Traylor v. Yorka

Case: 22-10783 Document: 00517038516 Page: 1 Date Filed: 01/19/2024

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 22-10783

FILED

January 19, 2024

____________

Lyle W. Cayce

Marcus Traylor, Clerk

Plaintiff—Appellant/Cross-Appellee,

versus

Gideon Yorka,

Defendant—Appellee/Cross-Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:21-CV-406

______________________________

Before Richman, Chief Judge, and Haynes and Duncan, Circuit

Judges.

Per Curiam: *

Following an altercation in a Dallas bar, Officer Gideon Yorka struck

Marcus Traylor in the face and placed him under arrest. Traylor

subsequently brought claims under 42 U.S.C. § 1983 for excessive force,

unlawful arrest, and fabrication of evidence. The district court granted

qualified immunity to Yorka on the excessive force and unlawful arrest claims

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 22-10783

but denied qualified immunity on the fabrication-of-evidence claim. For the

reasons set forth below, we AFFIRM in part and REVERSE in part.

I. Background

On the evening of February 16, 2020, Marcus Traylor and three of his

friends attended Clutch Bar and Restaurant (“Clutch”) in Dallas, Texas. 1

That night, Dallas Police Department (“DPD”) Officer Gideon Yorka and

another DPD officer were working private security at Clutch. The officers

were off duty but wearing their full DPD uniforms.

At the bar, Traylor’s group ordered “bottle service,” which included

one bottle of champagne and two bottles of hard alcohol. Traylor consumed

“two or three glasses” of champagne over the course of an hour. At some

point, Clutch security asked the group to leave because Traylor’s friend had

fallen asleep. When Traylor lingered to pay his tab, a Clutch bouncer grabbed

him from behind and brought him to the ground. Yorka was outside during

this altercation. However, Clutch security informed him that there had been

a fight inside and sought his assistance. Yorka and his colleague then entered

the bar to break up the commotion, where Yorka observed Traylor with a

bloodied mouth being restrained on the floor by Clutch security. Yorka

picked Traylor up by the arm and escorted him out of the bar. During this

encounter, Yorka detected the smell of alcohol on Traylor’s breath.

The parties’ versions of the events outside of the bar vary

significantly. According to Traylor, he cooperated as Yorka escorted him

past a crowd outside of the bar and shoved him into the street. Yorka

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1

Because this is an appeal from a summary judgment order, we discuss the

following facts in the light most favorable to the nonmovant, Traylor. See Deville v.

Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009) (per curiam). However, we note factual

discrepancies where relevant.

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instructed Traylor to leave, but Traylor told Yorka that his wallet and

belongings were still inside Clutch. Yorka, however, remained adamant that

Traylor leave immediately. Traylor then walked towards the curb to find

assistance from a security guard or another person to help get his wallet. As

Traylor approached the curb, Yorka struck him in the face, causing him to

fall to the ground.

According to Yorka, Traylor was uncooperative as he escorted him

outside of the bar. Traylor repeatedly tried to turn around to go back inside,

but Yorka was able to regain control and shove Traylor into the street. Once

released, Traylor again tried to go back to the bar, saying “this sh** is not

over; this motherf***er started it.” Yorka again pushed Traylor away

towards the street. When Traylor continued to make his way back towards

the bar, Yorka pushed him a second time. Traylor then used his forearm to

shove Yorka in the chest and neck area, creating separation between the two.

When Traylor again approached Yorka, Yorka punched him.

A bystander recorded a portion of the relevant events. The video

shows a crowded scene both inside and outside of the bar. The camera then

pans to the left and shows Traylor in a white hoodie standing in the street.

Yorka is standing a few feet away facing Traylor. Traylor leans forward and

walks in Yorka’s direction. Yorka then punches Traylor in the face, and

Traylor falls to the ground. The interaction lasts only a few seconds before

the video cuts to the officers helping Yorka and an ambulance arriving.

The parties agree on the events after Yorka struck Traylor. An

ambulance took Traylor to the hospital. Traylor was then arrested and

charged with felony assault against a peace officer. The jail supervisor,

however, rejected the charge and reduced it to a class C misdemeanor for

offensive contact. Officers issued Traylor a citation and released him that

night. The misdemeanor was later dismissed.

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On February 25, 2021, Traylor filed this suit against Yorka pursuant

to 42 U.S.C. § 1983. Traylor alleges that Yorka (1) used excessive force in

violation of the Fourth Amendment, (2) unlawfully arrested him in violation

of the Fourth Amendment, and (3) fabricated evidence of assault in violation

of Traylor’s Fourteenth Amendment substantive due process right. Upon

Yorka’s motion for summary judgment, the district court granted qualified

immunity to Yorka on the excessive force and unlawful arrest claims.

