Bagley v. Guillen

Case: 22-20644 Document: 00517028986 Page: 1 Date Filed: 01/10/2024

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

22-20644

FILED

January 10, 2024

____________

Lyle W. Cayce

Akeem Bagley, Clerk

Plaintiff—Appellee,

versus

Rudy Guillen,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:21-CV-1335

_____________________________

Before Graves, Higginson, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

Two established principles of law govern this qualified immunity

appeal. First, it may be objectively reasonable under certain circumstances

for police officers to use physical force when a person refuses to comply

with an officer’s lawful commands—but not after that person has begun to

comply. Second, to the extent that any material fact dispute remains after

viewing the facts in light of the available video evidence, the court should

deny summary judgment on grounds of qualified immunity.

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These principles require us to permit the excessive force claim

presented in this case to proceed. At a minimum, the video evidence

permits a jury to infer that the officer used force after Plaintiff had already

begun to comply. If anything, the video suggests a possible fact dispute as

to whether he was ever non-compliant to begin with. We accordingly

dismiss the appeal for want of jurisdiction.

I.

This appeal stems from a series of encounters between Akeem

Bagley and members of the Harris County Constable’s Office on May 30,

2019.

The first encounter took place during a police effort to cite drivers

for parking too close to a county railroad. Bagley received one of those

citations. Officer Rudy Guillen, the sole defendant in this appeal, did not

give Bagley his ticket, but participated in the ticketing effort.

The second encounter took place at a nearby gas station. Shortly

after receiving his parking ticket, Bagley drove to the gas station. Several

officers, including Guillen, were there when Bagley arrived. The parties

dispute whether Bagley followed the officers or happened to go to the same

gas station. Either way, after Bagley arrived at the station, he and Guillen

entered a heated exchange about his ticket. Bagley began filming the

exchange on his cell phone. He can be heard shouting at Guillen and

questioning the legitimacy of his ticket.

The officers eventually left the station. Bagley continued to film as

he got into his car. “This is what we doing,” he said to himself, before he

pulled out of the gas station and drove in the same direction as the officers.

Bagley continued to record while driving, occasionally muttering to himself

about the officers’ driving behavior. After approximately three minutes, the

police cars turned left. Bagley also turned left. Still recording, he

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commented on the officers’ failure to use a turn a signal. At the same time,

his car emitted a noise that sounds like a turn signal. Following the turn,

one of the police cars activated its sirens. Bagley stated to himself, “I gotta

go this way, so you can pull me over all you want to.” He then pulled to the

side of the road and rolled down his window.

What transpired at this traffic stop is the core dispute in this case.

Led by Guillen, the officers approached Bagley, who remained in his car

with the window rolled down. All events are captured on video by Bagley,

who continued recording, and they are corroborated by the video taken by

Guillen’s body-worn camera. The following exchange between Guillen and

Bagley took place:

x Guillen: “Put your hands on the steering wheel.”

x Bagley moves his left hand onto the steering wheel.

x Guillen: “Let me see your driver’s license. Let me see your

driver’s license.”

x Bagley: “For—could I ask what’s the reason?”

x Guillen: “Let me see your driver’s license, sir, that’s all I’m

asking you. You better comply with me.”

x Bagley: “I’m asking what’s the reason.”

x Guillen: “If you [do] not, I’m gonna arrest you. Let me see your

driver’s license.”

x At this point on Guillen’s video, Bagley can be seen moving his

left hand toward his pocket.

x Bagley: “What do you need to see my driver’s license for?”

x Guillen: “Let me see your driver’s license, sir.”

x Bagley: “If there’s not—what’s the traffic stop that you pulled

me over for?”

x Guillen: “Let me see your driver’s license, sir.”

