                        REVISED May 24, 2013

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUITUnited States Court of Appeals
                                                                 Fifth Circuit

                                                            FILED
                                                           May 15, 2013
                                No. 11–41109
                                                           Lyle W. Cayce
                                                                Clerk
REYNALDO RAMIREZ,

                                          Plaintiff – Appellee
v.

JOSE “TASER JOE” MARTINEZ, Individually,

                                          Defendant – Appellant



                Appeal from the United States District Court
                     for the Southern District of Texas


Before JONES, GARZA and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
      This is a false arrest and excessive force case following an altercation
between Reynaldo Ramirez (“Ramirez”) and Deputy Jose “Taser Joe” Martinez
(“Martinez”) in Jim Wells County, Texas. Martinez appeals the district court’s
denial of summary judgment based on qualified immunity on Ramirez’s 42
U.S.C. § 1983 claims and state-law official immunity on Ramirez’s state-law
claims. We REVERSE in part and DISMISS in part.
                                       No. 11–41109

                                               I
       Deputy Martinez, a Jim Wells County sheriff’s deputy, arrived with other
officers at a landscaping business owned by Ramirez to execute a warrant for the
arrest of Ramirez’s sister-in-law, Diana Flores.1 Ramirez was not the subject of
any warrant. Deputy Martinez entered the business and asked a man and a
woman inside whether Flores was present; both said she was not. Martinez then
exited the building.
       Ramirez arrived at the business while Deputy Martinez and the other
officers were still present. A news crew was also present, filming the scene.2
Ramirez claims the officers had their guns drawn and were pointing the guns at
his employees, who were kneeling down. Ramirez approached Deputy Michael
Teodecki, another Jim Wells County sheriff’s deputy, and asked him to explain
what was happening. Teodecki said Martinez was in charge of the operation and
did not disclose any other information.
       Ramirez located Deputy Martinez and asked Martinez what was
happening and why the officers were there. The two exchanged profanities.
Martinez yelled, “You shut your mouth or I will take you to jail!” Ramirez
simultaneously yelled, “This is my business, ok?” twice. Martinez yelled, “Turn
around and put your hands behind your back!”                    Ramirez did not comply.
Martinez grabbed Ramirez’s hand and told him to turn around, but Ramirez
pulled his arm away.          Martinez immediately tased Ramirez in the chest.
Ramirez testified that he did not resist after he pulled his arm away.



       1
          Because this appeal comes to us from the defendant’s motion for summary judgment,
we construe the summary judgment record in the light most favorable to the non-movant
plaintiff. See Little v. Shell Exploration & Prod. Co., 690 F.3d 282, 286 (5th Cir. 2012)
(viewing evidence in light most favorable to non-movant parties); see also FED. R. CIV. P. 56.
       2
          A videotape, captured by the nearby news crew, recorded some of the events
underlying Ramirez’s claims. The tape’s admissibility is not in dispute, though its contents are
not necessarily a clear depiction of the events. See Part II.B. infra.

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                                No. 11–41109

      Martinez and several officers forced Ramirez to the ground. While doing
so, an officer yelled at Ramirez, “Stop resisting!” and, “Get on the ground!”
Ramirez fell to his knees, and the officers forced him to the ground on his
stomach and restrained him with handcuffs. Martinez tased Ramirez a second
time while lying face-down on the ground in handcuffs. Martinez arrested
Ramirez, who was charged with disorderly conduct. The charge was later
dismissed.
      Ramirez filed suit in the United States District Court for the Southern
District of Texas, naming as defendants Jim Wells County and several officers,
including Deputy Martinez. Ramirez alleged excessive force, false arrest, and
malicious prosecution claims under 42 U.S.C. § 1983 and Texas state law claims,
including assault and battery and false arrest and imprisonment. Ramirez
voluntarily dismissed all defendants except Martinez.
      Martinez moved for summary judgment on the basis of qualified immunity
and state-law official immunity. A magistrate judge recommended the district
court grant the motion as to Ramirez’s § 1983 claim for malicious prosecution
but deny the motion as to the remainder of Ramirez’s federal claims. The
magistrate judge made no recommendation on Ramirez’s state-law claims,
stating Martinez had not raised these claims in his motion for summary
judgment. The district court adopted the magistrate judge’s recommendations,
but determined Martinez had in fact raised the state-law claims in his motion
for summary judgment.      The district court nevertheless denied summary
judgment on these state-law claims. Thus, the district court granted Martinez’s
motion for summary judgment as to Ramirez’s § 1983 claim for malicious
prosecution but denied the motion as to all other claims. Martinez timely
appealed.




