Petition for Writ of Certiorari — Jean Henderson, as Next Friend and Guardian of Christopher Henderson, Petitioner v. Harris County, Texas, et al.
Supreme Court briefMar 22, 2023
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No. 22-__
IN THE
Supreme Court of the United States
_________
JEAN HENDERSON, as next friend and guardian of
CHRISTOPHER HENDERSON,
Petitioner,
v.
ARTHUR SIMON GARDUNO; HARRIS COUNTY, TEXAS,
Respondents.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
T. DEAN MALONE
LAW OFFICES OF DEAN
MALONE, P.C.
900 Jackson Street
Suite 730
Dallas, TX 75202
BRUCE K. THOMAS
LAW OFFICE OF BRUCE K.
THOMAS
12900 Preston Road
Suite 590
Dallas, TX 75230
CATHERINE E. STETSON
Counsel of Record
WILLIAM E. HAVEMANN
MICHAEL J. WEST
EZRA P. LOUVIS
HOGAN LOVELLS US LLP
555 Thirteenth Street, NW
Washington, DC 20004
(202) 637-5600
cate.stetson@hoganlovells.com
Counsel for Petitioner
QUESTION PRESENTED
After initially running from the police, a young man
complied with an officer’s order to surrender by halting and raising his hands. The officer nevertheless
tased the man. The tasing caused the man’s head to
slam onto pavement and led to a traumatic brain injury. After officers subdued the man, the officer cycled
the taser and tased him again. In this 42 U.S.C.
§ 1983 action, brought by the victim’s grandmother,
the Fifth Circuit held that the officer did not violate
clearly established law because an individual cannot
lead police on a chase “and then turn around, appear
to surrender and receive the same Fourth Amendment protection” he would have received “in the first
place.” The question presented is:
Does qualified immunity shield an officer who uses
unreasonable force against a fleeing misdemeanor
suspect who complies with an officer’s order to stop
and raises his hands in surrender?
(i)
ii
PARTIES TO THE PROCEEDING
Jean Henderson, as next friend and guardian of
Christopher Henderson, petitioner on review, was the
plaintiff-appellant below.
Arthur Garduno and Harris County, Texas, respondents on review, were the defendants-appellees
below.
iii
RELATED PROCEEDINGS
U.S. Court of Appeals for the Fifth Circuit:
Henderson v. Harris County, No. 21-20544 (5th
Cir. Oct. 12, 2022) (reported at 51 F.4th 125)
U.S. District Court for the Southern District of Texas:
Henderson v. Harris County, No. 4:18-cv-02052
(S.D. Tex. Sept. 10, 2021) (unreported, available at 2021 WL 4708764)
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED.......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES....................................... v
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED ..................................... 2
INTRODUCTION ....................................................... 3
STATEMENT ............................................................. 5
A. Factual Background ................................... 5
B. Procedural Background ............................. 8
REASONS FOR GRANTING THE PETITION ...... 11
I.
THE DECISION BELOW DISTORTS
THIS COURT’S PRECEDENTS ................... 11
II.
THE DECISION BELOW CREATES A
CIRCUIT SPLIT ............................................ 21
III. THE QUESTION PRESENTED IS
RECURRING AND IMPORTANT ................ 29
CONCLUSION ...................................................... 33
APPENDIX
v
TABLE OF AUTHORITIES
Page(s)
CASES:
Alicea v. Thomas,
815 F.3d 283 (7th Cir. 2016) ........................... 22, 23
Anderson v. Creighton,
483 U.S. 635 (1987) ............................................... 12
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ............................................... 15
Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ............................................... 11
Baker v. City of Hamilton,
471 F.3d 601 (6th Cir. 2006) ................................. 22
Baskin v. Martinez,
233 A.3d 475 (N.J. 2020) ....................................... 25
Bell v. Wolfish,
441 U.S. 520 (1979) ............................................... 20
Bernabe v. Rosenbaum,
No. 21-10396, 2023 WL 181099
(5th Cir. Jan. 13, 2023) ..................................... 4, 33
Brosseau v. Haugen,
543 U.S. 194 (2004) ....................................11, 12, 13
Bush v. Strain,
513 F.3d 492 (5th Cir. 2008) ................................. 14
City of Tahlequah v. Bond,
142 S. Ct. 9 (2021) ................................................. 19
Commonwealth v. Warren,
58 N.E.3d 333 (Mass. 2016) .................................. 29
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Cooper v. Brown,
844 F.3d 517 (5th Cir. 2016) ........................... 14, 18
Cope v. Cogdill,
142 S. Ct. 2573 (2022) ............................................. 5
Darden v. City of Fort Worth,
880 F.3d 722 (5th Cir. 2018) ........................... 14, 18
District of Columbia v. Wesby,
138 S. Ct. 577 (2018) ....................................... 11, 12
Edwards v. Shanley,
666 F.3d 1289 (11th Cir. 2012) ............................. 24
Emmett v. Armstrong,
973 F.3d 1127 (10th Cir. 2020) ....................... 23, 24
Graham v. Connor,
490 U.S. 386 (1989) ................................4, 12, 13, 19
Hope v. Pelzer,
536 U.S. 730 (2002) ........................ 10, 11, 12, 17, 18
Hutcheson v. Dallas Cnty.,
994 F.3d 477 (5th Cir. 2021) ................................... 8
Jackson v. Stair,
944 F.3d 704 (8th Cir. 2019) ................................. 27
Jennings v. Jones,
499 F.3d 2 (1st Cir. 2007)...................................... 25
Jones v. Treubig,
963 F.3d 214 (2d Cir. 2020) ................................... 26
Kisela v. Hughes,
138 S. Ct. 1148 (2018) ..................................... 11, 12
vii
TABLE OF AUTHORITIES—Continued
Page(s)
LaLonde v. County of Riverside,
204 F.3d 947 (9th Cir. 2000) ................................. 28
Malley v. Briggs,
475 U.S. 335 (1986) ....................................11, 14, 21
McCoy v. Alamu,
141 S. Ct. 1364 (2021) ..................................5, 20, 21
Miller v. Gonzalez,
761 F.3d 822 (7th Cir. 2014) ................................. 23
Monell v. Department of Social Services
of the City of New York,
436 U.S. 658 (1978) ................................................. 8
Mullenix v. Luna,
577 U.S. 7 (2015) ............................................. 19, 20
Newman v. Guedry,
703 F.3d 757 (5th Cir. 2012) ............................. 9, 14
Ortiz ex rel. Ortiz v. Kazimer,
811 F.3d 848 (6th Cir. 2016) ................................. 22
Ramirez v. Guadarrama,
142 S. Ct. 2571 (2022) ............................................. 5
Ramirez v. Martin,
No. 22-10011, 2022 WL 16548053
(5th Cir. Oct. 31, 2022) ...................................... 4, 33
Rivas-Villegas v. Cortesluna,
142 S. Ct. 4 (2021) ................................................. 12
Salazar v. Molina,
37 F.4th 278 (5th Cir. 2022)...................4, 10, 19, 33
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Smith v. Mattox,
127 F.3d 1416 (11th Cir. 1997) ............................. 24
Taylor v. Riojas,
141 S. Ct. 52 (2020) ...................... 4, 5, 10, 12, 18, 20
Tennessee v. Garner,
471 U.S. 1 (1985) ............................................... 4, 12
Tolan v. Cotton,
572 U.S. 650 (2014) ............................4, 5, 11, 15, 17
United States v. Lanier,
520 U.S. 259 (1997) ............................................... 12
Valladores v. Cordero,
552 F.3d 384 (4th Cir. 2009) ........................... 26, 27
White v. Pauly,
580 U.S. 73 (2017) ................................................. 12
Wilson v. Layne,
