     Case: 11-60693     Document: 00511876978         Page: 1     Date Filed: 06/05/2012




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

                                                                            FILED
                                                                            June 5, 2012

                                     No. 11-60693                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TONIA MASSEY; GREG MASSEY,

                                                  Plaintiffs–Appellees,
v.

DEPUTY ROBERT WHARTON, Individually,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:08-CV-243


Before DENNIS, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Defendant Robert Wharton, a deputy of the DeSoto County Sheriff’s
Department in DeSoto County, Mississippi, appeals the denial of his motion for
summary judgment. Because material issues of fact exist, we affirm.
                                              I
        In January 2008, Olive Branch, Mississippi police officers engaged in a
high-speed chase of a fleeing motorist, Chad Gammons. As Gammons neared


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60693

Olive Branch city limits, the DeSoto County Sheriff’s Department was notified
that Gammons was heading into the county. Wharton was on duty that night
and responded to the dispatch. Eventually, Gammons ran off the road and
crashed into the side of a house occupied by Essie Talley, the mother of plaintiff
Tonia Massey and the grandmother of plaintiff Greg Massey. After the crash,
both DeSoto County Sheriff’s Department officers and Olive Branch police
officers were at the scene.
      The events that occurred after the crash are hotly disputed. As explained
below, we cannot review the genuineness of those factual disputes, and we must
accept the truth of the plaintiffs’ assertions. For clarity, however, we set forth
both sides’ assertions below.
      According to the plaintiffs, Greg Massey, who lived nearby, drove an all-
terrain vehicle (ATV) to Talley’s house in order to survey the damage resulting
from the crash. Multiple police officers testified that Massey was moving at a
high rate of speed. Greg Massey asserts that when he arrived on the scene, he
began talking to Tonia Massey, his mother, and Talley, his grandmother. He
claims that Wharton told him to get off the ATV but another officer yelled at him
to drive it away and park it elsewhere. Wharton fired his taser at Greg almost
immediately afterward. According to the plaintiffs, Greg did not say anything
to Wharton before Wharton fired his taser, nor did Greg engage in any kind of
physical altercation with Wharton. Greg testified that after Wharton deployed
his taser, he told Greg to drive the ATV up the hill and park it by his parents’
home.    Greg began to drive away slowly, but Wharton persisted in the
altercation and attempted to spray Greg with pepper spray. After being sprayed,
Greg asserts that he continued up the hill, consistent with the officers’
instructions. Wharton and other officers gave chase. At the top of the hill,
Wharton allegedly deployed his taser again. Greg was then pulled off of the
ATV, handcuffed, and arrested. Wharton testified that, although he did not

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apply the handcuffs, he was the arresting officer. Greg was taken to jail on
charges of disorderly conduct and resisting arrest, both misdemeanor charges,
which were subsequently dismissed.
      Wharton has a contrary view of Greg’s actions. According to Wharton,
Greg was initially asked to leave the scene, and when he failed to do so, he was
asked to dismount his ATV. Wharton argues that Greg became confrontational
and refused to dismount. It was only then that Wharton decided to deploy his
taser. Allegedly, a struggle over control of the taser ensued, and Wharton was
finally able to fire the taser, but it failed. According to Wharton, Greg continued
to refuse compliance, so Wharton attempted to use his pepper spray, which Greg
tried to deflect. Greg then fled, driving the ATV quickly up the hill. Wharton
and other officers followed him. Wharton alleges that Greg was pulled off of the
ATV at the top of the hill by other officers and arrested.
      With respect to Tonia Massey, the plaintiffs argue that she arrived at the
top of the hill when Greg was already on the ground. She claims that she saw
Wharton tase Greg as he was being pulled off of the ATV. She says that she
begged the officers to leave her son alone and maintained that he had done
nothing wrong. Wharton allegedly told her to “shut up,” which she did not do,
but she maintains that she did not disobey any other commands from the
officers—she was told to stay where she was and she did so. Tonia testified in
her deposition that Wharton became angry, grabbed her by the neck, and threw
her to the ground. He placed her in handcuffs and allegedly stomped his foot
into the middle of her back. She was then placed in a police car for two-and-a-
half to three hours. She was subsequently released and not charged.
      Wharton asserts that he saw Tonia’s verbal disturbance and its effect on
the already-volatile situation and that she ignored many requests to quiet down
and stop inciting the situation. Other officers testified that she was moving
toward the officers but was told to stop. She allegedly did not comply and

