeal of the district court’s grant of the City’s
summary-judgment motion is suspect. “It is axiomatic that parties may not
stipulate appellate jurisdiction. We are obliged, sua sponte if necessary, to
examine the basis for our jurisdiction.” Borne v. A & P Boat Rentals No. 4,
Inc., 755 F.2d 1131, 1133 (5th Cir. 1985) (citations omitted). “Under 28
U.S.C. § 1291, courts of appeals may review only ‘final decisions’ of the
5
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No. 22-50196
district courts.” Williams v. Seidenbach, 958 F.3d 341, 343 (5th Cir. 2020)
(en banc). “[I]n a suit against multiple defendants, there is no final decision
as to one defendant until there is a final decision as to all defendants.”
Williams, 948 F.3d at 343 (citing Fed. R. Civ. P. 54(b) (absent an order to
the contrary, “any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties does not end the action as to any of the claims or parties”)).
But, “[w]hen an action involves multiple parties or claims, an order
dismissing some of the claims is final for appellate purposes only if the district
court (1) has made an express determination that there is no just reason for
delay and an express direction for the entry of judgment, see Fed. R. Civ. P.
54(b), or (2) certifies the case for immediate appeal pursuant to 28 U.S.C. §
1292(b).” Castille v. City of League City, Texas, No. 21-40202, 2022 WL
175545, at *1 (5th Cir. Jan. 18, 2022) (per curiam) (unpublished). 3
_____________________
3
See also Askanase v. Livingwell, Inc., 981 F.2d 807, 809-10 (5th Cir. 1993)
(“Federal appellate courts have jurisdiction over appeals only from (1) a final decision
under 28 U.S.C. § 1291; (2) a decision that is deemed final due to jurisprudential exception
or that has been properly certified as final pursuant to Fed. R. Civ. P. 54(b); and (3)
interlocutory orders that fall into specific classes, 28 U.S.C. § 1292(a), or that have been
properly certified for appeal by the district court, 28 U.S.C. § 1292(b).”). As discussed
below, the appeal of the district court’s grant of the City’s motion for summary judgment
was not a final decision, was not certified as final pursuant to Rule 54(b), did not fall into
one of the specific classes delineated by § 1292(a) – which governs (1) interlocutory orders
of the district courts of the United States, the United States District Court for the District
of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands,
or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions,
or refusing to dissolve or modify injunctions, except where a direct review may be had in
the Supreme Court; (2) interlocutory orders appointing receivers, or refusing orders to
wind up receiverships or to take steps to accomplish the purposes thereof, such as directing
sales or other disposals of property; and (3) interlocutory decrees of such district courts or
the judges thereof determining the rights and liabilities of the parties to admiralty cases in
which appeals from final decrees are allowed – and was not certified for appeal under §
1292(b).
6
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No. 22-50196
Here, the district court’s order on the motions for summary judgment
did not dispose of Roberts’ §1983 claims against Officer Tuli and Officer
Osoria. Thus, it adjudicated fewer than all of the claims of all of the parties.
Nothing in the order or the record reflects an intent by the district judge to
enter a partial final judgment. In fact, the order simply provides:
All state law claims are DISMISSED and the § 1983 claims
against Officer Groce and the City are DISMISSED. The
Court orders Officer Groce and the City of San Antonio be
TERMINATED as parties to this suit.
IT IS SO ORDERED.
From this, the City correctly argues that we lack jurisdiction over the
claims asserted against it because “[t]here is no clear, unmistakable
declaration of appealability in the district court’s order granting summary
judgment to the City.” Neither Rule 54(b) 4 nor § 1292(b) 5 supplies
_____________________
4
Rule 54(b) provides:
When an action presents more than one claim for relief … or when
multiple parties are involved, the court may direct entry of a final judgment
as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay. Otherwise, any
order or other decision, however designated, that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the parties does
not end the action as to any of the claims or parties and may be revised at
any time before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.
5
Section 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation, he
shall so state in writing in such order. The Court of Appeals which would
have jurisdiction of an appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from such order, if application is
7
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No. 22-50196
jurisdiction for the appeal of the district court’s grant of the City’s summary-
judgment motion.
Examining Rule 54(b) first, there is no indication that the district court
unmistakably directed a final judgment as to the City. “If the language in the
order appealed from, either independently or together with related portions
of the record referred to in the order, reflects the district court’s
unmistakable intent to enter a partial final judgment under Rule 54(b),
nothing else is required to make the order appealable.” Kelly, 908 F.2d at
1220. As the City points out, “unmistakable intent” is noticeably absent
from the bare-bones language of the order granting its motion for summary
judgment. Moreover, there is no record evidence that the district court ever
certified its order dismissing the claims against the City as a “final” judgment
under Rule 54(b). To that end, there is no record evidence that Roberts ever
moved for entry of judgment under Rule 54(b) as to the order granting the
City’s summary-judgment motion. See Kelly, 908 F.2d at 1220. When, as
here, there is neither an express determination that there is no just reason for
delay and an express direction for the entry of judgment, nor any indication
in the record that the parties sought such certification, there is no Rule 54(b)
final judgment. Accordingly, we lack authority to adjudicate this appeal
under Rule 54(b).