However, the district court denied qualified immunity on Traylor’s

fabrication-of-evidence claim. Both parties timely appealed.

II. Jurisdiction and Standard of Review

The district court properly exercised jurisdiction over Traylor’s

federal law claims pursuant to 28 U.S.C. § 1331. As to Traylor’s excessive

force and unlawful arrest claims, we have jurisdiction over the district court’s

partial final judgment entered pursuant to Federal Rule of Civil Procedure

54(b). 28 U.S.C. § 1291; see also Briargrove Shopping Ctr. Joint Venture v.

Pilgrim Enters., 170 F.3d 536, 538–39 (5th Cir. 1999). As to Traylor’s

substantive due process claim, we have jurisdiction to immediately review

the district court’s denial of qualified immunity. Jason v. Tanner, 938 F.3d

191, 194 (5th Cir. 2019).

We review a district court’s entry of summary judgment based on

qualified immunity de novo. Griggs v. Brewer, 841 F.3d 308, 311 (5th Cir.

2016). In conducting this review, we must “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, 163–64 (5th Cir. 2009) (per

curiam). Summary judgment is proper where there are no genuine issues of

material fact, and the movant is entitled to prevail as a matter of law.

Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017) (citing Fed.

R. Civ. P. 56(a)).

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In qualified immunity cases on interlocutory appeal, we consider only

“the scope of clearly established law and the objective reasonableness of the

defendant’s acts.” Jason, 938 F.3d at 194 (internal quotation marks and

citation omitted). We “can review the materiality of any factual disputes, but

not their genuineness.” Id. (quotation omitted). 2

III. Discussion

Traylor raises two issues on appeal: (1) whether Yorka was entitled to

qualified immunity on the excessive force claim; and (2) whether Yorka was

entitled to qualified immunity on the unlawful arrest claim. On cross appeal,

Yorka raises an additional issue of whether he was entitled to qualified

immunity on the fabrication-of-evidence claim. We address each issue in

turn.

A. Excessive Force

Under 42 U.S.C. § 1983, private citizens may sue public officials for

violations of their constitutional rights. However, “[q]ualified immunity

shields from liability ‘all but the plainly incompetent or those who knowingly

violate the law.’” Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir.

2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To determine

whether qualified immunity bars a § 1983 claim, we ask (1) whether “the

official’s conduct violated a constitutional right,” and (2) “whether the right

was clearly established.” Cunningham v. Castloo, 983 F.3d 185, 190–91 (5th

Cir. 2020) (internal quotation marks and citation omitted). Here, Traylor’s

claim fails at the first inquiry because Yorka’s use of force did not violate

Traylor’s Fourth Amendment right.

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2

Because the district court entered final judgment on the excessive force and

unlawful arrest claims, these limitations apply only to the fabrication-of-evidence claim.

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To prevail on a Fourth Amendment excessive force claim, a plaintiff

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 ex. rel.

Est. of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020). The district court

did not address whether Traylor suffered an injury, but undisputed evidence

shows that he suffered a broken wrist from falling after Yorka’s punch. Thus,

the only remaining issue is whether Yorka’s use of force was “objectively

unreasonable.” See Graham v. Connor, 490 U.S. 386, 397 (1989). We look to

several factors for this inquiry, including “(1) the severity of the crime at

issue, (2) whether the suspect posed an immediate threat to the safety of

officers or others, and (3) whether the suspect was actively resisting arrest or

attempting to evade arrest by flight.” Joseph, 981 F.3d at 332 (citing 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.” Darden v. City of Fort Worth, 880 F.3d

722, 729 (5th Cir. 2018) (quotation omitted).

Construing all factual disputes in Traylor’s favor, Yorka’s use of force

was not objectively unreasonable. Even under Traylor’s version of events,

Yorka could have reasonably believed Traylor posed a threat. Clutch security

had just informed Yorka that Traylor had been in a fight, and Yorka observed

Traylor bloodied on the floor with a strong scent of alcohol. See Escobar v.

Montee, 895 F.3d 387, 394–95 (5th Cir. 2018) (considering that an officer had

been warned plaintiff was a threat). Most importantly, the video shows

Traylor moving quickly towards Yorka. Even accepting Traylor’s version as

true, and therefore interpreting his actions as walking towards a third party

to ask about retrieving his wallet, the video still supports Yorka’s perception

of a threat, which is the key question in such a quick and messy situation.

