     Case: 15-10464      Document: 00513321756         Page: 1    Date Filed: 12/28/2015




                   REVISED December 28, 2015
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-10464                       United States Court of Appeals
                                    Summary Calendar                              Fifth Circuit

                                                                                FILED
                                                                        December 17, 2015
VERONICA HERNANDEZ,                                                        Lyle W. Cayce
                                                                                Clerk
                     Plaintiff–Appellant,
v.

CITY OF LUBBOCK, TEXAS; ADAM GARRETT FREEMAN,

                     Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:14-CV-159


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       The district court granted Defendant−Appellee Adam Garrett Freeman’s
motion for summary judgment on the basis of qualified immunity. We affirm.
                               I.     BACKGROUND
       At approximately 2:22 p.m. on November 8, 2010, Defendant−Appellee
Adam Garrett Freeman, an officer with the City of Lubbock Police Department



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-10464    Document: 00513321756     Page: 2   Date Filed: 12/28/2015



                                 No. 15-10464
(“LPD”), observed Plaintiff−Appellant Veronica Hernandez and a male friend
illegally “J walk” across Indiana Avenue, a seven-lane road in Lubbock, Texas.
Officer Freeman activated his vehicle’s lights, approached Hernandez and her
friend, and directed them to “Come here.” While Officer Freeman was not on
duty at the time, he was wearing his LPD uniform and driving his LPD patrol
car. After pausing, Hernandez and her friend complied with his command.
Referencing the fact that they had jaywalked across a seven-lane road, Officer
Freeman stated, “You know, you all are seriously stupid.” Hernandez replied
that she “didn’t appreciate being called stupid.”
      According to Officer Freeman, as he began writing Hernandez and her
friend citations for jaywalking, Hernandez started “yelling,” challenged his
authority to give her a ticket, and her movements “became aggressive” and
“evasive.” Due to her change in disposition, Officer Freeman decided to place
her in handcuffs while he finished filling out the citations. However, when he
reached for her wrist to apply his handcuffs, she moved. According to Officer
Freeman, Hernandez “pulled her right wrist away from me in an attempt to
cause me to lose my grasp.” Conversely, Hernandez states that she merely
“flinched.” In response, Officer Freeman “dropped his citation book and
wrapped [his] arm around her to control her.” According to Officer Freeman,
when Hernandez again moved her wrist, Officer Freeman forced her to lean
over his patrol car. Officer Freeman states that at this point, Hernandez’s
friend began yelling and moved closer to Hernandez and Officer Freeman.
Officer Freeman ordered Hernandez not to resist, told her friend to step back,
and forced Hernandez to the ground so that he could apply his handcuffs.
Another LPD officer arrived on the scene and arrested Hernandez’s friend.
      In addition to being cited for jaywalking, both Hernandez and her friend
were taken to Lubbock’s Juvenile Justice Center where Hernandez was
charged with a misdemeanor for resisting arrest and her friend was charged
                                       2
    Case: 15-10464     Document: 00513321756     Page: 3   Date Filed: 12/28/2015



                                  No. 15-10464
with a misdemeanor for interfering with a peace officer. Hernandez later
pleaded nolo contendere to the jaywalking citation.
      Hernandez filed a complaint in September 2014 asserting claims under
42 U.S.C. § 1983 and Texas law. In January 2015, Officer Freeman moved for
summary judgment on the basis of qualified immunity. In May 2015, the
district court held that Officer Freeman was entitled to qualified immunity,
granted summary judgment in his favor, and entered a partial judgment
pursuant to Federal Rule of Civil Procedure 54(b). Hernandez timely appealed.
                            II.   DISCUSSION
      The district court had jurisdiction under 28 U.S.C. §§ 1331 and
1343(a)(3). This Court has appellate jurisdiction to review the district court’s
partial judgment pursuant to 28 U.S.C. § 1291.
      We review a district court’s decision to grant a defendant’s motion for
summary judgment on the basis of qualified immunity de novo. Correa v.
Fischer, 982 F.2d 931, 932 (5th Cir. 1993). A court should grant summary
judgment if no genuine dispute of material fact exists and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material
if it “might affect the outcome of the suit under the governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary
judgment, while “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor,” id. at 255, “[t]he non-
movant must go beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial,” Piazza’s Seafood World, LLC v. Odom, 448
F.3d 744, 752 (5th Cir. 2006).
      A public official is entitled to qualified immunity on summary judgment
unless (1) the plaintiff has “adduced sufficient evidence to raise a genuine issue
of material fact suggesting [the official’s] conduct violated an actual
constitutional right,” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008),
                                        3
    Case: 15-10464     Document: 00513321756    Page: 4   Date Filed: 12/28/2015



