     Case: 11-10020     Document: 00511797154         Page: 1     Date Filed: 03/22/2012




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

                                                                            FILED
                                                                          March 22, 2012

                                       No. 11-10020                        Lyle W. Cayce
                                                                                Clerk

SHOMARI STATEN

                                                  Plaintiff-Appellee
v.

DAVID TATOM

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CV-342


Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
W. EUGENE DAVIS:*
        Officer David Tatom (Defendant or Tatom) challenges the district court’s
denial of qualified immunity to him for his search, seizure, and alleged use of
excessive force against Plaintiff Shomari Staten (Plaintiff or Staten). For the
reasons given below, we REVERSE the district court’s denial of qualified
immunity for the search and seizure and AFFIRM its denial of qualified
immunity on the excessive force claim, and its order denying summary judgment
on Plaintiff’s state law claims.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                   I. FACTS
      Plaintiff owns a used car business in Garland, Texas. In February 2009
he sold a car to a customer who lived in a nearby town. Plaintiff agreed to
deliver the car to the customer at a parking lot in Carrollton, Texas on the
afternoon of Saturday, February 21, 2009. On that date at approximately 2:00
p.m. Plaintiff and a business associate went to the parking lot. While waiting
for the customer to arrive, Plaintiff removed the dealer tags from the vehicle
being sold and put a temporary paper dealer license plate on the vehicle. Two
witnesses saw Plaintiff do this from across the parking lot, thought his behavior
was suspicious, and called 911 to report what they suspected was an automobile
theft. Meanwhile, Plaintiff got back into the front passenger seat of another
vehicle driven by his business associate.
      Shortly thereafter, Officer Palmer (Palmer) from the Carrollton Police
Department arrived on the scene. A dash camera was on Palmer’s vehicle and
videotaped most of the incident that followed.
      Palmer approached the driver’s side of the vehicle and began to question
Plaintiff’s business associate. Palmer then asked for driver’s license and
insurance. It is unclear from the video whether he was addressing only the
driver, or both the driver and Plaintiff.   Soon thereafter Defendant Officer
Tatom arrived on the scene and stood, as back-up, near the back of the car on the
passenger side.
      At some point Plaintiff realized he knew Officer Palmer. Because Plaintiff
was on the passenger side of the vehicle where Palmer could not see him,
Plaintiff got out of the vehicle to give Palmer a clear view of him so that he
would recognize him. At no point prior to exiting the vehicle was Plaintiff
ordered to remain in it. When Plaintiff exited, Defendant Tatom hovered his
hand over his gun and went to search Plaintiff.



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      Defendant argues Plaintiff’s hand was concealed underneath his “hoody”
sweater when he got out of the car. Plaintiff claims that at no time were either
of his hands concealed and the video is not clear enough to determine this. In
the video, Plaintiff does not appear to exit the car more quickly than would be
normal. The district court found, and the video confirms, that at no point did
Plaintiff make any sudden or violent movements, or otherwise move towards
Defendant in a threatening or challenging manner.
      As Defendant began his search, Plaintiff appeared compliant, facing away
from Defendant and toward the car. Defendant began by frisking Plaintiff along
his torso and waist, and Plaintiff informed Defendant, “I have a concealed
weapons license.” Defendant then found Plaintiff’s firearm and took possession
of it. Plaintiff is heard repeating, “I have a concealed weapons license.”
      Defendant then quickly and forcefully pulled Plaintiff backward and
downward, pushing Plaintiff towards and into the car parked behind them and
ultimately to the ground. Officer Palmer ran around the vehicle to assist
Defendant, stopping a few feet from Defendant and Plaintiff. After Defendant
placed the firearm on the hood of the neighboring car, he pulled Plaintiff to his
feet by Plaintiff’s right arm. He then used his control of Plaintiff’s arm to push
Plaintiff in front of him, toward the car out of which Plaintiff had exited, where
Defendant and Palmer secured Plaintiff’s hands behind his back. Plaintiff
continued to ask “what are you doing? I have a concealed weapons license.” At
this point, Plaintiff claims the officer had him under his control and had
removed any perceived threat. Defendant disagrees, claiming Plaintiff – now
and once on the ground – resisted Defendant’s efforts to place him under control.
Defendant then proceeded to execute a takedown of Plaintiff, bringing Plaintiff
to his hands and knees. This placed Defendant’s body between the camera and
Plaintiff’s torso and back. Plaintiff claims that throughout this time Defendant
was using his grip on Plaintiff’s arms to twist his arms and shoulders, causing