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                                   No. 11–41109

                                          II
                                          A
      The denial of a motion for summary judgment is ordinarily a non-final,
non-appealable order; however, when such a motion is based upon qualified
immunity, its denial is a collateral order that is immediately reviewable to the
extent the denial was based on an issue of law. Brown v. Strain, 663 F.3d 245,
248 (5th Cir. 2011); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)
(holding denial of claim of qualified immunity is appealable to extent it turns on
issue of law). When reviewing an interlocutory appeal asserting qualified
immunity, we lack the jurisdiction to review the district court’s decision that a
genuine issue of fact exists. Brown, 663 F.3d at 248. Instead, this court’s
jurisdiction is limited to determining “whether the district court erred in
assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.”               Id. (internal
quotation marks omitted). Whether we have appellate jurisdiction to review the
district court’s disposition of state law matters “is a question of federal, not state,
law.” Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996). “[O]rders premised on
the denial of [official] immunity under Texas state law are appealable in federal
court to the same extent as district court orders premised on the denial of federal
law immunity.” Id. at 804; accord Kinney v. Weaver, 367 F.3d 337, 346 n.7 (5th
Cir. 2004) (en banc) (“[O]rders denying official immunity under Texas law are
immediately appealable to the same extent as denials of qualified immunity
under federal law.”). Therefore, we have jurisdiction to review the district
court’s denial of summary judgment based on both federal qualified immunity
and Texas official immunity only to the extent the denial was based on an issue
of law. Cantu, 77 F.3d at 804.
      We review the district court’s denial of summary judgment de novo.
McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). Summary judgment

                                          4
                                   No. 11–41109

is appropriate when there is no genuine issue of material fact and the moving
party has shown it is entitled to judgment as a matter of law. Id. A dispute is
“genuine” if the evidence is sufficient for a reasonable jury to return a verdict for
the nonmoving party. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000). A fact issue is “material” if its resolution could affect the outcome of
the action. Id. We construe all facts and all reasonable inferences in the light
most favorable to Ramirez, the non-moving party. McFaul, 684 F.3d at 571.
                                         B
      Related to the appropriate standard of review is our consideration of Scott
v. Harris, 550 U.S. 372 (2007).       Martinez argues that because there is a
videotape partially capturing the altercation at issue, this court should not view
the facts in the light most favorable to Ramirez, but instead should rely on the
facts established by the video recording and defer to Ramirez’s version of any
remaining relevant facts. See generally Scott v. Harris, 550 U.S. 372 (2007).
Scott involved a § 1983 claim for excessive force stemming from injuries the
plaintiff received when his vehicle crashed while fleeing from a county deputy.
Id. at 374–76. In reviewing the denial of the deputy’s motion for summary
judgment based on qualified immunity, the Supreme Court determined the lower
courts were wrong to accept the version of facts provided by the plaintiff when
that version was contradicted by a videotape of the chase and crash. Id. at
378–81. The plaintiff had contended he remained in control of his vehicle at all
times while he was driving, slowing down and using his indicator lights for turns
at intersections, and he did not pose a threat to any other motorists or
pedestrians. Id. at 378–79. The videotape, by contrast, showed the plaintiff
racing down the road at a very high speed, swerving around more than a dozen
other cars, forcing cars onto the shoulder of the road, crossing the double-yellow
line, and running multiple red lights. Id. at 379. The Court concluded, “When
opposing parties tell two different stories, one of which is blatantly contradicted

                                         5
                                  No. 11–41109

by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Id. at 380.
      Scott does not control our standard of review here because it is
distinguishable. There, the Court determined the plaintiff’s version of events
was so “blatantly contradicted” by the video that “no reasonable jury” could
believe him. Id. Here, the video does not so blatantly contradict the version of
events told by Ramirez that no reasonable jury could believe his version.
      The contents of the video are too uncertain to discount Ramirez’s version
of the events under Scott. When the videotape begins, Martinez and Ramirez
are already yelling at each other. A struggle ensues, but it is unclear exactly
what or who precipitates and what constitutes that struggle. There appear to
be about five people involved, but none of their faces are visible on the videotape
until Ramirez is on his knees. The tape only establishes that the officers forced
Ramirez to the ground, an officer placed a black object against Ramirez’s back,
and Ramirez screamed twice.
      Martinez asserts we must disregard Ramirez’s version of events on
summary judgment because the video shows Ramirez tried to punch him.
Although the video shows the struggle described above, it does not clearly show
a punch or every particular element of the altercation. The video does not
blatantly contradict Ramirez’s version of the facts; accordingly, we view the
evidence in the light most favorable to Ramirez.
                                       III
      On the merits, Martinez contends the district court erred in (1) denying
qualified immunity on Ramirez’s false arrest claim, (2) denying qualified
immunity on Ramirez’s excessive force claim, and (3) denying official immunity
on Ramirez’s state law claims.