526 U.S. 603 (1999) ............................................... 11
CONSTUTIONAL PROVISION:
U.S. Const. amend. IV ................................................ 2
STATUTES:
28 U.S.C. § 1254(1) ..................................................... 2
42 U.S.C. § 1983 ............................................2, 5, 8, 25
OTHER AUTHORITIES:
Collin M. Calvert et al., Perceptions of Violent
Encounters between Police and Young Black Men
across Stakeholder Groups,
97 J. Urban Health 279 (2020) ............................. 32
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Roger G. Dunham et al., High-Speed Pursuit:
The Offenders’ Perspective,
25 Crim. Just. & Behav. 30 (1998) ....................... 30
Robert Leider, Taming Self-Defense: Using Deadly
Force to Prevent Escapes,
70 Fla. L. Rev. 971 (2019) ..................................... 29
Osagie K. Obasogie & Zachary Newman, The
Endogenous Fourth Amendment: An Empirical
Assessment of How Police Understandings of
Excessive Force Become Constitutional Law,
104 Cornell L. Rev. 1281 (2019)............................ 31
Off. of Cmty. Oriented Policing Servs.,
U.S. Dep’t of Just., De-Escalation Training:
Safer Communities and Safer Law
Enforcement Officers (Sept. 6, 2022) .................... 30
Marie Ouellet et al., Network Exposure and
Excessive Use of Force: Investigating the
Social Transmission of Police Misconduct,
18 Criminology & Pub. Pol’y 675 (2019) ......... 31, 32
Daria Roithmayr, The Dynamics of Excessive
Force, 2016 U. Chi. Legal F. 407 (2016) ......... 30, 32
Jocelyn R. Smith Lee & Michael A. Robinson, “That’s
My Number One Fear in Life. It’s the Police”:
Examining Young Black Men’s Exposures to
Trauma and Loss Resulting From Police Violence
and Police Killings,
45(3) J. Black Psych. 143 (2019) ........................... 29
George Wood et al., The Network Structure of Police
Misconduct, 5 Socius: Socio. Rsch. for a Dynamic
World 1 (2019) ....................................................... 31
IN THE
Supreme Court of the United States
_________
No. 22-__
_________
JEAN HENDERSON, as next friend and guardian of
CHRISTOPHER HENDERSON,
Petitioner,
v.
ARTHUR SIMON GARDUNO; HARRIS COUNTY, TEXAS,
Respondents.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Jean Henderson, as next friend and guardian of
Christopher Henderson, respectfully petitions for a
writ of certiorari to review the judgment of the Fifth
Circuit in this case.
OPINIONS BELOW
The Fifth Circuit’s opinion is reported at 51 F.4th
125. Pet. App. 1a-16a. The District Court’s opinion is
not reported but is available at 2021 WL 4708764.
Pet. App. 17a-30a.
JURISDICTION
The Fifth Circuit entered judgment on October 12,
2022. Pet. App. 1a. The Fifth Circuit denied panel
(1)
2
rehearing and rehearing en banc on December 2,
2022. Pet. App. 32a. On February 7, 2023, this Court
extended Petitioner’s deadline to petition for a writ of
certiorari to March 22, 2023. This Court’s jurisdiction
is invoked under 28 U.S.C. § 1254(1).
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
The Fourth Amendment provides in relevant part:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be
seized.
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress * * * .
3
INTRODUCTION
Part-time deputy constable Arthur Garduno and
two other officers drove their patrol cars through a
crowded park because they suspected Christopher
Henderson, a young Black man, of committing a lowlevel marijuana offense. Henderson was scared, like
many would be at the sight of police cars barreling
through a park, so he ran towards his nearby apartment. Garduno followed—first in his patrol car and
then on foot. Garduno quickly caught up to Henderson and ordered him to stop running. With his back
to Garduno, Henderson did so and raised his empty
hands in the air. Garduno tased Henderson anyway.
Henderson’s body stiffened, he fell backward, and he
hit his head so hard on the pavement that he was
knocked briefly unconscious and suffered a traumatic
brain injury. While Henderson lay on the ground,
bleeding from his ears, nose, and mouth, and with
other officers present, Garduno tased Henderson
again.
These facts set out an obvious case of excessive force.
But the Fifth Circuit concluded that Garduno was entitled to summary judgment on qualified-immunity
grounds because Henderson had initially run from
Garduno and despite Henderson’s unequivocal surrender.
The Fifth Circuit evaded the obvious illegality of
Garduno’s conduct by warping the summary-judgment standard. The way the panel saw it, Henderson
did not stop in reaction to Garduno’s order—he
stopped suddenly. The way the panel saw it, Henderson’s hands were not in the air—they were reaching
for his waistband. The way the panel saw it, Henderson’s back was not to Garduno—he had turned to face
4
him. And the way the panel saw it, Henderson was
not in agony after the first tasing—he was resisting
arrest.
That is emphatically not Henderson’s account—the
only one that matters on summary judgment. But the
Fifth Circuit adopted Garduno’s story anyway, in
clear defiance of bedrock rules of civil procedure. This
Court has reversed the Fifth Circuit before for doing
this very thing. See Tolan v. Cotton, 572 U.S. 650, 651
(2014) (per curiam).
There is more. Yet again, the Fifth Circuit refused
to follow this Court’s qualified-immunity precedents
in a case involving egregious misconduct. Despite the
obvious unconstitutionality of Garduno’s conduct, the
panel granted him qualified immunity on the theory
that no factually identical case established the unlawfulness of his acts. As this Court recently reminded
the Fifth Circuit, that is not the law. See Taylor v.
Riojas, 141 S. Ct. 52 (2020) (per curiam). Doubling
down, the panel concluded that Garduno’s conduct
was not “obviously” unconstitutional because Henderson had initially fled from the police. That per se
rule—which is rapidly spreading across the Fifth Circuit1—cannot be reconciled with the context-dependent reasonableness analysis this Court adopted in
Graham v. Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985).
Given the Fifth Circuit’s obvious error, it comes as
no surprise that its decision creates a circuit split. At
1
See Salazar v. Molina, 37 F.4th 278 (5th Cir. 2022), pet. for writ
of cert. filed, No. 22-564 (U.S. Dec. 16, 2022); Ramirez v. Martin,
No. 22-10011, 2022 WL 16548053 (5th Cir. Oct. 31, 2022);
Bernabe v. Rosenbaum, No. 21-10396, 2023 WL 181099 (5th Cir.
Jan. 13, 2023).
5
least five courts have considered whether qualified
immunity protects officers who use gratuitous force on
suspects who initially fled from the police but then
surrendered. All have denied qualified immunity.
And another five circuits have considered the similar
question of whether qualified immunity protects officers who use gratuitous force on suspects who initially
resisted arrest but then surrendered. All have denied
qualified immunity. These courts correctly recognize
that an individual’s past flight or resistance does not
license gratuitous force. That is the opposite of what
the Fifth Circuit held in this case.
The Fifth Circuit’s error in this Section 1983 case is
one in a long line of recent Fifth Circuit cases misapplying settled principles of law to shield officers accused of egregious misconduct from civil liability. See
Tolan, 572 U.S. 650; Taylor, 141 S. Ct. 52; McCoy v.
Alamu, 141 S. Ct. 1364 (2021); Ramirez v. Guadarrama, 142 S. Ct. 2571 (2022) (Sotomayor, J., dissenting from denial of cert.); Cope v. Cogdill, 142 S. Ct.
