    Case: 11-41192    Document: 00512093227     Page: 1   Date Filed: 12/21/2012




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

                                                                  FILED
                                                             December 21, 2012
                                 No. 11-41192
                                                                 Lyle W. Cayce
                                                                      Clerk



DERRICK NEWMAN,

                                           Plaintiff-Appellee,

versus

JAMES CODY GUEDRY; DAVID TODD BURKE,

                                           Defendants-Appellants.




                Appeal from the United States District Court
                      for the Eastern District of Texas




Before KING, SMITH and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      James Guedry and David Burke appeal the denial of their motion for sum-
mary judgment based on qualified and official immunity from Derrick Newman’s
42 U.S.C. § 1983 excessive-force and state-law claims. We dismiss the appeal for
want of jurisdiction on account of our finding material those facts the district
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                                        No. 11-41192

court determined to be in genuine dispute.


                                               I.
       Late one night in August 2007, Officer Jason Torres pulled Willie Cole
(“Willie”) over for failing to yield to oncoming traffic while making a lefthand
turn in Beaumont, Texas.1 Torres approached the car and asked Willie, as well
as Newman, who was the passenger in the front seat, and Mario Cole (“Mario”),
in the back seat, for identification. Upon checking with dispatch, Torres learned
that Mario had an outstanding warrant for unpaid traffic tickets.
       Torres and Officer John Brown, who had arrived as backup, asked Mario
to step out of the car and proceeded to handcuff him. Although allowing himself
to be handcuffed, Mario yelled and cursed and made it difficult for the officers
to search him and put him into the squad car. While Mario was struggling,
Newman and Willie stepped out of Willie’s car and urged Mario to “chill out” and
comply with the officers’ commands. Although the officers instructed them to
stay in the car, they remained outside. Standing in the open doorway on the
front passenger side, Newman raised his hands, palms open, while talking with
Mario, then turned to lean against the car and placed his hands on its roof.
       While restraining Mario, Torres radioed dispatch to ask for additional
backup. Dispatch “coded” the channel, which locked all other radio traffic off the
channel and allowed officers en route to hear what was going on. Responding
officers could hear Mario yelling and cursing in the background.
       Officer Charles Duchamp and his trainee, Guedry, arrived at the scene
just as Torres and Brown were putting Mario into Torres’s car. Duchamp
approached Willie as Guedry walked up to Newman, taser drawn. Guedry rehol-


       1
          The facts are from what is seen and heard on three police videos of the incident, espe-
cially from Torres’s dash camera (“the Torres tape”) and from other competent summary-judg-
ment evidence.

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                                     No. 11-41192

stered his taser as he ordered Newman to the rear of the car; Newman complied,
consenting to a protective pat-down search.
      The parties dispute how the pat-down unfolded. Newman alleges that
after Guedry’s hand remained on Newman’s crotch for an uncomfortable length
of time, he informed Guedry, “Ain’t nothing there but nuts. You acting like you
trying to get them.” At that point, Newman alleges, Guedry shoved him in the
back. Guedry contends that Newman grabbed Guedry’s hand, placed it on his
privates, and said “Get you some of that.” Guedry further contends that New-
man refused two commands to “let go of my hand,” so Guedry pushed him for-
ward. The videotapes neither contradict nor confirm either account.
      Seeing Guedry push Newman forward onto the car, Burke, who had
arrived just after Guedry, strode toward Newman. Burke planted his left foot
between Newman’s feet, pushed Newman forward onto the car with his hip and
forearm, and proceeded to strike Newman’s arm with his baton. After five
strikes at his upper right arm, Newman stepped back. Burke replanted his feet
and struck Newman five more times on the arm. Newman’s shorts fell down,
and Burke hit him three more times on his exposed right thigh. Burke struck
Newman a total of thirteen times in about nine seconds, during which, Newman
alleges, neither officer gave him any command with which he failed to comply.
      Burke reholstered his baton as someone yelled, “taser, taser, taser.”
Guedry tased Newman, and tased him again before Newman fell to the ground.2
Guedry then tased Newman a third time. Newman rolled onto his stomach, yell-
ing “ok, ok, I didn’t do nothing, sir, I didn’t do nothing.” The officers then hand-
cuffed Newman; Guedry dragged him by the arm to the sidewalk; Newman
waited, lying prone with his shorts around his ankles, for emergency medical


      2
        Although defendants, in their answer, motions for summary judgment, and appellate
briefing have consistently stated that Guedry tased Newman twice, Guedry testified in his
deposition that he tased three five-second bursts.