Examining § 1292(b) next, there is no indication that the district court
declared § 1292(b)’s specific statutory dictates to certify the order’s
immediate appeal. Absent from the district court’s ruling is any statement
that the order involves a controlling question of law contemplated by the
_____________________
made to it within ten days after the entry of the order: Provided,
however, That application for an appeal hereunder shall not stay
proceedings in the district court unless the district judge or the Court of
Appeals or a judge thereof shall so order.
8
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No. 22-50196
statute. And no party argues that such a question exists in this case.
Noticeably absent, too, is any indication that an immediate appeal would
materially advance the case’s termination. Because the district court never
certified the judgment dismissing the claims against the City as appealable
under § 1292(b), we lack authority to adjudicate this appeal under the statute.
Without any indication from the district court’s order or the record
that Rule 54(b) or § 1292(b) permits an appeal, we lack jurisdiction. Roberts’
appeal as to the district court’s grant of the City’s summary judgment motion
is dismissed.
B. Dismissal of Roberts’ state-law claims:
Roberts challenges the dismissal of her state-law claims against Officer
Tuli and Officer Osoria. 6 Roberts does not explain why we have jurisdiction
over the dismissed state-law claims. Rather, she merely asserts that the
district court’s dismissal of such claims was in error. But our jurisdiction
over the state-law clams is also suspect. And “[t]his [C]ourt has a continuing
obligation to assure itself of its own jurisdiction, sua sponte if necessary.”
United States v. Pedroza-Rocha, 933 F.3d 490, 493 (5th Cir. 2019) (citing Bass
v. Denney, 171 F.3d 1016, 1021 (5th Cir. 1999)).
Separate from its qualified-immunity analysis, the district court
dismissed all state-law claims against the officers – assault, battery,
intentional infliction of emotional distress (“IIED”), and defamation – as
barred under the Texas Tort Claims Act (“TTCA”). Roberts states that this
_____________________
6
Although Roberts devotes argument to the district court’s alleged error
dismissing the tort claims asserted against Officer Tuli, it is unclear where she properly
argues the same for Officer Osoria. She merely provides a one-sentence statement that the
court’s finding as to Officer Osoiria was in error. We assume, arguendo, that Roberts
properly briefed the issue as to Officer Osoria, although there is a colorable waiver issue
here.
9
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No. 22-50196
was in error, but does not elaborate. She does not argue, or make reference
to, pendent appellate jurisdiction. And she fails to contend that the orders
on the state-law claims are inextricably intertwined with those on the
qualified immunity issues or that conjunctive review is necessary to ensure
meaningful review. Therefore, we decline to exercise jurisdiction and we
dismiss the appeal as to the state-law claims for want of jurisdiction.
III. Officers Osoria’s and Tuli’s cross appeals:
Officers Osoria and Tuli both challenge the district court’s denial of
their summary-judgment motions on qualified-immunity grounds. When
claims are brought against multiple officers in connection with a single arrest,
we “must analyze the officers’ actions separately.” Buehler v. Dear, 27 F.4th
969, 985 (5th Cir. 2022) (quoting Darden v. City of Fort Worth, 880 F.3d 722,
731 (5th Cir. 2018)). We first address the claims as they relate to Officer
Osoria, then as they relate to Officer Tuli.
A. Jurisdiction & standard of review:
“Qualified immunity shields public officials sued in their individual
capacities from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Kokesh v. Curlee, 14 F.4th 382, 391
(5th Cir. 2021) (cleaned up). This appeal is taken under the collateral order
doctrine, which permits denial of a motion for summary judgment on the
basis of qualified immunity to be appealed immediately as a final decision
under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985).
“A qualified immunity defense alters the usual summary judgment burden of
proof. Once an official pleads the defense, the burden shifts to the plaintiff,
who must rebut the defense by establishing a genuine fact issue as to whether
the official’s allegedly wrongful conduct violated clearly established law.”
Solis v. Serrett, 31 F.4th 975, 980 (5th Cir. 2022) (quoting Hanks v. Rogers,
10
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853 F.3d 738, 744 (5th Cir. 2017)). On an immunity-based interlocutory
appeal of a denial of summary judgment, “we do not apply the standard of
Rule 56 but instead consider only whether the district court erred in assessing
the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.” Kinney v.
Weaver, 367 F.3d 337, 348 (5th Cir. 2004); see also Kokesh, 14 F.4th at 39
(same).
Appellate review of an interlocutory appeal is limited. Solis, 31 F.4th
at 980. Namely, “[d]istrict court orders denying summary judgment on the
basis of qualified immunity are immediately appealable and reviewed de novo
only if they are predicated on conclusions of law and not genuine issues of
material fact.” Kokesh, 14 F.4th at 390 (emphasis added); see also Winfrey v.
Pikett, 872 F.3d 640, 643 (5th Cir. 2017) (“The district court’s denial of
summary judgment is immediately appealable ‘to the extent it turns on an
issue of law.’”) (quoting Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010)).
“[W]e cannot review a district court’s conclusions that a genuine issue of
fact exists concerning whether a defendant engaged in certain conduct.”