2573 (2022) (Sotomayor, J., dissenting from denial of
cert.). This Court should grant certiorari and reverse.
STATEMENT
A. Factual Background
On a spring day in 2018, Christopher Henderson
was one of the many people at Houston’s Ingrando
Park. So was Officer Arthur Garduno, a part-time
deputy constable who, along with two other police officers, came to do a “park check” for drug activity. D.
Ct. Dkt. 81-2, at 17 (“Garduno Depo.”).
Garduno and the other officers approached the park
in separate, marked patrol cars. Pet. App. 18a. According to Garduno, Henderson and two other young
Black men were standing around a picnic table. Id. at
6
2a. “Garduno claims he smelled marijuana and saw
one of the men”—other than Henderson—“ ‘breaking
up marijuana’ into a shoebox”; Garduno also claims he
saw “a blunt tucked behind” Henderson’s ear. Id.
Purportedly seeing this, Garduno jumped the curb
with his car and drove through the crowded park towards the men. Garduno Depo. at 7. The officers in
the other two cars did the same. Id. at 19. Garduno
claims that at this point “Henderson threw a plastic
bag containing a leafy green substance onto the
ground” and “ran.” Pet. App. 2a. Henderson lived
with his grandmother in an apartment at the edge of
the park; he ran towards home because he was scared.
D. Ct. Dkt. 81-4, at 3 (“Henderson Depo.”). Still in
their cars, the three officers pursued Henderson. Garduno Depo. at 11.
Henderson soon entered his apartment complex.
Henderson Depo. at 5. Officer Garduno at that point
“jumped out of the car and continued the chase on
foot.” Pet. App. 2a. “Eventually, Garduno caught up
to Henderson in the complex parking lot and ordered
Henderson to stop running.” Id. Henderson complied.
Id.
At this point, Henderson had stopped moving and
had his back to Garduno. Id. at 2a-3a. According to
Henderson, he then turned his head slightly back to
see Garduno while at the same time “rais[ing] his
hands in the air as if to surrender.” Id. at 3a (citation
omitted). Multiple eyewitnesses agree with this account. Id. at 19a. Garduno tells a different story: Although all eyewitnesses saw otherwise, Garduno
claims that Henderson “turned to face him[ ] and
reached toward his waistband with both hands.” Id.
at 2a-3a.
7
Garduno then fired his taser. One prong lodged in
the side of Henderson’s face; the other missed. Id. at
3a. Because tasers require both prongs to hit the target, the circuit did not complete and Henderson was
not electrocuted. Id. “So one second later, Garduno
deployed his taser a second time. This time both
prongs lodged in Henderson’s back.” Id. The shock
immobilized Henderson, who fell backward and
slammed his head on the pavement. Id. Henderson
was knocked briefly unconscious. D. Ct. Dkt. 81-7, at
3 (“Pinon Aff.”). When he came to, he was bleeding
from his ears, nose, and mouth and began calling for
his “mama.” Id. at 4. One full minute later, while
Henderson lay there and with other officers present,
Garduno cycled his taser and tased Henderson again.
Pet. App. 3a. Garduno says he did so because Henderson was resisting arrest. Id.
Henderson suffered a traumatic brain injury and
was taken to the hospital, where he underwent an
emergency craniectomy to reduce brain swelling. D.
Ct. Dkt. 41, at 10. He spent nearly two months in the
hospital, id., and suffered seizures for months afterwards. He still takes medication to avoid seizures.
Henderson was unarmed. Pet. App. 3a. He did not
threaten any officers or bystanders. He was not suspected of a serious crime; Garduno himself told bystanders that he only wanted to give Henderson a
ticket. Pinon Aff. at 6-7. No drug paraphernalia was
recovered from the location of the park where Garduno initially spotted Henderson. Pet. App. 20a. No
other suspects were detained or questioned. Garduno
Depo. at 11. The charges initially brought against
Henderson—for possession of a small amount of marijuana—were dismissed on the prosecution’s motion
8
because “[n]o probable cause exists at this time to believe the defendant committed the offense.” D. Ct.
Dkt. 81-8, at 1.
B. Procedural Background
Henderson, through his grandmother, sued Garduno under 42 U.S.C. § 1983, alleging that Garduno
exercised excessive force and violated Henderson’s
clearly established Fourth Amendment rights.2 Pet.
App. 3a-4a. Garduno raised qualified immunity as a
defense and moved for summary judgment. Id. at 20a.
The District Court granted Garduno’s motion. The
court first held that a genuine dispute existed as to
whether Garduno used excessive force. Id. at 24a.
The court noted that it was “undisputed” that the
(lack of) “severity of the crime” weighed in Henderson’s favor. Id. at 22a. The court highlighted that,
despite Garduno’s account, Garduno “conceded that
he never saw Henderson actually reach into his waistband.” Id. at 23a. The court also noted that Garduno’s
account was disputed by other witnesses. Id. at 19a.
And the court recognized that, “even if Henderson had
been previously evading arrest, he had abandoned
2
Henderson also sued Harris County, Texas, alleging that the
county was liable under Monell v. Department of Social Services
of the City of New York, 436 U.S. 658 (1978). Pet. App. 4a. The
county moved to dismiss, the District Court granted the motion,
and the Fifth Circuit affirmed. Although Henderson does not
seek certiorari on questions related to this Monell claim, the
Fifth Circuit should revisit the Monell issue if this Court reverses
and remands. The panel’s conclusion that Garduno did not violate a clearly established right informed its Monell holding that
the county did not fail to train employees “concerning a clear constitutional duty implicated in recurrent situations.” Id. at
8a (quoting Hutcheson v. Dallas Cnty., 994 F.3d 477, 483 (5th
Cir. 2021)).
9
that effort and ‘signaled that he was giving himself up
as the deputy had instructed.’ ” Id. (citation omitted).
A reasonable jury could thus conclude that Henderson
“posed no serious, immediate threat,” “made no
threatening or aggressive gestures,” and was not “resisting arrest” when Garduno tased him. Id. at 24a.
The District Court nevertheless granted summary
judgment to Garduno because Henderson’s right to be
free from unreasonable force in these circumstances
was not clearly established. Id. at 29a-30a. “Simply
put, Plaintiff has failed to meet her burden of showing
that a prior case exists in which the court held that an
officer acting under similar circumstances as [Garduno] had violated the Fourth Amendment.” Id. at
29a.
The Fifth Circuit affirmed. Id. at 16a. The panel
leapfrogged the question of whether Garduno used excessive force in tasing Henderson after he had surrendered, holding instead that any right Garduno may
have violated was not clearly established at the time
of the incident. Id. at 10a.
The panel first held that Henderson failed to “identify an on-point case” establishing that Garduno’s conduct violated the Fourth Amendment. Id. at 10a.
Some of Henderson’s cases were “issued too late” (even
though those cases did not establish new law but
merely articulated well-established existing law). Id.
at 11a. Others were unpublished and could not give
“fair notice of the law.” Id. Still others did not “involve tasing or fleeing” (even though Fifth Circuit
precedent provides that “[l]awfulness of force * * *
does not depend on the precise instrument used to apply it,” Newman v. Guedry, 703 F.3d 757, 763 (5th Cir.
10
2012)). Pet. App. 13a (citation omitted). And Henderson’s two cited tasing cases “involved ‘far more force
than was deployed here’ ” and did not “involve[ ] a suspect fleeing from police.” Id. at 15a (citation omitted).