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officers tried to hold her back. Wharton advised her that she would be arrested
and claims she struggled when he tried to apply handcuffs. With the help of
another officer, he placed her on the ground and applied the handcuffs. She was
then put in a police car, but it was ultimately decided that no charges would be
filed and she was released.
       Greg and Tonia Massey sued pursuant to 28 U.S.C. § 1983. Both Greg and
Tonia claim that they were arrested without probable cause in violation of the
Fourth Amendment and that they were unreasonably seized in violation of the
Fourth Amendment. Greg also claimed that Wharton violated his constitutional
right to be free from malicious prosecution. Tonia additionally claimed that
Wharton violated her First Amendment right to be free from arrest for
exercising her right to free speech.           Wharton filed a motion for summary
judgment asserting that he is entitled to qualified immunity. The district court
granted the motion with respect to Greg’s malicious prosecution claim, but
denied it with respect to all other claims, holding that genuine issues of material
fact exist.
                                             II
                                              A
       Our jurisdiction to review denials of summary judgment on qualified
immunity grounds is limited—we have jurisdiction over such appeals “to the
extent that [the denial of summary judgment] turns on an issue of law.”1
Accordingly, we lack jurisdiction to review the district court’s assessments
regarding “whether there is enough evidence in the record for a jury to conclude
that certain facts are true.”2 However, we can review “the purely legal question
whether the defendants are entitled to qualified immunity on the facts that the

       1
        Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (alteration in original)
(internal quotation marks omitted) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
       2
           Id. at 347.

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district court found sufficiently supported in the summary judgment record.”3
Put simply, “we can review the materiality of any factual disputes, but not their
genuineness.”4
       We review the materiality of the factual disputes de novo.5 In reviewing
the materiality of any factual disputes, we must assume that the plaintiffs’
factual allegations are true and then determine whether the defendant is
entitled to qualified immunity based on those facts.6 “[A] defendant challenging
the denial of a motion for summary judgment on the basis of qualified immunity
‘must be prepared to concede the best view of the facts to the plaintiff and
discuss only the legal issues raised by the appeal.’”7
       In this case, the district court did not state the facts that it found to be
disputed.       Instead, it denied Wharton’s motion for summary judgment on
qualified-immunity grounds because “genuine issues of material fact exist as to
whether defendant Wharton’s conduct was objectively unreasonable under the
circumstances.” In these circumstances, “[w]e can either scour the record and
determine what facts the plaintiff may be able to prove at trial and proceed to
resolve the legal issues, or remand so that the trial court can clarify the order.”8
In light of the limited record in this case, we will do the former.9


       3
         Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 878 (5th Cir.
2004) (citing Kinney, 367 F.3d at 347).
       4
         Kinney, 367 F.3d at 346 (quoting Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.
2000)) (internal quotation marks omitted).
       5
           Id. at 349.
       6
           Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007).
       7
           Id. (quoting Gonzalez v. Dallas Cnty., 249 F.3d 406, 411 (5th Cir. 2001)).
       8
        Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (quoting Thompson v. Upshur
Cnty., Tex., 245 F.3d 447, 456 (5th Cir. 2001)) (internal quotation marks omitted).
       9
           See id.

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                                              B
       “The doctrine of qualified immunity protects government officials ‘from
liability from civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’”10 We conduct a two-prong inquiry in determining whether an
official is entitled to qualified immunity. First, we determine whether the
official’s conduct violated a constitutional right of the plaintiff.11 Second, we
determine whether that right was clearly established at the time of the
violation.12 We may conduct this inquiry in either sequence.13
       Wharton readily admits in his reply brief that he must concede the best
view of the facts to the plaintiffs. However, his brief is replete with instances in
which he appears to argue that the evidence supports his view of the facts and
not the plaintiffs’. Therefore, he argues, he is entitled to summary judgment on
the ground that he has qualified immunity.                To the extent that Wharton
challenges the sufficiency of the record evidence to support the plaintiffs’ view
of the facts, we lack jurisdiction; we will not review the genuineness of factual
disputes on appeal. Accordingly, we turn to the materiality of those factual
disputes.
                                              1
       Wharton first argues that he had probable cause to arrest both Greg and
Tonia Massey. He also argues that even if he did not have probable cause, he




       10
         Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).
       11
            Manis, 585 F.3d at 843.
       12
            Id.
       13
            Pearson, 555 U.S. at 236.

