     Case: 17-10132      Document: 00514083907         Page: 1    Date Filed: 07/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                    No. 17-10132
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            July 21, 2017
                                                                             Lyle W. Cayce
JOSE ESCARCEGA,                                                                   Clerk


              Plaintiff - Appellant

v.

OFFICER MICHAEL JORDAN; OFFICER TYE EDWARDS,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:15-CV-237


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Jose Escarcega appeals the district court’s grant of
summary judgment on the basis of qualified immunity in favor of Defendants–
Appellees Officers Michael Jordan and Tye Edwards. Escarcega alleges that
Jordan and Edwards used excessive force in effectuating his arrest.                            We
AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    No. 17-10132
        The vast majority of the facts are undisputed and, accordingly, we
provide only an abbreviated version of the events leading to Escarcega’s arrest.
Around midnight on July 30, 2015, Officer Ryan Durrett, a Lubbock Police
Department officer, noticed a pickup truck stopped in the lane of traffic with
its hazard lights on. Escarcega and a female passenger occupied the truck.
Durrett entered the license plate number onto his call sheet but did not
immediately receive a return. Durrett then exited his patrol car and spoke
with Escarcega, who explained that the truck was out of gas and asked for
assistance in pushing it to a nearby gas station.              Together Durrett and
Escarcega pushed the truck to the station, after which Durrett departed.
Shortly thereafter, the information on the truck returned and indicated that
the truck was stolen. Durrett returned to the gas station, where Escarcega
had remained, and informed Escarcega that the vehicle was stolen and began
to take him into custody. 1       But before Durrett could handcuff Escarcega,
Escarcega broke away and fled on foot.              Durrett communicated to the
dispatcher that Escarcega had fled and then pursued Escarcega in his patrol
car.
        During Durrett’s pursuit, Escarcega repeatedly ignored Durrett’s
commands to stop running and to lie on the ground. After about five minutes,
Durrett exited his patrol car to apprehend Escarcega on foot.                 However,
Escarcega once again evaded apprehension and instead entered Durrett’s
unoccupied patrol car. The patrol car contained various police equipment,
including body armor, an AR-15 rifle, a shotgun, and several hundred rounds
of ammunition. Durrett pursued Escarcega into the patrol car, and, with
Durrett’s body partially inside the car through the open driver’s side door,



        1According to Escarcega, he had borrowed the truck from a friend and did not know
it was stolen.
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                                 No. 17-10132
Escarcega began to drive the car as Durrett attempted to gain control of him
by both tasing and striking him. As the two struggled, Escarcega accelerated
and drove the patrol car into a utility pole. Upon impact, Durrett was thrown
from the vehicle to the ground, causing injuries to his head and left leg. As for
Escarcega, he claims that he was “stunned” by the taser and does not
remember the crash but does not believe it caused him injury. After the crash,
Escarcega exited the car and moved to the ground, in close proximity to where
Durrett was lying.    When he saw Escarcega moving toward him, Durrett
radioed for backup using the signal for an officer in need of help.
      Officer Jordan was the first backup officer to arrive at the scene. Jordan
had heard over the radio some of Durrett’s pre-crash struggle with Escarcega
and knew Durrett had been pursuing Escarcega for some time. Dashboard
camera footage from Jordan’s patrol car depicts the majority of the events that
ensued upon his arrival at the scene of the crash. Jordan saw Durrett lying on
the ground, obviously injured.      Jordan claims that Durrett was holding
Escarcega’s left arm, and it appeared that Escarcega was trying to either
escape or get on top of Durrett. But Escarcega claims that he was merely
sitting outside the patrol car in a “dazed state.” Regardless, Escarcega was
very close to Durrett, and Jordan immediately kicked Escarcega in the head,
which moved Escarcega away from Durrett. Jordan then punched Escarcega
five times in order to gain his compliance. During the ensuing struggle, Jordan
struck Escarcega in the head and rib area six times with his baton before
ultimately jettisoning the baton as ineffective in gaining Escarcega’s
compliance.
      Several other officers arrived at the scene shortly after Jordan, including
Officer Edwards. Upon arrival, Edwards saw the wrecked patrol car, Durrett
lying injured on the ground, and several officers struggling with Escarcega.
Edwards observed that the officers were trying to get Escarcega’s hands out
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                                    No. 17-10132
from under him, so, to assist, Edwards began punching Escarcega in the left
ribs.       With the help of another officer, Edwards was then able to grab
Escarcega’s hands, which Edwards put in a wrist lock until they were in
handcuffs. Escarcega continued to struggle even after being handcuffed; he
ultimately was sedated by paramedics during transport to the hospital and
again by hospital staff upon arrival. Escarcega was later diagnosed with
fractured ribs.
        Escarcega brought this 42 U.S.C. § 1983 suit against Jordan and
Edwards on December 3, 2015, alleging that they used excessive force in
arresting him. 2 Jordan and Edwards both moved for summary judgment on
the basis of qualified immunity. On December 30, 2016, the district court
granted summary judgment on all of Escarcega’s claims after concluding that
Jordan and Edwards were entitled to qualified immunity. Escarcega timely
appeals.
        We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Rogers v. Bromac Title
Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is proper
if “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”          Fed. R. Civ. P. 56(a).      In making this
determination, we view the evidence in the light most favorable to the
nonmoving party. Rogers, 755 F.3d at 350. But when there is video evidence
of the events in question, we will not credit the non-movant’s version of the
facts if they are “blatantly contradicted” by the video. Scott v. Harris, 550 U.S.
372, 380 (2007).




