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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-30027                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
COLLEEN CURRAN, Individually; APRIL CURRAN,                               August 25, 2015
                                                                           Lyle W. Cayce
              Plaintiffs - Appellees                                            Clerk

v.

PHILLIP ALESHIRE; RODNEY JACK STRAIN, Individually and in his
official capacity as St. Tammany Parish Sheriff,

              Defendants - Appellants




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-2993


Before REAVLEY, PRADO, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:*
       Nearly seven years ago, sheriff’s deputy Phillip Aleshire confronted high
school sophomore April Curran over her violation of a school rule banning cell
phones on campus. Their interaction lasted only ten minutes. But it was long
enough to saddle Curran with a juvenile record for battery of an officer, and
Aleshire with a federal lawsuit for violating Curran’s constitutional rights.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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      This appeal arises from the federal civil rights case. Aleshire moved for
summary judgment, in part on the basis of qualified immunity. The district
court ruled that fact issues precluded summary judgment on the excessive
force claims, and Aleshire filed this interlocutory appeal.        Because our
jurisdiction in such an interlocutory appeal is limited to reviewing the
materiality of any factual disputes found by the district court and not whether
those disputes exist, we dismiss the appeal for lack of jurisdiction.
                                       I.
      In the fall of 2008, Curran was a 15-year-old sophomore at Fontainebleau
High School in Mandeville, Louisiana. She took classes at Fontainebleau in
the morning, and classes at the New Orleans Center for Creative Arts
(NOCCA) in the afternoon.
      On September 24, 2008, Curran missed her mid-day bus to NOCCA. She
used her cell phone to call her mother while still on school grounds. School
policy prohibited student use of cell phones on school property.
      A teacher—Leonard Abram—saw Curran on her phone. He told her that
she needed to give him the phone or go to the disciplinarian’s office. Curran
refused to give him the phone. She told him that she needed to leave campus
to go to NOCCA.
      Abram then called over Aleshire, a deputy with the St. Tammany Parish
Sheriff’s Office and Fontainebleau’s school resource officer, to assist. At this
point, the sequence of events becomes less clear.
      According to Curran, Abram told Aleshire that she was trying to escape.
Although both men had been given her name, Aleshire began grabbing for her
student ID card, which was hanging on a lanyard around her neck. She claims
that he yanked her head and neck when he pulled at her ID, causing her to
reflexively “jerk[] back.” ROA 373-74. Aleshire then “threw” her against a
wall—allegedly headfirst—and handcuffed her. ROA 374.
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                                    No. 15-30027
      Aleshire and Abram tell a different story. They report that Curran began
to fight Aleshire when he reached for her ID, first smacking his hand away and
then—when he continued to grab for the ID—striking him across the head hard
enough to knock off his glasses and radio. Although Curran was “thrashing
around and trying to get away,” Aleshire was eventually able to “secure one of
her arms and spin her around against the auditorium wall.” ROA 300.
      Once Curran was handcuffed, Aleshire and Abram walked her toward
the disciplinarian’s office. During the walk, Aleshire “slammed” Curran into a
wall, hard enough to dislodge the cell phone which she had hidden in her shirt.
ROA 498. She contends that she was cooperating and had done nothing to
provoke being pushed into a wall. Aleshire disagrees, stating that Curran had
attempted to free herself and that he “plac[ed] her against the hallway wall”
in order to regain control. ROA 300. Surveillance cameras recorded at least
part of this second use of force.
      Aleshire then delivered Curran to the disciplinarian’s office, where she
waited for several hours until her mother arrived. After speaking with school
officials and photographing Curran’s injuries, her mother took her to a nearby
hospital for treatment. Curran’s physical injuries from the encounter with
Aleshire included bruising on the back of her head and bruising on her arms
and wrists.
      Many hours after the incident, while Curran was still at the hospital
with her mother, Aleshire arrested her for battery of an officer. She was tried
in juvenile court and found guilty. The conviction is now final.




