                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                         F I L E D
                    In the                              December 29, 2005
United States Court of Appeals                        Charles R. Fulbruge III
          for the Fifth Circuit                               Clerk
              _______________

                m 05-20214
              Summary Calendar
              _______________




               NAOMI AUTIN,

                                          Plaintiff-Appellee,

                   VERSUS

    CITY OF BAYTOWN, TEXAS, ET AL.,

                                          Defendants,

              MICAH ALDRED,

                                          Defendant-Appellant.



        _________________________

  Appeal from the United States District Court
      for the Southern District of Texas
               m 4:04-CV-481
       _________________________
Before SMITH, GARZA, and PRADO,                           then repeatedly contact-tased Autin while phy-
  Circuit Judges.                                         sically forcing her to the ground. Autin hit her
                                                          head on a pole and suffered a severe
PER CURIAM:*                                              laceration.

   Micah Aldred challenges the denial of sum-                                    II.
mary judgment regarding an excessive force                   Autin sued Aldred, the City of Baytown,
claim brought by Naomi Autin. Finding no                  and a number of police and city officials, alleg-
error, we affirm.                                         ing a variet y of civil rights violations. The
                                                          district court awarded summary judgment to
                        I.                                the defendants on all of Autin’s claims except
   The district court relied on the following             for her excessive force claim against Aldred.
pertinent facts: On July 11, 2003, fifty-nine-            Aldred contends that as a state official, he is
year-old Autin went to her brother’s house to             entitled to summary judgment based on quali-
check the mail. When no one answered the                  fied immunity from the excessive force claim.
door, she became concerned about the occu-
pant, who she had reason to believe was seri-                                   III.
ously ill. Because she could hear the television              The standard of review we apply in an in-
loudly through the door, Autin began                      terlocutory appeal asserting qualified immunity
knocking on the door with a brick she found in            differs from the standard employed in typical
the yard, thinking this might get the occupant’s          appeals of summary judgment rulings. Kinney
attention. She then went to a neighbor’s                  v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004)
house to telephone her brother’s house.                   (en banc). Ordinarily, we review the denial of
   When this was unsuccessful, she contacted              summary judgment de novo, determining on
the Baytown Police Department, and Officer                our own review of the record whether a
Aldred came to the scene. Autin requested Al-             genuine issue of material fact exists. Id. In the
dred’s help in getting someone to answer the              qualified immunity context, however, we
door. When Aldred told her he could not                   consider only whether the district court erred
make anyone come to the door, Autin dis-                  in assessing the legal significance of the
missed Aldred and returned to the door to                 conduct the district court deemed sufficient to
continue knocking on it with the brick.                   overcome qualified immunity. Id.

    As Autin picked up the brick and ap-                     The district court properly took the view of
proached the door, Aldred attempted to use                the facts most favorable to Autin.1 We are to
his taser on her, but it malfunctioned, so he ap-         decide only whether that court erred in con-
proached her and attempted a contact tase,                cluding as a matter of law that Aldred was not
but the taser again malfunctioned, causing a
taser dart to penetrate Autin’s skin. Aldred
                                                             1
                                                              See Gonzales v. Dallas County, 249 F.3d 406,
                                                          411 (5th Cir.2001) (stating that “[o]n interlocutory
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-       appeal the public official must be prepared to con-
termined that this opinion should not be published        cede the best view of the facts to the plaintiff and
and is not precedent except under the limited cir-        discuss only the legal issues raised by the ap-
cumstances set forth in 5TH CIR. R. 47.5.4.               peal.”).

                                                      2
entitled to qualified immunity on these facts.          able. In Fourth Amendment excessive force
Such a review of the district court’s assess-           cases, the reasonableness question amounts to
ment of the legal consequences of the facts is          “whether the totality of the circumstances jus-
de novo. Id., at 349.                                   tifies a particular sort of seizure.” Tennessee
                                                        v. Garner, 471 U.S. 1, 8-9 (1985). Important
                       IV.                              factors to be considered include the severity of
    The Supreme Court has established a two-            the crime, whether the actor poses an immedi-
part test to be applied in determining whether          ate threat to the safety of the officer or others,
the presumption of qualified immunity is over-          and whether he is actively resisting arrest or
come. First, “taken in the light most favorable         attempting to evade arrest by flight. Graham v.
to the party asserting the injury, do the facts         Connor, 490 U.S. 386, 396 (1989).
alleged show the officer’s conduct violated a
constitutional right?” Saucier v. Katz, 533                 On the facts as presented by Autin and re-
U.S. 194, 201 (2001). Second, is the right              lied on by the district court, Autin was at most
violated clearly established?” Id. This second          committing the minor crime of criminal mis-
question must be answered in light of the spe-          chief. She posed no objective threat to Aldred
cific context of the case, not as a broad, gen-         or others and was not resisting or attempting
eral proposition. Brosseau v. Haugen, 543               to evade arrest. It is irrelevant that Aldred
U.S. 194 (2004) (citing Saucier, 533 U.S. at            claims he felt threatened by Autin because she
201). “The relevant, dispositive inquiry in de-         wielded a brick. The question is whether the
termining whether a right is clearly established        use of force was objectively reasonable under
is whether it would be clear to a reasonable of-        the circumstances as alleged by Autin, not
ficer that his conduct was unlawful in the situ-        whether the force was justified based on Al-
ation he confronted.” Saucier, 533 U.S. at              dred’s claimed interpretation of the situation at
201.                                                    the time.2