        Escarcega also brought a claim of municipal liability against the City of Lubbock
        2

Police Department, but that claim is not at issue on this appeal.
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                                 No. 17-10132
      Escarcega bore the burden of negating the qualified immunity defense.
Brauner v. Coody, 793 F.3d 493, 497 (5th Cir. 2015). To overcome the asserted
qualified immunity defense, Escarcega needed to show a genuine dispute of
material fact as to whether (1) Jordan and Edwards violated a federal
constitutional or statutory right or (2) the violated right was clearly
established at the time of the challenged conduct. Hare v. City of Corinth, 135
F.3d 320, 325 (5th Cir. 1998).
      As for the first showing, Escarcega alleges that Jordan and Edwards
violated his Fourth Amendment right against unreasonable seizures by using
excessive force in arresting him. To prevail on an excessive-force claim, a
plaintiff must show “(1) injury, (2) which resulted directly and only from a use
of force that was clearly excessive, and (3) the excessiveness . . . was clearly
unreasonable.” Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting
Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012)). Whether particular
conduct constitutes excessive force is “necessarily fact-intensive” and “depends
on the facts and circumstances of each particular case.” Deville v. Marcantel,
567 F.3d 156, 167 (5th Cir. 2009) (alteration omitted) (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). The Supreme Court has provided the
following factors to consider in assessing whether a use of force is excessive:
“[(1)] the severity of the crime at issue, [(2)] whether the suspect poses an
immediate threat to the safety of the officers or others, and [(3)] whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham, 490
U.S. at 396.
      Here, all three factors weigh against finding that either Jordan’s or
Edward’s use of force was clearly excessive.       Regarding the first factor,
Escarcega had committed several dangerous offenses, including stealing a car,
hijacking a police patrol car, and causing serious injury to a police officer by
crashing the vehicle into a pole. Moreover, both Jordan and Edwards were
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aware of at least some of these offenses when they arrived at the scene. Jordan
learned through radio communication that Escarcega had stolen Durrett’s
patrol car, and he heard audio of their ensuing struggle over the radio
transmission. Further, when Jordan arrived at the scene of the crash, he saw
Durrett laying on the ground injured, with Escarcega sitting very close by.
Similarly, Edwards received Durrett’s radio signal indicating that Durrett
needed help. When he arrived at the scene of the crash, he also saw Durrett
lying injured on the ground and Escarcega very nearby.
      Turning to the second factor, a reasonable officer, with knowledge of
these facts, could have perceived Escarcega as posing an immediate threat to
the safety of officers and the public. It is undisputed that Escarcega was in
close proximity to a seriously injured police officer, whose injuries Escarcega
had caused.    Additionally, both Jordan and Edwards could reasonably be
concerned that Escarcega might gain access to weapons on Durrett’s person or
in the patrol car. Indeed, the patrol car contained a multitude of weapons that
Escarcega could quickly access. And, Jordan specifically noted that, when he
arrived, he observed several pieces of Durrett’s equipment on the ground
within Escarcega’s reach.
      The only factual dispute that Escarcega offers against this conclusion is
that, after the crash, he was not attempting to stand up or get on top of Durrett