The panel then turned to what it called the “obviouscase exception.” Id. at 15a-16a. In Hope v. Pelzer, 536
U.S. 730 (2002), this Court held that there can be “notable factual distinctions between the precedents relied on * * * so long as the prior decisions gave reasonable warning that the conduct then at issue violated
constitutional rights.” Id. at 740 (citation omitted);
see also Taylor, 141 S. Ct. at 53-54 (similar). The
panel quoted this rule, but questioned “how much if
any weight” these Eighth Amendment cases had in
the Fourth Amendment context. Pet. App. 15a-16a.
Those questions notwithstanding, the panel held
that, “[e]ven accepting Henderson’s versions of the
facts,” “this case is not obvious.” Id. at 16a. The way
the panel saw it, Henderson had led Garduno “on a
long chase by car and by foot.” Id. And, also according
to the panel, “Henderson admits he suddenly stopped
running, turned towards Garduno, and moved his
arms in a manner that suggested to Garduno that
Henderson was reaching for a weapon.” Id. Based on
this narrative, the panel concluded that “[t]his is a far
cry” from an obvious case. Id. Indeed, the panel continued, “the obviousness of this case points in the
other direction” because “ ‘a suspect cannot refuse to
surrender and instead lead police on a dangerous hot
pursuit—and then turn around, appear to surrender,
and receive the same Fourth Amendment protection
from intermediate force he would have received had
he promptly surrendered in the first place.’ ” Id.
(quoting Salazar, 37 F.4th at 282-283).
11
The Fifth Circuit denied Henderson’s motion for
panel rehearing and rehearing en banc. Id. at 31a32a. This petition follows.
REASONS FOR GRANTING THE PETITION
I. THE DECISION BELOW DISTORTS THIS
COURT’S PRECEDENTS.
The Fifth Circuit’s decision below badly distorts settled principles of civil procedure, qualified immunity,
and the Fourth Amendment to protect an officer who
obviously violated the law.
1. “Qualified immunity gives government officials
breathing room to make reasonable but mistaken
judgments about open legal questions.” Ashcroft v. alKidd, 563 U.S. 731, 743 (2011). “Fair warning” is at
the heart of the qualified-immunity doctrine: If “the
state of the law at the time of an incident provided fair
warning to the defendants that their alleged conduct
was unconstitutional,” Tolan, 572 U.S. at 656 (cleaned
up), then the conduct was not merely “reasonable but
mistaken,” al-Kidd, 536 U.S. at 743. Defendants in
those circumstances either are “plainly incompetent
* * * or knowingly violate[d] the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986). Either way, they are
not entitled to qualified immunity. Id.
Officials are deemed to have “fair warning” when
prior case law clearly establishes the unlawfulness of
their conduct. See Wilson v. Layne, 526 U.S. 603, 621
(1999). But as this Court has explained—repeatedly—prior case law directly on point is not required
to clearly establish that certain conduct is unconstitutional. See Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018); District of Columbia v. Wesby, 138 S. Ct. 577,
590 (2018); Hope, 536 U.S. at 741; Brosseau v.
12
Haugen, 543 U.S. 194, 199 (2004) (per curiam); United
States v. Lanier, 520 U.S. 259, 271 (1997); Anderson
v. Creighton, 483 U.S. 635, 640 (1987). Instead, when
the unconstitutionality of the challenged conduct is so
“obvious” that “any reasonable officer should have [so]
realized,” qualified immunity does not apply. Taylor,
141 S. Ct. at 54 (citation omitted). There can thus be
“notable factual distinctions between” the case at issue and prior cases, so long as those prior cases “gave
reasonable warning that the conduct then at issue violated constitutional rights.” Hope, 536 U.S. at 740
(citation omitted); see also Wesby, 138 S. Ct. at 590
(explaining that “unlawfulness of the officer’s conduct” can be “sufficiently clear even though existing
precedent does not address similar circumstances”).
This means that officials can “still be on notice that
their conduct violates established law even in novel
factual circumstances.” Hope, 536 U.S. at 741. That
conclusion holds particularly true when novel facts
are not “materially distinguishable” from facts in
prior cases. Rivas-Villegas v. Cortesluna, 142 S. Ct. 4,
8 (2021).
In the excessive-force context, a defendant’s conduct
is obviously unconstitutional when even the general
standards of Graham and Garner provide fair warning that the conduct is illegal. Brosseau, 543 U.S. at
199; White v. Pauly, 580 U.S. 73, 80 (2017); Kisela, 138
S. Ct. at 1153. Under those cases, the reasonableness
of an officer’s use of force turns on factors including
“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 (citing Garner, 471 U.S. at 8-9).
13
2. By any reasonable measure, Garduno used excessive force. Garduno suspected Henderson of committing a minor drug charge warranting (by Garduno’s
own telling) only a ticket. See Pinon Aff. at 6-7; Pet.
App. 22a. At the time of the first tasing, Henderson
did not pose an immediate threat to anyone. Pet. App.
19a. Nor was Henderson “actively resisting arrest or
attempting to evade arrest by flight,” Graham, 490
U.S. at 396: He had complied with Garduno’s order to
stop running, had his back to Garduno, and had raised
his empty hands in a show of surrender. Pet. App.
19a.
Despite all this, Garduno fired his taser. When the
first shot missed, he fired it again and immobilized
Henderson, who fell backward and slammed his head
on the pavement. A full minute later, while Henderson was lying on the ground and bleeding from his
ears, nose, and mouth, Garduno tased Henderson
again.
Garduno’s conduct is manifestly unreasonable. All
reasonable officers would have known that it would be
excessive to tase someone suspected of committing a
minor crime and who has complied with an order to
stop running, has his back to the officer, and has his
hands in the air in a show of surrender. And all reasonable officers would definitely know that it would be
excessive to tase that same person again, when that
person was sprawled out on his back, bleeding from
his ears, and surrounded by officers. The obvious illegality of this conduct under Graham and Garner is
enough to have provided “fair warning” to Garduno.
Brosseau, 543 U.S. at 199. Garduno’s decision to
nonetheless use this level of force betrays him, at least
14
at this stage of litigation, as either “plainly incompetent” or “knowingly violat[ing] the law.” Malley, 475
U.S. at 341.
Ample precedent confirms as much. “[A] constitutional violation occurs when an officer tases, strikes,
or violently slams an arrestee who is not actively resisting arrest.” Darden v. City of Fort Worth, 880 F.3d
722, 731 (5th Cir. 2018). The Fifth Circuit has accordingly denied qualified immunity to an officer who
tased a man who had “his hands in the air, * * * complied with the officers’ commands, and did not resist
arrest,” id.; an officer who tased a man who had “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 764; an officer who
“forcefully slammed” a woman’s “face into a nearby vehicle during her arrest,” despite the fact that she was
no longer “resisting arrest,” Bush v. Strain, 513 F.3d
492, 502 (5th Cir. 2008); and an officer who ordered a
dog to bite a suspect who had initially fled but was by
that point “actively complying” with the officer’s orders. Cooper v. Brown, 844 F.3d 517, 521, 523 (5th
Cir. 2016). Garduno’s conduct is of a piece, and the
fact that he used a taser instead of his fists or a dog is
immaterial. See Newman, 703 F.3d at 763 (“Lawfulness of force * * * does not depend on the precise instrument used to apply it.”).
3. The panel excused this obvious case of police brutality by committing rudimentary errors of civil procedure, ignoring this Court’s qualified-immunity precedents, and adopting a per se obviousness test that directly conflicts with this Court’s precedents.