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                                       No. 11-41192

personnel to remove the taser barbs from his skin. Again, Newman alleges, he
was not given any commands with which he failed to comply.


                                             II.
       Newman sued in state court, alleging various state-law claims against all
five officers. After he amended his petition to include claims against each officer
for use of excessive force in violation of the federal Constitution under 42 U.S.C.
§ 1983, defendants removed to federal court.3 Each defendantSSGuedry, Burke,
Torres, Duchamp, and BrownSSmoved for summary judgment on all state-law
claims on the ground of official immunity and on the § 1983 claim on the basis
of qualified immunity. The district court granted summary judgment to Torres,
Duchamp, and Brown, finding that Newman had not shown any evidence that
they had a reasonable opportunity both to realize that excessive force was being
used and to intervene to stop it.4 The court denied summary judgment to
Guedry and Burke, concluding that there were issues of material fact as to
whether the force used by the officers was clearly excessive and objectively
unreasonable.


                                             III.
       Under the collateral-order doctrine, this court has jurisdiction to hear a
defendant’s immediate appeal of the denial of a motion for summary judgment

       3
         Newman amended his complaint, alleging that Police Chief Frank Coffin, City Man-
ager James Harris, and the City of Beaumont had established a “zero tolerance policy” that
was unconstitutionally directed at citizens such as Newman. He alleged that certain areas
of Beaumont were designated “high crime areas,” in which officers were required to issue cita-
tions for even minor offenses, and that those areas were disproportionately located in the
poorer south end of Beaumont. The district court dismissed the complaint as time-barred, and
this court affirmed. Newman v. Coffin, 464 F. App’x 359 (5th Cir. 2012) (per curiam).
       4
        Newman filed a notice of appeal from the order dismissing the three, but we dismissed
the appeal for want of jurisdiction. Newman v. Dunchamp [sic], No. 11-41252 (5th Cir. Mar. 8,
2012).

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                                   No. 11-41192

based on qualified immunity “to the extent that the appeal turns on a question
of law.” Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). Where the district
court has found that a material issue of fact exists, we have jurisdiction to
review the materiality, but not the genuineness, of the factual dispute. Id. That
is, we “can consider the legal sufficiency of the facts that the district court found
to be supported by the summary judgment record.” Id.
      We review a summary judgment de novo, “using the same standard as that
employed by the district court under Rule 56.” Kerstetter v. Pac. Scientific Co.,
210 F.3d 431, 435 (5th Cir. 2000). Summary judgment is appropriate “if the
movant shows 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).
      When reviewing a summary judgment, we “must view the facts in the light
most favorable to the non-moving party and draw all reasonable inferences in
its favor.” Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). Even so, “we
assign greater weight, even at the summary judgment stage, to the facts evident
from video recordings taken at the scene.” Carnaby v. City of Houston, 636 F.3d
183, 187 (5th Cir. 2011) (citing Scott v. Harris, 550 U.S. 372 (2007)). When one
party’s description of the facts is discredited by the record, we need not take his
word for it but should view “the facts in the light depicted by the videotape.”
Scott, 550 U.S. at 380-81.


                                         A.
      As public officials, Guedry and Burke (“the officers”) are entitled to quali-
fied immunity on Newman’s § 1983 excessive-force claim unless (1) Newman has
“adduced sufficient evidence to raise a genuine issue of material fact suggesting
[their] conduct violated an actual constitutional right,” and (2) the officers’
“actions were objectively unreasonable in light of clearly established law at the
time of the conduct in question.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th

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                                  No. 11-41192

Cir. 2008). Although qualified immunity is “nominally an affirmative defense,”
the plaintiff bears a heightened burden “to negate the defense once properly
raised.” Id.
      To prevail on his Fourth Amendment excessive-force claim, Newman must
establish “(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 unreason-
able.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). Claims of exces-
sive force are fact-intensive; whether the force used was “clearly excessive” and
“clearly unreasonable” depends on “the facts and circumstances of each particu-
lar case.” Graham v. Connor, 490 U.S. 386, 396 (1989). Some relevant consid-
erations include “the severity of the crime at issue, whether the suspect pose[d]
an immediate threat to the safety of the officers or others, and whether he [was]
actively resisting arrest or attempting to evade arrest by flight.” Id.
      We do not judge the reasonableness of the officers’ use of force from the
safety of our chambers or “with the 20/20 vision of hindsight” but rather “from
the perspective of a reasonable officer on the scene . . . .” Id. Our inquiry is
“whether the officers’ actions [we]re ‘objectively reasonable’ in light of the facts
and circumstances confronting them, without regard to their underlying intent
or motivation.” Id. We examine each officer’s actions independently to deter-
mine whether he is entitled to qualified immunity. Meadours v. Ermel, 483 F.3d
417, 421-22 (5th Cir. 2007).