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injuries to his shoulders, hand, and wrists, and pain. Defendant denies these
accusations and claims simply to have been restraining him. Defendant then
pushed Plaintiff forward from an all-fours kneeling position until Plaintiff was
flat on his stomach, where Defendant handcuffed Plaintiff and completed the
patdown search.
      Plaintiff maintains he was not struggling or resisting throughout this
encounter. Defendant claims otherwise, that Plaintiff was both physically
resisting and disobeying his verbal commands. On the video, Defendant can be
heard yelling that Plaintiff should quit resisting, and Plaintiff can be heard
yelling that he is not resisting and the officers are going to break his arm. The
parties also stridently disagree about the amount of force that was used in the
encounter. For instance, Plaintiff characterizes that he was “slammed” into the
car parked behind him and “thrown violently to the ground where Officer Tatom
continued to forcefully dig his knee into Staten’s body and continued to slam
Staten while Officer Tatom handcuffed him.” Similarly, Plaintiff emphasizes the
district court’s observation that, upon initially finding the handgun, Defendant
“takes his right hand, grabs the top of Staten’s head, and yanks it backwards.”
Officer Tatom disputes these characterizations, claiming he used only the force
that was necessary to gain control of Plaintiff and secure his own safety.
      The video shows that Plaintiff was eventually put in Defendant’s squad car
where he remained for 15-20 minutes. The customer who was purchasing the
car from Plaintiff arrived and confirmed Plaintiff’s story. Plaintiff was released
and no charge was filed.
      As a result of the incident, Plaintiff claims to have experienced pain in his
knees, back, and head, and bruising on his wrists, and that these injuries
required him to undergo hand surgery.
      Plaintiff claims that following his release from custody, he told Defendant
that he would file a complaint against him, which he did at the City of Carrollton

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Police Department the following Monday, February 23, 2009. Plaintiff also made
a freedom of information request for a copy of the dashcam video.
      On March 3, 2009, Defendant presented a judge with affidavits for two
arrest warrants, to arrest Plaintiff for resisting arrest, and for refusing to
display his concealed handgun license upon a peace officer’s demand to see his
identification. The affidavits recounted Defendant’s version of events, including
that Plaintiff suddenly got out of the car and stood with his left hand in his
jacket, that Plaintiff resisted throughout the encounter, and that Plaintiff failed
to show his concealed weapons license after Officer Palmer made two requests
for identification, the second directed specifically at Plaintiff. The warrants were
granted on the basis of these affidavits.
      On March 19, 2009, Plaintiff returned to the City of Carrollton Police
Department to check on his records request. When Plaintiff inquired about the
video, two police officers came out, handcuffed Plaintiff, and arrested him based
on the warrants to which Defendant had attested. Plaintiff claims he was then
brought to the interrogation room, being manhandled along the way, and asked
if he really wanted to pursue his complaint against Defendant. Plaintiff said he
did, and he was jailed until bond was posted. The City attempted to press the
charges, but the Dallas County District Attorney’s Office dismissed them.
      Plaintiff also contends that Defendant filed a report with the Texas
Department of Public Safety based on the allegation that Plaintiff failed to
display his concealed handgun license. The Department reviewed the incident,
including the dashcam video, and declined to suspend Plaintiff’s concealed
handgun license.
                                 II. ANALYSIS
STANDARD OF REVIEW AND QUALIFIED IMMUNITY GENERALLY
      “We review de novo a district court's denial of a motion for summary
judgment on the basis of qualified immunity.” Kovacic v. Villarreal, 628 F.3d

