     Case: 13-20388   Document: 00513171159    Page: 1   Date Filed: 08/26/2015




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

                                                                      FILED
                                                                  August 26, 2015
                                No. 13-20388
                                                                   Lyle W. Cayce
                                                                        Clerk
RUTHA CARROLL, Individually and as Heir of Herman Rochan Carroll (also
known as Herman Rochan Barnes); HERMAN CARROLL, SR., Individually
and as Heir of Herman Rochan Carroll (also known as Herman Rochan
Barnes); CHASTITY RODGERS, As Next Friend of J. K. and M. B., Minor
Children of Herman Rochan Barnes, Deceased,

             Plaintiffs–Appellees,

v.

GEORGE W. ELLINGTON; ANDY VIRUETTE, JR., Harris County Sheriff’s
Deputy, in his individual and official capacity; JUAN CELESTIAL, Harris
County Sheriff’s Deputy, in his individual and official capacity; NICHOLAS
CARTER, Harris County Sheriff’s Deputy, in his individual and official
capacity; REX EVANS, Harris County Sheriff’s Deputy, in his individual and
official capacity; KEVIN SIMS, Harris County Sheriff’s Deputy, in his
individual and official capacity; ANDY HULSEY, Harris County Sheriff's
Deputy, in his individual and official capacity,

             Defendants–Appellants.




                Appeals from the United States District Court
                     for the Southern District of Texas
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                                 No. 13-20388
Before SMITH, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Herman Barnes was a diagnosed paranoid schizophrenic. He died in
2006 after a confrontation in his home with Harris County sheriff’s deputies.
His surviving family members (the Carrolls) sued the deputies involved in the
confrontation, asserting that the deputies’ seizure of Barnes was unlawful,
that the deputies’ warrantless entry into his home was unreasonable, and that
the deputies’ use of force was excessive and deprived Barnes of his civil rights
under the Fourth and Fourteenth Amendments in violation of 42 U.S.C. § 1983.
The case proceeded to trial. After the jury deadlocked, the district court denied
the deputies’ motion for a directed verdict and declared a mistrial. The deputies
seek interlocutory appeal from the district court’s denial of their motion for a
directed verdict. The deputies argue they are entitled to qualified immunity
from § 1983 liability because their actions did not violate clearly established
law. We first conclude that we have interlocutory appellate jurisdiction. We
then agree with the deputies that they are entitled to qualified immunity on
the unlawful-search-and-seizure claims and on most of the excessive-force
claims, but not as to the excessive-force claims for the deputies’ use of force
after Barnes was subdued and ceased resisting. Accordingly, we reverse in
part, dismiss in part, and remand.
                             I. BACKGROUND
      Herman Rochan Barnes (also known as Herman Rochan Carroll) was an
African American male who suffered from paranoid schizophrenia. Paranoid
schizophrenia is a severe psychotic disorder, and people with paranoid
schizophrenia “often have more difficulty interfacing in society with others.”
The disorder may be treated with “a combination of therapy and medication,”
and Barnes had antipsychotic medication in his system after the incident.


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                                 No. 13-20388
      On the afternoon of October 6, 2006, Barnes stood outside of his home
beside the subdivision’s community mailboxes smoking a cigarette. Barnes’s
neighbor testified that when Barnes was off of his medication, he would often
walk up and down his street talking to himself out loud “kind of just pacing.”
Because of the complicated trial testimony, a lengthy recitation of the facts is
warranted before discussing the deputies’ qualified-immunity defenses.
A.    The Initial Detention
      The Carrolls challenge the initial detention as unsupported by
reasonable suspicion in violation of the Fourth Amendment, so we begin by
reviewing the facts pertaining to this claim. Harris County Deputy Sheriff
Andy Viruette, Jr., was on patrol that afternoon driving his marked Harris
County patrol car in the Sterling Green subdivision of Channelview, Texas,
when he spotted Barnes. Viruette testified that he had been made aware of
complaints from the community’s home-owner’s association about “criminal
mischief or vandalism in the neighborhood to the[] mailboxes” where Barnes
was standing while smoking his cigarette. Viruette observed Barnes standing
by the complained-about mailboxes and noticed that Barnes was “possibly
fidgeting with the mail box.” Viruette decided to drive past Barnes “to continue
to observe what the male’s intentions were by the mailbox. Deputy Viruette
testified that he observed Barnes “stop[] doing” what he had been doing after
Viruette’s car passed by and, instead, Barnes moved toward the side of the
mailboxes.
      At this point, Viruette turned his car around and drove toward Barnes.
As his car approached Barnes, Viruette and Barnes made eye contact, and then
Barnes “immediately takes off walking . . . away from the mailbox . . . in a
hurried manner.” Suspicious that Barnes was either vandalizing the mailboxes
or selling narcotics or drugs, Viruette decided to stop and speak with Barnes


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                                   No. 13-20388
“to ascertain if he lived . . . in the neighborhood and . . . if he had any business[]
with those mailboxes as well.”
      Deputy Viruette followed Barnes to a nearby residence and stopped his
patrol car in front. Viruette noticed that there was a different set of mailboxes
in front of that house. Viruette wondered, “[W]hat [was Barnes’s] business . . .
over by the mailboxes that were on [the other street], if there is a mailbox in
front of the house there where I had stopped.”
      Deputy Viruette rolled down his window and asked Barnes “what the
address” of the residence was and what Barnes “was doing beside the mailbox
as well.” Barnes was unable to answer Deputy Viruette’s questions; instead,
Barnes said he was from California. Later, Barnes mentioned to Viruette that
“this is my house,” at which point Viruette “asked him what his address was.”
Barnes was unable to answer. As Deputy Viruette explained: “[H]is answers to
me were totally left of what I was asking him . . . . That’s what . . . raised my
level of awareness.” According to Deputy Viruette, this interaction in front of
Barnes’s home lasted about 45 seconds. Although Viruette testified that
nothing “stood out” to him regarding mental illness, Viruette noticed
“indicators that resembled possibly closely . . . that [Barnes] was possibly on
some kind of either medication or narcotics, on illegal drugs, by his responses
and also his body demeanor and his language.”
      Based on this information, Deputy Viruette believed he had the
reasonable suspicion necessary to conduct a legal detention. Still inside his
patrol car, Viruette questioned Barnes about his name and address. At this
point, Barnes turned and walked at a “steady walk pace” toward the house. ”