                                         1.
      The officers contend that their use of force was objectively reasonable.
They assert that Newman resisted search and arrest, that he struggled and was
noncompliant, that he reached for his waistband, potentially for a weapon, and
that their actions were necessary to prevent serious injury or death to them-
selves. Newman denies that he resisted the officers or failed to comply with any

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                                       No. 11-41192

commands. He alleges that the officers used force in response to nothing more
than an off-color joke. Mindful that we are to view the facts in a light most
favorable to Newman, and seeing nothing in the three video recordings to dis-
credit his allegations, we conclude, based only on the evidence in the summary-
judgment record, that the use of force was objectively unreasonable in these
circumstances.
       As to the severity of the underlying crime, Willie, not Newman, was pulled
over for a mere traffic violation. Mario, not Newman, was arrested for unpaid
parking tickets. On appeal, the officers assert that Newman violated Texas
Penal Code § 38.03—Resisting Arrest, Search, or Transportation—because a
“struggle ensued,” and Guedry’s pat-down search was “never completed.”5 Con-
trary to the officers’ contentions, however, the “undisputed” facts do not demon-
strate that Newman resisted search and arrest. On Newman’s account, the
search was never completed, because the officers shoved, hit, and tased him after
he made an off-color joke. Newman denies that he grabbed Guedry’s hand, and
the videotapes, which do not show Newman’s right hand at the time in question,
do not contradict him.
       The officers’ theory that they were trying to prevent serious injury or
death to themselves is severely overwrought. The videos do not show Newman
attempting to strike either officer, holding a weapon, or even reaching for his
waistband. The officers did not try to warn each other or the other officers that
Newman had a weapon, which might be expected if either officer truly thought


       5
         The officers also suggest that Newman violated Texas Transportation Code § 565.05
by failing to comply with Torres’s order to get back into Willie’s car. Presumably the officers
are referring to Texas Transportation Code § 542.501—Obedience Required to Police Officers
and to School Crossing Guards—given that, to our knowledge, there is no Chapter 565. In any
event, Newman’s failure to get back into the car is not relevant to the question of qualified
immunity: We must consider the circumstances confronting the officers specifically. Neither
of them consulted with Torres or Brown when they arrived at the scene almost 2½ minutes
after Newman had disobeyed Torres’s command.

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                                   No. 11-41192

that at the time. The officers were obviously already behind Newman, pushing
him down onto the trunk of the car, before Burke began swinging his baton.
Although “traffic stops may be dangerous encounters,” Maryland v. Wilson, 519
U.S. 408, 413 (1997), and officers must have the discretion to make hard deci-
sions in situations that are “tense, uncertain, and rapidly evolving,” Graham,
490 U.S. at 397, the particular facts of this encounter did not justify treating
Newman as a serious threat, at least at the summary-judgment stage.
      No one contends that Newman attempted to flee. The officers maintain
that their use of force was appropriate, because Newman struggled and was non-
compliant. But, on Newman’s account, he was never given any commands that
he disobeyed. Duchamp, who was standing near the officers, testified that he did
not recall their giving Newman any commands before striking him. In his depo-
sition, Burke clarified that by “struggle” he meant that Newman was pushing
himself off from the car and back onto the officers. Newman also failed to “com-
ply” with Burke’s first ten baton strikes by pushing off the car. After the blows
to his leg, Newman’s body failed to comply, according to Burke, by not falling to
the ground. Even on the officers’ version of events, Newman’s behavior did not
rise to the level of “active resistance.”
      Although officers may need to use “physical force . . . to effectuate [a] sus-
pect’s compliance” when he refuses to comply with commands during a traffic
stop, Deville, 567 F.3d at 167, the officers still must assess “the relationship
between the need and the amount of force used,” id. In Deville, we held that a
reasonable jury could find that the degree of force used was not justified where
the officer “engaged in very little, if any, negotiation” with the suspect and
“instead quickly resorted to breaking her driver’s side window and dragging her
out of the vehicle.” Id. at 168. If Newman’s allegations are true, the officers
immediately resorted to taser and nightstick without attempting to use physical
skill, negotiation, or even commands. Viewing the summary-judgment facts in

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                                       No. 11-41192

a light most favorable to Newman, we conclude that the use of force was objec-
tively unreasonable.