15
First, “the judge’s function” at the summary-judgment stage is not to “determine the truth of the matter,” but simply to determine “whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). This Court has routinely
enforced the “axiom” that “in ruling on a motion for
summary judgment, ‘[t]he evidence of the nonmovant
is to be believed, and all justifiable inferences are to
be drawn in his favor.’ ” Tolan, 572 U.S. at 651 (quoting Anderson, 477 U.S. at 255).
The panel flagrantly ignored this foundational civilprocedure principle. At the beginning of its opinion,
the panel recognized that the circumstances of Henderson’s surrender were “disputed.” Pet. App. 2a.
“Garduno says Henderson stopped, turned to face
him, and reached towards his waistband with both
hands.” Id. at 2a-3a. “Henderson claims he stopped
running, ‘turned his head slightly toward the deputy,
and raised his hands in the air.’ ” Id. at 3a. Despite
this lip service, the panel wholeheartedly embraced
Garduno’s account—and then some.
At multiple points, the panel stressed that Henderson “suddenly stopped running.” Id. at 15a, 16a. But
the panel omitted that Henderson stopped running in
response to Garduno’s order to stop running. Id. at
2a-3a. The panel thus transformed a compliant act
into a threatening act.
The panel asserted that Henderson “admits” that he
“turned towards Garduno.” Id. at 16a. Wrong. Henderson says that, with his back to Garduno, he turned
his head slightly towards the officer, id. at 3a, 19a—
as anyone would in response to an officer’s order.
16
The panel said that Henderson “admits” that he
“moved his arms in a manner that suggested to Garduno that Henderson was reaching for a weapon.” Id.
at 16a. Wrong again. According to Henderson, he was
raising his hands in the air in surrender. Id. at 19a.
Multiple eyewitnesses agree with that account. Id.
It gets worse. The panel fully adopted Garduno’s explanation for why he tased Henderson a second time:
that “Henderson continued to struggle while on the
ground and resisted being placed in handcuffs.” Id. at
3a. That is markedly different than the account offered by an eyewitness: that Henderson at this point
was just regaining consciousness, bleeding from his
ears, nose, and mouth, and had made no attempt to
get up or run. See Pinon Aff. at 3-5.
The panel also amped up the chase preceding Henderson’s surrender. According to the panel, Henderson led Garduno “on a long chase by car and by foot.”
Pet. App. 16a. The panel took it upon itself to describe
this chase as “high-speed” and “dangerous.” Id. at
11a, 16a. But Henderson was on foot the entire time,
and Garduno caught up to him in only about a quarter
of a mile. Id. at 26a. And the only reason the chase
was “dangerous” was because Garduno and the other
officers decided to drive their cars through a crowded
park. See Garduno Depo. at 7.
In short, at every point it could, the panel either resolved disputed issues of fact in favor of Garduno, understood facts in the light most favorable to Garduno,
or simply reinterpreted facts in a way that justified
Garduno’s conduct.
The Fifth Circuit has done this before. In Tolan, the
Fifth Circuit held that an officer’s “actions did not vi-
17
olate clearly established law”—but as this Court subsequently explained, only after “fail[ing] to view the
evidence at summary judgment in the light most favorable to [the plaintiff] with respect to the central
facts of this case.” 572 U.S. at 657. As this Court explained, “[b]y failing to credit evidence that contradicted some of its key factual conclusions, the court
improperly ‘weigh[ed] the evidence’ and resolved disputed issues in favor of the moving party.” Id. This
Court summarily reversed the Fifth Circuit’s “clear
misapprehension of summary judgment standards.”
Id. at 659-660.
This is Tolan all over again. The panel viewed all
the evidence in favor of Garduno: It accepted that
Henderson was reaching for his waistband, that he
had turned towards the officer, and that he was resisting arrest after being tased the first time. Indeed, the
panel was so quick to view the facts favorably to the
officer that it transformed Henderson’s act of complying with Garduno’s order to stop running into a “sudden” and threatening act. Just as in Tolan, the Fifth
Circuit “clear[ly] misapprehen[ded]” its role on summary judgment. Id. at 659.
Second, the panel disregarded this Court’s qualifiedimmunity precedents. The panel recognized that, under Hope, “there can be ‘notable factual distinctions
between the precedents relied on * * * so long as the
prior decision gave reasonable warning that the conduct then at issue violated constitutional rights.” Pet.
App. 15a (quoting Hope, 536 U.S. at 741). But it then
ignored that precedent by nonetheless requiring Henderson to “identify an on-point case.” Id. at 10a; see
also id. at 16a (doubting whether Hope “could apply”
in the Fourth Amendment context). And although it
18
purported to consider the obviousness of Garduno’s
conduct, the panel did not even gesture towards any
of the Fifth Circuit cases cited by Henderson showing
that Garduno had “reasonable warning that the conduct then at issue violated constitutional rights.”
Hope, 536 U.S. at 731 (citation omitted); see supra
p. 14. Concluding that those cases’ “factual distinctions” rendered them incapable of clearly establishing
the law themselves, the panel did not consider—at
all—whether those cases nonetheless “gave reasonable warning” to Garduno that his conduct was obviously unconstitutional, Hope, 536 U.S. at 740.
The Fifth Circuit was not at liberty to kneecap Hope
in this way. The basic principles of Graham and Garner, buttressed by the mountain of Fifth Circuit case
law clearly establishing that “a constitutional violation occurs when an officer tases, strikes, or violently
slams an arrestee who is not actively resisting arrest,”
Darden, 880 F.3d at 731—even after the suspect initially runs from the police, Cooper, 844 F.3d at 521—
was more than enough “reasonable warning that”
Garduno’s conduct violated Henderson’s constitutional rights, Hope, 536 U.S. at 740. Factually identical precedent is not necessary. See Taylor, 141 S. Ct.
at 53.
Third—as if all those errors were not enough—the
panel applied a per se obviousness test that directly
conflicts with this Court’s precedent. The panel held
that Garduno’s conduct was not obviously unconstitutional because “a suspect cannot refuse to surrender
and instead lead police on a dangerous hot pursuit—
and then turn around, appear to surrender, and receive the same Fourth Amendment protection from intermediate force he would have received had he
19
promptly surrendered in the first place.” Pet. App.
16a (quoting Salazar, 37 F.4th at 282-283).3
That is not how it works. The Fourth Amendment’s
reasonableness test “requires careful attention to the
facts and circumstances of each particular case.” Graham, 490 U.S. at 396. So does qualified immunity.
See Mullenix v. Luna, 577 U.S. 7, 12 (2015) (explaining that the qualified-immunity analysis examines
the “factual situation the officer confronts”) (citation
omitted). The standard is “reasonableness at the moment.” Graham, 490 U.S. at 396 (emphasis added).
Courts thus must consider 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.” Id. (emphases
added).
The Fifth Circuit’s new test is irreconcilable with
this context-dependent standard. The bare fact that
a suspect previously ran from the police cannot answer the question of whether a subsequent seizure is
3
The panel’s per se test is particularly inappropriate given that
the facts of Salazar—the source of the panel’s per se test—“are
dramatically different from the facts here.” City of Tahlequah v.
Bond, 142 S. Ct. 9, 12 (2021). Salazar concerned a “high-speed
car chase” that lasted “approximately five minutes” and that, according to the court, “put officers and bystanders in harm’s way
to try to evade capture.” Salazar, 37 F.4th at 280-282. Here, in
contrast, Henderson had jogged through a park and apartment
complex for about a quarter of a mile before Garduno caught up
to him. See Pet. App. 26a. Garduno also recognized the potential
for deadly force in this situation. See Garduno Depo. at 47 (acknowledging that “falls even from ground level” after tasing “can
cause serious injuries or death, especially on a hard surface”).
