     Case: 15-30846      Document: 00513625287         Page: 1    Date Filed: 08/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-30846                               FILED
                                                                            August 5, 2016
                                                                            Lyle W. Cayce
GINETTE BONE,                                                                    Clerk

              Plaintiff - Appellant

v.

KELLI DUNNAWAY, Police Officer; BRYAN JONES,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            U.S.D.C. No. 2:14-CV-2788


Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Ginette Bone appeals the district court’s summary judgment for
defendants, Officers Kelli Dunnaway and Bryan Jones, which granted them
qualified immunity from Bone’s claims of excessive force and false arrest under
42 U.S.C. § 1983. For the reasons set forth below, we AFFIRM as to Dunnaway
and VACATE and REMAND as to Jones.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30846
                                             I
       The following facts are set forth in the light most favorable to Bone. Bone
was eating at a restaurant in the French Quarter of New Orleans, Louisiana
around 10:00 p.m. on a Saturday night, December 14, 2013. She and her dining
companions noticed an SUV parked in the no-parking zone outside of the
restaurant. One of the passengers threw trash onto the sidewalk. In response,
Bone’s companion approached the SUV and discussed what he witnessed with
the passengers. Bone then witnessed a passenger throw more trash onto the
ground. This time, Bone walked outside, picked up the trash, and placed it on
the hood of the SUV. One of the passengers got out of the SUV and confronted
Bone. An argument ensued, during which the driver of the SUV threatened to
call the police.
       Bone’s companion flagged down Officer Dunnaway. When Dunnaway
arrived, the driver of the SUV began screaming at Dunnaway. Officer Jones
drove by, saw the encounter, and pulled over to assist Dunnaway. During that
time, Bone remained leaning against the nearby building until Dunnaway
approached her and asked if she placed trash onto the SUV.                      Bone told
Dunnaway that she put trash that the passengers had thrown onto the ground
on the hood of the SUV. Bone then waited in Dunnaway’s vehicle to stay warm
until Dunnaway approached Bone and asked her to sign a summons to appear
in court. Bone refused to sign the summons, stated “I’ve done nothing wrong[;]
you must be joking,” and turned around to walk away. Jones then “forcefully”
grabbed Bone and “violently” slammed her face against a nearby window.
Neither Dunnaway nor Jones warned Bone that she could be arrested if she
did not sign the summons. 1


       1 As we discuss more fully below, Jones’s version of these events is dramatically
different. He contends that Bone refused to sign the summons and started walking away,
running into Jones as she did so. Jones states that he advised her that she needed to stop or
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                                     No. 15-30846
      The officers arrested Bone and took her to Orleans Parish Prison.
Dunnaway cited Bone for disturbing the peace by tumultuous behavior in
violation of section 54-403 of the New Orleans Municipal Code, and resisting
an officer in violation of section 54-441. Bone was the only person arrested at
the scene, although the passengers of the vehicle were also issued summonses
for disturbing the peace and littering. Jones’s force resulted in bruising around
Bone’s wrists, fingerprints on her arms, and a swollen cheek. Bone did not go
to the doctor because she did not have medical insurance.
      Bone filed claims under 42 U.S.C. § 1983, alleging that Jones and
Dunnaway violated her Fourth Amendment rights. Bone alleged that Jones
used excessive force and that Dunnaway falsely arrested her. Bone also filed
several state law claims against Jones, Dunnaway, and the City of New
Orleans.     The district court granted summary judgment for Jones and
Dunnaway, concluding that both defendants were entitled to qualified
immunity. The district court dismissed Bone’s state law claims, declining to
exercise supplemental jurisdiction. Bone appeals the district court’s grant of
summary judgment, arguing that Jones and Dunnaway were not entitled to
qualified immunity.
                                            II
                                            A
      We review the grant of summary judgment de novo and apply the same
standard as the district court. Thompson v. Mercer, 762 F.3d 433, 435 (5th Cir.
2014), cert. denied, 135 S. Ct. 1492 (2015). “Summary judgment is appropriate
where the record and evidence, taken in the light most favorable to the
non-moving party, show ‘that there is no genuine dispute as to any material