                                             2.
       The officers maintain that their conduct was not objectively unreasonable
in light of clearly established law at the time of the incident. “[T]he contours of
the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). “The central concept is that of ‘fair warning’: The law can be clearly
established despite notable factual distinctions between the precedents relied on
and the cases then before the Court, so long as the prior decisions gave reason-
able warning that the conduct then at issue violated constitutional rights.” Kin-
ney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (internal quotations and citation
omitted). It is beyond dispute that Newman’s right to be free from excessive
force during an investigatory stop or arrest was clearly established in August
2007. See, e.g., Deville, 567 F.3d at 169; Tarver, 410 F.3d at 753S54.
       Guedry contends that he had no reasonable warning that tasing Newman
multiple times violated Newman’s constitutional rights, because there was then
no binding caselaw on the appropriate use of tasers.6 Lawfulness of force, how-
ever, does not depend on the precise instrument used to apply it.7 Qualified
immunity will not protect officers who apply excessive and unreasonable force
merely because their means of applying it are novel.

       6
        Burke also contends that a reasonable officer in his position could have made a rea-
sonable mistake of law regarding the constitutionality of his use of the baton. He cites no
authority for that argument, which fails for the same reason Guedry’s does: None of the Gra-
ham factors supports Burke’s use of force in this case. Nothing in this opinion, however,
should be read as a prohibition on the use of tasers or batons where objectively reasonable.
       7
        See Spann v. Rainey, 987 F.2d 1110, 1115S16 (5th Cir. 1993) (use of flashlight, hands,
and nightstick); Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 846 (5th Cir. 2009) (hard
knee-strike).

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                                        No. 11-41192

       Furthermore, “in an obvious case,” the Graham excessive-force factors
themselves “can ‘clearly establish’ the answer, even without a body of relevant
case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004). None of the Graham
factors justifies Guedry’s tasering Newman. As noted above, on Newman’s
account, he committed no crime, posed no threat to anyone’s safety, and did not
resist the officers or fail to comply with a command.8 Therefore, taking the facts
in the light most favorable to Newman at the summary-judgment stage, the offi-
cers’ conduct was objectively unreasonable in light of clearly established law at
the time of the incident.


                                               B.
       As governmental employees, the officers are entitled to official immunity
on Newman’s state-law claims for “(1) the performance of discretionary duties
(2) that are within the scope of the employee’s authority, (3) provided that [they]
act[] in good faith.” Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex. 2002).
The only dispute is whether the officers acted in good faith. On the facts before
us on summary judgment, they did not.
       “Texas law of official immunity is substantially the same as federal quali-
fied immunity.” Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir. 1997); see also Hag-
gerty v. Tex. S. Univ., 391 F.3d 653, 658 (5th Cir. 2004). An officer acts in good
faith if a reasonably prudent officer, under the same or similar circumstances,
could have believed that the facts justified his conduct. City of Lancaster v.

       8
         See also Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam)
(deciding that based on Graham factors, the officer “should have known that he could not con-
tinue to shock [the suspect] with the taser after he was no longer resisting arrest”); Massey
v. Wharton, 477 F. App’x 256, 263 (5th Cir. 2012) (per curiam) (stating that where none of the
Graham factors supported officer’s using his taser twice and pepper spray once, “no reasonable
officer would believe the force used . . . to be reasonable”); Autin v. City of Baytown, Tex., 174
F. App’x 183, 186 (5th Cir. 2005) (per curiam) (opining that nothing “would have indicated to
a reasonable officer that repeatedly tasing a woman while forcing her to the ground was lawful
conduct” where none of the Graham factors supported the officer).

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Chambers, 883 S.W.2d 650, 656S57 (Tex. 1994). Like the federal standard from
which it is derived, Texas’s good-faith test is one of objective legal reasonable-
ness. Id. at 656. Because the officers’ use of force was not objectively reason-
able, it was not in good faith, so the officers are not entitled to official immunity
on Newman’s state-law claims.
      Under the applicable law, we have no jurisdiction to review a district
court’s determination that there are genuine disputes of fact where we have
decided, as a matter of law, that those factual issues are material. See, e.g.,
Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011). The appeal, accordingly,
is DISMISSED for want of jurisdiction. We rule only on the state of the
summary-judgment record, and we express no view on the ultimate facts that
may be determined at trial or on the ultimate merits of any claim.