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                                       No. 13-20388
Barnes then manually opened the garage door of his house, which surprised
Deputy Viruette. 1
       At this point, Viruette testified that he did not think that Barnes lived
at that residence. Accordingly, when Barnes got to the garage door, Deputy
Viruette ordered Barnes to stop and walk back toward Viruette’s patrol car,
but Barnes did not comply.
       Barnes’s neighbor was watching from across the street. He described the
conversation between Deputy Viruette and Barnes as “normal.” He testified
that, when Deputy Viruette approached the door of the garage, Barnes
repeatedly told the officer to “step away from his house” or to “please leave [his]
home” perhaps as many as “three times.”
B.     The Warrantless Entry into the Residence
       The Carrolls also challenge the warrantless entry into Barnes’s home.
Because Barnes did not comply with Viruette’s command to stop and walk over
to his car, Deputy Viruette testified that he then believed that Barnes “had
committed the offense of evading detention.” Viruette immediately exited his
patrol car to pursue Barnes into the garage. Viruette entered the garage, and
when Barnes attempted to open “the door that leads into the residence through
the garage,” Viruette physically grabbed Barnes’s arm to prevent him from
entering the residence. Viruette testified that he had been continually giving
very loud verbal commands ordering Barnes to stop, but Barnes did not
comply.
       Barnes pulled away from Viruette and entered into his home; Viruette
followed. They immediately entered a large living room, and Deputy Viruette




       1Deputy Viruette testified: “Barnes turn[ed] and start[ed] towards the house where
the garage door is opened . . . . At that point in time I was not expecting the [garage] door to
come up, because at that point . . . he hasn’t convinced me that he resides at that residence.”
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                                   No. 13-20388
pulled out his Taser and ordered Barnes “to get on the ground.” Barnes then
sat down in a chair. While entering the house, Viruette radioed for backup.
      It is undisputed that Deputy Viruette did not observe any weapons or
contraband, or any other evidence of illegal conduct, inside Barnes’s home.
C.    The Use of Force
      The Carrolls also challenge the deputies’ use of force in the confrontation,
which is discussed in detail below.
       1. Deputy Viruette’s Use of Force
      In spite of Viruette’s commands for Barnes to get on the ground, Barnes
remained seated and repeatedly said: “This is my house,” and “I’m from
California.” Unsatisfied with Barnes’s decision to sit in a chair rather than
comply with Viruette’s order to get down onto the floor, Deputy Viruette
deployed his Taser while Barnes was seated.
      Barnes still did not comply; instead, in response to the Taser shots,
Barnes “constantly holler[ed,] again, that he was from California.” A
psychiatrist testified that those suffering from paranoid schizophrenia are
prone to repeating themselves, clinically known as “perseveration,” often out
of the belief that “they’re not being heard or understood.” Viruette continued
“giving verbal task directions.”
      After a second shot with the Taser, Barnes got up from the chair “and
shift[ed] over to the kitchen area.” As Barnes moved toward the kitchen, he
began “flinging his arms wildly in an attempt to keep [Deputy Viruette] from
coming to him.” Barnes repeatedly yelled, “I’m from California.”
      At this point, Viruette decided to try to gain Barnes’s compliance using
a “drive stun” technique with his Taser. The drive stun technique involves
placing the end of the Taser directly on the person, without the cartridge
containing the metal probes (which had already been deployed twice). Each
application of the drive stun technique delivers a jolt of electricity for about
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                                      No. 13-20388
five seconds. Viruette “deployed a drive stun three times,” which he says had
no effect. Barnes started swinging his arms, and he swung and knocked the
Taser out of Viruette’s hand and onto the ground, damaging the Taser.
Viruette noticed the indicator light on the Taser “that lets you know that the
Taser is still functional” was off. At some point in this altercation, Barnes
struck Viruette on the shoulder—though, Viruette’s shoulder did not later
require medical attention.
       Deputy Viruette then radioed again “asking for an assist.” With his
Taser damaged, Viruette believed the “only other tools . . . to gain compliance
from Mr. Barnes” were his “OC Spray” (also commonly referred to as mace),
his hands, and his service weapon. Viruette “decided because of the close
proximity and close quarter combat positions that [they] were in, the OC spray
. . . was not going to be the tool of . . . choice.”
       So Viruette drew his firearm “and maintained it in the low ready
position” while he delivered snap kicks to Barnes and ordered Barnes to get on
the ground. Barnes still refused to go to the ground.
       2. Deputies Celestial, Sims, and Ellington Arrive at the Scene
       Deputy Sims testified that, when he arrived at the residence, he
immediately “heard two male voices yelling.” 2 Sims and Celestial entered the
residence, and Deputy Viruette told them that he needed help and “can’t get
[Barnes] handcuffed.” Sims noticed that Viruette appeared “winded,” so he and
Deputy Celestial stepped between Viruette and Barnes.




       2 There is conflict in the testimony about whether Deputy Celestial and Deputy Sims
arrived on the scene before or after Barnes stood up from the chair and entered the kitchen:
Deputy Viruette testified that backup arrived after Barnes and he entered the kitchen; and
Deputy Celestial testified that, when he arrived, Viruette and Barnes were struggling in the
kitchen. Whereas, Sergeant Sims testified: “[Barnes] was sitting when I first got there and
then he stood up.”
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                                        No. 13-20388
      Deputy Celestial swung a hickory baton and struck Barnes five to seven
times in the thigh area, then twice on his right arm, and then once in the back.
After Celestial repeatedly struck Barnes with his baton, Deputy Sims kicked
him in the stomach while, according to Sims, Barnes was still standing up. 3
      According to the deputies’ testimony, after withstanding multiple Taser
shots, baton strikes, and a kick in the stomach, Barnes remained standing and
refused to go to the ground: “He just . . . [took] a step back and that’s it.” Barnes
was not saying anything, he just continued staring. Finally, Deputy Sims
tackled Barnes by grabbing him around his neck and driving him to the ground
with Sims’ body weight in the living room area.
      Deputy Sims ended up on top of Barnes’s back after the tackle and then
moved to subdue his legs, and Deputy Viruette managed to get a handcuff on
Barnes’s left wrist. In an effort to get handcuffs on Barnes’s right arm, which
was under Barnes’s body at the time, Deputy Celestial punched Barnes’s
brachial nerve (where the neck meets the shoulder) with a closed fist (called a
“brachial stun”) five to eight times.
      At this point, Deputy Ellington, arrived on the scene. With Barnes face-
down, Deputy Sims on Barnes’s legs, and deputies Viruette and Celestial on
either side, Deputy Ellington reached over Sims’s shoulder and applied his
Taser using a drive-stun technique first to Barnes’s right arm and then to
Barnes’s brachial nerve.
      Deputy Sims, who was on Barnes’s legs, testified that he himself weighed
225 pounds at that time. Celestial and Viruette were on either side of the 160-
pound Barnes controlling his arms. Deputy Celestial weighed about 150
pounds, and Deputy Viruette weighed about 160 pounds. Deputy Ellington,
who applied the Taser shot, weighed about 260 pounds.