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                                 No. 11–41109

      “The doctrine of qualified immunity protects public officials from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Brown, 663 F.3d at 249 (internal quotation marks omitted). To
determine whether a public official is entitled to qualified immunity, we decide
“(1) whether the facts that the plaintiff has alleged make out a violation of a
constitutional right; and (2) whether the right at issue was clearly established
at the time of the defendant’s alleged misconduct.” Id. (internal quotation marks
omitted) (citing Pearson v. Callahan, 555 U.S. 223, 230–33 (2009)). A right is
clearly established when “it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Jones v. Lowndes Cnty.,
Miss., 678 F.3d 344, 351 (5th Cir. 2012) (citation omitted). Once a defendant has
raised qualified immunity, the burden shifts to the plaintiff to demonstrate that
qualified immunity does not apply. Id.
                                        A
      Martinez asserts he is entitled to qualified immunity on Ramirez’s false
arrest claim because Martinez thought he had probable cause to arrest Ramirez
for three separate offenses: resisting arrest, attempted assault, and interference
with public duties, all of which are violations of Texas law. In order to make a
lawful arrest, an officer must have probable cause to believe the suspect
committed a crime. Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004).
“Probable cause exists when the totality of facts and circumstances within a
police officer’s knowledge at the moment of arrest are sufficient for a reasonable
person to conclude that the suspect had committed or was committing an
offense.” Id. (internal quotation marks omitted). If an officer reasonably but
mistakenly believes that probable cause exists, he is entitled to qualified
immunity. Club Retro, LLC v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009).



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                                        No. 11–41109

       The facts Ramirez alleges do not make out a constitutional violation in the
form of false arrest, and therefore we do not reach the issue of whether any
violation was clearly established at the time of the conduct. See Brown, 663 F.3d
at 249. Martinez asserts probable cause existed to believe that Ramirez was
resisting arrest.3 In Texas, the act of resisting can supply probable cause for the
arrest itself. For example, in Padilla v. Mason, a Texas state court stated:
       When Mason touched Padilla’s elbow in an effort to turn or guide
       her around to face the vehicle, she pulled her arm away, nearly
       striking Mason in the upper body, and stated, “You will not arrest
       me.” At that point, a reasonable law enforcement officer would have
       believed that he had probable cause to arrest Padilla for resisting
       arrest and was authorized to use force to secure the arrest.
169 S.W.3d 493, 504 (Tex. App.—El Paso 2005, pet. denied).
       Ramirez stated in his deposition that he pulled his arm out of Martinez’s
grasp as Martinez was attempting to arrest him. He stated, “First of all, he
grabbed my—grabbed my hand, told me to turn around, and I didn’t. . . . I don’t
think I pushed him. But I did—I did snug back, you know.” The great weight of
Texas authority indicates that pulling out of an officer’s grasp is sufficient to
constitute resisting arrest. See Pumphrey v. State, 245 S.W.3d 85, 89 (Tex.
App.—Texarkana 2008, pet. ref’d) (footnote omitted) (“[W]e hold that the statute
authorizes a conviction for resisting arrest when the defendant actively pulls
against an officer’s established grasp of the defendant during an arrest
attempt.”); Torres v. State, 103 S.W.3d 623, 627 (Tex. App.—San Antonio 2003,
no pet.) (“[A] person who uses force in order to shake off an officer’s detaining


       3
         The offense of Resisting Arrest is defined in relevant part as follows:
       (a) A person commits an offense if he intentionally prevents or obstructs a
       person he knows is a peace officer or a person acting in a peace officer’s presence
       and at his direction from effecting an arrest, search, or transportation of the
       actor or another by using force against the peace officer or another.
       (b) It is no defense to prosecution under this section that the arrest or search
       was unlawful.
Tex. Penal Code Ann. § 38.03 (West 2009).