   The district court correctly found that the             Not only was Autin not resisting arrest, but
facts alleged show that Aldred’s conduct vio-           Aldred’s tasing of her was allegedly the first
lated Autin’s Fourth Amendment right to be              indication he gave to her that she was doing
free from excessive force. To succeed in such           anything wrong. He tased her when her back
a case, a plaintiff must demonstrate that (1) he        was to him, he gave her no notice of his inten-
suffered a significant injury; (2) resulting di-        tion to do so, and he continued to tase her re-
rectly and only from the use of force that was          peatedly, even after she was subdued on the
clearly excessive to the need; and (3) the force        ground. In judging the objective reasonable-
used was objectively unreasonable. Fontenot             ness of Aldred’s use of force, it should not be
v. Cormier, 56 F.3d 669, 675 (5th Cir. 1995).           forgotten that Autin was fifty-nine years old

    Autin suffered a significant head injury that
resulted directly and only from the force Al-              2
                                                             See Stroik v. Ponseti, 35 F.3d 155, 158 (5th
dred used against her. The relevant question            Cir. 1994) (stating that “the only question is
is whether, taking Autin’s version of the facts         whether Ponseti’s use of force was ‘objectively
as true, the force used by Aldred was both ex-          reasonable’ in light of the facts and circumstances
cessive to the need and objectively unreason-           confronting [him], without regard to [his] under-
                                                        lying intent or motivation”).

                                                    3
and five feet two inches tall. Given these               are factors that tend to indicate whether the
alleged facts, Aldred’s use of force was both            use of force is appropriate.
excessive to the need and objectively unrea-
sonable. The district court correctly found                  None of these factors offers support for Al-
that the facts as alleged show a violation of            dred’s conduct: Autin was objectively un-
Autin’s Fourth Amendment rights.                         threatening, she was not resisting arrest in any
                                                         way, and her crime was minor. Aldred, how-
    After establishing that the violation of a           ever, cites a number of cases in which courts
constitutional right had been alleged, the dis-          have upheld qualified immunity defenses, and
trict court failed adequately to address the sec-        he claims these cases involve facts similar to
ond factor in the qualified immunity analysis            those alleged here. In each of them, however,
SSwhether the right was clearly established.             at least one of the three excessive force factors
The court appears to have approached the                 was plainly present. The plaintiffs in those
question of objective reasonableness as though           cases either posed an objective threat to the
it were dispositive of both elements of the              officers or physically resisted arrest.
qualified immunity test.
                                                             A jury trial may reveal other facts that jus-
    Each element must be addressed independ-             tified Aldred’s use of force. At the summary
ently, however. Saucier, 533 U.S. at 204-05.             judgment stage, however, we are bound to
The first element involves the objective rea-            take Autin’s version of the facts as true. Giv-
sonableness of the officer’s conduct, and the            en those facts, nothing about the situation fac-
second looks to whether he could have made               ing Aldred would have indicated to a reason-
a reasonable legal mistake in deciding whether           able officer that repeatedly tasing a woman
his conduct was legal. As stated above, the              while forcing her to the ground was lawful
relevant inquiry is whether it would be plain to         conduct. Therefore, Autin’s Fourth Amend-
a reasonable officer that his conduct was                ment right to be free from excessive use of
unlawful in the situation he confronted. Id.             force was established under the particular cir-
                                                         cumstances she alleges.
    Aldred will succeed on his qualified immu-
nity claim if he can show that his mistaken be-             AFFIRMED.
lief in the legality of the force used against Au-
tin was reasonable given the state of the case-
law on excessive force at the time of the
incident. When discussing the law of exces-
sive force, the Supreme Court and this circuit
typically emphasize the three factors discussed
above.3 A reasonable officer is charged with
knowing that, as clearly established law, these


   3
     See, e.g., Saucier, 533 U.S. at 205; Garner,
471 U.S. at 11; United States v. Brugman, 364
F.3d 614, 616 (5th Cir. 2004); Colston v. Barn-
hart, 146 F.3d 282, 291 n.7 (5th Cir. 1998).

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