Walsh v. Hodge, 975 F.3d 475, 481 (5th Cir. 2020). In short, when the district
court has held that there is a genuine dispute of material fact, “we have
jurisdiction to review the materiality of any factual disputes, but not their
genuineness.” Escobar v. Montee, 895 F.3d 387, 393 (5th Cir. 2018) (quoting
Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (internal quotation
omitted)). 7 Accordingly, “[t]his Court is essentially reviewing the district
_____________________
7
“A fact is ‘material’ if it ‘might affect the outcome of the suit under the governing
law.’” Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue is ‘genuine’
if it is real and substantial, as opposed to merely formal, pretended, or a sham.” Id. “We
review the materiality of fact issues de novo.” Melton v. Phillips, 875 F.3d 256, 261 (5th Cir.
2017) (en banc).
11
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court’s decision that a ‘certain course of conduct would, as a matter of law,
be objectively unreasonable in light of clearly established law.’” Kokesh, 14
F.4th at 391 (quoting Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en
banc)). “To make this determination, the court applies an objective standard
based on the viewpoint of a reasonable official in light of the information then
available to the defendant and the law that was clearly established at the time
of the defendant’s actions.” Id. (quoting Freeman v. Gore, 483 F.3d 404, 411
(5th Cir. 2007)).
B. The defense of qualified immunity, generally:
To overcome the defense of qualified immunity, Roberts must satisfy
a two-pronged test. First, Roberts must show that “the official violated a
statutory or constitutional right.” Second, Roberts must show that “the
right was ‘clearly established’ at the time of the challenged conduct.” Melton
v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (quoting Morgan v. Swanson, 659
_____________________
The district court found multiple facts in dispute, including whether: (1) Roberts
ever yelled at Officer Tuli; (2) Roberts punched Officer Tuli in the face; (3) Officer Tuli
struck Roberts once or multiple times; and (4) Roberts posed an immediate threat to the
safety of the officers or others. The district court reviewed the police body camera videos
and determined that, although they showed that Roberts’ arms were moving, it is unclear
whether she made contract with Officer Tuli’s face. As a result, the court concluded that:
(1) “there is a genuine issue of material fact as to whether Roberts assaulted Officer Tuli”;
and (2) Roberts punching Officer Tuli “is determinative of whether Roberts committed
any crime.” When the district court identifies a factual dispute, we may evaluate whether
it is material (i.e., its legal significance). Joseph on behalf of Est. of Joseph v. Bartlett, 981 F.3d
319, 331 (5th Cir. 2020). “If a factual dispute must be resolved to make the qualified
immunity determination, that fact issue is material and we lack jurisdiction over the
appeal.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). The district court was wrong
to characterize the factual dispute as to whether Roberts punched Officer Tuli as material.
Whether Roberts actually hit Officer Tuli is not dispositive, as a battery is not necessary to
constitute assault. As explained below, Roberts’ behavior – even excluding the alleged
punch – was enough to constitute probable cause to arrest. Whether Roberts did, in fact,
hit Officer Tuli is not a fact issue that must be resolved to determine whether Officer Tuli
and Officer Osoria are qualifiedly immune.
12
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No. 22-50196
F.3d 359, 371 (5th Cir. 2011) (en banc)). “Although a case directly on point is
not necessary, there must be adequate authority at a sufficiently high level of
specificity to put a reasonable official on notice that his conduct is definitively
unlawful.” Id. at 265 (quoting Vincent v. City of Sulphur, 805 F.3d 543, 547
(5th Cir. 2015)). Thus, “a clearly established right is one that is sufficiently
clear that every reasonable official would have understood that what he is
doing violates that right.” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 11
(2015)).
“Because the plaintiff is the non-moving party, we construe all facts
and inferences in the light most favorable to the plaintiff.” Id. at 261. Thus,
“on interlocutory appeal the public official must be prepared to concede the
best view of the facts to the plaintiff and discuss only the legal issues raised
by the appeal.” Gonzales v. Dallas County, 249 F.3d 406, 411 (5th Cir. 2001).
It is noteworthy that this record on appeal includes eight videos from four
different angles, slowed down to varying degrees. “‘Although we review
evidence in the light most favorable to the nonmoving party’ on appeal from
a district court’s disposition of a summary-judgment motion, ‘we assign
greater weight, even at the summary judgment stage, to the facts evident
from video recordings taken at the scene.’” Buehler, 27 F.4th at 979 (quoting
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)). 8 But that
assignment only occurs when the plaintiff’s version of events is so “blatantly
contradicted” by the video on appeal that “no reasonable jury” could believe
her. Ramirez v. Martinez, 716 F.3d 369, 374 (5th Cir. 2013) (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)). As explained below, for the most part, the
_____________________
8
In other words, “[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.” Carnaby, 636 F.3d at 187 (internal quotation
marks and citation omitted).
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videos do, in fact, blatantly contradict Roberts’ version of events.
Accordingly, we view the evidence in the light depicted by the videotape and
otherwise in the light most favorable to Roberts.
C. Officer Osoria’s appeal of the district court’s partial denial of her
summary judgment motion.
Officer Osoria challenges the district court’s determination that she is
not entitled to qualified immunity with respect to the claims of unlawful
arrest and false imprisonment. To defeat Officer Osoria’s qualified
immunity defense, Roberts must first show that Officer Osoria violated a
statutory or constitutional right. Then, Roberts must show that the right was
clearly established at the time of the challenged conduct. See Melton, 875
F.3d at 261. We conclude that she is qualifiedly immune.
i. Officer Osoria did not violate a statutory or constitutional right.
As a general matter, “[t]he right to be free from arrest without
probable cause is a clearly established constitutional right.” Mangieri v.
Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994). “An arrest is unlawful unless it
is supported by probable cause.” Flores v. City of Palacios, 381 F.3d 391, 402
(5th Cir. 2004) (citing Hinshaw v. Doffer, 785 F.2d 1260, 1266 (5th Cir.
1986)). “Probable cause exists when the totality of facts and circumstances
within a police officer’s knowledge at the moment of arrest are sufficient for a
reasonable person to conclude that the suspect had committed or was
committing an offense.” Id. (quoting United States v. Levine, 80 F.3d 129,
132 (5th Cir. 1996)) (emphasis in original). 9 “To determine whether
_____________________
9
See also Brown v. Lynch, 524 F. App’x 69, 74 (5th Cir. 2013) (per curiam)
(unpublished) (“Determining whether [the plaintiff] was arrested without probable cause
requires that we trace the progression of events to locate the constitutionally significant
point at which the stop escalated to an arrest ….”).
14
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No. 22-50196
probable cause existed for an arrest, the court examines the events leading up
to the arrest, and then decides whether these historical facts, viewed from the
standpoint of a reasonable police officer, amount to probable cause.” Loftin
v. City of Prentiss, Mississippi, 33 F.4th 774, 780 (5th Cir. 2022) (quoting
Maryland v. Pringle, 540 U.S. 366, 371 (2003)) (internal quotation marks and
alterations omitted).
The standard for analyzing probable cause is whether, under the
totality of the circumstances, there is a “fair probability” that a crime
occurred. United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (quoting
United States v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985)). “The requisite
‘fair probability’ is something more than a bare suspicion, but need not reach
the fifty percent mark.” Id. at 269 (quoting Antone, 753 F.2d at 1304). “Even
law enforcement officials who ‘reasonably but mistakenly conclude that
probable cause is present’ are entitled to immunity.” Hunter v. Bryant, 502
U.S. 224, 227 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641
(1987)); see also Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000).
To succeed on her unlawful arrest and false imprisonment claims,
Roberts must show that there was “not even arguably … probable cause” for
her arrest. Brown v. Lyford, 243 F.3d 185, 190 (5th Cir. 2001) (internal
quotation marks and citation omitted). “This probable cause may be for any
crime and is not limited to the crime that the officers subjectively considered
at the time they perform an arrest.” Davidson v. City of Stafford, Tex., 848
F.3d 384, 392 (5th Cir. 2017) (citing Club Retro, L.L.C. v. Hilton, 568 F.3d
181, 204 (5th Cir. 2009)) (emphasis added). “An officer may conduct a
warrantless arrest based on probable cause that an individual has committed
even a minor offense, including misdemeanors.” Deville v. Marcantel, 567
F.3d 156, 165 (5th Cir. 2009) (citing Atwater v. City of Lago Vista, 532 U.S.
15
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No. 22-50196
318, 354 (2001)). 10 And “[t]he police may take reasonable actions under the
circumstances to ensure their own safety, as well as the safety of the public,
during an encounter with a suspect.” Turner v. Lieutenant Driver, 848 F.3d
678, 694 (5th Cir. 2017) (quoting United States v. Abdo, 733 F.3d 562, 565 (5th
Cir. 2013)). In sum, Officer Osoria is entitled to qualified immunity if a
reasonable officer in her position could have believed that, in light of the
totality of the facts and circumstances of which she was aware, there was a
fair probability that Roberts had committed or was committing an offense.
See Haggerty v. Tex. S. Univ., 391 F.3d 653, 656 (5th Cir. 2004).
We begin by reviewing the events leading up to the arrest. Roberts
states that while she was standing at the scene, she yelled at Officer Tuli,
“don’t talk to her like that!” In her deposition testimony, Roberts testified
that when she made a finger gesture at Officer Tuli, her “hand did not extend
out,” her “arm did not extend out,” and her gesture was not close to his face.
The complaint alleges that, after she made the finger gesture, “[t]he next
thing [Roberts] remember[ed] was Officer Tuli punching [her].” According
to the complaint, Roberts felt like she was being “swung around” by the cops.
And then she was handcuffed and ultimately arrested for an assault on a peace
officer. 11
The video footage tells a different story – enough to “blatantly
contradict” a significant portion of Roberts’ version of events so that we can
assign greater weight to the facts evident from the video recordings. 12 See
_____________________
10
See also Chiles v. Hempstead, 426 F. App’x 310, 311 (5th Cir. 2011) (per curiam)
(unpublished) (citing Lockett v. New Orleans City, 607 F.3d 992, 998 (5th Cir.2010)) (“An
officer has the right to arrest even for a very minor offense if the offense is committed in
her presence.”).
11
The parties do not identify the statute that Roberts allegedly violated.