      3   Sergeant Sims testified: “I [did] a forward thrust kick.”
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                                     No. 13-20388
      According to Deputy Sims, Barnes reacted to the Taser shot to his
brachial nerve by “defecat[ing] on himself,” and then, according to the deputies,
Barnes “completely pushe[d] up and thr[ew] all three of us off.”
      Barnes was standing with stainless steel handcuffs around only one
wrist, and Deputy Sims testified that the loose handcuff could be used as a
weapon. Around this time, deputies Evans and Carter arrived on the scene. At
least one Taser was then deployed when Barnes stood up. Deputies Evans and
Ellington shot their Tasers conventionally, striking Barnes with the Taser
probes. Deputy Hulsey then struck Barnes twice with a hickory stick.
      Barnes then “became rigid and fell” onto a glass table that broke into
many pieces, and Barnes fell on the glass shards. Viruette left the room to go
to the hospital for treatment of a hand injury (strained ligaments in his left
hand). After Barnes fell to the ground, Deputy Celestial also left the room.
Around this time, Deputy Sims also testified that he left the house because he
had Barnes’s feces on him.
      While on the ground, Barnes started low crawling toward the kitchen. 4
Deputy Hulsey then rushed Barnes and struck him around his legs and ankles
with the hickory stick four times. A Taser was then deployed multiple times—
it is unclear by whom—and Barnes finally went limp in the kitchen. 5 Deputy
Hulsey observed “something white around [Barnes’s] lips.”




      4  According to Deputy Carter, Barnes stood up and grabbed one of the brass legs of
the table, and he momentarily raised it as a weapon. Deputy Carter testified that he then
pulled out his gun, pointed it at Barnes, and commanded Barnes to drop the table leg—which
he did. However, this testimony is contradicted by Deputy Hulsey’s trial and deposition
testimony.
       5 Deputy Evans testified hearing multiple Taser shots. There is some testimony that

Barnes removed the Taser probes from his chest and pulled a Taser away from an officer.
But that testimony is vague and contradicted.
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                                    No. 13-20388
       Deputy Carter then placed handcuffs on Barnes. At some point while
Barnes was handcuffed and limp on the floor in the kitchen, Deputy Carter
delivered “side strikes” to Barnes’s left side. 6
       Although Deputy Sims testified that he was out of the room during the
exchange with Barnes on the kitchen floor, Sims admitted at trial that he made
a call to emergency medical services on the radio in which he stated that “the
male appeared to be unresponsive as he laid on the floor.”
       The Harris County Sheriff’s Department keeps a record of the
downloaded information from the Taser guns. Each officer is assigned a specific
Taser, but the “death in custody” incident report for Barnes includes the names
of three officers (deputies Viruette, Sims, and Celestial) and four Tasers. Taser
log records indicate that the Taser assigned to Deputy Evans was cycled two
times during the incident, the Taser assigned to Deputy Ellington was cycled
twenty-four times, and the Taser assigned to Deputy Viruette was cycled seven
times. The fourth Taser was deployed twice, but it is unclear who was
responsible. In total, the log registered thirty-five Taser cycles delivering
electricity bursts of between three and eleven seconds.
D.     Barnes’s Death and Autopsy
       At some point during the struggle, Deputy Sims called emergency
medical services. A part-time firefighter and licensed paramedic was the first
emergency medical responder to arrive at the scene. The paramedic entered
the house and found evidence of a struggle: “There was . . . broken glass on the
ground and like some furniture discombobulated around. And there was a male
who was in the prone position with handcuffs behind his back.” Barnes was
breathing but nonresponsive, and the paramedic asked the deputies to remove



       6Carter testified that Barnes was kicking, but this testimony is inconsistent with
Hulsey’s recollection that Barnes was limp on the kitchen floor.
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                                  No. 13-20388
Barnes’s handcuffs so he could check for a pulse. Initially, Barnes had a pulse,
but his breathing rate was inadequate so the paramedics administered
supplemental breathing.
      When an ambulance arrived to take Barnes to a hospital, Barnes
suffered a full cardiac arrest. Barnes’s pulse stopped in the ambulance on the
way to the hospital, and he was pronounced dead at Lyndon B. Johnson
Hospital soon after he arrived.
      A Harris County medical examiner performed an autopsy and ruled the
manner of Barnes’s death a homicide. The cause of death was listed as
“[s]udden death during schizophrenic psychotic delirium following physical
restraint.” The toxicology findings revealed no alcohol or drugs in Barnes’s
blood stream and faint traces of ziprasidone, an antipsychotic medication. The
pathological findings indicated blunt- and sharp-force injuries including:
multiple contusions, subcutaneous hemorrhages, abrasions, and “superficial
lacerations/incisional wounds of the head, torso and extremities”; puncture
wounds on the chest, neck, left flank, and upper extremities, suggesting a
“history of ‘Taser’ probe applications”; intramuscular hemorrhage of the right
tongue, focal hemorrhage of the strap muscles of the anterior neck; and a right
frontal intrascalp hemorrhage.
      The medical examiner’s “homicide” finding reflects a specific medical
definition rather than the common, colloquial meaning of the word. In the
comments section, the medical examiner explained the “mechanism of death
. . . is likely related to autonomic stimulation during [a] psychotic episode. The
manner of death derives from the events leading up to the death; the actions
of others, regardless of intent, clearly exacerbated the psychotic delirium.”
“Therefore, but for the actions of others,” the examiner concluded, “it is
unlikely this man would have died at the time he did. The manner of death
will be listed as homicide.”
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                                  No. 13-20388
                                       ***
      After a trial on the merits, the jury was unable to reach a verdict, and
after several days, the district court declared a mistrial. The deputies filed a
renewed motion for judgment as a matter of law that the district court denied.
It is this decision that the deputies now timely appeal. The case is currently
stayed pending appeal.
                              II. JURISDICTION
      There is a threshold dispute over our jurisdiction to hear this
interlocutory appeal from the district court’s denial of judgment as a matter of
law. Ordinarily, we lack jurisdiction in the absence of a final judgment, and
this Court has not yet had occasion to address whether the interlocutory denial
of a renewed motion for judgment as a matter of law under Federal Rule of
Civil Procedure 50(b) rasied by public officials on the basis of qualified
immunity is an appealable “final order” within the meaning of 28 U.S.C.
§ 1291. With the benefit of supplemental briefing on this question, we hold that
we have jurisdiction to review purely legal questions in an interlocutory appeal
from the     denial of a public official’s Rule 50(b) motion asserting qualified
immunity after a mistrial is declared.
      The Supreme Court has held that interlocutory appellate jurisdiction
includes pretrial denials of qualified immunity, reasoning that qualified
immunity includes immunity from suit—a right not to stand trial that would
be “effectively lost if a case is erroneously permitted to go to trial.” Mitchell v.
Forsythe, 472 U.S. 511, 526–27 (1985). Accordingly, federal appellate courts
have limited jurisdiction to review pure questions of law arising from the
denial of motions to dismiss and motions for summary judgment in which
public officials asserted qualified immunity as a defense. E.g., Behrens v.
Pelletier, 516 U.S. 299, 305–11 (1996).