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x Bagley: “If there’s no reason, then—I didn’t break any laws

right now. I used every turn signal. I do not have to give you my

driver’s license.”

x Guillen: “You did not use the turn signal.”

x Bagley: “Yes I did. You not—”

This exchange lasted approximately thirty seconds. At that point,

Guillen opened Bagley’s car door and instructed him multiple times in

quick succession to “[g]et out the car. Get out the car. Get out the car.”

Bagley unbuckled his seatbelt, muttering “man,” and exited the car. While

Bagley was retracting his seatbelt and before he was fully out of the car,

Guillen deployed a taser in Bagley’s direction but did not injure him.

Once Bagley had exited the car, Guillen, still pointing the taser at

him, instructed him: “Turn around. Put your hands behind you.” Bagley

turned to face his car but moved his hands in front of himself. Guillen

knocked Bagley’s phone from his hands over Bagley’s protests. He then

pressed the taser into Bagley’s back and deployed it.

Bagley’s video ends following the tasing, but Guillen’s bodycam

footage shows what happened next. Guillen continued commanding Bagley

to put his hands behind his back. Bagley fell to the ground, where he was

handcuffed by another officer.

All told, fifteen seconds elapsed between Guillen’s first order to

leave the car and the successful tasing, and eight seconds between Bagley

leaving the car and that tasing.

After the tasing and Bagley’s arrest, a magistrate judge found

probable cause that Bagley had committed the misdemeanor offense of

interference with public duties. The State of Texas later requested that the

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court dismiss the action for lack of probable cause. No further criminal

proceedings are reflected in the record.

Bagley then sued Guillen under 42 U.S.C. § 1983, alleging excessive

force, unlawful arrest, and illegal detention in violation of the Fourth

Amendment. Guillen moved for summary judgment on all claims. The

district court granted qualified immunity with respect to the unlawful arrest

and illegal detention claims. But the court denied qualified immunity as to

Bagley’s excessive force claim. Guillen timely appealed the denial of

qualified immunity.

II.

We begin by stating the legal standards that govern this qualified

immunity appeal.

We review the denial of qualified immunity at the summary

judgment stage de novo. See, e.g., Flores v. City of Palacios, 381 F.3d 391, 394

(5th Cir. 2004). Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We

“view the facts in the light most favorable to the non-moving party and

draw all reasonable inferences in its favor.” Deville v. Marcantel, 567 F.3d

156, 164 (5th Cir. 2009). Factual allegations arising out of events captured

on video, however, are viewed “in the light depicted by the videotape.”

Scott v. Harris, 550 U.S. 372, 381 (2007). “When opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so

that no reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary

judgment.” Id. at 380.

Officers are entitled to qualified immunity from suit unless the

plaintiff “has adduced sufficient evidence to raise a genuine issue of

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material fact suggesting [the officers’] conduct violated an actual

constitutional right,” and the officers’ actions were “objectively

unreasonable in light of clearly established law at the time of the conduct in

question.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). See also,

e.g., Roque v. Harvel, 993 F.3d 325, 334 (5th Cir. 2021). Our court has

“routinely rel[ied] on our own cases to determine whether a rule of law has

been clearly established.” Boyd v. McNamara, 74 F.4th 662, 670–71 (5th

Cir. 2023). See id. at 670 n.4, 671 (collecting cases). See also, e.g., Sanchez v.

Oliver, 995 F.3d 461, 466 (5th Cir. 2021) (determining “clearly established”

law based on “the law of this circuit”); Joseph ex rel. Est. of Joseph v.

Bartlett, 981 F.3d 319, 341–42 (5th Cir. 2020) (“[A] number of our

opinions . . . conclude that these principles were the clearly established

law.”); Izen v. Catalina, 382 F.3d 566, 574 (5th Cir. 2004) (determining

“clearly established federal law” based on “the law of this circuit”).

III.