12
The district court’s impression of the footage is consistent with the following
description. To the district court, it was clear that body camera footage showed that
16
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No. 22-50196
Ramirez, 716 F.3d at 374. Officer Hillman’s body camera sets the scene: a
crowd of people jostling, fighting with, and yelling at one another. Shortly
before Roberts interacted with Officer Tuli, Officer Cavazos’s body camera
reveals that Roberts quickly approached Officer Osoria out of the crowd;
jerked her body and extended her arm towards Officer Osoria’s head; yelled,
“Don’t touch me bitch! Don’t fucking touch me!”; refused to back up after
Officer Osoria directed her to; repeatedly approached Officer Osoria directly
despite being directed to “back up”; and ultimately had to be restrained by
an individual not in police uniform. The video from Officer Carrasco’s body
camera shows the interaction with Officer Tuli. Contrary to Roberts’ version
of events, the video does not show Roberts merely standing still, but rather
shows her aggressively stepping in the direction of the area from which
Officer Tuli comes into the video frame. It also shows Roberts fully
extending her arm at an angle between 45 and 90 degrees. And it
corroborates her yelling, “Don’t talk to her like that.” It then shows Officer
Tuli approaching Roberts, the two struggling, and both Officer Tuli’s arms
and Roberts’ arms flailing 13 about. Moreover, and importantly, footage from
Officer Cavazos’s body camera shows that, at the moment Roberts extended
her arm and yelled, she was in close proximity to Officer Tuli – so close that
he was able to make contact with her within a split second.
Officer Osoria stated in her deposition testimony that she saw the
events with Officer Tuli unfold firsthand. She argues that she had probable
cause to arrest Roberts because she observed Roberts: (1) assaulting Officer
Tuli; (2) not following orders; (3) interfering with officer duties; (4) resisting
_____________________
Roberts “walked in the direction of where officer Tuli was standing, quickly moved her
arms, and yelled something at Officer Tuli.”
13
It is unclear whether Officer Tuli’s and Roberts’ arms flailing is a result of losing
balance or throwing punches.
17
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No. 22-50196
arrest; and (5) scuffling with officers. Viewing the evidence in the light
depicted by the videotape but otherwise in the light most favorable to
Roberts, at the moment of the arrest, a reasonable officer in Officer Osoria’s
position could have believed with “fair probability” that Roberts had
assaulted Officer Tuli, was not following orders, and interfered with police
duties. See Haggerty, 391 F.3d at 657 (concluding that probable cause existed
when “[a] reasonable officer in [the officer’s] position could have believed
that the situation was tense and dangerous, [the plaintiff’s] actions were
serving to stir up the potentially explosive situation, and there was a fair
probability that [the plaintiff’s] actions constituted interference with his
duties”). When Officer Osoria and others were attempting to control a
combative crowd, and when Roberts interfered with that objective, did not
follow directives, and yelled and flailed her arm in close proximity to the
officers, a reasonable officer in Officer Osoria’s position could agree that,
under the totality of the circumstances, there was something more than a
“bare suspicion” that a crime of some sort occurred at the time of her arrest.
See Garcia, 179 F.3d at 269.
Roberts has not undermined Officer Osoria’s reasonable belief that
there was probable cause to support an arrest. Instead, she relies on
conclusory statements like, “the conduct of Officer Jessica Osoria … when
considering the true facts in this case, fall so far out of bounds of normal
policing that [she] simply cannot be entitled to [q]ualified immunity.”
Roberts then states, “there remain genuine material disputed fact[s] that
preclude[] the entry of summary judgment,” yet fails to explain which facts
are material. She contends that Officer Osoria “possessed no information
that … Roberts committed any crime.” But Roberts misunderstands the
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No. 22-50196
probable-cause inquiry. 14 “[P]robable cause ‘is not a high bar.’” Loftin, 33
F.4th at 780 (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)). And
after a review of the videos, it cannot be said that there was “not even
arguably” probable cause for the arrest based on any crime here. See Brown,
243 F.3d at 190 (emphasis added). Viewed from the standpoint of a
reasonable police officer, the facts of this case support probable cause such
that no constitutional violation occurred.
ii. Even had Officer Osoria violated a statutory or constitutional right,
the right was not clearly established at the time of the challenged
conduct.
Even if Officer Osoria were mistaken with regard to there being
probable cause, “law enforcement officials who reasonably but mistakenly
conclude that probable cause is present are entitled to immunity.”
Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000) (emphasis added). So,
if an officer arrests someone without probable cause, qualified immunity will
immunize the officer from suit unless that “officer had fair notice that her
conduct was unlawful.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam). This is the second step of the qualified-immunity inquiry. See
Melton, 875 F.3d at 261 (observing that the plaintiff must show that “the right
was ‘clearly established’ at the time of the challenged conduct”). “Fair
notice requires clearly established law.” Nerio v. Evans, 974 F.3d 571, 575
(5th Cir. 2020). “The onus is on the plaintiff to show that the law is so clearly
established that ‘every reasonable official’ in the defendant-official’s shoes
_____________________
14
Although Roberts contends that she committed no crime, “evidence that the
arrestee was innocent of the crime is not necessarily dispositive of whether the officer had
probable cause to conduct the arrest because ‘probable cause requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity.’” Deville,
567 F.3d at 165 (quoting Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983)).
19
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No. 22-50196
would know not to engage in the complained-of conduct.” Loftin, 33 F.4th
at 781 (citing D.C. v. Wesby, 138 S. Ct. 577, 590 (2018)).
To show that the right was “clearly established,” Roberts must
“identify a case where an officer acting under similar circumstances was held
to have violated the Fourth Amendment” by arresting someone without
probable cause. Loftin, 33 F.4th at 781 (citing Wesby, 138 S. Ct. at 590)
(alteration omitted). But Roberts does not even attempt to identify a case in
which a court found that an officer violated the Fourth Amendment in similar
circumstances. “It is not enough to invoke the general principle that the
Fourth Amendment prohibits a warrantless arrest without probable cause.”