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                                       No. 13-20388
       The Second Circuit has applied this reasoning to authorize jurisdiction
over purely legal questions arising from the denial of qualified immunity in
Rule 50(b) motions for judgment as a matter of law after the jury has rendered
a verdict and the district court has ordered a new trial on the issue of damages.
Britt v. Garcia, 457 F.3d 264, 268, 271–72 (2d Cir. 2006). The court in Britt
noted that interlocutory appeal of a pretrial denial of qualified immunity
protects the right of public officials not to stand trial erroneously. Id. at 272.
“[A]lthough it is too late to protect the appellants from standing trial,” the court
explained, “it is not too late to vindicate their right, if they are entitled to
immunity, not to undergo a second one on the issue of damages.” Id. at 272;
accord Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013); Cassady v. Goering, 567
F.3d 628, 634 (10th Cir. 2009). 7
       We find this reasoning persuasive. Because interlocutory appeal on
qualified-immunity grounds would protect the right of public officials not to
undergo a second trial erroneously, we agree with the Second Circuit that we
have interlocutory appellate jurisdiction over the purely legal aspect of
whether the officers in this case were entitled to qualified immunity.
       We also reject the Carrolls’ argument that this interlocutory appeal was
untimely filed and therefore waived because the deputies did not file an
interlocutory appeal from the district court’s pretrial summary-judgment


       7  But cf. Mercado v. Dart, 604 F.3d 360, 362–66 (7th Cir. 2010) (dismissing appeal
after concluding that the court lacked interlocutory appellate jurisdiction over a Rule 50(a)
motion asserting qualified immunity mid-trial after the plaintiffs’ case in chief). The court in
Mercado reasoned that “both formal reasons (a mid-trial order is not ‘final’ and does not
concern a ‘right not to be tried’) and practical ones (the need to prevent defendants from
thwarting the completion of ongoing trials and disrupting the orderly management of
litigation) [led the Mercado court] to conclude that a district judge’s oral statement denying
a mid-trial Rule 50 motion is not appealable as a ‘collateral order’ under § 1291.” Id. at 364.
        This situation is different from Mercado because, here, a mistrial has been declared
after the trial—the district court did not deny a Rule 50 motion in the middle of trial. We
express no opinion on whether interlocutory appeal may be taken except in these specific
circumstances: officers moving for judgment as a matter of law after a mistrial is declared.
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                                  No. 13-20388
ruling. In this case, the deputies have consistently asserted, and therefore have
not waived, the defense of qualified immunity. They timely filed an
interlocutory appeal from the district court’s denial of their Rule 50 motions
soon after the district court ruled. Therefore, we have interlocutory appellate
jurisdiction. See Matherne v. Wilson, 851 F.2d 752, 755–56 (5th Cir. 1988)
(“Although Wilson was entitled to take an interlocutory appeal, . . . he was [not]
obligated to do so.” (footnote omitted)).
      Our jurisdiction to review this collateral order is limited. We have
jurisdiction to review only the “purely legal question whether a given course of
conduct would be objectively unreasonable in light of clearly established law.”
See Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013) (footnote and
internal quotation marks omitted); see also Taylor v. Rogich, 781 F.3d 647, 650
(2d Cir. 2015) (“Because the appeal in this case is based on the sufficiency of
the evidence, we hold only that such an appeal on qualified immunity grounds
must be dismissed.”).
                        III.   STANDARD OF REVIEW
      We review the denial of a Rule 50 motion for judgment as a matter of law
based on “all of the evidence in the record.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). “We credit the non-moving party’s
evidence and disregard all evidence favorable to the moving party that the jury
is not required to believe.” Abraham v. Alpha Chi Omega, 708 F.3d 614, 620
(5th Cir.), cert. denied, 134 S. Ct. 88 (2013) (internal alteration and quotation
marks omitted). “That is, the court should give credence to the evidence
favoring the nonmovant as well as that evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent that that
evidence comes from disinterested witnesses.” Reeves, 530 U.S. at 151 (internal
quotation marks omitted).


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                                  No. 13-20388
      “[T]he standard for granting summary judgment ‘mirrors’ the standard
for judgment as a matter of law, such that the inquiry under each is the same,”
id. (internal quotation marks omitted), so we use a similar standard of review
to assess this interlocutory appeal from the denial of the officers’ renewed Rule
50 motion as we would in an ordinary interlocutory appeal from a denial of
summary judgment on qualified-immunity grounds. See Cassady, 567 F.3d at
634. In the qualified-immunity context, we review only the “purely legal
question whether a given course of conduct would be objectively unreasonable
in light of clearly established law.” Hogan, 722 F.3d at 731 (footnote and
internal quotation marks omitted). In other words, “[w]here, as here, the
district court finds that genuinely disputed, material fact issues preclude a
qualified immunity determination [as a matter of law], this court can review
only their materiality, not their genuineness.” Manis v. Lawson, 585 F.3d 839,
842 (5th Cir. 2009).
      If a fact is not undisputed, we must “accept the plaintiffs’ version of the
facts as true.” Hogan, 722 F.3d. at 731 (quoting Kinney v. Weaver, 367 F.3d
337, 348 (5th Cir. 2004) (en banc)). A fact issue is material only if it is legally
significant, in that its resolution could affect the disposition of the claim.
Minter v. Great Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005). “In reviewing
the district court’s conclusions concerning the legal consequences—the
materiality—of the facts, our review is of course de novo.” Hogan, 722 F.3d at
731 (footnotes and internal quotation marks omitted).
                               IV. DISCUSSION
      The deputies appeal the district court’s denial of their motions for
judgment as a matter of law based on qualified immunity. Qualified immunity
protects governmental officials from liability so long as their conduct “does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Rockwell v. Brown, 664 F.3d 985, 990
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                                       No. 13-20388
(5th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “When
a defendant invokes qualified immunity, the burden shifts to the plaintiff to
demonstrate the inapplicability of the defense.” Club Retro, L.L.C. v. Hilton,
568 F.3d 181, 194 (5th Cir. 2009).
       To evaluate whether a government official is entitled to qualified
immunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed
facts and the disputed facts, accepting the plaintiffs’ version of the disputed
facts as true, constitute a violation of a constitutional right, and (2) whether
the defendant’s conduct was “objectively reasonable in light of clearly
established law.” Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir.
2001). 8 A government official’s acts are not objectively unreasonable unless all
reasonable officials in the defendant’s circumstances would have then known
that the defendant’s conduct violated the plaintiff’s rights. Id. We have
discretion to address either prong first without necessarily addressing the
other. Pearson, 555 U.S. at 236. With these principles in mind, we turn now to
the Carrolls’ constitutional claims.
A.     Illegal Search and Seizure Claims Against Deputy Viruette
       The Carrolls allege that Deputy Viruette violated Barnes’s Fourth
Amendment right to freedom from unreasonable searches and seizures by
detaining him without reasonable suspicion, arresting him without probable
cause, and entering his residence without a warrant. “[T]he ultimate
touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City, Utah
v. Stuart, 547 U.S. 398, 403 (2006). As such, it is clearly established that law
enforcement may temporarily stop an individual for investigation based on
reasonable suspicion that criminal activity is afoot, see Terry v. Ohio, 392 U.S.