“Suffice it to say, a reasonable officer could miss the connection
between that case and this one.” City of Tahlequah, 142 S. Ct. at
12.
20
constitutional—much less not obviously unconstitutional. This is especially true when one of those seizures was effected after the suspect was rendered immobile due to an initial tasing. And yet this is the
approach the panel adopted. The panel ignored that
Henderson was suspected of committing only a minor
crime, that he had his hands in the air, and that he
had complied with Garduno’s orders. The panel instead held that because Henderson had run from Garduno, Garduno could not have obviously violated Henderson’s constitutional rights by tasing him—even
when Henderson was sprawled on his back and bleeding from his ears, nose, and mouth. That is exactly
the sort of “mechanical application” of the Fourth
Amendment this Court has rejected time and again.
Id. (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
And focusing on one “fact” to the exclusion of all others
is the opposite of anchoring the qualified-immunity
analysis in the particular “factual situation the officer
confronts.” Mullenix, 577 U.S. at 12 (citation omitted).
*
*
*
This is not the first time the Fifth Circuit has contorted or ignored this Court’s case law in a bid to grant
qualified immunity for obviously unconstitutional behavior. In Taylor, this Court summarily reversed the
Fifth Circuit’s grant of qualified immunity to prison
officials who confined a prisoner in a cell “teeming
with human waste” for six days. 141 S. Ct. at 53-54
(citation omitted). And in McCoy, this Court vacated
a Fifth Circuit decision granting qualified immunity
to a prison guard who pepper-sprayed an inmate for
no reason. 141 S. Ct. at 1364.
21
In both of those instances, the Fifth Circuit avoided
the obvious unconstitutionality of officers’ conduct by
ignoring it. Here, the Fifth Circuit did so by impermissibly interpreting all inferences in favor of the
summary-judgment movant and applying a per se rule
alien to this Court’s case law. But the end result is
the same: a grant of qualified immunity to an officer
who either is “plainly incompetent” or who “knowingly
violate[d] the law.” Malley, 475 U.S. at 341. As it has
before, this Court should grant the petition and reverse.
II.
THE DECISION BELOW CREATES A
CIRCUIT SPLIT.
Given the obvious unconstitutionality of the conduct
at issue, it should be no surprise that the decision below sharply breaks from other courts. The Sixth, Seventh, Tenth, and Eleventh Circuits, as well as the
New Jersey Supreme Court, have refused to grant
qualified immunity to officers who used gratuitous
force against suspects who initially fled from the police but who had surrendered at the time force was
used. Similarly, the First, Second, Fourth, Eighth,
and Ninth Circuits have refused to grant qualified immunity to officers who used gratuitous force against a
suspect who initially resisted arrest but who had
ceased resisting at the time force was used. This
Court should grant certiorari to restore uniformity
across the federal and state courts.
1.a. The Sixth, Seventh, Tenth, and Eleventh Circuits, as well as the New Jersey Supreme Court, have
held that qualified immunity does not protect officers
who use excessive force on a suspect who initially fled
from the police before surrendering.
22
In Ortiz ex rel. Ortiz v. Kazimer, 811 F.3d 848 (6th
Cir. 2016), the Sixth Circuit held that it is “clearly established” that “the gratuitous use of force against a
suspect who has ‘surrendered’ is ‘excessive as a matter
of law,’ * * * * even when the suspect had originally
* * * run[ ] from the police.” Id. at 852 (citing Baker
v. City of Hamilton, 471 F.3d 601, 603, 608 (6th Cir.
2006)). In that case, the officer had chased a suspect
down to an “apartment building’s parking lot,” where
the suspect “stopped running.” Id. at 851. The officer
saw the suspect “surrendering” but “tackled” him into
a car and then kept the suspect’s face pinned against
the vehicle. Id. Writing for a unanimous panel, Judge
Sutton explained that the suspect’s initial flight did
not give the officer license to use this level of force because there was no indication that the suspect “was
fabricating his submission to the officer’s authority.”
Id. at 852. The court accordingly held that the officer
was not entitled to qualified immunity at the summary-judgment stage.
The Seventh Circuit agrees. In Alicea v. Thomas,
815 F.3d 283 (7th Cir. 2016), the Seventh Circuit denied qualified immunity at the summary-judgment
stage to an officer who ordered his dog to attack a suspect who, although he had previously fled from the police, “was standing still” and had “immediately complied with [the officer’s] orders to put his hands in the
air.” Id. at 289, 292. The court rejected the argument
that the plaintiff’s “prior flight cast doubt on the genuineness of his surrender.” Id. at 289. Citing circuit
precedent, the court explained that “[the] prohibition
against significant force against a subdued suspect
applies notwithstanding a suspect’s previous behavior—including resisting arrest, threatening officer
safety, or potentially carrying a weapon.” Id. at 289
23
(quoting Miller v. Gonzalez, 761 F.3d 822, 829 (7th
Cir. 2014)). As the court explained, “[t]he sole fact a
suspect has resisted arrest before cannot justify disregarding his surrender in deciding whether and how to
use force.” Id. Applying this rule, the court concluded
that “[c]ommanding a dog to attack a suspect who is
already complying with orders clearly violates” the
Fourth Amendment. Id. at 292; see also Miller, 761
F.3d at 829-830 (denying qualified immunity to officer
who used gratuitous force on suspect who led police on
chase but then surrendered).
The Tenth Circuit reached a similar conclusion in
Emmett v. Armstrong, 973 F.3d 1127 (10th Cir. 2020).
That case concerned a plaintiff who “began running”
as police approached him while investigating reports
of a fight. Id. at 1131. One officer caught up with the
plaintiff and tackled him, at which point the plaintiff
“became visibly relaxed[ ] and * * * made no further
movements indicating an attempt to run or fight
back.” Id. When the plaintiff did not respond to commands to turn over onto his stomach, the officer tased
him. Id. Looking “at the facts and circumstances as
they existed at the moment the force was used,” the
Tenth Circuit held that the tasing violated the Fourth
Amendment. Id. at 1135. The court rejected the claim
that the plaintiff’s initial “run from” the officer rendered the plaintiff an immediate threat or meant that
he was actively fleeing; the court instead concluded
that the officer had “effectively neutralized any safety
concerns arising from [the plaintiff’s] flight” by the
time the officer tased him. Id. at 1136. “In the precise
moment that” the officer tased the plaintiff, the Tenth
Circuit explained, the plaintiff “was no longer fleeing.”
Id. The court ultimately held that the officer was not
24
entitled to qualified immunity at the summary-judgment stage because the officer “was on notice that using a taser without providing an adequate warning
against a misdemeanant who had ceased actively resisting was unconstitutional.” Id. at 1139.
The Eleventh Circuit is in accord. Edwards v. Shanley, 666 F.3d 1289 (11th Cir. 2012), concerned a plaintiff who fled from an officer on foot after the officer
saw the plaintiff run a stop sign. Id. at 1293. The
officer “chased [the plaintiff] on foot” until the plaintiff
reached the woods, at which point the officer waited
for a canine unit. Id. The dog quickly found the plaintiff and, pursuant to the officer’s order, bit the plaintiff. Id. In response, the plaintiff laid “prone with his
hands exposed and begg[ed] to surrender.” Id. at
1295. The officer nonetheless “allowed the dog to bite
[the plaintiff] for five to seven minutes.” Id. at 1294.