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                                       No. 11–41109

grip, whether by pushing or pulling, may be guilty of resisting arrest under
section 38.03.”); Bryant v. State, 923 S.W.2d 199, 207 (Tex. App.—Waco 1996,
pet. ref’d) (emphasis removed) (“[P]ulling one’s arm in an attempt to shake off
an officer’s detaining grip could amount to force against that officer [under
section 38.03].”); Hopper v. State, 86 S.W.3d 676, 679 (Tex. App.—El Paso 2002,
no pet.) (holding “a person who uses force in order to shake off an officer’s
detaining grip, whether by pushing or pulling, may be guilty of resisting arrest
under Section 38.03” and explicitly disavowing Raymond v. State, 640 S.W.2d
678, 679 (Tex. App.—El Paso 1982, pet. ref’d), which held arrestee’s act of
pulling away, as opposed to pushing toward, officer in shaking off officer’s grip
insufficient to constitute resisting arrest).4 Therefore, under Texas law Deputy
Martinez could have reasonably concluded that Ramirez committed the offense
of resisting arrest when Ramirez pulled his arm away from Deputy Martinez’s
grasp.
       Ramirez alternatively asserts that any resistance was justified by Texas
Penal Code § 9.31(c), which states:
       The use of force to resist an arrest or search is justified:
       (1) if, before the actor offers any resistance, the peace officer (or
       person acting at his direction) uses or attempts to use greater force
       than necessary to make the arrest or search; and
       (2) when and to the degree the actor reasonably believes the force is
       immediately necessary to protect himself against the peace officer’s
       (or other person’s) use or attempted use of greater force than
       necessary.


       4
          One Texas court held pulling out of an officer’s grasp is insufficient to constitute
resisting arrest. Mayfield v. State, 758 S.W.2d 371, 374 (Tex. App.—Amarillo 1988, no writ)
(citing Young v. State, 622 S.W.2d 99, 100–01 (Tex. Crim. App. 1981)) (“The evidence is
insufficient to establish resisting arrest where the accused merely pulls away from the
arresting officer.”). The Texas Court of Criminal Appeals case Mayfield relied on, however,
dealt with an arrestee pulling away from an officer after being arrested, and held, “The arrest
was complete . . . and thus the later violent actions by appellant could not have been in
resistance to the arrest.” Young, 622 S.W.2d at 100.

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                                  No. 11–41109

That is, Ramirez asserts any resistance was offered in response to Martinez’s use
of greater force than necessary in the form of the first tasing. The problem with
this line of reasoning is that it could only possibly apply to the ensuing struggle,
as Ramirez stated in his deposition that he pulled his arm out of Martinez’s
grasp before any tasing began. As discussed, the act of pulling his arm out of
Martinez’s grasp is enough, standing alone, to constitute resisting arrest, so it
matters not whether the further resistance was justified under § 9.31(c) or
whether a reasonable officer on the scene would have known such resistance was
justified. Deputy Martinez had probable cause to arrest Ramirez based on the
fact that Ramirez pulled his arm out of Martinez’s grasp; therefore, the arrest
was supported by probable cause.
      Because we hold that under Ramirez’s version of the facts a reasonable
officer at the scene would have thought he had probable cause to arrest Ramirez
for resisting arrest, we do not reach Deputy Martinez’s assertion that he had
probable cause to arrest Ramirez for attempted assault and interference with
public duties. As we held in Wells v. Bonner, “[i]f there was probable cause for
any of the charges made—here either disorderly conduct or resisting a
search—then the arrest was supported by probable cause, and the claim for false
arrest fails.” 45 F.3d 90, 95 (5th Cir. 1995). Because there was no false arrest,
no constitutional violation occurred, and, accordingly, we have no occasion to
reach the part of the qualified immunity analysis that asks whether the law was
clearly established. See Brown, 663 F.3d at 249. Thus, the district court erred
by denying Deputy Martinez qualified immunity on Ramirez’s false arrest claim.
                                         B
      To establish Martinez violated his constitutional right to be free from
excessive force, Ramirez must show: “(1) an injury (2) which resulted from the
use of force that was clearly excessive to the need and (3) the excessiveness of
which was objectively unreasonable.” Rockwell v. Brown, 664 F.3d 985, 991 (5th