Loftin, 33 F.4th at 781-82 (citing Wesby, 138 S. Ct. at 590). The onus is on
the plaintiff to “provide some controlling precedent that squarely governs
the specific facts at issue.” Craig v. Martin, 49 F.4th 404, 419 (5th Cir. 2022)
(citation and internal quotation marks omitted). Roberts has not carried her
burden. Accordingly, Officer Osoria is entitled to qualified immunity even if
probable cause were wanting.
D. Officer Tuli appeals the district court’s partial denial of his
summary-judgment motion.
For the unlawful-arrest, false-imprisonment, and excessive-force
claims, Roberts must first show that Officer Tuli violated a statutory or
constitutional right. Then, Roberts must show that the right was clearly
established at the time of the challenged conduct. See Melton, 875 F.3d at
261. We first address Roberts’ claims for unlawful arrest and false
imprisonment. Then we address Roberts’ claim for excessive force. We
conclude that Officer Tuli is qualifiedly immune.
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No. 22-50196
i. Unlawful arrest and false imprisonment:
a. Officer Tuli did not violate a statutory or constitutional right.
Like Officer Osoria, Officer Tuli is correct that there was probable
cause to arrest Roberts. Officer Tuli argues that Roberts could have been
charged with a number of offenses, including: (1) assault on a public servant
(Officer Tuli), Tex. Penal Code § 22.02; (2) assault on a public servant
(Officer Osoria), Tex. Penal Code § 22.02; (3) attempted assault on Officer
Tuli, Tex. Penal Code § 22.02; (4) attempted assault on Officer Osoria, Tex.
Penal Code § 22.02; (5) interference with public duties, Tex. Penal Code §
38.15(a)(1); and (6) disorderly conduct; Tex. Penal Code § 42.01. For the
same reasons stated above, a reasonable officer in Officer Tuli’s position
would agree that, under the totality of the circumstances when the officers
were attempting to control an unruly, disobedient, combative crowd and
Roberts interfered with that objective, did not follow directives, and yelled
and flailed her arm in close proximity to the officer’s person, and then
continued to flail her arms upon contact, there was something more than a
“bare suspicion” that a crime of some sort occurred at the time of her arrest.
See Garcia, 179 F.3d at 269. Roberts has not undermined Officer Tuli’s
reasonable belief that there was probable cause to support an arrest. And her
conclusory statements that “there was no probable cause to arrest” are
insufficient.
b. Even had Officer Tuli violated a statutory or constitutional right,
the right was not clearly established at the time of the challenged
conduct.
Roberts does not even attempt to identify a case in which a court found
that an officer violated the Fourth Amendment in similar circumstances. As
noted, “[i]t is not enough to invoke the general principle that the Fourth
Amendment prohibits a warrantless arrest without probable cause.” Loftin,
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No. 22-50196
33 F.4th 781-82 (citing Wesby, 138 S. Ct. at 590). Roberts has not carried her
burden. Accordingly, Officer Tuli, like Officer Osoria, would be entitled to
qualified immunity even if probable cause were lacking.
ii. Excessive force:
a. Officer Tuli did not violate a statutory or constitutional right.
“The constitutional provision governing the claims against [Officer
Tuli] is the Fourth Amendment, which protects the right to be free from
excessive force during a seizure.” Joseph v. Bartlett, 981 F.3d 319, 332 (5th
Cir. 2020). Whether a use of force is excessive and therefore a constitutional
violation depends on whether there was “(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.” Poole v. City of Shreveport,
691 F.3d 624, 628 (5th Cir. 2012) (quoting Ontiveros v. City of Rosenberg, 564
F.3d 379, 382 (5th Cir. 2009)). “‘Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers,’ violates the
Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396-97 (1989)
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). “Claims of
excessive force are fact-intensive; whether the force used was ‘clearly
excessive’ and ‘clearly unreasonable’ depends on ‘the facts and
circumstances of each particular case.’” Newman v. Guedry, 703 F.3d 757,
761 (5th Cir. 2012) (quoting Graham, 490 U.S. at 396).
1. Injury:
We first consider Roberts’ injury. According to Roberts, it is
“undisputed” that she suffered an injury. She contends that she was taken
to the hospital and diagnosed with a concussion and brain injuries. At this
juncture, for purposes of his motion, Officer Tuli does not challenge that
Roberts suffered a sufficient injury.
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No. 22-50196
2. Clearly excessive and clearly unreasonable:
Next, we consider the amount of force used and the reasonableness of
resorting to such force. Courts generally consider these factors together, as
“officers must assess not only the need for force, but also ‘the relationship
between the need and the amount of force used.’” Deville, 567 F.3d at 167
(quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)). We apply the
Graham 15 factors to determine whether the force used is “excessive” or
“unreasonable.” Deville, 567 F.3d at 167 (citing Graham, 490 U.S. at 396).
These factors 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
he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396.
“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” with the recognition 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.” Id. at 396-97 (citation omitted). “The
test of reasonableness under the Fourth Amendment is not capable of ...
mechanical application,” but instead “requires careful attention” to each
case’s facts. Id. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979))
(alteration and internal quotation marks omitted). “To be reasonable is not
to be perfect, and so the Fourth Amendment allows for some mistakes on the
part of ... officials, giving them fair leeway for enforcing the law in the
community’s protection.” Heien v. North Carolina, 574 U.S. 54, 60-61
(2014) (quoting Brinegar v. United States, 338 U.S. 160, 176, (1949)) (internal
_____________________
15
Graham v. Connor, 490 U.S. 386 (1989).