Indeed, Traylor leans forward then walks in Yorka’s direction. Given

Traylor’s insistence on retrieving his wallet and the information Yorka

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received about the fight, Yorka could have reasonably interpreted Traylor’s

steps as a “charge” towards him. Further, the video shows that only a couple

of seconds spanned between Traylor’s steps towards Yorka and Yorka’s

strike. The tense environment and need for a split-second decision indicate

that Yorka’s use of force was not unreasonable. See Graham, 490 U.S. at

396–97 (“The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.”). In looking back,

it is always easy to think of other things that could have been done differently.

Yet, although Yorka’s escalation to a strike to the face “may not have been

as restrained as we would like to expect from model police conduct . . .

qualified immunity ‘protect[s] officers from the sometimes hazy border

between excessive and acceptable force’” in the moment. Griggs, 841 F.3d

at 315 (alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 206

(2001)).

Traylor argues that the district court erred by determining Yorka

acted reasonably based on Yorka’s version of events. Traylor claims that,

under his version, Yorka would have had no reason to doubt that he was

merely attempting to retrieve his wallet. But Traylor disregards that

reasonability “must be judged from the perspective of a reasonable officer on

the scene.” Darden, 880 F.3d at 729 (quotation omitted). Although Traylor

did submit evidence that his intent was to speak to a third party, he has not

produced evidence showing that this intent manifested in any outward

action. See Cloud v. Stone, 993 F.3d 379, 386 (5th Cir. 2021) (“[W]e measure

excessive force by the objective circumstances, not by the subjective

intentions of the arrestee.”). Even interpreting the video in Traylor’s favor,

it clearly shows him, at the very least, quickly approaching Yorka. Thus, the

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factual dispute of whether Traylor intended to charge at Yorka or speak to a

third party is immaterial.

Because of the tense situation and Yorka’s need to make a split-second

decision, Yorka’s use of force did not violate Traylor’s Fourth Amendment

right. Accordingly, we affirm the district court’s dismissal of Traylor’s

excessive force claim.

B. Unlawful Arrest

The Fourth Amendment bars unreasonable seizures of both property

and people. California v. Hodari, 499 U.S. 621, 624 (1991). A seizure is

reasonable if it is based on probable cause. Club Retro, L.L.C. v. Hilton, 568

F.3d 181, 208 (5th Cir. 2009). Therefore, to defeat qualified immunity on an

unlawful arrest claim, a plaintiff must prove (1) probable cause did not exist,

and (2) the defendant-official was “objectively unreasonable in believing

there was probable cause for the arrest.” Bey v. Prator, 53 F.4th 854, 858 (5th

Cir. 2022) (per curiam) (internal quotation marks and citation omitted), cert.

denied, 143 S. Ct. 1783 (2023).

Here, the district court found that Yorka had probable cause to arrest

Traylor for interference with a police officer’s performance of public duties

in violation of Texas Penal Code § 38.15. Traylor argues that the district

court erred by treating § 38.15 as a strict liability provision because the statute

instead requires a showing of criminal negligence. But Traylor provides no

authority requiring a showing of criminal negligence for arrest on suspected

violation of § 38.15. Indeed, our precedent has not imposed such a

requirement. See, e.g., Haggerty v. Tex. S. Univ., 391 F.3d 653, 656–57 (5th

Cir. 2004) (holding that officer had probable cause for arrest under § 38.15

after plaintiff ignored warnings not to intervene and instead stepped forward

towards the officer); Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017)

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(affirming probable cause for arrest under § 38.15 where the plaintiff failed to

follow an officer’s order to move his truck).

Further, uncontested evidence shows that Traylor failed to comply

with Yorka’s numerous orders to leave. This instruction was made in

Yorka’s duty to maintain the peace at Clutch, as even an off-duty officer has

a duty “to preserve the peace within the officer’s jurisdiction.” Bustos v.

Martini Club Inc., 599 F.3d 458, 466 (5th Cir. 2010) (quoting Tex. Code

Crim. Proc. art. 2.13(a)). Thus, Yorka had probable cause to arrest

Traylor for interfering with the performance of his public duties. See Buehler

v. Dear, 27 F.4th 969, 992 (5th Cir. 2022) (“[R]efusing to obey police

officers’ repeated and unambiguous warnings to step back so as not to

interfere with officers’ official duties . . . establishes probable cause to arrest

for a violation of Texas Penal Code § 38.15(a)(1).”). Accordingly, we affirm

the district court’s dismissal of Traylor’s unlawful arrest claim.