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                                             II.
       Before completion of the criminal case, Curran and her mother 1 sued
Aleshire and other St. Tammany Parish officials and entities 2 for injuries
stemming from the September 24th encounter. Curran asserted ten federal
and state law claims against Aleshire. Although the complaint did not use the
phrase “excessive force,” she later clarified—and the district court accepted—
that her claims of battery, assault, cruel treatment, and unlawful search and
seizure were excessive force claims under both state tort law and federal
constitutional law. Because the validity of Curran’s conviction for battery
might have affected the merits of at least some of her claims, the district court
stayed the case while she unsuccessfully appealed her conviction.
       When this federal case resumed, Aleshire moved for summary judgment
on all of Curran’s claims. Although it granted the motion on most of the claims,
the district court denied summary judgment to Aleshire on (1) the Section 1983
excessive force claims, (2) the parallel state law claims of excessive force and
battery and assault, 3 and (3) punitive damages.
       As to the excessive force claims under federal law, the district court
rejected Aleshire’s arguments that the claims were foreclosed by Heck v.
Humphrey, 512 U.S. 477 (1994).               Even if the state criminal proceeding
established for purposes of this federal civil case that Curran struck Aleshire
(an issue on which we express no opinion for lack of jurisdiction), the district


       1 Curran’s claims were originally brought by her mother due to Curran’s age. Curran
has since turned 18 and taken over responsibility for her own claims.
       2 These included the St. Tammany Parish Sheriff’s Office, the St. Tammany Parish

School Board, individuals associated with the Sheriff’s Office and School Board, and the
principal of Curran’s high school. With the exception of the Sheriff’s Office, all other
defendants remain in the case on state law claims of vicarious liability.
       3 The district court denied summary judgment on the parallel state law claims “[f]or

the same reasons that summary judgment is denied as to the excessive force claims under 42
U.S.C. § 1983.” ROA 1895. The parallel state law claims are not at issue in this interlocutory
appeal.
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court found that a fact issue existed on whether sufficient time had passed
between Curran’s battery and Aleshire’s first use of force to render the latter
unreasonable. The district court next found that Curran’s alleged injuries
were not de minimis, although it noted this question was a “close call.” ROA
1890-91. The district court then conducted the qualified immunity analysis to
assess whether Aleshire violated clearly established law. It concluded that the
qualified immunity defense required the resolution of disputed fact issues, a
task the district court could not perform on summary judgment.                           These
disputed fact issues included whether Curran was resisting, threatening
others, or attempting to escape when Aleshire used force against her. In the
context of this interlocutory appeal, Aleshire challenges only the last of these
rulings: that Aleshire’s qualified immunity defense turns on fact issues which
cannot be resolved through summary judgment. 4
                                              III.
       Aleshire argues that he is entitled to qualified immunity, even assuming
the existence of disputed facts, because none is material to whether his actions
were objectively unreasonable in light of clearly established law. In other
words, Aleshire contends that reasonable officers could disagree about whether
the force allegedly used on Curran was lawful under the circumstances
suggested by Curran’s evidence.