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209, 211 (5th Cir. 2010).      Summary judgment is appropriate when it is
determined that 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). A
denial of a motion for summary judgment on the issue of qualified immunity is
immediately appealable, to the extent that the district court's order turns on an
issue of law. Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010). We do not have
jurisdiction to review the genuineness of any factual disputes but can decide
whether the factual disputes are material. Wagner v. Bay City, 227 F.3d 316, 320
(5th Cir. 2000).
      The doctrine of qualified immunity shields a government official
performing discretionary functions from civil damages liability, provided his
complained of actions meet the test of “objective legal reasonableness.” Harlow
v. Fitzgerald, 457 U.S. 800, 819 (1982). We assess the “objective reasonableness”
of an officer's actions in light of the particular circumstances and the legal rules
“clearly established” at the time the officer’s actions were taken. Anderson v.
Creighton, 483 U.S. 635, 639 (1987).
PLAINTIFF’S CLAIMS
      All of Plaintiff’s claims arise under the Fourth Amendment. “[I]n . . .
Fourth Amendment contexts . . . the ‘reasonableness’ inquiry . . . is an objective
one: the question is whether the officers' actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989).
      Plaintiff makes three claims, relating to the alleged (A) unlawful search,
(B) unlawful detention, and (C) excessive force used against him. These claims
are addressed in turn.
Unlawful Search/Unlawful Detention
      The Supreme Court defined the requirements for conducting a frisk or
patdown of a suspect as follows:

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                                  No. 11-10020

             In . . . Terry v. Ohio, 392 U.S. 1 (1968), the [Supreme] Court
      considered whether an investigatory stop (temporary detention) and
      frisk (patdown for weapons) may be conducted without violating the
      Fourth Amendment's ban on unreasonable searches and seizures.
      The [Supreme] Court upheld “stop and frisk” as constitutionally
      permissible if two conditions are met. First, the investigatory stop
      must be lawful. That requirement is met in an on-the-street
      encounter, Terry determined, when the police officer reasonably
      suspects that the person apprehended is committing or has
      committed a criminal offense. Second, to proceed from a stop to a
      frisk, the police officer must reasonably suspect that the person
      stopped is armed and dangerous.
      ....
             Terry involved a stop for interrogation of men whose conduct
      had attracted the attention of a patrolling police officer. The
      officer's observation led him reasonably to suspect that the men
      were casing a jewelry shop in preparation for a robbery. He
      conducted a patdown, which disclosed weapons concealed in the
      men's overcoat pockets. This Court upheld the lower courts'
      determinations that the interrogation was warranted and the
      patdown, permissible. See id., at 8.
             Terry established the legitimacy of an investigatory stop “in
      situations where [the police] may lack probable cause for an arrest.”
      Id., at 24. When the stop is justified by suspicion (reasonably
      grounded, but short of probable cause) that criminal activity is
      afoot, the Court explained, the police officer must be positioned to
      act instantly on reasonable suspicion that the persons temporarily
      detained are armed and dangerous. Ibid. Recognizing that a
      limited search of outer clothing for weapons serves to protect both
      the officer and the public, the Court held the patdown reasonable
      under the Fourth Amendment. Id., at 23–24.

Arizona v. Johnson, 555 U.S. 323, 326-27, 330 (2009).
      The district court found that if Plaintiff exited the vehicle with his hands
concealed, then the search was justified, but if he exited with his hands visible,
then the search was illegal. The court concluded that this was a question of fact
the precluded summary judgment.




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       The district court based its analysis on this Court’s ample traffic stop
jurisprudence. We disagree with this analysis because this case was not a traffic
stop. Rather, it is analogous to Terry, where an officer came upon a scene with
reasonable suspicion a felony was in progress,1 identified himself as an officer,
and, in the course of investigating the crime, conducted a search “limited to that
which is necessary for the discovery of weapons which might be used to harm the
officer or others nearby.” Terry, 392 U.S. at 26. The Supreme Court found an
unintrusive pat down justified in such an instance in the interest of officer
safety. When the officer’s pat down revealed the firearm, the search was
justified, along with the short detention.
Excessive Force
       A suspect has a clearly established right under the Fourth Amendment to
be free of excessive force when an officer is executing a search or arrest. See
Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). The Supreme Court
has articulated the relevant inquiry as follows:
       Determining whether the force used to effect a particular seizure is
       “reasonable” under the Fourth Amendment requires a careful
       balancing of “‘the nature and quality of the intrusion on the
       individual's Fourth Amendment interests’” against the
       countervailing governmental interests at stake. Tennessee v.
       Garner, 471 U.S. 1, 8 (1985) (quoting United States v. Place, 462
       U.S. 696, 703 (1983)). Our Fourth Amendment jurisprudence has
       long recognized that the right to make an arrest or investigatory
       stop necessarily carries with it the right to use some degree of
       physical coercion or threat thereof to effect it. See Terry v. Ohio,
       392 U.S., at 22–27. Because “[t]he test of reasonableness under the
       Fourth Amendment is not capable of precise definition or
       mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979),