       8 Clearly established law is based on the state of the law in effect at the time of the
alleged violation. Thompson, 245 F.3d at 457.
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                                 No. 13-20388
1, 27 (1967), and may effect a warrantless arrest based on probable cause,
Hogan, 722 F.3d at 731. Although a warrantless search of a home is
presumptively unreasonable, “the warrant requirement is subject to certain
exceptions.” Stuart, 547 U.S. at 398. We address each of the Carrolls’ Fourth
Amendment claims against Deputy Viruette in turn below.
      1. Deputy Viruette Is Entitled to Qualified Immunity for His
         Seizure of Barnes
      The Carrolls argue that Viruette’s initial detention of Barnes was
unconstitutional because Viruette lacked objectively reasonable suspicion that
Barnes had committed or was committing a crime. The Carrolls also contend
that Deputy Viruette unlawfully arrested Barnes without a warrant and
without probable cause. Viruette counters that he did not detain Barnes until
Barnes started to walk away from him, and at that point Viruette reasonably
suspected Barnes was engaged in drug dealing or vandalism. Viruette also
argues that he never actually arrested Barnes. Even so, Viruette argues in the
alternative that the warrantless arrest was supported by probable cause.
      We must first decide whether and when Viruette seized Barnes within
the meaning of the Fourth Amendment. A “person has been ‘seized’ within the
meaning of the Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). In
the absence of physical force to restrain a suspect, “[a] police officer may make
a seizure by a show of authority . . . , but there is no seizure without actual
submission; otherwise, there is at most an attempted seizure, so far as the
Fourth Amendment is concerned.” Brendlin v. California, 551 U.S. 249, 254
(2007).
      We conclude that Barnes was not seized within the meaning of the
Fourth Amendment until Viruette grabbed his arm. Contrary to the Carrolls’

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                                    No. 13-20388
allegations, Barnes’s initial interaction with Deputy Viruette was not a seizure
because a reasonable person in his circumstances would have felt free to leave.
See INS v. Delgado, 466 U.S. 210, 215 (1984) (holding that “an initially
consensual encounter between a police officer and a citizen” transforms “into a
seizure or detention within the meaning of the Fourth Amendment,[only] ‘if . . .
a reasonable person would have believed that he was not free to leave.’”
(citation omitted)). Moreover, contrary to Deputy Viruette’s contention, the
initially consensual encounter did not become a seizure when Viruette ordered
Barnes to stop and return to the patrol car, because Barnes walked away into
his garage and did not submit to Viruette’s show of authority. See California
v. Hodari D., 499 U.S. 621, 626, 629 (1991) (“[Y]elling ‘Stop, in the name of the
law!’ at a fleeing form that continues to flee . . . is no seizure. . . . [S]ince Hodari
did not comply with that injunction he was not seized until he was tackled.”).
      We conclude that Viruette’s initial seizure of Barnes by restraining his
arm was a physical Terry stop, not an arrest. A seizure rises to the level of an
arrest only if “a reasonable person in the suspect’s position would have
understood the situation to constitute a restraint on freedom of movement of
the degree which the law associates with formal arrest.” United States v.
Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988). In United States v. Sokolow,
the Supreme Court held that, when a police officer grabbed the suspect by the
arm to “briefly detain a person for investigative purposes,” that temporary
investigatory detention was lawful “if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be afoot.’” 490 U.S.
5, 7 (1989). Here, Viruette grabbed Barnes’s arm to prevent him from entering
the residence and to investigate whether Barnes in fact lived at that address.
Because this physical restraint—grasping one arm—did not restrain Barnes’s
freedom to the degree of a formal arrest, we conclude that Viruette’s physical


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                                  No. 13-20388
restraint was a Terry stop, which would be lawful if based on reasonable
suspicion, “even if [he] lack[ed] probable cause,” Sokolow, 490 U.S. 7.
      Thus, we must next assess whether Barnes’s initial detention was
supported by reasonable suspicion. “[P]olice officers may stop and briefly
detain an individual for investigative purposes if they have reasonable
suspicion that criminal activity is afoot.” Goodson v. City of Corpus Christi, 202
F.3d 730, 736 (5th Cir. 2000). Reasonable suspicion requires “the police officer
. . . to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” United States
v. Rodriguez, 564 F.3d 735, 741 (5th Cir. 2009) (quoting Terry, 392 U.S. at 21).
This standard “requires more than merely an unparticularized hunch, but
considerably less than proof of wrongdoing by a preponderance of the
evidence.” Id. (internal quotation marks omitted). We assess the reasonab-
leness of the stop “by conducting a fact-intensive, totality-of-the circumstances
inquiry,” id., and we consider only the “information available to the officer[s]
at the time of the decision to stop a person,” United States v. Silva, 957 F.2d
157, 160 (5th Cir. 1992).
      We conclude that the Carrolls have not shown that Viruette was
objectively unreasonable in light of clearly established law in initially
attempting to detain Barnes for investigatory questioning. At the time that
Barnes attempted to enter the residence, Viruette had the following
information available to him: (1) complaints from the community’s home-
owner’s association about criminal mischief or vandalism to the neighborhood
communal mailboxes, (2) Barnes had been observed near those mailboxes,
(3) when Deputy Viruette turned around his patrol car and made eye contact
with Barnes, Barnes took off “away from the mailbox . . . in a hurried manner,”
(4) Barnes walked to a residence in front of which there was a different set of
mailboxes, and (5) when Deputy Viruette asked Barnes about his address,
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                                  No. 13-20388
Barnes replied that he was “from California.” Deputy Viruette had no
knowledge of Barnes’s mental illness. Thus, based on the totality of the
circumstances and the information available to the officer, Deputy Viruette
was not objectively unreasonable, in light of clearly established law, in
suspecting that criminal activity was afoot—namely, vandalism of the
mailboxes or that Barnes intended to enter a residence that was not his own.
See Thompson, 245 F.3d at 457 (holding that an official is entitled to qualified
immunity unless the plaintiff can demonstrate that his conduct was
“objectively reasonable in light of clearly established law”).
      The Carrolls point to no case roughly analogous in which this Court or
any other has found a Fourth Amendment violation. On the contrary, the
Supreme Court has held that a suspect’s presence in an area of known criminal
activity—taken together with a suspect’s nervous, evasive behavior—may
support an officer’s reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119,
124–25 (2000). Here, Viruette had information that the community mailboxes
had been vandalized, spotted Barnes near those mailboxes, and when he
approached Barnes, Barnes turned and walked away. Although “Wardlow did
not establish a bright-line test,” United States v. Jordan, 232 F.3d 447, 449
(5th Cir. 2000), and there are facts that distinguish this case from the
circumstances in Wardlow, we do not think that “all reasonable officials in the
defendant’s circumstances would have then known that the defendant’s
conduct violated” the plaintiff’s rights, Thompson 245 F.3d at 457. Thus, we
conclude that the Carrolls have not shown—even accepting their version of the
disputed facts—that Deputy Viruette’s seizure was objectively unreasonable in
light of clearly established law. Therefore, Deputy Viruettte is entitled to
qualified immunity on this claim.
      Further, when Barnes pulled away, Viruette was not objectively
unreasonable in believing that there then existed probable cause to arrest
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                                  No. 13-20388
Barnes with additional physical force. “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.” Ramirez v. Martinez, 716 F.3d 369,
375 (5th Cir. 2013) (citing Club Retro, LLC, 568 F.3d at 206).
      When Viruette attempted to enter the residence despite Viruette’s
commands to stop, the record establishes that Barnes pulled his arm out of
Deputy Viruette’s grasp. As we have previously held, “[t]he great weight of
Texas authority indicates that pulling out of an officer’s grasp is sufficient to
constitute resisting arrest,” and “the act of resisting [arrest] can supply
probable cause for the arrest itself.” Ramirez, 716 F.3d at 376 (collecting cases).
We decline to reach the constitutional question on the illegal arrest claim,
however. Because Viruette’s initial detention was not objectively unreasonable
in light of clearly established law, Viruette’s belief there was probable cause to
arrest Barnes when Barnes pulled away from his attempt to prevent entry into
the dwelling was also not objectively unreasonable in light of clearly
established law.
      Therefore, Viruette is entitled to qualified immunity on the Carrolls’
illegal-arrest claim. See Ramirez, 716 F.3d at 375 (“If an officer reasonably but
mistakenly believes that probable cause [to arrest] exists, he is entitled to
qualified immunity.”).
      2. Deputy Viruette Is Entitled to Qualified Immunity for the
         Warrantless Entry into Barnes’s Home
      The Carrolls also challenge Deputy Viruette’s warrantless entry into the
residence   in   pursuit   of   Barnes.    The   Fourth   Amendment      prohibits
unreasonable searches, and a warrantless entry into a person’s home is