       4  In a footnote, Aleshire invites the court to “exercise its ancillary jurisdiction” to
review and correct “the district court’s error of law” regarding the applicability of the Heck
doctrine to Curran’s excessive force claims. It is not clear that the district court committed
any “error of law” regarding Heck. It accepted that the battery was established, but found a
factual dispute regarding the amount of time between the battery and the first use of use.
See Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008) (“[A] § 1983 claim would not necessarily
imply the invalidity of a resisting arrest conviction, and therefore would not be barred by
Heck, if the factual basis for the conviction is temporally and conceptually distinct from the
excessive force claim.”). In any event, Aleshire’s fleeting footnote does not properly raise this
issue. See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (finding issue not
“adequately presented” on appeal when the issue was “mentioned in the questions presented
and the summary of the argument, but the body of the brief [did] not discuss it in any depth”).
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      The structure of Aleshire’s argument is necessitated by the nature of this
interlocutory appeal. The court possesses jurisdiction over the district court’s
summary judgment order—which is not a final decision—“only to the extent
that the denial of summary judgment turns on an issue of law.” Kinney v.
Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (internal quotation marks
and brackets omitted). The district court’s determination that a fact dispute
exists is not an issue of law that can be upended through interlocutory appeal.
See id. at 346–47. As we have put it a number of times, when conducting an
interlocutory review of a qualified immunity ruling we “review the materiality
of any factual disputes, but not their genuineness.” Wagner v. Bay City, Tex.,
227 F.3d 316, 320 (5th Cir. 2000) (emphasis in original).
      Trying to fit his appeal within the confines of our limited review, Aleshire
argues that both uses of force against Curran were justified in light of certain
undisputed facts. He contends that his first use of force was justified because
Curran battered him, and his second use of force was justified because video
and photographic evidence show Curran taking a “long stride as if to escape.”
We will address each use of force separately.
                            A.    First Use of Force
      Aleshire contends that qualified immunity shields him from liability for
his first use of force because he could have reasonably believed it necessary to
push Curran against the wall in order to bring her under control after she
struck him.   That may be true under the deferential qualified immunity
standard if his pushing her head into the wall was a split-second response to
Curran’s battery or continued resistance. While the district court accepted
that Curran battered Aleshire, it then found a factual dispute as to timing
which, viewed in Curran’s favor, takes Aleshire’s first use of force outside the
context of an immediate and inseparable response to the battery. See Bush v.
Strain, 513 F.3d 492, 498–502 (5th Cir. 2008) (reversing district court’s grant
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of summary judgment against a plaintiff convicted of resisting arrest in light
of “conflicting evidence about whether [the plaintiff] was injured before or after
her resistance had ceased”).
       Aleshire raises doubts about the evidentiary source for the court’s
finding that Curran “presented evidence to support that she was not resisting
. . . at both times Aleshire applied force.” ROA 1894. We are not permitted to
assess whether the record supports this finding of a temporal gap, however, as
mining the record for evidence to support discrete factual disputes identified
by the district court is not a proper task on interlocutory appeal. See Fuentes
v. Riggle, 2015 WL 2151832, at *5 (5th Cir. May 8, 2015) (per curiam) (officer’s
argument that the district court should have disregarded deposition testimony
which contradicted prior statements to the police “go[es] to the genuineness of
the factual dispute, not its materiality”).
       Accepting this finding of a genuine factual dispute as we must, our role
is limited to the following legal question: is the fact dispute material to
Aleshire’s qualified immunity defense? Put differently, given Curran’s actions
as characterized by the district court on the basis on the disputed summary
judgment record—and how those actions could have been perceived by a
reasonable officer in Aleshire’s position 5—did Aleshire violate clearly
established law when he slammed her head into a wall?
       We have little difficulty answering this proper legal question in the
affirmative.     A suspect’s active resistance is a key factor in the Fourth
Amendment’s “objective reasonableness” test. See Graham v. Connor, 490 U.S.
386, 396 (1989). Accordingly, our qualified immunity jurisprudence is filled



       5 We judge the reasonableness of the use of force “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490
U.S. 386, 396 (1989).

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with cases recognizing the need for officers to use reasonable force to subdue
and handcuff suspects who strike them or are otherwise resisting. But we have
also recognized that the force calculus changes substantially once that
resistance ends. See Ballard v. Burton, 444 F.3d 391, 401 (5th Cir. 2006) (“[W]e
have noted circumstances where a plaintiff’s prior conviction is not
inconsistent with his claim of excessive force.”). An easy case demonstrates
this point. It is not reasonable for officers to apply force to a suspect who is
handcuffed in a patrol car en route to jail even though that suspect may have
battered the officers minutes earlier during a traffic stop. Of course, the
temporal and locational distinctions are not as sharp with respect to the first
use of force in this case. But we must accept the district court’s finding that a
factual dispute exists concerning whether Aleshire’s first use of force was
“conceptually distinct” in timing from Curran’s earlier resistance. ROA 1888.
      Aleshire’s argument cannot get past this limitation on our review. He
faults the district court and Curran for failing to identify a case that put him
on notice that he could not “forc[e] an individual’s head against a wall in order
to detain him after he has battered an officer.” But if enough time elapsed
between the battery and the use of force that a reasonable officer would have
realized Curran was no longer resisting, then this may qualify as an “obvious”
case in which the Graham factors alone can provide fair warning. Newman v.
Guedry, 703 F.3d 757, 764 (5th Cir. 2012); see also Bush, 513 F.3d at 502
(“While the Fourth Amendment’s reasonableness test is ‘not capable of precise
definition or mechanical application,’ the test is clear enough that [the officer]
should have known that he could not forcefully slam [the arrestee’s] face into
a vehicle while she was restrained and subdued.”) (footnote omitted) (quoting
Graham, 490 U.S. at 396). Such a case must truly be obvious, as “‘defin[ing]
clearly established law at a high level of generality’” risks “avoid[ing] the
crucial question whether the official acted reasonably in the particular
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circumstances that he or she faced.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023
(2014) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011)).
       Curran claims that Aleshire “slammed” her into a wall, hard enough to
produce bruising on the back of her head. As noted above, the district court
found there was a genuine dispute regarding whether she was resisting at the
time—a finding that this court has no jurisdiction to review.                      And under
Curran’s and her supporting eyewitness’s version of events, no other Graham
factor is implicated: she was not attempting to flee, Aleshire did not fear for
his own safety, and no bystander was endangered by her behavior.                             The
resolution of these factual disputes in Curran’s favor would conclusively defeat
qualified immunity. ROA 1894 (“Aleshire should have known[] that when one
is not resisting arrest, attempting to escape, or otherwise posing a threat at
the time of the alleged use of force, ‘slamming’ one into walls and thereby
causing injuries constitutes an excessive use of force.”).
       Aleshire relies on two cases in which the Fifth Circuit found qualified
immunity established on the basis of a disputed summary judgment record:
Poole v. City of Shreveport, 691 F.3d 624 (5th Cir. 2012) and Manis v. Lawson,
585 F.3d 839 (5th Cir. 2009). 6 He does not claim that Poole is factually similar