she would be arrested, and that she kept walking. He contends that it was only then that he
grabbed Bone by the wrist, and that in doing so, he accidentally pushed her into a wall.
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                                   No. 15-30846
fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting
FED. R. CIV. P. 56(a)).
      Bone asserts claims of false arrest and excessive force under section
1983. “Section 1983 provides a private cause of action against those who,
under color of law, deprive a citizen of the United States of ‘any rights,
privileges, or immunities secured by the Constitution and laws.’” Goodman v.
Harris Cty., 571 F.3d 388, 394–95 (5th Cir. 2009) (quoting 42 U.S.C. § 1983).
A plaintiff can bring a claim under section 1983 against an officer in his or her
individual or official capacity. Id. If, as in this case, a plaintiff sues a person
in his or her individual capacity, the defendant may be protected by the
doctrine of qualified immunity. Pearson v. Callahan, 555 U.S. 223, 231 (2009).
“A public official is entitled to qualified immunity unless his conduct violates
constitutional law that was ‘clearly established at the time of the defendant’s
actions.’” Thompson, 762 F.3d at 435 (quoting Freeman v. Gore, 483 F.3d 404,
411 (5th Cir. 2007)). A constitutional violation is clearly established if no
reasonable officer could believe the act was lawful. See Manis v. Lawson, 585
F.3d 839, 846 (5th Cir. 2009).

                                         B
      Bone claims that Dunnaway violated her Fourth Amendment right to be
free from false arrest.      The district court granted summary judgment for
Dunnaway, concluding that she was entitled to qualified immunity because
“Dunnaway was not objectively unreasonable in concluding that plaintiff
committed or attempted to commit the offense of disturbing the peace by
tumultuous behavior.”
      “The constitutional claim of false arrest requires a showing of no
probable cause.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).
Probable cause is defined as “facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or one of reasonable
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caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.” Id. (quoting
Piazza v. Mayne, 217 F.3d 239, 245–46 (5th Cir. 2000)). “If an officer has
probable cause to believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.” Lockett v. New Orleans City, 607 F.3d 992,
998 (5th Cir. 2010) (quoting Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001)). The right to be free from false arrest without probable cause is clearly
established. See Club Retro, 568 F.3d at 206. However, to overcome qualified
immunity, Bone must show that no reasonable officer would have believed that
there was probable cause to arrest Bone. See id. at 206–07; Manis, 585 F.3d
at 846.      Probable cause and the ensuing qualified immunity turn on
Dunnaway’s reasonable beliefs and knowledge, including information received
from eye witnesses. See Cooper v. City of La Porte Police Dep’t, 608 F. App’x
195, 200 (5th Cir. 2015) (citing United States v. Nunez-Sanchez, 478 F.3d 663,
666 (5th Cir. 2007)).
         Dunnaway arrested Bone for disturbing the peace by tumultuous
behavior in violation of a New Orleans municipal ordinance that prohibits
“act[ing] in a violent or tumultuous manner toward another whereby the
property of any person is placed in danger of being destroyed or damaged.”
NEW ORLEANS, LA., MUN. CODE § 54-403(b)(7). The Municipal Code also makes
it a criminal offense to attempt to violate a provision of the code. See id. § 54-
61(a).     At the time of the arrest, Dunnaway responded to an excited
confrontation among strangers at 10 p.m. on a Saturday night in the French
Quarter. Additionally, when she arrived on the scene, the driver of the SUV
immediately screamed at Dunnaway. One passenger told Dunnaway that
Bone had placed trash on the car, although the passenger and Bone gave
conflicting stories regarding where the trash came from. Considering the
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                                   No. 15-30846
totality of the circumstances, it was reasonable for Dunnaway to believe that
Bone either violated or attempted to violate section 54-503 when she interacted
with the passengers of an unknown car by intentionally depositing trash on
that vehicle’s hood. As a result, the district court correctly held that Dunnaway
was entitled to qualified immunity.
                                         C
      Bone also claims that Jones violated her Fourth Amendment right to be
free from excessive force. A plaintiff must meet three elements to establish an
excessive force claim: (1) the plaintiff suffered an injury, (2) the injury “resulted
directly and only from the use of force that was excessive to the need,” and
(3) the force was objectively unreasonable. Ballard v. Burton, 444 F.3d 391,
402 (5th Cir. 2006) (quoting Flores v. City of Palacios, 381 F.3d 391, 396 (5th
Cir. 2004)). The right to be free from excessive force is clearly established, but
the degree of force that is reasonable varies based on the totality of the
circumstances. See Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013).
“‘To gauge the objective reasonableness of the force used by a law enforcement
officer, we must balance the amount of force used against the need for force,’
paying ‘careful attention to the facts and circumstances of each particular
case.’” Ramirez v. Knoulton, 542 F.3d 124, 129 (5th Cir. 2008) (quoting Flores,
381 F.3d at 399). The Supreme Court has instructed that courts determining
the objective reasonableness of force must consider “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).
      Although Bone’s allegation of injury could be characterized as de
minimis—bruising and a swollen cheek—whether an injury is cognizable
depends on the reasonableness of the force, not just the extent of injury. See
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                                        No. 15-30846
Freeman, 483 F.3d at 416–17; see also Williams v. Bramer, 180 F.3d 699, 704
(5th Cir. 1999) (“What constitutes an injury in an excessive force claim is
therefore subjective—it is defined entirely by the context in which the injury
arises.”); Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013) (“Any force found
to be objectively         unreasonable necessarily exceeds                the de minimis
threshold . . . .” (footnote omitted)). 2 At the very least, there is a fact question
about the degree of injury. 3 Therefore, we must determine the reasonableness
of Jones’s force.
       To withstand Jones’s motion for summary judgment, Bone must show
that a genuine dispute of material fact exists as to whether: (1) Jones’s use of
force violated Bone’s Fourth Amendment right to be free from excessive force;
and (2) Jones’s use of force was objectively unreasonable in light of then clearly
established law. Newman v. Guedry, 703 F.3d 757, 766 (5th Cir. 2012).
       Jones does not make much of an attempt to meet the first prong, perhaps
because, considering the evidence in the light most favorable to Bone, none of
the Graham factors favors Jones in this case. See Graham, 490 U.S. at 396.
Perhaps, also, Jones does not seek to justify Bone’s version of events, because
in his version, the “wrist grab” was to stop Bone from fleeing and the “slam”
was accidental.       Bone’s alleged crime was very minimal, and there is no
evidence that she was a threat to the safety of others or even perceived as such.
See id. Although the district court concluded that it was reasonable for Jones
to believe Bone was “attempting to evade arrest by flight,” this conclusion is