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                                   No. 13-20388
presumptively unreasonable. United States v. Aguirre, 664 F.3d 606, 610 (5th
Cir. 2011). “[T]he warrant requirement is subject to certain exceptions.”
Stuart, 547 U.S. at 403. Because a warrantless entry into a home “is presumed
to be unreasonable,” the officer “has the burden of proving that the warrantless
search was conducted pursuant to an exception.” United States v. Riley, 968
F.2d 422, 424–25 (5th Cir. 1992).
      Deputy Viruette justifies his warrantless entry into Barnes’s home under
the exigent-circumstances exception to the warrant requirement. Viruette
contends that he was in hot pursuit of Barnes for evading detention and arrest.
Specifically, Viruette contends that, under Texas law, “an officer may enter a
residence to make a warrantless arrest” of a suspect seeking to avoid detention
or arrest—which is a misdemeanor offense—and that federal law is not clearly
established. In their response brief, the Carrolls do not specifically elaborate
on their warrantless-home-entry claim, except to reiterate, generally, that the
initial detention and subsequent arrest violated Barnes’s Fourth Amendment
rights, as discussed above.
      The Supreme Court recently held that, as of 2013, “federal and state
courts nationwide are sharply divided on the question whether an officer with
probable cause to arrest a suspect for a misdemeanor may enter a home
without a warrant while in hot pursuit of that suspect.” Stanton v. Sims, 134
S. Ct. 3, 5 (2013) (per curiam). The Court held that an officer who entered a
home in 2008 in hot pursuit of a suspected misdemeanant was therefore
entitled to qualified immunity because the law was not clearly established at
the time of the officer’s conduct. Id. at 3, 5–7. The Court specifically noted that
“[i]t is especially troubling that the Ninth Circuit would conclude that Stanton
was plainly incompetent—and subject to personal liability for damages—based
on actions that were lawful according to courts in the jurisdiction where he
acted,” referring to state courts in California. Id. at 7.
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                                       No. 13-20388
       Here, like the California courts mentioned in Stanton, Texas courts have
upheld warrantless entries in hot pursuit of persons suspected of committing
the misdemeanor offense of evading detention or arrest. 9 The Carrolls do not
point to authority that the law on hot pursuit of misdemeanor suspects was
any clearer in 2006, when Viruette entered the residence, than in 2008, when
the Supreme Court ruled the law was not then clearly established. Id. at 5–7.
Therefore, the Carrolls have not met their burden, see Club Retro, 568 F.3d at
194, and Viruette is entitled to qualified immunity—though we express no view
on whether Viruette’s entry into Barnes’s home was constitutional.
B.     Excessive-Force Claims
       The Carrolls allege that Deputy Viruette, Deputy Celestial, Deputy
Ellington, Deputy Carter, Deputy Evans, and Deputy Hulsey used excessive
force in repeatedly applying their Tasers to Barnes and striking Barnes with
batons, kicks, and punches to subdue and arrest Barnes. The Carrolls also
allege Deputy Sims unconstitutionally stood by the scene and neglected to
intervene under a “bystander liability theory.” To establish a Fourth
Amendment excessive-force claim, “a plaintiff must first show that she was
seized. Next she must show that she suffered (1) an injury that (2) resulted
directly and only from the use of force that was excessive to the need and that
(3) the force used was objectively unreasonable.” Flores, 381 F.3d at 396
(citation omitted).
       In this case, it is undisputed for purposes of this interlocutory appeal
that Barnes died as a result of the deputies’ use of force to attempt to subdue



       9 See, e.g., Rue v. State, 958 S.W.2d 915, 918 (Tex. App.—Houston [14th Dist.], 1997,
no pet.) (“An officer’s hot pursuit of an offender seeking to avoid arrest is an exigent
circumstance justifying nonconsensual entry into the offender’s residence.”); LaHaye v. State,
1 S.W.3d 149, 151–52 (Tex. App.—Texarkana 1999, pet. ref’d) (“We conclude that the arrest
of LaHaye was [lawful because Officer] Martin was in hot pursuit of LaHaye” for evading
arrest, “a Class B misdemeanor”).
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                                  No. 13-20388
and arrest Barnes, so the only issue is whether each deputy’s use of force was
clearly excessive to the need and objectively unreasonable. In assessing the
reasonableness of the use of force, we give “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.” Graham v. Connor, 490 U.S. 386, 396 (1989). “The
‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)
(quoting Graham, 490 U.S. at 396) (internal quotation marks omitted). “The
calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that
is necessary in a particular situation.” Graham, 490 U.S. at 396–97.
      In accordance with our case law, we “examine each individual’s
entitlement to qualified immunity separately” below, Meadours v. Ermel, 483
F.3d 417, 422 (5th Cir. 2007) (holding that “the district court erred in
considering the officers’ actions together”).
      1. Deputy Viruette’s Use of Force
      Because it was not clearly established as of 2006 whether an officer could
use this level of nonlethal force on a noncompliant suspect resisting arrest for
refusing commands to get on the floor, Deputy Viruette is entitled to qualified
immunity on this claim.