       6 Aleshire also points to Fontenot v. Toups as a case with “strikingly similar facts,” in
which the district court granted summary judgment on the basis of qualified immunity. See
No. 2:10-cv-00954, 2011 WL 2214760, at *5 (E.D. La. June 6, 2011). It is true that the set-
up of the arrest in Fontenot is quite similar: the student’s use of a cell phone on school grounds
brought her to the attention of school officials and, later, law enforcement. See id. at *1. But
the force employed in that case was limited to “violent” handcuffing—which is, to say,
handcuffing. Compare id. at *1 (“Plaintiffs allege that [the student] was handcuffed in a
violent manner[.]”) with id. at *3 (“The parties agree . . . that [the student] was handcuffed
by [one officer] while on the ground[.]”). The district court found that “the arrest was not
done in an extraordinary manner” and that the force used to handcuff the student was not
excessive. Id. at *4. By contrast, Curran’s arrest may well have been done in an
“extraordinary manner.” She was not simply handcuffed; she was also “slammed” against a
wall. Arrests, especially ones involving unarmed persons, typically do not require slamming
the arrestee into a wall. Handcuffing, however, is a ubiquitous practice in performing an
arrest, and we have repeatedly stated that handcuffing alone—without more—is not
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to his encounter with Curran. Instead, he relies on it for the proposition that
police officers are afforded considerable latitude in “tense, uncertain, and
rapidly evolving” situations. See Poole, 691 F.3d at 629 (internal quotation
marks and citation omitted). No doubt our case law has repeatedly recognized
as much, but the encounter between the plaintiff and law enforcement in
Poole—a roadside stop in which all of the alleged force by officers occurred
while the suspect was still exhibiting resistance, 691 F.3d at 625–26—
remained in that “rapidly evolving” state throughout. As found by the district
court in this case, there is at least some evidence that all of the challenged force
occurred after Curran had stopped resisting. For that reason alone, Poole is
not controlling.
       Unlike Poole, Manis speaks to the question presented by this appeal:
whether disputed issues of fact are material to Aleshire’s qualified immunity
defense. The court in Manis found only two facts material to the officers’
decision to use deadly force: that the decedent reached under the seat of his
vehicle and that he moved as if he had obtained what he sought. 585 F.3d at
844. Because no evidence in the summary judgment record disputed those
facts, qualified immunity applied. Id. at 844–47. The court noted a host of
other, disputed facts, but concluded that “none . . . bear[s] on whether Manis,
in defiance of the officers’ contrary orders, reached under the seat of his vehicle
and appeared to retrieve an object that [one officer] reasonably believed to be
a weapon.” Id. at 845. In short, the court was satisfied that two undisputed
facts regarding the encounter justified the officers’ use of deadly force. 7



constitutionally excessive. See, e.g., Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007); Glenn
v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (“This court finds that handcuffing too
tightly, without more, does not amount to excessive force.”).
        7 Manis came to the Fifth Circuit in a different posture than this case. The district