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                                        No. 11-60693

reasonably but mistakenly concluded that probable cause was present, so he is
entitled to qualified immunity.
       In order for an arrest to be lawful, it must be supported by probable
cause.14 “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.”15           A police officer has qualified immunity if he
“reasonably but mistakenly conclude[s] that probable cause is present.”16 If
Wharton could reasonably have believed Greg’s and Tonia’s arrests to be lawful
in light of the clearly established law at the time, then he has qualified
immunity.17
       Greg Massey was arrested and charged with resisting arrest18 and
disorderly conduct.19 Probable cause did not exist based on either crime—taking
the plaintiffs’ allegations as true, Greg was attempting to comply with police
commands at all times. When he first drove up to the crime scene, he did not
have time to “promptly comply with or obey”20 the officers’ contradictory


       14
        Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004) (citing Hinshaw v. Doffer,
785 F.2d 1260, 1266 (5th Cir. 1986)).
       15
         Id. (quoting United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996)) (internal
quotation marks omitted).
       16
         Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Anderson v. Creighton, 483 U.S.
635, 641 (1987)).
       17
            See id.
       18
          MISS. CODE ANN. § 97-9-73 (“It shall be unlawful for any person to obstruct or resist
by force, or violence, or threats, or in any other manner, his lawful arrest or the lawful arrest
of another person by any state, local or federal law enforcement officer . . . .”).
       19
         Id. § 97-35-7 (making it a crime to “fail[] or refuse[] to promptly comply with or obey
a request, command, or order of a law enforcement officer” in a variety of circumstances).
       20
            Id.

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                                         No. 11-60693

commands, and when he drove away, he claims that he was not fleeing but was
obeying Wharton’s order to drive the ATV up the hill. He was neither disobeying
Wharton’s commands nor attempting to resist his lawful arrest. Accepting these
facts as present, probable cause did not exist, and no officer reasonably could
believe otherwise.21
       Similarly, no officer reasonably could believe that an arrest of Tonia
Massey would be lawful. Taking the plaintiffs’ allegations as true, Tonia Massey
obeyed the officers at all time with the exception of remaining quiet, which, as
we discuss below, cannot support probable cause for arrest. She did not commit
disorderly conduct, nor did she resist the lawful arrest of either herself or her
son. No reasonable officer could believe that probable cause existed to arrest
Tonia Massey in this situation.
       Wharton appears to argue that Tonia Massey was not arrested, but was
merely detained pursuant to Terry v. Ohio, which allows brief investigatory
stops based on reasonable suspicion.22 However, it is clear that a detention of
significant length may transform an investigative detention into an arrest.23
The investigative stop can “last no longer than is necessary to effectuate the




       21
          See Sullivan v. Allred, 297 F. App’x 339, 342 (5th Cir. 2008) (unpublished) (holding,
with respect to actions that predate those at issue here in a case arising in Texas, that genuine
issues of material fact exist that preclude summary judgment on arrest without probable cause
and excessive force grounds when, accepting the plaintiff’s view of the facts, the plaintiff was
approached by a police officer, told to leave, and as he was walking away, the police officer
employed a choke hold, brought him to the floor, and arrested him).
       22
            392 U.S. 1, 30 (1968); see also United States v. Place, 462 U.S. 696, 702 (1983).
       23
         See United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) (“We recognize that
a detention may be of excessively long duration even though the officers have not completed
and continue to pursue investigation of the matters justifying its initiation. . . . A prolonged
investigative detention may be tantamount to a de facto arrest, a more intrusive custodial
state which must be based upon probable cause rather than mere reasonable suspicion.”
(internal citations omitted)).