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RHESA HAWKINS BARKSDALE, Circuit Judge, Dissenting:
      Qualified immunity promotes the necessary, effective, and efficient
performance of governmental duties, Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982), by shielding from suit “all but the plainly incompetent or those who
knowingly violate the law”. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.
2008) (internal citation and quotation marks omitted). In holding there is a
genuine dispute of material fact, and therefore dismissing this interlocutory
appeal for lack of jurisdiction, my able colleagues in the majority ignore these
doctrinal underpinnings and engage in the very analysis they recognize we
cannot do: they scrutinize the conduct of Officers Burke and Guedry (the
Officers) with the clarity of hindsight and from the safety of judges’ chambers.
Sadly, they engage in judicial “Monday morning quarterbacking” at its worst.
When this summary-judgment record is reviewed correctly, the Officers’
application of measured force, in a tense, dangerous, and hostile environment,
in August 2007 to lawfully arrest a non-compliant suspect was objectively
reasonable, shielding them with qualified immunity.          Therefore, I must
respectfully dissent.
                                       I.
      For the Officers’ summary-judgment motion, both sides rely on three video
recordings taken from police cruisers. The primary recording is from Officer
Torres’ dashboard camera; he was the Officer who pulled the vehicle over. That
recording captured passenger Mario Cole’s continuing, insulting, and outrageous
conduct in resisting arrest; driver Willie Cole’s and passenger Newman’s
refusing to obey Officer Torres’ orders to remain inside the vehicle; Officer
Guedry’s lawfully searching Newman; and, after a struggle erupted during that
search, the Officers’ using measured force and Newman’s resulting arrest. The
video neither corroborates nor discredits either side’s account, discussed infra,



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                                     11-41192

of precisely what provoked that struggle.        But, it does plainly show the
precipitant moment the Officers reacted.
      The Officers also supported their motion with, inter alia: Officer Guedry’s
deposition testimony, in which he relates witnessing Newman’s refusing to obey
Officer Torres’ orders; and affidavits by Detective Tolley, a former police training
officer familiar with the Beaumont Police Department’s use-of-force policy.
Detective Tolley provided frame-by-frame analysis of, inter alia, the 33 seconds
it took to initiate Newman’s search and effect his arrest. Additionally, the
Officers supported their motion with an expert report prepared by Duncan,
Director of the Lamar Institute of Technology Regional Police Academy. Duncan,
a three-decade law-enforcement veteran, described the reasonableness of the
Officers’ actions under the rapidly-evolving circumstances as requiring split-
second, potentially life-or-death decisions.
      Newman opposed the Officers’ summary-judgment motion with:                his
earlier testimony (which largely parrots the allegations in his civil complaint) in
the Officers’ criminal trial; an affidavit and deposition of Grafton, an associate
professor of criminal justice and former law-enforcement officer, which impugns
the Officers’ account as false and contends the video failed to corroborate that
account; and Officer Burke’s deposition testimony, in which he relates Newman’s
failing to comply after each baton strike by pushing off a vehicle into the Officers
and by attempting to strike Officer Burke.
                                        II.
      There is no genuine dispute of material fact. Pursuant to the material
facts and controlling law, the Officers are entitled, through summary judgment,
to qualified immunity against the excessive-force claim and official immunity
against the state-law claims.



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                                         A.
       Qualified immunity shields public officials from suit, rather than merely
providing an affirmative defense to liability. Mitchell v. Forsythe, 472 U.S. 511,
526 (1985); Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). To abrogate this
immunity, plaintiff must show, through the well-known, two-prong test: first,
the official violated a statutory or constitutional right; and second, the official’s
“actions [constituted] objectively unreasonable conduct in [the] light of clearly
established law at the time of the conduct in question”. Brumfield, 551 F.3d at
326.
       In the excessive-force context at issue here, although the long-established
two prongs contain similar “objective reasonableness” elements, they remain
distinct and deserve independent inquiry. Id. Importantly, the sequence of
analysis is immaterial, Pearson v. Callahan, 555 U.S. 223, 224 (2009), and
qualified immunity may be granted without deciding the first prong, Kovacic v.
Villarreal, 628 F.3d 209, 213 (5th Cir. 2010). Deciding the second prong first is
often advisable; for example, if, as here, a constitutional right is claimed to have
been violated (first prong), “this approach [of first addressing the second prong]
comports with the usual reluctance to decide constitutional questions unnecessar-
ily”. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
       Therefore, the Officers are entitled to qualified immunity, through
summary judgment, unless Newman shows a genuine dispute of material fact
exists on whether: (1) for his excessive-force claim, he was injured as a result of
force that was excessive to the need and objectively unreasonable, and (2) the
application of that force was objectively unreasonable in the light of then clearly-
established law. Avoiding the constitutional issue and proceeding directly to the
second prong, id., the Officers are entitled to qualified immunity because:
Newman has not met his summary-judgment burden to show a genuine dispute