                                        10
                                  No. 11–41109

Cir. 2011) (internal quotation marks omitted). If he can establish a violation,
then we determine whether the law was clearly established at the time of
Martinez’s conduct. Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008). Whether
the force was reasonable under the Fourth Amendment is determined “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. (internal quotation mark omitted). In determining whether
a use of force was reasonable, we look to the totality of the circumstances,
Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012), giving “careful attention to
the facts and circumstances of each particular case, 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” (the “Graham factors”). Graham v. Conner, 490 U.S.
386, 396 (1989).
      First, Ramirez must assert an injury. In his complaint, Ramirez alleges,
“As a result of the Defendant Martinez’s actions,” Ramirez “sustained numerous
injuries to his body, including, but not limited to, contusions and abrasions to his
body, and burn marks from the taser probes.” Martinez does not challenge these
allegations of injury and causation on appeal. Therefore, we need determine
only whether Ramirez succeeds in showing Martinez’s use of force was clearly
excessive to the need and objectively unreasonable.
      Martinez asserts his conduct was not excessive to the force needed nor
objectively unreasonable. We have not addressed a fact pattern precisely on
point, but we have held the use of certain force after an arrestee has been
restrained and handcuffed is excessive and unreasonable. Bush, 513 F.3d at
501–02.   In Bush, we held a police officer used excessive force that was
objectively unreasonable and in violation of clearly established law when he
forcefully slammed a suspect’s face into a vehicle after subduing her and placing
her in handcuffs. Id. On the other hand, we recently held the use of a taser was

                                        11
                                      No. 11–41109

not excessive where the arrestee was resisting arrest and the officers ceased use
of the taser once the arrestee was handcuffed and subdued. Poole v. City of
Shreveport, 691 F.3d 624, 626 (5th Cir. 2012).
       Turning to the case on appeal, we hold Ramirez’s version of the facts as
supported by the summary judgment record is sufficient to establish under the
Graham factors that Martinez used excessive force. See Haggerty v. Tex. State
Univ., 391 F.3d 653, 655 (5th Cir. 2004) (“In an interlocutory appeal in which the
defendant asserts qualified immunity, to the extent that the district court found
that genuine factual disputes exist, we accept the plaintiff’s version of the facts
(to the extent reflected by proper summary judgment evidence) as true.”). First,
we consider the severity of the crime in question. Although Ramirez pulled his
arm out of Martinez’s grasp, the district court found there was a genuine issue
of material fact as to any subsequent resistance up until Martinez tased him
after subduing and handcuffing him. Therefore, accepting Ramirez’s version of
the facts as true, the first Graham factor weighs slightly against Martinez.
Second, a reasonable officer could not have concluded Ramirez posed an
immediate threat to the safety of the officers by questioning their presence at his
place of business or laying on the ground in handcuffs. Pulling his arm out of
Martinez’s grasp, without more, is insufficient to find an immediate threat to the
safety of the officers. Third, as in the first Graham factor, according to Ramirez
the only resistance he offered was pulling his arm out of Martinez’s grasp; he
alleges several officers then forced him to the ground without resistance on his
part. Viewing the facts of this record in the light most favorable to Ramirez, any
reasonable officer in Martinez’s place would have recognized Martinez’s conduct
was objectively unreasonable under the Graham factors.5 The district court

       5
        The dissent is mistaken not to take Ramirez’s version of the facts as true when
applying Saucier v. Katz to the facts here. 533 U.S. 194 (2001). The dissent implies the
majority intentionally left out of the analysis Martinez’s assertion that he “interpreted
Ramirez’s ‘pulling away’ as raising his arm in order to attempt to punch him, and that is why

                                             12
                                        No. 11–41109

properly determined that a reasonable officer would view Martinez’s use of force
under Ramirez’s version of the facts to be clearly excessive and objectively
unreasonable under the circumstances. Thus, a jury must determine the facts
at trial.
       Next, the district court did not misapply the law in holding Deputy
Martinez’s alleged excessive and unreasonable force under Ramirez’s version of
the events violated clearly established law. We have explained the ‘clearly
established’ prong as follows:
       Qualified immunity should not be denied unless the law is clear in
       the more particularized sense that reasonable officials should be “on
       notice that their conduct is unlawful.” Saucier v. Katz, 533 U.S.
       194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The central
       concept is that of “fair warning”: The law can be clearly established
       “despite notable factual distinctions between the precedents relied
       on and the cases then before the Court, so long as the prior decisions
       gave reasonable warning that the conduct then at issue violated
       constitutional rights.” Hope, 536 U.S. at 740, 122 S.Ct. 2508
       (internal quotation marks omitted).
Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc). In Newman v.
Guedry, we addressed whether the law on the use of tasers was clearly
established at the time of an event that occurred before the incident between
Ramirez and Martinez:



Martinez tased the arrestee.” Ante at 3. Martinez did not testify he interpreted Ramirez’s
pulling away as raising his arm for a punch; rather, Martinez testified Ramirez pulled his arm
away and put his hand behind his back. Martinez testified he grasped and pulled on Ramirez’s
shirt, and only then did Ramirez attempt to punch him. (As discussed above, Martinez’s heavy
reliance in his briefing on the unclear video to prove the fact of the punch is misplaced. See
Part II.B supra.) It is not the purpose of Ramirez’s allegedly raised arm that is in dispute, but
rather it is whether Ramirez raised his arm at all. Cf. Saucier, 533 U.S. at 198 (“It seems
agreed that respondent placed his feet somewhere on the outside of the van, perhaps the
bumper, but there is a dispute whether he did so to resist.”). In Saucier, the dispute as to
resistance centered on the subjective intent of the arrestee, so a reasonable officer could have
thought the arrestee would “fight back.” Id. at 205. Here, without the alleged raised arm a
reasonable officer could not have even mistakenly thought Ramirez’s purpose was to punch
Martinez.

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                                 No. 11–41109

      Guedry contends that he had no reasonable warning that tasing
      Newman multiple times violated Newman’s constitutional rights,
      because there was then no binding caselaw on the appropriate use
      of tasers. Lawfulness of force, however, does not depend on the
      precise instrument used to apply it. Qualified immunity will not
      protect officers who apply excessive and unreasonable force merely
      because their means of applying it are novel.
703 F.3d 757, 763–64 (5th Cir. 2012) (footnotes omitted). Further, in Bush we
held an officer used excessive and unreasonable force when he forcefully
slammed an arrestee’s face into a vehicle when the arrestee was handcuffed and
subdued. Bush, 513 F.3d at 501. Here, Ramirez alleged he posed no threat to
the officers and yet was tased twice, including once after he was handcuffed and
subdued while lying face down on the ground, in violation of clearly established
law. Therefore, the district court did not err in denying Martinez qualified
immunity on Ramirez’s claim for excessive force. Ramirez’s version of the facts,
which the district court found supported by the summary judgment record, does
not indicate the district court committed a “purely legal” error, Kinney, 367 F.3d
at 347, and we lack jurisdiction to review the district court’s finding “that a
genuine issue of fact exists regarding whether [Martinez] did, in fact, engage in
. . . conduct [that was objectively unreasonable in light of clearly established
law].” Id. at 346.
                                       IV
      Deputy Martinez moved for summary judgment on Ramirez’s state-law
claims for assault and battery and false arrest and imprisonment on the basis
of official immunity. Official immunity is an affirmative defense that protects
government employees from personal liability for certain actions taken in the
course of their employment. Telthorster v. Tennell, 92 S.W.3d 457, 460–61 (Tex.
2002). A government employee is entitled to official immunity for “(1) the
performance of discretionary duties (2) that are within the scope of the
employee’s authority, (3) provided that the employee acts in good faith.” Id. at

                                       14
                                   No. 11–41109

461.   A government employee must “conclusively establish” each of these
elements in order to be entitled to summary judgment on the basis of official
immunity. Id.
       First, “an arrest is a discretionary act.” Cherqui v. Westheimer St. Festival
Corp., 116 S.W.3d 337, 350 n.17 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Second, Ramirez does not dispute the arrest was within the scope of Martinez’s
authority. See Telthorster, 92 S.W.3d at 461 (treating elements of official
immunity as “conclusively established” when they were not disputed by the
parties). Third, to establish good faith, an officer must show that “a reasonably
prudent officer, under the same or similar circumstances, could have believed
that his conduct was justified based on the information he possessed when the
conduct occurred.” Telthorster, 92 S.W.3d at 465. Good faith is to be measured
“against a standard of objective legal reasonableness, without regard to the
officer’s subjective state of mind.” Wadewitz v. Montgomery, 951 S.W.2d 464, 466
(Tex. 1997).
       The factual basis for Ramirez’s claim for false arrest and imprisonment is
the same as the basis for his § 1983 claim for false arrest. For the reasons
discussed above, a reasonable officer acting in good faith could have concluded
probable cause existed for resisting arrest based on Ramirez’s pulling his arm
out of Martinez’s grasp. Therefore, Martinez is entitled to official immunity on
Ramirez’s claim for false arrest and imprisonment. The district court erred by
denying Martinez official immunity for this claim.
       The factual basis for Ramirez’s claim for assault and battery is the same
as the basis for his § 1983 claim for excessive force. As discussed above, no
reasonable officer acting in good faith could have believed Deputy Martinez’s
specific conduct was justified based on Ramirez’s version of the facts. Therefore,
the district court correctly denied Martinez’s motion for summary judgment on
the basis of official immunity for this claim.