       1
         As in Terry, the officer here had more than a “hunch” a crime was in progress. The
informant engaged in an extended conversation with the 911 operator, describing Plaintiff and
his car in detail and identifying specific acts – the taking off of the car’s license plate, which
is not ordinarily done in a store parking lot – giving rise to a suspicion of illegality.

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                                         No. 11-10020

      however, its proper application requires careful attention to the
      facts and circumstances of each particular case.

Graham v. Connor, 490 U.S. 386, 396 (1989) (citation formatting adjusted). The
relevant question is thus whether, taking Plaintiff's version of the facts as true,
the force used by the officer was both excessive to the need and objectively
unreasonable, asking “‘whether the totality of the circumstances justifies a
particular sort of seizure.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8-9
(1985)). Important factors to be considered include the nature and quality of the
intrusion on the individual's Fourth Amendment interests, the severity of the
crime, whether the actor poses an immediate threat to the safety of the officer
or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight. Graham v. Connor, 490 U.S. at 396.
      Here, Defendant argues that he strictly complied with the City’s Use of
Force Directives to take Plaintiff under control by taking him to the ground once
he found Plaintiff’s weapon.2 The district court found that “upon finding a
weapon after doing a search the City of Carrollton’s protocol is to drop the
suspect to the ground,” and that, while Defendant’s compliance with this
directive is “not prima facie evidence that Tatom’s response was constitutional,
it is evidence that Tatom’s response was at least objectively reasonable to an
ordinary officer.” However, the district court also found that “the manner in



      2
           These Directives are as follows:
          If, during the process of conducting a Cursory Search, the searching officer
          finds a gun, the officer should grab the weapon . . . At this time, the searching
          officer should simultaneously take the suspect’s weapon, drop the suspect to
          the ground, and draw his service weapon. Follow up the take down with a
          prone search . . . The reason for putting the suspect on the ground in both
          situations is that the armed suspect is dangerous to the officer as long as he
          is on his feet and able to attack. There is also the possibility that the suspect
          might overpower the officer, and gain a serious advantage. When a suspect is
          properly dropped to the ground, he will be disoriented, giving the officer an
          advantage.

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which Tatom took Staten to the ground was particularly forceful, especially
considering Staten states he was not resisting arrest,” and that “the manner in
which Tatom took down Staten could be construed by a reasonable person as
objectively unreasonable.”
       We agree with the district court. The parties present a number of disputes
of material fact, including, objectively, whether or how much Plaintiff was
resisting, the amount of force Defendant actually used at each stage of the
encounter, and whether that force was reasonable. The parties also dispute
whether Plaintiff had his hands hidden upon stepping out of the vehicle, which
implicates the “immediate threat to the safety of the officers.”3 Graham v.
Connor, 490 U.S. at 396.
       Accordingly, we conclude that the district court correctly denied qualified
immunity to the Defendant on Plaintiff’s excessive force claim.
State Law Claims
       The district court also denied summary judgment to Defendant as to
Plaintiffs’ state law claims of malicious prosecution and assault and battery. We
have jurisdiction to review a denial of immunity under Texas law on an
interlocutory appeal. Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005).
       Under Texas law, “[o]fficial immunity is an affirmative defense that
protects government employees from personal liability.” University of Houston
v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). “A governmental employee is entitled
to official immunity: (1) for the performance of discretionary duties; (2) within
the scope of the employee's authority; (3) provided the employee acts in good
faith.” Id. “Because official immunity is an affirmative defense, to obtain
summary judgment on official immunity, the governmental employee must



       3
        The video is ultimately inconclusive as to these questions, so for the purposes of this
opinion we must assume they are resolved in Plaintiff's favor.