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                                       No. 13-20388
       The evidence from Viruette’s Taser log establishes that Deputy Viruette
successfully deployed 10 his Taser seven times: four times for five seconds, once
for six seconds, once for nine seconds, and once for eleven seconds. Deputy
Viruette first fired Taser probes at Barnes when Barnes was sitting in a wicker
chair in his living room—and it is undisputed that Barnes’s arms were in full
view and that he was not brandishing any weapons. Viruette deployed his
Taser because Barnes, who entered the home to avoid detention and arrest,
would not comply with Viruette’s order that Barnes get on the floor. The
ensuing struggle in the kitchen between Barnes and Viruette followed directly
from the initial application of the Taser to the seated Barnes, and Barnes’s
active resistance at that point rendered Viruette’s escalation of force—to
include additional Taser applications and hand-to-hand strikes—objectively
reasonable in the circumstances. See Graham, 490 U.S. at 396 (instructing
courts to evaluate “whether the suspect poses an immediate threat to the
safety of the officers” and “whether he is actively resisting arrest or attempting
to evade arrest by flight”); Poole v. City of Shreveport, 691 F.3d 624, 629 (5th
Cir. 2012) (holding that officers who “responded with ‘measured and ascending’
actions that corresponded to Poole’s escalating verbal and physical resistance”
were entitled to qualified immunity). However, the initial application of the
Taser to the seated and unarmed Barnes on suspicion of vandalism and
trespass presents a difficult question whether a reasonable jury could find this
first use of force to be clearly and objectively excessive. We decline to reach the
close constitutional question and instead decide the case on the second prong
of qualified immunity. See Pearson, 555 U.S. at 236.


       10Deputy Viruette maintains that the Taser did not deploy properly and make contact
with Barnes, and there is certainly a fact dispute whether this is so; however, a jury would
not be required to accept Viruette’s testimony, because it is contradicted by the duration of
the Taser applications and the reasonable inferences a jury could draw therefrom, in the light
most favorable to the Carrolls.
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                                  No. 13-20388
      The issue, then, is whether an officer’s application of a Taser to an
unarmed, seated suspect who fails to comply with an order to get on the ground
is “objectively unreasonable in light of clearly established law.” Hogan, 722
F.3d at 731. We conclude that it is not. Testimony at trial and case law
establish that officers are trained to use nonlethal force to gain compliance if
a subject actively resists arrest and does not comply with verbal task directions
to get on the ground. See, e.g., Poole, 691 F.3d at 629; Galvan v. City of San
Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (per curiam); Deville v.
Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (“Officers may
consider a suspect’s refusal to comply with instructions . . . in assessing
whether physical force is needed to effectuate the suspect’s compliance.”).
Officers are trained in this manner because a police officer who is standing
over a suspect who is on the ground has a “position of advantage over that
subject,” meaning the officer “can control [the subject’s] body movement,” and
that “the subject will offer less resistance.”
      Whether a Taser could be used to gain compliance in this circumstance
was not clearly established in 2006. The en banc Ninth Circuit confronted a
similar situation in Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011). There, as
here, the officers applied a Taser to a suspect who refused to comply with
verbal task directions. The plaintiff in Mattos was a pregnant woman who had
refused to sign a traffic citation for driving thirty-two miles per hour in a
twenty-mile-per-hour school zone. Id. at 436–37. The officers were then
required to arrest her, and when she refused to exit the vehicle, the officers
threatened to apply a Taser. Id. at 437. Even though the plaintiff informed the
officers that she was “less than 60 days from having my baby,” they applied
the Taser to her three times in about one minute because she continued to
refuse to exit the vehicle, clutching the steering wheel. Id. The court surveyed
circuit case law that existed before the traffic stop in November 2004. Id. at
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                                       No. 13-20388
446–47. The court held that the use of force was excessive, but concluded that,
as of 2004, the law was not clearly established and granted qualified immunity.
Id. at 448. The court followed its prior decision in which the Ninth Circuit held
that, in a “tasing [that] took place in 2005,” “in that year ‘there was no Supreme
Court decision or decision of our court addressing’ the use of a taser” in those
circumstances. Id. at 448 (quoting Bryan v. MacPherson, 630 F.3d 805, 833
(9th Cir. 2010)). Similarly, the Sixth Circuit held that “it was [not] clearly
established in May 2007 that using a taser repeatedly on a suspect actively
resisting arrest and refusing to be handcuffed amounted to excessive force.”
Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012).
       We agree with the Ninth Circuit’s and the Sixth Circuit’s conclusion that,
as of October 2006, the law was not clearly established that using a Taser to
gain compliance of a unarmed, seated suspect for resisting arrest and failing
to   follow    verbal     commands        was      clearly   excessive     and    objectively
unreasonable. 11 The Carrolls point to no case clarifying the law between 2005
(when the Ninth Circuit found the law to be unclear) and the tasing in this
case in October 2006, 12 and we are aware of none. Therefore, we conclude that
Deputy Viruette is entitled to qualified immunity on the Carrolls’ excessive-
force claim.



       11  See, e.g., Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (rejecting claims
that the use of a taser constituted excessive force); Hinton v. City of Elwood, Kan., 997 F.2d
774, 781–82 (10th Cir. 1993) (same); Russo v. City of Cincinnati, 953 F.2d 1036, 1044–45 (6th
Cir. 1992) (same); see also Mattos, 661 F.3d at 448 (“[W]hen the defendant officers tased
Brooks [in 2004], there were three circuit courts of appeals cases rejecting claims that the
use of a taser constituted excessive force; there were no circuit taser cases finding a Fourth
Amendment violation.”).
        12 The Carrolls cite Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012), but that case is