C. Fabrication of Evidence

In Cole v. Carson, we recognized a substantive due process right “not

to have police deliberately fabricate evidence and use it to frame and bring

false charges against a person.” 802 F.3d 752, 771 (5th Cir. 2015). 3 Here,

Traylor claims that Yorka fabricated evidence of assault by making a false

statement that Traylor pushed him. The district court denied qualified

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3

Cole has a complex procedural history. The Supreme Court vacated Cole and

remanded for reconsideration in light of its holding in Mullenix v. Luna, 577 U.S. 7 (2015)

(per curiam). Hunter v. Cole, 580 U.S. 994, 994 (2016) (mem.). On remand, we reinstated

the Cole opinion regarding the due process fabrication-of-evidence claim because Mullenix

did not concern that issue. See Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018) (“Cole

II”). Cole II was subsequently vacated when we granted rehearing en banc. Cole v. Carson,

915 F.3d 378 (5th Cir. 2019). However, the en banc court held that Cole’s fabrication-of-

evidence claim remained viable. Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019), as revised

(Aug. 21, 2019).

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immunity because it concluded this case is similar to Cole and Traylor raised

a fact issue as to whether Yorka’s statement was fabricated. However, as

discussed above, Traylor must establish both a violation of his constitutional

right and that this right was clearly established. See Cunningham, 983 F.3d at

190–91. We may limit our analysis to the “clearly established” prong if it

resolves the qualified immunity issue. See Pearson v. Callahan, 555 U.S. 223,

236–37 (2009). Because Cole did not clearly establish Traylor’s right as

relevant here, we conclude that Yorka is entitled to qualified immunity.

A § 1983 plaintiff bears a heavy burden of establishing that an officer

violated clearly established law. Morrow v. Meachum, 917 F.3d 870, 874 (5th

Cir. 2019). “A right is clearly established only if relevant precedent ‘ha[s]

placed the . . . constitutional question beyond debate.’” Id. (alterations in

original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see also

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (“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.” (internal quotation

marks and citation omitted)). Traylor relies solely on Cole, in which we

established a Fourteenth Amendment substantive due process claim for

fabrication of evidence. But we may not define clearly established law with

such a high level of generality. See al-Kidd, 563 U.S. at 742. Instead, “[t]he

dispositive question is ‘whether the violative nature of particular conduct is

clearly established.’” Mullenix, 577 U.S. at 12 (quoting al-Kidd, 563 U.S. at

742). Thus, Cole can establish Traylor’s right only if the facts there

“squarely govern[]” the specific facts at issue here. See Kisela v. Hughes, 138

S. Ct. 1148, 1153 (2018) (per curiam) (quotation omitted). We conclude that

they do not.

In Cole, three officers pursued the plaintiff and subsequently opened

fire. 802 F.3d at 755–56. After the shooting, the officers had time to confer

before giving their statements, and they ultimately claimed that the plaintiff

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was given a prior warning and pointed his gun towards one of the officers. Id.

at 756. Indeed, Cole involved allegations of a conspiracy and the calculated

fabrication of evidence to justify a shooting. 4 See id. This false evidence led

to a felony charge for aggravated assault on a public servant, which in turn

caused significant reputational injuries and legal expenses. 5 Id. at 756, 766.

The facts of Cole are distinguishable from those presented here. This

case involves a quick and chaotic incident in which the parties have different

versions of events. Traylor has not shown that Yorka had the time or

deliberation to fabricate evidence of assault. Further, Traylor did not face

the extreme consequences as those of the plaintiff in Cole. Indeed, Traylor’s

charge was reduced to a misdemeanor the same night of the incident. Given

this significant divergence of facts, Cole did not clearly establish that “every

reasonable official” in Yorka’s position would have understood that his

conduct violated Traylor’s Fourteenth Amendment right. See Mullenix, 577

U.S. at 11 (quotation omitted). Yorka is thus entitled to qualified immunity

on Traylor’s fabrication-of-evidence claim.

IV. Conclusion

For the reasons set forth above, we AFFIRM the district court’s

order granting qualified immunity to Yorka on the excessive force and

unlawful arrest claims. However, we REVERSE the district court’s order

as to the fabrication-of-evidence claim and REMAND for entry of summary

judgement in favor of Yorka.

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4

Unlike this case, we addressed the fabrication-of-evidence claim in Cole at the

motion-to-dismiss stage. 802 F.3d at 755.

5

The charge was dismissed several months after the incident, and after the plaintiff

incurred substantial legal fees to confront the charge. Cole, 802 F.3d at 755.

11