The Eleventh Circuit held that the officer was not entitled to qualified immunity at summary judgment for
allowing the dog to continue biting the plaintiff. Id.
at 1295-98. The court recognized that the plaintiff’s
initial flight “raises doubt about the danger” he posed,
but stressed that the plaintiff “mitigated that doubt”
by unambiguously surrendering. Id. at 1296. And as
the court explained, it is “plain[ly] * * * unconstitutional to subject a * * * compliant suspect to a[n] * * *
attack of five to seven minutes, especially where that
suspect is pleading for surrender.” Id. at 1298; see
also Smith v. Mattox, 127 F.3d 1416, 1419-20 (11th
Cir. 1997) (finding it obviously unreasonable for an officer to break a plaintiff’s arm during an arrest when
that plaintiff had surrendered after initially trying to
flee).
25
The New Jersey Supreme Court followed suit in
Baskin v. Martinez, 233 A.3d 475 (N.J. 2020). That
case concerned a Section 1983 action against an officer
who shot a suspect who had initially “crashed his car
into an unmarked patrol vehicle” and then “fled on
foot,” but who, when cornered, had raised “his empty
hands above his head in a sign of surrender.” Id. at
477, 487. The court concluded that “the law prohibiting the use of deadly force against a surrendering suspect—one with empty hands in the air and posing no
imminent threat—was clearly established at the time
of the events.” Id. at 487. “The law is also clear,” the
court explained, “that a suspect’s conduct leading up
to surrender cannot alone justify shooting the suspect
* * * when his hands are above his head in an act of
submission and he no longer poses a threat.” Id. at
485. The court accordingly held that the officer was
not entitled to qualified immunity on summary judgment. Id. at 487.
b. These courts are in accord with the First, Second,
Fourth, Eighth, and Ninth Circuits, all of which have
held that an officer who uses excessive force on a nonresisting suspect, even if that suspect had initially resisted arrest, is not entitled to qualified immunity.
In Jennings v. Jones, 499 F.3d 2 (1st Cir. 2007), the
First Circuit denied qualified immunity to an officer
who increased the use of force on a subdued arrestee
“after the arrestee ha[d] ceased resisting for several
seconds.” Id. at 16. The court could think of no “basis
for increasing the force used” in this situation “to such
a degree that a broken ankle results.” Id. at 18. The
court compared the case to the Eleventh Circuit’s decision in Smith, see supra p. 24, but ultimately concluded that the officer’s “conduct was such an obvious
26
violation of the Fourth Amendment’s general prohibition on unreasonable force that a reasonable officer
would not have required prior case law on point to be
on notice that his conduct was unlawful.” 499 F.3d at
17.
So too in the Second Circuit, which in Jones v. Treubig, 963 F.3d 214 (2d Cir. 2020), squarely held that it
is “clearly established in this Circuit that it is a
Fourth Amendment violation for a police officer to use
significant force against an arrestee who is no longer
resisting and poses no threat to the safety of officers
or others.” Id. at 225. Based on this clearly established law, the court concluded that “no reasonable officer could believe that” tasing an arrestee “a second
time,” after the arrestee “was no longer trying to get
off the ground, no longer actively resisting arrest, and
no longer posing a threat to the police officers,” “was
lawful.” Id. at 230. The court accordingly denied the
officer the protection of qualified immunity. Id. at
239.
The Fourth Circuit took the same approach in Valladores v. Cordero, 552 F.3d 384 (4th Cir. 2009). In
that case, the teenaged plaintiff tried to push a police
officer who was arresting the plaintiff’s brother. Id.
at 386-387. The officer responded by “grabb[ing]” the
plaintiff and swinging “him headfirst into his mother’s
car several times.” Id. at 387. The plaintiff eventually
“fell to the ground” and the officer “had him under full
control.” Id. The Fourth Circuit explained that “[t]his
signifie[d] a point of surrender.” Id. at 390. However,
“[t]he officer then slammed the teenager’s face into
the car, at which point [the plaintiff] heard his jaw
snap.” Id. at 387. Citing Graham, the court held that,
27
in breaking the plaintiff’s jaw after he had surrendered, the officer “knowingly violated [the plaintiff’s]
clearly established right,” and was thus not entitled to
qualified immunity. Id. at 391. Central to the court’s
analysis was that the plaintiff had “stopped resisting
the arrest before the alleged excessive force occurred.”
Id. at 390-391.
In Jackson v. Stair, 944 F.3d 704 (8th Cir. 2019), the
Eighth Circuit followed suit. In that case, the officer
tased the plaintiff three times: once after the plaintiff
was “aggressive and noncompliant in response to” the
officer’s orders; once after that first tasing, when “he
was on his back, writhing on the ground”; and once
when “he rose to his knee in an apparent attempt to
get off the ground” in contravention of the officer’s orders. Id. at 711-713. Concluding that each tasing
stood “on its own,” the Eighth Circuit considered each
“as a separate use of force.” Id. at 712. The court held
that the first and third tasings were “objectively reasonable” because the plaintiff was resisting arrest. Id.
at 711, 713. But “[a]t the time of this second tasing,
[the plaintiff] did not appear to pose a threat to law
enforcement.” Id. at 711-712. According to the court,
“it is axiomatic that” the plaintiff—who appeared to
be “non-threatening, non-fleeing, [and] non-resisting”
at that point—“had a clearly established right against
excessive force at the time of the second tasing.” Id.
at 713. The court so held despite the fact that the
plaintiff later resumed resisting arrest. Id. The court
ultimately remanded to the district court to consider
whether the “second tasing amounted to excessive
force,” but held that if it did, the officer “is not entitled
to qualified immunity.” Id. at 714. Under Jackson,
then, both earlier and later acts of resistance cannot
28
make an officer’s use of force automatically objectively
reasonable.
Finally, in LaLonde v. County of Riverside, 204 F.3d
947 (9th Cir. 2000), a police officer responded to a
noise complaint and, when the plaintiff refused to cooperate, told the plaintiff “he was going to be placed
under arrest for obstructing a police investigation.”
Id. at 951-952. The plaintiff told the officer he would
not submit to being arrested, and so the officer
“knocked [the plaintiff] backwards to the ground.” Id.
at 952. The plaintiff “resisted and the two men got
into a scuffle.” Id. The officer then pepper-sprayed
the plaintiff, at which point the plaintiff’s “resistance
ceased.” Id. After handcuffing the plaintiff, the officer
did not wash the pepper spray off the plaintiff’s face
or out of his eyes “for twenty to thirty minutes after
he had already surrendered and was under control.”
Id. at 960. The Ninth Circuit framed the officer’s decision to leave the pepper spray in the plaintiff’s eyes
as a “continued use” of pepper spray—a use that was
obviously unconstitutional. Id. at 961. “[I]n a situation in which an arrestee surrenders and is rendered
helpless, any reasonable officer would know that a
continued use of the weapon or a refusal without
cause to alleviate its harmful effects constitutes excessive force.” Id. The court accordingly held that the
officer was not entitled to qualified immunity for this
conduct. Id. at 962.
2. Compare all these to the decision below. The
Fifth Circuit departed from this consensus by granting qualified immunity to an officer who used excessive force against a suspect because that suspect had
initially run from the officer. Henderson’s claims
would have survived summary judgment had they
29
been brought in the Sixth, Seventh, Tenth, and Eleventh Circuits or in New Jersey state court. They also
would have survived had they been brought in the
First, Second, Fourth, Eighth, and Ninth Circuits.