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conclusively prove each element of the defense.” Id. A disputed issue of material
fact as to any element defeats the defense. Id.
       For each claim, the parties only contest Defendant’s compliance with the
good faith element. Like qualified immunity, the good-faith standard focuses on
the objective legal reasonableness of the officer’s conduct. See Kinney v. Weaver,
301 F.3d 253, 285 (5th Cir. 2002).
       Under Texas law, “[a] plaintiff in a malicious criminal prosecution claim
must establish (1) the commencement of a criminal prosecution against the
plaintiff; (2) causation (initiation or procurement) of the action by the defendant;
(3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's
innocence; (5) the absence of probable cause for the proceedings; (6) malice in
filing the charge; and (7) damage to the plaintiff.” Richey v. Brookshire Grocery
Co., 952 S.W.2d 515, 517 (Tex. 1997). “In an action for malicious prosecution,
where the arrest is made under lawful process, the injured party must proceed
against the party who set the process in motion and must allege malice and want
of probable cause.”          Sagebiels, Inc. v. Walker, 498 S.W.2d 271, 274
(Tex.App.–Austin 1973).4
       Plaintiff was arrested for resisting arrest and failing to display his
handgun license when demanded by a peace officer. Under Texas law, a person
commits the offense of resisting arrest “if he intentionally prevents or obstructs
a person he knows is a peace officer . . . from effecting an arrest . . . by using
force against the peace officer or another.” Tex. Pen.Code Ann. § 38.03 (Vernon
2011). A person commits the offense of failing to display a handgun license when


       4
        In Smith v. Davis, the court found that the conduct of an officer making an affidavit
in support of an arrest warrant in bad faith can be considered in a malicious prosecution claim
but “express[ed] no opinion on the merits of a claim for malicious prosecution based solely on
the act of filing an affidavit for an arrest warrant.” 999 S.W.2d 409, 414, n. 2
(Tex.App.–Dallas, 1999). This point was not briefed, and we also express no opinion on this
issue.

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“a license holder is carrying a handgun on” his person when “a peace officer
demands that the license holder display identification,” and “the license holder”
fails to “display both” his identification and his “handgun license.” Tex. Gov’t
Code Ann. § 411.205 (Vernon 2009).5 The district court did not err in finding
issues of fact were presented about 1) whether Defendant, in swearing to the
affidavits that were the basis of Plaintiff’s arrest, had an objectively reasonable
belief that Plaintiff was “resisting arrest” “by using force against the” officer, and
2) whether an officer asked Plaintiff for his identification.            These factual
disputes also precluded a finding that the officer had probable cause to arrest
Plaintiff. Likewise, we find no error in the district court’s conclusion that “the
manner in which [Plaintiff claims he] was treated at the police department,” if
true, could provide evidence of the malice element.
      Finally, regarding the assault and battery claims the district court noted
that the record was not developed and that “[n]either party addresse[d] [the
claims] with much specificity.” Based on our discussion above in which we agree
with the district court that questions of fact were presented on whether
Defendant used excessive force in taking Plaintiff to the ground, we conclude
that the district court did not err in denying summary judgment to Defendant
on these claims.
      Accordingly, we AFFIRM the district court’s denial of Defendant’s
immunity defense as to Plaintiff’s state law claims.
                                   CONCLUSION
      For the reasons given above, we REVERSE the district court’s ruling
denying qualified immunity as to Plaintiff’s search and seizure claims and
AFFIRM the district court’s rulings denying Defendant’s qualified immunity
defense as to Plaintiff’s excessive force claim, and its order denying summary

      5
          This section was amended subsequent to the incident, though it remained the same
in all respects relevant here.

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judgment on Plaintiff’s state law claims. We REMAND this case to the district
court for further proceedings consistent with this opinion.
      Judge Stewart concurs in the judgment only.




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