but rather was sitting on the ground in a dazed state. However, Escarcega
concedes that he was “in close proximity” to Durrett when Jordan arrived at
the scene. Indeed, the dashboard camera footage from Jordan’s patrol car
shows the two men appearing not merely close to each other when Jordan
arrived but also in contact. Reasonableness of force is assessed based on “the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir.
2012) (quoting Graham, 490 U.S. at 396). A reasonable officer forced to quickly
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                                 No. 17-10132
assess the dark, nighttime scene—which consisted of a wrecked patrol car
containing weapons, Durrett’s injured body, and Escarcega in close proximity
to (and perhaps touching) Durrett—could perceive Escarcega as posing a
serious threat even if, in actuality, he was “dazed.” Our qualified immunity
caselaw does not require officers to conduct a close examination of a suspect’s
demeanor before acting, but rather recognizes that officers are often forced to
“make split-second judgments” in reaction to a “tense, uncertain, and rapidly
evolving” scene. Carroll v. Ellington, 800 F.3d 154, 173–74 (5th Cir. 2015)
(quoting Graham, 490 U.S. at 397). Accordingly, the factual dispute that
Escarcega asserts regarding the state he was in immediately after the crash is
immaterial and does not preclude summary judgment.
      Third and finally, Jordan and Edwards could have reasonably perceived
Escarcega to be resisting arrest or attempting to flee. Jordan, upon arrival,
could reasonably discern that Escarcega hijacked and crashed the patrol car in
an attempt to evade arrest and could reasonably suspect Escarcega would
continue these efforts, thus justifying Jordan’s initial kick and punches. After
more officers arrived, the dashboard camera footage shows Escarcega
repeatedly struggling against the officers’ attempts to restrain him. When
Edwards arrived, several officers were struggling to restrain Escarcega. In
opposition, Escarcega asserts merely that he “was not resisting arrest at all”
and offers an unsworn declaration to this effect. However, this assertion is
directly contradicted by the dashboard video footage, which shows Escarcega
struggling and resisting the officers’ efforts to restrain him by pulling his
hands away to avoid restraints, kicking officers, and grabbing Jordan’s baton.
Accordingly, we do not credit Escarcega’s account of events and that account is
insufficient to create a genuine factual dispute. Scott, 550 U.S. at 380. We
also emphasize that Escarcega does not allege that he was punched after he
was handcuffed. We conclude that the evidence shows that Escarcega was
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resisting arrest at all times when force was used, and using force, such as
punches, to gain control of a non-complaint suspect is not clearly excessive.
See, e.g., Griggs v. Brewer, 841 F.3d 308, 316 (5th Cir. 2016).
       In sum, Escarcega has failed to show a genuine dispute of material fact
whether Jordan and Edwards used excessive force in arresting him. As a
result, he has failed to show any violation of his Fourth Amendment right,
which is a required element to overcome a qualified immunity defense. 3
Accordingly the district court properly granted Jordan’s and Edward’s motions
for summary judgment on the basis of qualified immunity. The judgment of
the district court is AFFIRMED.




       3 Because we conclude that Escarcega has failed to show that Jordan or Edwards
violated any constitutional or statutory right of his, we do not address the second prong of
the qualified immunity analysis.
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