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purpose of the stop.”24 In United States v. Place, the Supreme Court held that
a seizure of a man’s luggage for ninety minutes required probable cause, not
reasonable suspicion, and noted, “[A]lthough we decline to adopt any outside
time limitation for a permissible Terry stop, we have never approved a seizure
of the person for the prolonged 90-minute period involved here and cannot do so
on the facts presented by this case.”25 Tonia Massey was handcuffed and put in
the back of a police car, she claims, for two-and-a-half to three hours. There is
no indication that the police were investigating her for anything. Under these
circumstances, any reasonable officer should have known that Tonia Massey’s
seizure required probable cause, not reasonable suspicion.26
                                                2
       Wharton also argues that Greg and Tonia Massey were not unreasonably
seized in violation of the Fourth Amendment. He argues that he had probable
cause to arrest them, and the seizure did not involve “deadly force, an
unannounced entry into a home, entry into a home without a warrant, or
physical penetration of the body.”27 He also argues that the plaintiffs only
pleaded a claim for unreasonable seizure, but did not plead a claim of excessive
force. However, if they did plead claims for excessive force, he asserts that his
conduct in subduing both Greg and Tonia Massey was objectively reasonable.
       As an initial matter, we reject Wharton’s argument that the plaintiffs did
not plead excessive force claims. The plaintiffs alleged that Wharton violated

       24
            Florida v. Royer, 460 U.S. 491, 500 (1983).
       25
            462 U.S. at 709-10.
       26
          See Freeman v. Gore, 483 F.3d 404, 413 (5th Cir. 2007) (holding that the plaintiff had
been arrested, not merely detained, when the officer threatened the plaintiff with arrest, the
plaintiff invited arrest, and the officer handcuffed her and put her in the back of a police car
for thirty to forty-five minutes).
       27
         See Atwater v. City of Lago Vista, 195 F.3d 242, 244-45 (5th Cir. 1999) (en banc), aff’d,
532 U.S. 318 (2001).

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their “right to be free from arrest without probable cause and to be free from
unreasonable seizure of the person” in violation of the Fourth Amendment. An
excessive force claim is analyzed under the Fourth Amendment’s reasonableness
standard,28 and the plaintiffs pleaded a claim for unreasonable seizure. The
plaintiffs have also pleaded facts showing that their claim is plausible.
       An excessive force claim is “separate and distinct from” a claim for
unlawful arrest and must therefore be analyzed without regard to whether the
arrest was justified,29 although the evidence may overlap.30 To prove a claim for
excessive force, the plaintiff must show “(1) injury, (2) which resulted directly
and only from a use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable.”31 In this case, Wharton has not argued that
the plaintiffs cannot show an injury resulting from the use of force. Rather,
Wharton argues that his use of force was objectively reasonable. In assessing
whether the use of force was reasonable, we must assess the totality of the
circumstances.32 Several important factors are “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




       28
            Graham v. M.S. Connor, 490 U.S. 386, 395 (1989).
       29
            Freeman, 483 F.3d at 417.
       30
            Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007).
       31
         Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012) (quoting Collier v. Montgomery,
569 F.3d 214, 218 (5th Cir. 2009)) (internal quotation marks omitted).
       32
            Id. (citing Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008)).

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arrest by flight.”33 These factors were clearly established at the time of the
events here.34
       We confronted a similar case involving a taser in Autin v. Baytown,
decided almost two years before the actions at issue here.35 In Autin, the
plaintiff, suspecting something was wrong, used a brick to knock on the door of
her brother’s house.36 When he did not answer, she called the police and
requested an officer’s help.37 The officer arrived and told her he could not help
her, and as she picked up the brick and approached the door again, the officer
deployed his taser on her.38 It malfunctioned, so he attempted a contact tase.39
The taser malfunctioned again.40 He repeatedly contact tased the plaintiff while
forcing her to the ground.41            She hit her head on a pole and suffered a
laceration.42 We affirmed the district court’s denial of the officer’s motion for
summary judgment because the plaintiff was at most committing the minor
crime of criminal mischief, was not a threat to the officer or others, and was not




       33
            Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
       34
         See Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (applying the Graham factors
to events that precede those at issue here); Autin v. Baytown, 174 F. App’x 183, 186 (5th Cir.
2005) (unpublished).
       35
            174 F. App’x 183 (5th Cir. 2005) (unpublished).
       36
            Id. at 183.
       37
            Id. at 184.
       38
            Id.
       39
            Id.
       40
            Id.
       41
            Id.
       42
            Id.