                                 No. 15-10464
and (2) the official’s “actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question,” id. (quoting Freeman
v. Gore, 483 F.3d 404, 411 (5th Cir. 2007)). As to the first of these prongs, we
have previously described this inquiry as requiring the plaintiff to show a
genuine issue of material fact that he or she suffered “(1) an injury (2) which
resulted from the use of force that was clearly excessive to the need and (3) the
excessiveness of which was objectively unreasonable.” Ramirez v. Martinez,
716 F.3d 369, 377 (5th Cir. 2013) (quoting Rockwell v. Brown, 664 F.3d 985,
991 (5th Cir. 2011)). Once an officer raises qualified immunity as a defense,
the burden shifts to the plaintiff to show that summary judgment should not
be granted. See Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). In
opposing a motion for summary judgment on the basis of qualified immunity,
a plaintiff “cannot rest on conclusory allegations and assertions but must
demonstrate genuine issues of material fact regarding the reasonableness of
the officer’s conduct.” Id.
      Whether an officer has acted reasonably is analyzed from the perspective
of a reasonable officer at the scene of the events. Graham v. Connor, 490 U.S.
386, 396 (1989). This “calculus . . . 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.” Id. at 396−97.
“Objective reasonableness is a matter of law for the courts to decide, not a
matter for the jury.” Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).
      The district court found that Hernandez had not raised a genuine issue
of material fact that Officer Freeman’s use of force was “objectively
unreasonable.” We agree. Officer Freeman had probable cause to stop
Hernandez as he observed Hernandez and her friend illegally jaywalk.
Accordingly, he did not act unreasonably in choosing to arrest her. See, e.g.,
                                       4
    Case: 15-10464    Document: 00513321756     Page: 5   Date Filed: 12/28/2015



                                 No. 15-10464
United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995) (“Probable cause for
a warrantless arrest 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.”). This is true even where the offense is minor, such as
for failing to wear a seatbelt while operating a motor vehicle. See Atwater v.
City of Lago Vista, 195 F.3d 242, 244 (5th Cir. 1999) aff’d, 532 U.S. 318 (2001).
      There is also no genuine issue of material fact regarding the
reasonableness of Officer Freeman’s conduct in effectuating the arrest. A
reasonable officer could have interpreted Hernandez’s initial failure to
immediately comply with Officer Freeman’s command to “Come here” and
challenge to his authority to issue her a ticket as circumstances requiring
additional measures to ensure the suspect was under control. Accordingly,
Officer Freeman did not act unreasonably when he put his arm around
Hernandez and forced her to lean over his car while he attempted to handcuff
her. Indeed, numerous courts, including this one, have held that police officers
do not act unreasonably in forcing an individual to lean over his or her patrol
car when the officer believes it necessary to gain control. See, e.g., Stogner v.
Sturdivant, 515 F. App’x 280, 282−83 (5th Cir. 2013) (per curiam); Speirs v.
City of Universal City, Tex., No. SA-10-CV-0222, 2010 WL 2721438, at *3 (W.D.
Tex. July 8, 2010).
      Hernandez has also failed to raise a genuine issue of material fact that
Officer Freeman acted unreasonably in forcing her to the ground. See, e.g.,
Ibarra v. Harris Cty. Tex., 243 F. App’x 830, 835 (5th Cir. 2007); Mason v.
Lowndes Cty. Sheriff’s Dep’t, 106 F. App’x 203, 208 (5th Cir. 2004); White v.
Briones, No. H-09-2734, 2011 WL 66134, at *5, 11 (S.D. Tex. Jan. 7, 2011).
Following her initial resistance to his authority, Hernandez moved her wrist
when Officer Freeman attempted to handcuff her. Even accepting Hernandez’s
                                       5
    Case: 15-10464    Document: 00513321756     Page: 6   Date Filed: 12/28/2015



                                 No. 15-10464
characterization that she merely “flinched,” she has not raised a genuine issue
of material fact that a reasonable officer at the scene would not have
interpreted her actions as an attempt to resist. As such, she has not shown
that Officer Freeman acted unreasonably in his subsequent attempts to detain
and handcuff her. Accordingly, Hernandez has not raised a genuine issue of
material fact that Officer Hernandez acted unreasonably such that summary
judgment was inappropriate.
                          III.   CONCLUSION
      For the foregoing reasons, we affirm the district court’s grant of
summary judgment in Defendant’s favor.




                                      6