                                         15
                                 No. 11–41109

                                       V
      In summary, we hold Deputy Martinez is entitled to qualified immunity
on Ramirez’s false arrest claim but not on Ramirez’s excessive force claim. In
addition, Deputy Martinez is entitled to official immunity on Ramirez’s state-law
false arrest and imprisonment claim but not on Ramirez’s state-law assault and
battery claim. For the reasons we have stated in this opinion, we REVERSE in
part and DISMISS in part.




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                                 No. 11-41109

EDITH H. JONES, Circuit Judge, dissenting.

      With respect to my colleagues, I must dissent to the extent the majority
opinion denies qualified immunity to Officer Martinez for his alleged use of
unconstitutionally excessive force against arrestee Ramirez. Between this
opinion and another recently issued in this court, Newman v. Guedry, 703 F.3d
757 (5th Cir. 2012), we seem to have departed from the Supreme Court’s clear
and repeated statements regarding qualified immunity for law enforcement
officers.
      In brief, the Supreme Court has held that given the perilous circumstances
under which much law enforcement work is carried out and the inevitable need
for split-second decisions, a plaintiff must overcome two levels of
unreasonableness to get to the jury on a claim for a Fourth Amendment
violation. Saucier v. Katz, 533 U.S. 194, 204–05,121 S. Ct. 2151, 2158 (2001);
Anderson v. Creighton, 483 U.S. 635, 640–44, 107 S. Ct. 3034, 3039–41 (1987).
The plaintiff must first create a genuine issue of material fact that the force
used under the circumstances was objectively unreasonable. Graham v. Connor,
490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989). He or she must additionally
show a genuine, material fact issue that the law was so “clear,” under reasonably
analogous circumstances confronted by the officer, that “no reasonable officer”
would have used that quantum of force. Brosseau v. Haugen, 543 U.S. 194, 201,
125 S. Ct. 596, 600 (2004) (reversing the Ninth Circuit and awarding qualified
immunity following police shooting of suspect). The standard thus shields all
but the plainly incompetent officers or those who knowingly violate the law.
Anderson, 483 U.S. at 638, 107 S. Ct. at 3038. The standard also explicitly
operates to “protect officers from the sometimes ‘hazy border between excessive
and acceptable force.’” Saucier, 533 U. S. at 206, 121 S. Ct. at 2158 (citation
omitted).


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      What this court’s recent decisions seem to suggest, however, is that officers
can be liable even if they are well within that hazy border. Saucier explains why
this is wrong:
      If an officer reasonably, but mistakenly, believed that a suspect was
      likely to fight back, for instance, the officer would be justified in
      using more force than in fact was needed.
                                       ...
      The concern of the [qualified] immunity inquiry is to acknowledge
      that reasonable mistakes can be made as to the legal constraints on
      particular police conduct. . . . An officer might correctly perceive all
      of the relevant facts but have a mistaken understanding as to
      whether a particular amount of force is legal in those circumstances.
                                         ...
            Graham and Anderson refute the excessive force/probable
      cause distinction on which much of respondent’s position seems to
      depend. The deference owed officers facing suits for alleged
      excessive force is not different in some qualitative respect from the
      probable-cause inquiry in Anderson. . . . The same analysis is
      applicable in excessive force cases, where in addition to the
      deference officers receive on the underlying constitutional claim,
      qualified immunity can apply in the event the mistaken belief was
      reasonable.

Id. at 205–06, 121 S. Ct. at 2158–59. In Saucier, the Ninth Circuit was reversed,
and qualified immunity held appropriate as a matter of law, where police
roughly removed the defendant, a suspect, from the scene of a U.S. Vice
Presidential speech, jostled his leg that had a brace on it, and shoved him into
a trailer for awhile. The Court held that any mistake the officers made was,
under the circumstances, reasonable, despite the fact that, as it earlier noted,
“there is a dispute whether he did so to resist.” Id. at 198, 121 S. Ct. at 2154.
      Compare Saucier to the facts at issue here. The officers arrived at
Ramirez’s landscaping business to serve an arrest warrant on his sister-in-law.
When Ramirez came on the scene, he began arguing with Officer Martinez.