       2 This court has said that “minor, incidental injuries that occur in connection with the
use of handcuffs to effectuate an arrest do not give rise to a constitutional claim for excessive
force.” Freeman, 483 F.3d at 417. Bone has alleged injuries that resulted from conduct that
exceeded the use of handcuffs.
       3Thus, we need not address the extent to which the reasoning of Wilkins v. Gaddy,
559 U.S. 34 (2010), an Eighth Amendment case, may apply to a Fourth Amendment case.
See United States v. Rodella, 804 F.3d 1317, 1327–28 (10th Cir. 2015), petition for cert. filed,
No. 15-1158 (U.S. Mar. 14, 2016).
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based on Jones’s version of the facts. Bone has shown a genuine dispute of fact
as to both whether the officers were attempting to arrest her at the time she
turned around and whether the refusal to sign and turning around constituted
“flight.” Bone testified that she was not told she was under arrest before she
turned away from the officers and that the “slam against the window” took
place immediately after she turned away. Considering the facts in the light
most favorable to Bone, there is a genuine dispute of material fact as to
whether Bone was evading arrest when Jones acted. Hence, there is a genuine
dispute as to whether any Graham factor justified Jones’s use of force, and
therefore, whether Jones’s force violated Bone’s constitutional rights.
       Turning to the question of “clearly established law,” 4 this same factual
dispute prevents us from answering the question in Jones’s favor at summary
judgment. Given that this case does not involve a serious crime, any perception
that the suspect posed a risk of injury to anyone, or any active physical
“resistance,” the only possible justification for the use of force was Jones’s
perception that Bone was “fleeing” at the time of the use of force (and his
argument that the “slam” was accidental).                 We have distinguished, for
purposes of qualified immunity, cases in which officers face verbal resistance
but no fleeing suspect, from those in which officers face some form of verbal or
physical resistance and a fleeing suspect. In the former cases, we have denied
qualified immunity at the summary judgment stage. See Deville v. Marcantel,
567 F.3d 156, 169 (5th Cir. 2009) (rejecting summary judgment on qualified
immunity grounds where an individual was stopped for a minor traffic offense,
did not attempt to flee, and did not engage in active resistance); Bush v. Strain,