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                                       No. 11-60693

resisting arrest.43 Because none of the factors above supported the officer, we
held that the officer was not entitled to qualified immunity.44
       In light of Autin and the clearly established Graham factors, no reasonable
police officer would believe the force used against Greg Massey to be reasonable
under the circumstances. Taking the plaintiffs’ assertions as true, Greg Massey
was arrested for disorderly conduct and resisting arrest although he was
attempting to comply with the officers’ commands, he was not a threat to the
officers or others, and he was not attempting to flee, but was driving away at the
command of Wharton. Nonetheless, Wharton used his taser twice and his
pepper spray once to subdue Greg. None of the three factors supports Wharton,
so no reasonable officer would believe the force used here to be reasonable.
       For similar reasons, Wharton is presently not entitled to qualified
immunity on Tonia Massey’s excessive force claim. Taking all of the plaintiffs’
factual assertions as true, she was arrested for disorderly conduct and resisting
arrest although she complied with the officers’ instructions, she did not pose a
threat to the officers or anyone else, and she was not resisting arrest. Although
the test for excessive force is quite fact-intensive, it is clear enough that no
reasonable officer would believe the force used against her to be reasonable.45




       43
            Id. at 185.
       44
            Id. at 186.
       45
           See Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (holding that the law was
clearly established prior to the events at issue here that “the permissible degree of force
depends on the severity of the crime at issue, whether the suspect posed a threat to the
officer’s safety, and whether the suspect was resisting arrest or attempting to flee,” and
consequently that the officer “should have known that he could not forcefully slam [the
plaintiff’s] face into a vehicle while she was restrained and subdued.”); see also Brosseau v.
Haugen, 543 U.S. 194, 199 (2004) (holding that the court of appeals erred in finding “fair
warning” in the general tests of Graham and Garner, but noting that, in the obvious case,
these general standards can clearly establish the answer without further case law).

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                                                3
      Finally, Wharton claims that Tonia Massey cannot make out a violation
of her First Amendment rights. The Supreme Court has held that “the First
Amendment protects a significant amount of verbal criticism and challenge
directed at police officers.”46 “The freedom of individuals verbally to oppose or
challenge police action without thereby risking arrest is one of the principal
characteristics from which we distinguish a free nation from a police state.”47
The validity of a First Amendment claim may depend on whether probable cause
exists for the arrest.          “If [probable cause] exists, any argument that the
arrestee’s speech as opposed to her criminal conduct was the motivation for her
arrest must fail, no matter how clearly that speech may be protected by the First
Amendment.”48
      We confronted a somewhat similar situation in Enlow v. Tishomingo
County, Mississippi.49 In Enlow, the police initiated a gambling raid on a
building owned by the plaintiff.50             The facts were substantially disputed.
According to the plaintiff, as the police were conducting the raid, he merely
asked two questions about the raid, remained silent after being told to be quiet,
and took a picture of the raid with a bystander’s camera, after which he was
arrested.51 We held that because this speech failed to “rise above ‘inconvenience,
annoyance, or unrest,’ . . . or constitute an incitement to immediate lawless



      46
           City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987).
      47
           Id. at 462-63.
      48
           Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008).
      49
           962 F.2d 501 (5th Cir. 1992).
      50
           Id. at 503.
      51
           Id. at 509.

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action,” Enlow had stated a cognizable First Amendment claim.52 We further
affirmed the district court’s denial of summary judgment on qualified-immunity
grounds because the facts were disputed as to whether the defendant arrested
the plaintiff because he feared that the plaintiff would incite a riot or because he
had exercised his First Amendment rights.53
      Here, if Wharton had probable cause to arrest Tonia Massey, then her
First Amendment claims must fail. However, issues of material fact exist as to
whether Wharton had probable cause to arrest Tonia Massey. Accepting the
plaintiffs’ allegations as true, then the plaintiffs have asserted a First
Amendment violation. Tonia Massey did nothing but tell the police officers to
leave her son alone. Her speech neither rises above inconvenience, annoyance,
or unrest, nor does it constitute an incitement to immediate lawless action.
Furthermore, the law was clearly established at the time of the actions here.
The validity of Tonia Massey’s First Amendment claim therefore “hinges on
probable cause for her arrest,” and this claim cannot be resolved on summary
judgment.54
                                       *        *        *
      For the foregoing reasons, the district court’s denial of Wharton’s motion
for summary judgment is AFFIRMED.




      52
           Id. (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949)).
      53
           Id. at 509-10.
      54
           See Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008).

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