# Traylor v. Yorka

> Court of Appeals for the Fifth Circuit · January 19, 2024

URL: https://www.frixlaw.com/law-library/cases/9925492

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 19, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9925492

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

_____________________
*
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

_____________________
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.

_____________________
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

_____________________
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9925492. Public record. Not legal advice.