But Henderson’s claims arose in the Fifth Circuit, and
that led to a starkly different outcome.
III. THE QUESTION PRESENTED IS
RECURRING AND IMPORTANT.
The Fifth Circuit’s decision feeds into a vicious cycle
of force and flight. There may be entirely innocent
reasons to initially avoid a police encounter—chief
among them the crisis of trust between police and the
communities they serve.
1. Individuals “do not pose an imminent risk of danger simply by taking flight.” Robert Leider, Taming
Self-Defense: Using Deadly Force to Prevent Escapes,
70 Fla. L. Rev. 971, 1017 (2019). In fact, individuals
frequently avoid police encounters because they fear
exposure to precisely the sort of force used against
Henderson. Stories of police brutality cause individuals, and young Black men like Henderson in particular, to experience “hypervigilance” in police encounters. Jocelyn R. Smith Lee & Michael A. Robinson,
“That’s My Number One Fear in Life. It’s the Police”:
Examining Young Black Men’s Exposures to Trauma
and Loss Resulting From Police Violence and Police
Killings, 45(3) J. Black Psych. 143-184 (2019). Such
hypervigilance often leads individuals to “run[ ]from
police,” not out of a desire to harm anyone, but out of
a “legitimate fear” of violence and a “desire to avoid
it.” Id. at 172-173; Commonwealth v. Warren, 58
N.E.3d 333, 342 (Mass. 2016) (finding flight “might
just as easily be motivated by the desire to avoid the
30
recurring indignity of being racially profiled as by the
desire to hide criminal activity”).
After the decision below, individuals in Texas, Mississippi, and Louisiana now not only have a reason to
run from the police—they have a reason to keep running, even when they would rather peacefully surrender. It is common sense that individuals are less
likely to surrender if they know that any attempt to
do so will be met with gratuitous force. Cf. Roger G.
Dunham et al., High-Speed Pursuit: The Offenders’
Perspective, 25 Crim. Just. & Behav. 30, 38 (1998) (explaining research showing that most fleeing suspects
would slow down “only when they felt safe”). The
Fifth Circuit’s rule is thus not only wrong, it is perverse: It actively discourages individuals from complying with a reasonable officer’s legitimate attempt
to de-escalate the situation, a dynamic which will inevitably lead to tragedies among both civilians and
law enforcement. See Off. of Cmty. Oriented Policing
Servs., U.S. Dep’t of Just., De-Escalation Training:
Safer Communities and Safer Law Enforcement Officers (Sept. 6, 2022)4 (explaining that de-escalation tactics that encourage surrender “can dramatically reduce injuries” among both groups).
The Fifth Circuit’s new rule—that it is not obviously
unconstitutional to use excessive force on a person
who is perceived to have initially fled from the police
but then surrenders—will not be lost on officers. Excessive force “spreads among officers in the same network, as officers learn from each other how and when
to use excessive force.” Daria Roithmayr, The Dynamics of Excessive Force, 2016 U. Chi. Legal F. 407, 409
4
Available at https://bit.ly/40lR76z.
31
(2016). Police officers are more likely to employ excessive force when they see others use it and suffer no
consequences. Id. at 429; see also George Wood et al.,
The Network Structure of Police Misconduct, 5 Socius:
Socio. Rsch. for a Dynamic World 1, 13 (2019) (“police
misconduct appears to be a networked phenomenon”);
Marie Ouellet et al., Network Exposure and Excessive
Use of Force: Investigating the Social Transmission of
Police Misconduct, 18 Criminology & Pub. Pol’y 675,
689 (2019) (“[E]xposure to colleagues with a history of
use of force is positively and significantly associated
with use of force complaints.”). Put another way: Excessive force breeds excessive force. But the decision
below removes a crucial check on the spread of excessive force—personal liability.
Building on those network effects, “use of force policies rely upon the vagueness and ambiguity of Fourth
Amendment case law” to give officers “wide latitude to
use * * * force.” Osagie K. Obasogie & Zachary Newman, The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of Excessive Force Become Constitutional Law, 104 Cornell
L. Rev. 1281, 1287 (2019). “[L]egal gray area[s]” thus
“function as creating before the fact justifications for
police force.” Id. This is particularly true with regard
to policies on the “escalation and de-escalation” of
force; jurisdictions often “reproduce ambiguous judicial interpretations” to “limit[ ] the development of
rules that might restrict force usage.” Id. at 1304.5 By
5
Garduno’s testimony reveals that his use-of-force training was
particularly wanting. He did not recall any training concerning
the constitutional use of force during his employment with the
32
applying a broad, fact-agnostic per se rule to hold that
an officer’s use of force is not obviously unreasonable,
the decision below hinders the development of clear
limitations on force.
Together, these dynamics will worsen the crisis of
trust between the police and communities they serve.
Police violence—particularly against unarmed individuals—“rattles the foundation of trust between residents and police.” Ouellet, supra, at 676. Both police
and citizens perceive those effects. For their part,
community members develop a “fear of police,” leading them to be “suspicious” and at times “defiant.”
Collin M. Calvert et al., Perceptions of Violent Encounters between Police and Young Black Men across
Stakeholder Groups, 97 J. Urban Health 279, 292
(2020). This dynamic feeds itself: “[C]ivilian resistance and defiance increase the likelihood of excessive force, and in turn, police use of excessive force increases the likelihood of civilian resistance and defiance.” Roithmayr, supra, at 419.
The decision below supercharges this feedback loop.
According to the Fifth Circuit, compliance—not just
defiance—with an officer’s order can be met with excessive force. That cannot be right. This Court’s intervention is needed to ensure that the Fourth
Amendment protects individuals in the Fifth Circuit
from the use of excessive force after having surrendered to the police.
county. Garduno Depo. at 56-57. Nor was he familiar with Graham. Asked to explain his understanding of the “reasonable use
of force,” he stated, “If someone is trying to hurt you, don’t let
them hurt you. * * * [I]f somebody is trying to pull a gun on me,
I pull a gun on them basically.” Id. at 57.
33
2. The decision below is not an isolated case. The
Fifth Circuit first articulated the per se rule it applied
here in Salazar. See 37 F.4th at 282-283, pet. for writ
of cert. filed, No. 22-564 (U.S. Dec. 2, 2022). The Fifth
Circuit has since applied it in at least three other
cases, including this one. See Ramirez v. Martin, No.
22-10011, 2022 WL 16548053 (5th Cir. Oct. 31, 2022);
Bernabe v. Rosenbaum, No. 21-10396, 2023 WL
181099, at *2 (5th Cir. Jan. 13, 2023). In each instance, the Fifth Circuit reflexively excused an officer’s use of force on a surrendering victim because
that victim had previously fled from the authorities.
This Court’s intervention is needed before this perverse rule metastasizes any further.
CONCLUSION
The petition for a writ of certiorari should be granted
and the decision reversed.
Respectfully submitted,
T. DEAN MALONE
LAW OFFICES OF DEAN
MALONE, P.C.
900 Jackson Street
Suite 730
Dallas, TX 75202
BRUCE K. THOMAS
LAW OFFICE OF BRUCE K.
THOMAS
12900 Preston Road
Suite 590
Dallas, TX 75230
CATHERINE E. STETSON
Counsel of Record
WILLIAM E. HAVEMANN
MICHAEL J. WEST
EZRA P. LOUVIS
HOGAN LOVELLS US LLP
555 Thirteenth Street, NW
Washington, DC 20004
(202) 637-5600
cate.stetson@hoganlovells.com
Counsel for Petitioner
MARCH 22, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.