distinguishable. There, “the officers immediately resorted to taser and nightstick without
attempting to use . . . commands,” id. at 763, whereas, here, Deputy Viruette only resorted
to force after verbal commands were ignored. Corroborated testimony relied on by the district
court and not disputed by the Carrolls establishes that the deputies continually delivered
verbal task instructions before resorting to force and throughout the encounter.
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                                    No. 13-20388
      2. Deputies Celestial’s and Ellington’s Use of Force to Get Barnes
         on the Ground and Handcuffed
      Deputies Celestial and Sims 13 responded to Viruette’s call for backup
from about a mile away and arrived soon after Viruette applied the Taser to
Barnes, as the struggle moved from the living room into the kitchen. Viruette
was continually giving Barnes verbal commands to get on the ground. At this
point, neither Celestial nor Sims had knowledge of the offense for which
Viruette was attempting to make an arrest, just that Viruette could not get
Barnes restrained and handcuffed. Viruette appeared winded from the
struggle, so Deputy Celestial and Deputy Sims stepped between Barnes and
Viruette. Because Barnes was actively resisting Deputy Viruette, deputies
Celestial and Sims delivered nonlethal force: Deputy Celestial repeatedly
struck Barnes in the leg and thigh area with a hickory stick, and Deputy Sims
kicked Barnes in the stomach area. Finally, Sims tackled Barnes to the ground.
      Deputy Sims climbed on top of Barnes, and Deputy Viruette handcuffed
Barnes’s left wrist. Deputy Celestial struck Barnes with his fists in an effort to
gain access to his right wrist. At this point, Deputy Ellington arrived on the
scene. Ellington applied his Taser several times in an effort to get Barnes to
comply so that he could be detained and arrested. Deputy Viruette then left
the room to go to the hospital for treatment of a hand injury.
      Having considered the entire record and each individual’s use of force,
we conclude that the deputies’ use of force in getting Barnes onto the ground
was not unreasonable under the circumstances. By all accounts, after the
initial Taser discharge, Barnes failed to comply with verbal task directions and
actively resisted all attempts to subdue and detain him. We find it significant
that only nonlethal force was used throughout this portion of the encounter.


      13The district court granted summary judgment to Deputy Sims, and the Carrolls do
not appeal this judgment.
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                                 No. 13-20388
We judge the officers’ conduct “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.” Rockwell, 664 F.3d
at 991. Deputies Celestial and Ellington “responded with ‘measured and
ascending’ actions that corresponded” to Barnes’s “escalating . . . physical
resistance.” Poole, 691 F.3d at 629. Thus, they are each entitled to qualified
immunity for this portion of the encounter.
      3. Deputies Celestial’s, Ellington’s, Carter’s, Evans’s,              and
         Hulsey’s Use of Force Once Barnes Was Restrained
      At some point after Barnes was tackled to the ground, handcuffed, and
held down and surrounded by several deputies, the district court found that
the sheriff’s deputies “deliver[ed] strikes” to Barnes. Deputies Celestial,
Ellington, Carter, Evans, and Hulsey argue that they are entitled to judgment
as a matter of law because their use of force was reasonable in the
circumstances. They argue their use of force was justified because they “were
dealing with an actively resisting suspect,” and they discontinued their use of
force when “he stopped resisting.”
      Because we lack jurisdiction to review the genuineness of a fact issue
precluding judgment as a matter of law, we cannot accept the deputies’
interpretation of the record that the use of force discontinued when Barnes
stopped resisting. At least one deputy admitted that he delivered “side strikes”
after Barnes had been handcuffed. Deputy Carter testified that Barnes
continued to resist while he was placed in handcuffs, but this testimony is
contradicted by testimony that Barnes was limp on the kitchen floor when he
was handcuffed.
      The issue, then, is whether a reasonable jury could conclude that
continued force applied after a suspect has been restrained and after the
suspect stops resisting may be clearly excessive and objectively unreasonable.
The law was clearly established at the time of the deputies’ conduct that, once

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                                   No. 13-20388
a suspect has been handcuffed and subdued, and is no longer resisting, an
officer’s subsequent use of force is excessive. See, e.g., Bush v. Strain, 513 F.3d
492, 501–02 (5th Cir. 2008); Gomez v. Chandler, 163 F.3d 921, 922, 924–25 (5th
Cir. 1999) (concluding that use of force “while [a prisoner’s] hands were
handcuffed behind his back” could be considered excessive, precluding
summary judgment). This includes repeated applications of a Taser after a
suspect is arrested, subdued, and “no longer resisting arrest.” Anderson v.
McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam); Autin v. City of
Baytown, 174 F. App’x 183, 185 (5th Cir. 2005). Thus, the deputies are not
entitled to qualified immunity as a matter of law for injuries Barnes sustained
after he was handcuffed and restrained and after he stopped resisting arrest.
      Because we lack jurisdiction to review the district court’s fact
determinations, we cannot say on this record—rife with inconsistencies and
contradictions—at which point Barnes was restrained and subdued after he
had been tackled to the ground. Accordingly, we dismiss this portion of
deputies Celestial’s, Ellington’s, Carter’s, Evans’s, and Hulsey’s interlocutory
appeal for lack of jurisdiction.
      4. Deputy Sims’s Bystander Liability for Failing to Intervene
      The Carrolls allege that Deputy Sims violated Barnes’s Fourth
Amendment right to be free from unreasonable and excessive force by failing
to intervene to stop the other deputies. Deputy Sims argues that he is entitled
to judgment as a matter of law because he “was not present in the house during
this entire incident,” explaining that he had “exited the house after Barnes
fell.” Sims elaborates that, after he returned to the scene, Barnes had been
“detained and the event ended.”
      The law as of 2006 was clearly established that “an officer who is present
at the scene and does not take reasonable measures to protect a suspect from
another officer’s use of excessive force may be liable under section 1983.” Hale
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                                  No. 13-20388
v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). To establish this claim, the
Carrolls must show that Sims “(1) kn[ew] that a fellow officer [was] violating
an individual’s constitutional rights; (2) ha[d] a reasonable opportunity to
prevent the harm; and (3) cho[se] not to act.” Kitchen v. Dallas Cnty., Tex., 759
F.3d 468, 480 (5th Cir. 2014).
      Deputy Sims’s principal argument is that he did not have a reasonable
opportunity to prevent the harm because he was not present when his fellow
deputies continued to strike Barnes—he had left the house. If this is true, then
Deputy Sims would be entitled to qualified immunity on this claim. But the
record is unclear on this point. The only testimony comes from Deputy Sims,
and it is possibly inconsistent with Sims’s admission at trial that he made the
call to emergency medical services in which he stated “the male appeared to be
unresponsive as he laid on the floor,” which suggests Sims observed Barnes “go
limp” in response to Taser strikes after he had been handcuffed. Additionally,
it is unclear whether Barnes had been subdued before Sims claims to have left
the room for the reasons stated above.
      Because Deputy Sims’s qualified-immunity interlocutory appeal turns
on questions of fact that the district court found disputed, we lack jurisdiction.
Therefore, we dismiss Deputy Sims’s interlocutory appeal for lack of
jurisdiction.
                              V. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s decision
denying qualified immunity to Deputy Viruette. We also REVERSE and hold
that Deputy Celestial and Deputy Ellington are entitled to qualified immunity
for their efforts to get Barnes restrained and on the ground. Because we
conclude that deputies Celestial’s, Ellington’s, Carter’s, Evans’s, Hulsey’s, and
Sims’s qualified-immunity appeals—arising from their use of force after
Barnes had been restrained and handcuffed—turn on questions of fact the
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                                No. 13-20388
district court found disputed, we DISMISS these interlocutory appeals for lack
of jurisdiction and REMAND for proceedings consistent with this opinion.




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