       4 The burden is on Bone to show that it was clearly established at the time of her
arrest that Jones’s use of force was unconstitutional. See Club Retro, 568 F.3d at 194 (“When
a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the
inapplicability of the defense.”).
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513 F.3d 492, 502 (5th Cir. 2008) (rejecting qualified immunity where an
individual was not resisting arrest or attempting to flee); Goodson v. City of
Corpus Christi, 202 F.3d 730, 734, 740 (5th Cir. 2000) (finding a fact issue
precluded summary judgment on qualified immunity grounds where officers
tackled an individual who pulled his arm away during arrest attempt, but was
not fleeing); see also Massey v. Wharton, 477 F. App’x 256, 263 (5th Cir. 2012)
(rejecting qualified immunity where an individual was arrested for disorderly
conduct, was not a threat to officers, and was not attempting to flee). In the
latter cases, we have affirmed grants of qualified immunity. See Pratt v. Harris
Cty., 822 F.3d 174, 182–85 (5th Cir. 2016) (affirming grant of qualified
immunity where suspect physically resisted officers’ commands and initially
attempted to flee); Poole v. City of Shreveport, 691 F.3d 624, 629, 631 & n.5
(5th Cir. 2012) (same); Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009)
(same).
       This distinction also drove the outcome for one plaintiff in Tolan v.
Cotton, 573 F. App’x 330, 330 (5th Cir.) (no qualified immunity where officers
shot suspect who was neither physically resisting officers nor attempting to
flee), on remand from 134 S. Ct. 1861 (2014), 5 while resulting in a different
outcome for his mother, see Tolan v. Cotton, 713 F.3d 299, 308 (5th Cir. 2013)
(holding that officer’s “grabbing [the plaintiff’s] arm and shoving her against
the garage door” after she refused to comply with verbal commands to facilitate
a search was not unconstitutional under clearly established law), vacated on
other grounds, 134 S. Ct. 1861 (2014), aff’d in relevant part, 573 F. App’x 330,



       5 The Supreme Court concluded that the Fifth Circuit improperly failed to credit the
son’s evidence and remanded for consideration of whether the officer’s actions violated clearly
established law. Tolan, 134 S. Ct. at 1868. On remand, the Fifth Circuit held that a genuine
dispute of material fact existed that precluded qualified immunity at summary judgment for
the son’s excessive force claim. Tolan, 573 F. App’x at 330. His mother’s claim was not
considered by the Supreme Court.
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331 (2014) (“It goes without saying that all other [than the son’s] dismissals . . .
are not affected by [the Supreme Court’s] holding.”).
       A case directly on point is not required to show that it is clearly
established that certain force is a constitutional violation; nonetheless,
existing precedent must “define[ ] the contours of the right in question with a
high degree of particularity.” Hogan, 722 F.3d at 735 (quoting Morgan v.
Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc)). These cases define
parameters for officers like Jones. Under his version of the facts, Bone had
resisted verbal commands to come back and submit to an arrest and was
attempting to flee (and the “slam” was accidental), which is arguably within
the parameters of the cases in which we have granted qualified immunity. 6 On
the other hand, if Bone’s version of the events is true, there was no verbal
command that she stop, no arrest, and no flight, and Jones’s degree of force
was clearly prohibited under our precedent. Given this factual dispute, which
turns on the credibility of Jones and Bone, we cannot resolve the qualified
immunity question as a matter of law. Accordingly, we conclude that Jones is
not entitled to summary judgment on qualified immunity grounds.                           See
Newman, 703 F.3d at 766.
       As a result of its ruling on Bone’s federal claims, the district court
declined to exercise supplemental jurisdiction over the state law claims. We
leave in place that action as to Dunnaway, but vacate and remand as to Jones
so that the district court can examine anew the question of supplemental




       6  But to conclude that it was reasonable for Jones to believe Bone was evading arrest,
the district court must have credited Jones’s testimony that she walked twenty feet after she
turned away and was told that “she needed to stop or she’d be arrested for failure to be issued
a summons.” Even when deciding the clearly established prong, “courts must take care not
to define a case’s ‘context’ in a manner that imports genuinely disputed factual propositions.”
Tolan, 134 S. Ct. at 1866.
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jurisdiction over the state law claims in light of the pendency of this federal
claim.
                                      III
      In conclusion, we AFFIRM the district court’s judgment as to Dunnaway.
We VACATE the judgment in favor of Jones and REMAND to the district court
for further proceedings consistent with this opinion.




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