We agree with the district court that Bagley has presented sufficient

evidence of excessive force to defeat qualified immunity at the summary

judgment stage. At the time of the conduct in question, it was clearly

established that an officer may not use force on a suspect who is complying

with his commands. See, e.g., Darden v. City of Fort Worth, 880 F.3d 722,

728–30 (5th Cir. 2018); Newman v. Guedry, 703 F.3d 757, 761–64 (5th Cir.

2012) (objectively unreasonable for officers to injure a man whose

“behavior [does] not rise to the level of active resistance”) (internal

quotation mark omitted); see also Joseph, 981 F.3d at 342 (“Officers engage

in excessive force when they physically strike a suspect who is not resisting

arrest.”). As we have long held, “[c]laims of excessive force are fact-

intensive” and “depend[] on the facts and circumstances of each particular

case.” Newman, 703 F.3d at 761. “[R]elevant considerations include the

severity of the crime at issue, whether the suspect posed an immediate

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threat to the safety of the officers or others, and whether he was actively

resisting arrest or attempting to evade arrest by flight.” Id. (cleaned up).

Naturally, officers may use force in ways “that corresponded to [a

suspect’s] escalating verbal and physical resistance.” Poole v. City of

Shreveport, 691 F.3d 624, 629 (5th Cir. 2012). But where a suspect initially

resists, force “must be reduced once [he] has been subdued.” Joseph, 981

F.3d at 335. Once a suspect is “subdued” and “no longer resisting, an

officer’s subsequent use of force is excessive.” Carroll v. Ellington, 800

F.3d 154, 177 (5th Cir. 2015). See also Joseph, 981 F.3d at 341 (“continuing

to inflict force despite [a suspect] committing no crime, posing no threat,

and giving no active resistance” violates clearly established law); Newman,

703 F.3d at 764 n.8 (officer “should have known that he could not continue

to shock the suspect with the taser after he was no longer resisting arrest”)

(cleaned up). An officer cannot use force against a citizen who has

“committed no crime, posed no threat to anyone’s safety, and did not resist

the officers or fail to comply with a command.” Newman, 703 F.3d at 762,

764.

Bagley has presented sufficient evidence of excessive force to

warrant denial of qualified immunity at the summary judgment stage. To

begin with, he was pulled over for failing to use a turn signal. At most, this

is a minor traffic violation. See, e.g., Ducksworth v. Landrum, 62 F.4th 209,

220 (5th Cir. 2023) (Oldham, J., concurring in part and dissenting in part)

(“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.”). And the car noise heard on video when

Bagley made the turn could permit a jury to infer that he did use a turn

signal.

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Moreover, Bagley unambiguously complied with Guillen’s command

to exit and turn toward his vehicle. Yet Guillen tased him anyway—at first

unsuccessfully while Bagley’s seatbelt was retracting, and again successfully

as Bagley was turned toward the car.

For his part, Guillen maintains that Bagley had not placed his hands

behind him as directed. But the video evidence permits the inference that

Guillen had already begun tasing him well before he gave Bagley a

reasonable opportunity to comply.

Guillen also contends that tasing alone is insufficient to constitute

excessive force, at least in the absence of some lasting physical injury. But

the video evidence permits a jury to conclude that the tasing caused Bagley

significant pain. And that’s sufficient to state a claim of excessive force.

See id. at 219–20 (“The videos show Ducksworth screaming in agony, as

anyone would, when he’s tased. . . . That’s injury.”). As our court has

repeatedly observed, “‘as long as a plaintiff has suffered “some injury,”

even relatively insignificant injuries and purely psychological injuries will

prove cognizable when resulting from an officer’s unreasonably excessive

force.’” Solis v. Serrett, 31 F.4th 975, 982 (5th Cir. 2022) (quoting

Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017)).

In sum, the video evidence permits (if not compels) a jury to

conclude that Bagley was attempting to comply with Guillen’s commands at

the time he was tased. That’s sufficient to overcome qualified immunity at

the summary judgment stage. Accordingly, we dismiss the appeal for want

of jurisdiction.

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