                                        18
                                       No. 11-41109

Martinez ordered him to turn around and submit to handcuffing. As the
majority opinion initially describes the summary judgment evidence,
       Ramirez did not comply. Martinez grabbed Ramirez’s hand and told
       him to turn around, but Ramirez pulled his arm away. Martinez
       immediately tased Ramirez in the chest. Ramirez testified that he
       did not resist after he pulled his arm away.

Later on, the majority concludes that because Ramirez pulled his arm away,
Officer Martinez could reasonably believe that he was resisting arrest in
violation of Texas law.         The majority opinion barely notes that Martinez
interpreted Ramirez’s “pulling away” as raising his arm in order to attempt to
punch him, and that is why Martinez tased the arrestee. Given Ramirez’s
heated reaction and refusal to comply with Martinez’s order, Martinez could
have “reasonably, but mistakenly, believed that [the] suspect was likely to fight
back” and Martinez “would be justified in using more force than in fact was
needed.” Saucier, 533 U.S. at 205, 121 S. Ct. at 2158.
       The possible distinction between this case and Saucier is that Ramirez was
tased once more as he allegedly lay on the ground while handcuffed.
Fortunately, the majority does not treat this case as an indictment of the use of
tasers, but rather an incident that must be considered in totality through the
lens of Ramirez’s self-serving testimony.1 But as I have noted, Saucier found
qualified immunity appropriate even though there was a factual dispute
concerning the suspect’s degree of resistance.
       The totality of circumstances in Saucier furnishes strong support for
granting qualified immunity as a matter of law here.                     First, there was
reasonable cause to believe Ramirez violated Texas law. Second, Ramirez

       1
         This court has not often or in detail discussed the use of tasers to subdue suspects.
Although the decision is inapposite to this case, Draper v. Reynolds, 369 F.3d 1270, 1278 (11th
Cir. 2004), indicates that in some confrontations the use of a taser may well be preferable in
effecting arrests because it reduces the uncertainties and dangers surrounding hands-on
tactics.

                                              19
                                      No. 11-41109

admits he resisted handcuffing and pulled his arm away, and thus actively
resisted arrest. Third, Saucier reiterates that the right to make an arrest
“necessarily carries with it the right to use some degree of physical coercion or
threat thereof.” Id. at 208, 121 S. Ct. at 2160 (quoting Graham, 490 U.S. at 396,
109 S. Ct. at 1872). Fourth, as in Saucier, the degree of force used here could not
have been extreme; the majority opinion refers only to Ramirez’s claims of cuts
and bruises, taser burn marks, and temporary pain.                    Finally, the entire
confrontation lasted about a half minute and included scuffling after Ramirez
was on the ground. Officer Martinez had to react instinctively to a “tense,
uncertain, and rapidly evolving” situation. Graham, 490 U.S. at 397, 109 S. Ct.
at 1872.
       Balancing all these circumstances, a jury could not find that no
reasonable officer would have tased Ramirez two times. Even if Officer Martinez
made a mistake on the second tasing, Saucier, echoing the line of consistent
Supreme Court precedent, should shield his reasonable but mistaken conduct
from suit as well as liability.2
       The majority’s principal authorities are Newman, supra, and Bush v.
Strain, 513 F.3d 492 (5th Cir. 2008). Newman, as I have said, appears to suffer
from flawed analysis like this opinion. Bush, however, is inapposite because it
represents a far more extreme alleged use of force. The Supreme Court has
cautioned against applying the tests for excessive force and qualified immunity
at too high a level of generality. Brosseau, 543 U.S. at 198, 125 S. Ct at 599.
The plaintiff in Bush was a female detained for simple battery and resisting
arrest, whose face was allegedly shoved into the rear window of an auto after she
had been handcuffed. Unlike Ramirez, she suffered injuries to her face, teeth,



       2
        From this discussion, it follows that I would also grant immunity from Ramirez’s state
law claims because Texas law parallels the federal standards.

                                             20
                                 No. 11-41109

and jaw and incurred sizable medical expenses as a result. There is no one-size
fits all standard requiring resisting-arrest excessive force claims to be tried.
      Although I deplore official misconduct as much as does the majority, the
bars to holding law enforcement officers personally liable for damages are
necessarily and properly high.      Taking this case to a jury, in my view,
significantly erodes the protection of qualified immunity. I respectfully dissent.




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