23
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No. 22-50196
quotation marks omitted). “[A]t the end of the day, the touchstone of our
inquiry is simply the reasonableness of the force employed.” Buehler, 27
F.4th at 981.
i. The severity of the crime at issue here weighs in favor of Officer
Tuli.
This first factor weighs in favor of Officer Tuli. Roberts was charged
with assaulting a police officer. Roberts, however, argues that because she
“committed no crime, … there was no crime at issue.” Officer Tuli argues
that assault of an officer is a severe crime, especially when considering the
circumstances of the “riot” they encountered. We agree.
ii. Whether Roberts posed an immediate threat to the safety of the
officers or others weighs in favor of Officer Tuli.
This second factor also weighs in favor of Officer Tuli. Roberts states
that she did not pose an immediate threat to the safety of Officer Tuli or
others and references the fact that she “was only a child at the time,” 16 “very
small compared to Officer Tuli,” and unarmed. But Officer Tuli contends
that “Roberts was a violent[,] combative suspect who threw a punch at
Officer Osoria and punched Officer Tuli during the melee in question.” The
video footage shows Roberts quickly walking through the group of people
_____________________
16
At oral argument, Roberts’ counsel repeatedly emphasized that Roberts was a
minor at the time of the incident. That the plaintiff is a minor has not stopped this court
from finding that an officer is qualifiedly immune. See, e.g., E.A.F.F. v. Gonzalez, 600 F.
App’x 205, 215 (5th Cir. 2015) (unpublished) (per curiam) (granting qualified immunity to
police officers where case involved minor teenagers’ excessive-force claims); Wyatt v.
Fletcher, 718 F.3d 496, 504 (5th Cir. 2013) (granting qualified immunity to high school
coaches where case involved minor child); Wooley v. City of Baton Rouge, 211 F.3d 913, 923
(5th Cir. 2000) (granting qualified immunity to officers where case involved seven-month-
old child); Petta v. Rivera, 143 F.3d 895, 914 (5th Cir. 1998) (granting qualified immunity to
police officer where case involved a three and seven year old).
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No. 22-50196
fighting, whereupon she: (1) jerks and flails her arm multiple times in close
proximity to Officer Osoria; (2) shouts “Don’t touch me bitch! Don’t
fucking touch me!” at Officer Osoria as a nonuniformed person attempts to
restrain her; (3) refuses to obey Officer Osoria’s commands to back up; and
(4) shouts at and flails her arm in close proximity to Officer Tuli. It is not
unreasonable to think that Roberts posed an immediate threat, despite being
a fourteen year old (a fact not known to Officer Tuli or any other SAPD
officer at the time), especially considering the extensive fisticuffs breaking
out amongst the large, angry crowd that surrounded and outnumbered the
officers, and Roberts’ mad, confrontational behavior.
iii. Whether Roberts was resisting arrest weighs in favor of Officer
Tuli.
This third factor also weighs in favor of Officer Tuli. And this factor
is the most “salient.” Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022).
Although Roberts summarily concludes that she did not resist arrest, the
footage makes clear that, after Officer Tuli made physical contact with
Roberts, a struggle ensued and arms flailed. A plaintiff’s struggling against
an officer upon contact can reasonably be viewed as a form of resistance.
Solis, 31 F.4th at 983. Jerking motions, too, can be reasonably seen as an
attempt to break free of an officer’s grasp. And “the great weight of Texas
authority indicates that pulling out of an officer’s grasp is sufficient to
constitute resisting arrest” under Texas law. Ramirez v. Martinez, 716 F.3d
369, 376 (5th Cir. 2013). Accordingly, it was reasonable for Officer Tuli to
perceive Roberts as actively resisting arrest.
iv. The speed with which Officer Tuli resorted to force does not weigh
in favor of or against Officer Tuli.
Although not listed as a Graham factor, this court also considers the
speed with which the officer resorts to force. See, e.g., Trammell, 868 F.3d at
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No. 22-50196
342 (“[T]he quickness with which the officers resorted to tackling Trammel
[sic] to the ground militates against a finding of reasonableness.”). “That is
because ‘an officer must use force with measured and ascending actions that
correspond to a suspect’s escalating verbal and physical resistance.’” Solis,
31 F.4th at 983 (quoting Joseph, 981 F.3d at 332-33)).
While Roberts does not describe any “measured and ascending
actions” taken by Officer Tuli, she does not expressly claim that none were
taken. Officer Tuli, on the other hand, testified that he: (1) told Roberts to
back away, whereupon she closed distance on him; and (2) pushed her back
slightly, after which she took a bladed stance, balled her fist up, and struck
him in the face with a closed fist. At this stage in the proceedings, however,
this court views the evidence in the light depicted by the videos and otherwise
in the light most favorable to Roberts. The videos do not clearly show
whether measured and ascending actions occurred. And Roberts neither
claims nor refutes that such actions occurred. Thus, without any evidence
that measured and ascending actions did or did not occur, this factor neither
weighs in favor nor against Officer Tuli.