court in Manis denied summary judgment without identifying the specific fact disputes that
precluded qualified immunity. 585 F.3d at 843. Rather than remand for clarification, the
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       Aleshire believes that, like the decedent reaching under the seat in
Manis, Curran battering him is the only fact material to his first use of force;
that the battery conviction alone places his actions in the “hazy border between
excessive and acceptable force.” Brosseau v. Haugen, 543 U.S. 194, 201 (2004)
(internal quotation marks and citation omitted). But the district court found
a fact dispute concerning whether the battery and the first use of force were
temporally disconnected. No similar fact dispute existed in Manis. We cannot
assess, given our limited interlocutory review, whether this fact dispute is not
genuine. And we agree with the district court that the fact dispute is material.
We therefore find no legal error in the district court’s conclusion that slamming
a student’s head into the wall after her resistance had ceased is a violation of
clearly established law. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per
curiam) (“[C]ourts must take care not to define a case’s ‘context’ in a manner
that imports genuinely disputed factual propositions.”).
                                B.     Second Use of Force
       Aleshire raises a narrower challenge to the district court’s ruling that
fact issues precluded qualified immunity on the second use of force. He does
not dispute that Curran’s version of events establishes a violation of clearly
established law, and with good reason. To recap, the second use of force
occurred near the end of a three-minute-long walk from outside the school—
where the battery and handcuffing took place—to the disciplinarian’s office
inside the school. Curran states that she did not struggle, try to get away, or
make any sudden movement during the walk.                       Her description of being
gratuitously slammed, while handcuffed, into a wall long after her resistance


court “scour[ed] the record and determine[d] what facts the plaintiff may be able to prove at
trial” in order to “resolve the legal issues” involved in the interlocutory appeal. Id. (internal
quotation marks and citation omitted). Because the district court here specifically identified
the factual dispute which it believed precluded summary judgment on qualified immunity,
we are neither called upon nor empowered to scour the record in search of a different answer.
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had ceased would unquestionably constitute excessive force. The district court
thus found that the reasonableness of the second use of force turned on
whether Curran “was trying to escape or otherwise resist, as is claimed by
Aleshire, or if it was an arbitrary use of force, as is claimed by [Curran.]” ROA
1894.
        Recognizing that Curran’s testimony would establish an excessive force
claim, Aleshire instead invites the court to view the video and still pictures and
draw its own conclusions about whether Curran exhibited signs of resistance.
We are allowed to do so under Scott v. Harris, 550 U.S. 372 (2007), which
created an unexplained exception to the materiality/genuineness rule cited
above. See Fuentes, 2015 WL 2151832, at *5 (recognizing the tension between
Scott and the rule that appeals courts handling qualified immunity
interlocutory appeals cannot review the genuineness of a fact dispute). Scott
instructs that a plaintiff’s version of the facts should not be accepted for
purposes of qualified immunity when it is “blatantly contradicted” and “utterly
discredited” by video recordings. 550 U.S. at 380–81.
        Aleshire argues that the still pictures in particular demonstrate that
Curran “suddenly [took] a long stride as if to escape, causing Deputy Aleshire
to lean backwards (an unnatural movement) in order to prevent her from
escaping.”    Having viewed the videos and the still pictures, Aleshire’s
interpretation of the visual evidence is debatable at best. Of eighteen video
clips, only two capture portions of the second use of force. The others show
nothing more than Aleshire escorting a handcuffed Curran without incident.
        The two clips which capture the second use of force do not resolve the
parties’ dispute.    Importantly, Aleshire “slammed” Curran into a wall
immediately after they had rounded a corner. This means that one video clip
shows them immediately before the use of force, while the other shows them
during and after. But there is no single, uninterrupted take of the entire event.
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      The still pictures emphasized by Aleshire are taken from the first of
these two video clips, which he claims show that Curran increased her stride.
He argues that he reasonably interpreted the change in her gait as an attempt
to escape. But we observe no appreciable difference in the length of Curran’s
stride between the first frame and the third frame (where she disappears from
view). Although the still pictures show Aleshire leaning backwards, Curran is
not in view at the time. It is thus impossible to tell whether Aleshire is leaning
backwards in response to something Curran has done, or if he is leaning
backwards because he is throwing her against the wall.
      We therefore agree with the district court that the video and still picture
evidence of the second use of force is “inconclusive.” ROA 1894. Because the
visual evidence does not refute Curran’s testimony, we must accept it for
purposes of this appeal.     And under Curran’s version of events, she was
handcuffed and subdued when Aleshire pushed her into the wall outside the
disciplinarian’s office—making this an obvious case of excessive force sufficient
to defeat Aleshire’s claim of qualified immunity. See Bush, 513 F.3d at 501–
02 (holding that officer had fair warning “he could not forcefully slam [an
arrestee’s] face into a vehicle while she was restrained and subdued”).
                                       IV.
      Neither Curran’s battery conviction nor the photographic and video
evidence conclusively resolves the factual disputes identified by the district
court in its summary judgment order. These factual disputes are material to
Aleshire’s qualified immunity defense. Accordingly, we DISMISS the appeal
for lack of jurisdiction.




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