Taking these considerations together, Officer Tuli’s actions were not
so objectively unreasonable as to violate Roberts’ constitutional rights. As
previously noted, “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.” Graham, 490 U.S. at 396. “[O]ur focus
is on the officers’ reasonable perception of the events at issue, as they
happened, without the aid of hindsight, multiple viewing angles, slow motion,
or the ability to pause, rewind, and zoom.” Tucker, 998 F.3d at 176. Against
the backdrop of a chaotic and angry crowd, it was reasonable of Officer Tuli
to believe that some degree of force would be necessary to subdue Roberts,
considering her: (1) vocal and physical interjections (i.e., her shouting and
repeatedly approaching the officers after being told to back up); (2)
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No. 22-50196
comments and tone towards both officers (i.e., her yelling, “Don’t touch me
bitch! Don’t fucking touch me!” while a nonuniformed individual attempted
to restrain her and “Don’t talk to her like that”); and (3) flailing of arms in
close proximity to officers. Thus, Officer Tuli did not violate Roberts’
constitutional right to be free from excessive force.
b. Even had Officer Tuli violated a statutory or constitutional right,
the right was not clearly established at the time of the challenged
conduct.
Even assuming Roberts could show that Officer Tuli committed a
constitutional violation, Officer Tuli is nonetheless entitled to qualified
immunity under the second prong of the qualified-immunity analysis. As
stated above in Section I(C)(1)(b), analysis of the second prong requires that
we determine whether Officer Tuli’s use of force “violated clearly
established statutory or constitutional rights of which a reasonable officer
would have known.” Craig, 49 F.4th at 417 (quoting Bush v. Strain, 513 F.3d
492, 500 (5th Cir. 2008) (internal quotation marks and alteration omitted).
“In excessive-force cases, ‘police officers are entitled to qualified immunity
unless existing precedent squarely governs the specific facts at issue.’” Garcia
v. Blevins, 957 F.3d 596, 600-01 (5th Cir. 2020) (quoting Morrow v. Meachum,
917 F.3d 870, 876 (5th Cir. 2019)) (emphasis in original).
As with the unlawful-arrest and false-imprisonment claims, Roberts
has failed to provide controlling precedent – or any precedent at all – showing
that Officer Tuli’s particular conduct violated a clearly established right.
“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.’” Craig, 49 F.4th at 419 (quoting Morrow v. Meachum, 917 F.3d 870,
876 (5th Cir. 2019)) (emphasis added). But Roberts has not provided such
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No. 22-50196
precedent here and thus fails to show that the law clearly established that
Officer Tuli’s particular conduct was unlawful at the time of the incident.
Moreover, this court’s “qualified immunity jurisprudence is filled with cases
recognizing the need for officers to use reasonable force to subdue and
handcuff suspects who strike them or are otherwise resisting.” Curran v.
Aleshire, 800 F.3d 656, 661 (5th Cir. 2015). And the videos show Roberts’
arms flailing about in close proximity to Officer Tuli’s person, which an
officer could reasonably interpret as an assault or attempt to strike. So,
Roberts has not overcome Officer Tuli’s qualified-immunity defense. The
district court must be reversed.
E. The officers are qualifiedly immune.
Roberts cannot overcome the facts that Officer Osoria and Officer
Tuli are qualifiedly immune from the unlawful-arrest, false-imprisonment,
and excessive-force claims. While the officers acted reasonably, “[q]ualified
immunity gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563
U.S. 731, 743 (2011). “It likewise ‘shields an officer from suit when the
officer makes a decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances the officer
confronted.’” Kokesh, 14 F.4th at 392-93 (quoting Brosseau v. Haugen, 543
U.S. 194, 198 (2004)) (alterations omitted). “When properly applied, it
protects all but the plainly incompetent or those who knowingly violate the
law.” al-Kidd, 563 U.S. at 743 (internal quotation marks and citation
omitted). And qualified immunity “is justified unless no reasonable officer
could have acted as [the defendant officer] did here, or every reasonable
officer faced with the same facts would not have [acted as the defendant
officer did].” Kokesh, 14 F.4th at 393 (quoting Mason v. Faul, 929 F.3d 762,
764 (5th Cir. 2019)) (alterations in original).
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Based on the summary judgment record before us, Roberts has failed
to show that no reasonable officer could have acted as Officer Tuli and
Officer Osoria did here, when: (1) the officers were trying to control a large,
boisterous, and angry crowd; (2) the officers were outnumbered; and (3)
Roberts repeatedly approached Officer Osoria after being told to back up,
approached Officer Tuli while performing police duties, yelled, “Don’t
touch me bitch! Don’t fucking touch me!” while a nonuniformed individual
attempted to restrain her and “Don’t talk to her like that,” and jerked her
body and flailed her arms in close proximity to the officers. Under the
circumstances, the officers were not “plainly incompetent” and there is no
evidence that they knowingly violated the law. The district court, then, was
wrong to deny Officer Tuli and Officer Osoria qualified immunity.
IV. Conclusion
In sum, we lack jurisdiction to review the district court’s grant of
summary judgment in favor of the City and its disposition of the state law
claims. So we DISMISS the appeal as it relates to these issues. Moreover,
the district court erred in denying qualified immunity to Officer Tuli and
Officer Osoria. So we REVERSE as to the qualified immunity issues, and
remand for further proceedings consistent with this opinion.
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