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                                    11-41192

of material fact; and, considering the material facts, the Officers’ conduct was
not objectively unreasonable in the light of then clearly-established law.
      Contrary to the majority opinion at 11, there is no genuine dispute of
material fact; therefore, we have jurisdiction for this interlocutory appeal. E.g.,
Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996) (jurisdiction to review
summary-judgment denial determining conduct violated clearly-established
law). The single disputed fact, which is not material, concerns what precisely
provoked the Officers’ measured application of force. They maintain Newman
reached for his waistband during a lawful search and resisted a lawful arrest;
Newman maintains he was struck and Tased in retaliation for his admitted
extremely disgusting, offensive, insulting, and provocative remark.
      Whatever the catalyst, the majority glosses over that Newman, by refusing
Officer Torres’ orders to remain inside the vehicle, subjected himself to lawful
arrest. E.g., TEX. PENAL CODE ANN. § 38.15(a) (interference with peace officer a
misdemeanor); TEX. TRANSP. CODE ANN. § 542.501 (refusal to comply with police
officer’s lawful orders a misdemeanor). Although the video is inconclusive on
what precisely provoked the measured application of force, cf. Scott v. Harris,
550 U.S. 372, 380-81 (2007) (video evidence accorded greater weight when it
plainly contradicts a party’s assertion), it plainly shows Newman’s refusing to
obey Officer Torres’ orders, which discredits his asserting he complied with
Officers Burke and Guedry during the search and arrest, id. Also plainly shown
is Officer Guedry’s reacting suddenly while searching Newman, and Officer
Burke’s assisting Officer Guedry after noticing the ensuing struggle.
      Along this line, the majority incorrectly states Officer Guedry was
unaware Newman refused orders to remain in the vehicle. Maj. Opn. at 7, n.5.
Officer Guedry testified in his deposition that, upon his arrival on the scene, he
heard an order to “get back in the vehicle”, and noted Newman’s non-compliance

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                                     11-41192

as he (Officer Guedry) approached. Because Newman committed a misdemeanor
in Officer Guedry’s presence, further probable cause to arrest attached. And,
because Officer Guedry had initiated the search, it was reasonable for Officer
Burke to assist without independently verifying its lawfulness. Probable cause
notwithstanding, and regardless of the alleged provocation, Newman had no
right to resist. TEX. PENAL CODE ANN. § 38.03 (resisting unlawful arrest a
misdemeanor).
      The majority reduces the inquiry to a single question: whether the
Officers applied more force than necessary to effectuate Newman’s arrest.
Dispensing with qualified immunity’s second prong by casting this an “obvious
case”, the majority hangs its analysis on Graham’s well-known excessive-force
factors. Maj. Opn. at 10. But the cases it cites to support this proposition, Maj.
Opn. at 218, n.8, are non-precedential and distinguishable on their facts:
Anderson v. McCaleb, 480 F. App’x 768 (5th Cir. 2012) (no qualified immunity
when force applied after suspect handcuffed and laid on ground); Massey v.
Wharton, 477 F. App’x 256 (5th Cir. 2012) (no qualified immunity when no
probable cause to arrest); Autin v. City of Baytown, 174 F. App’x 183 (5th Cir.
2005) (no qualified immunity when 59-year-old woman Tased repeatedly after
being subdued).
      A proper application of qualified immunity’s second prong leads to holding
the Officers’ conduct was not objectively unreasonable in the light of clearly-
established excessive-force law. A right is sufficiently clear, and thus “clearly
established”, when “every ‘reasonable official would have understood that what
he is doing violates that right’”. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2078 (2011)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Re-stated, “existing
precedent must have placed the statutory or constitutional question beyond
debate”. al-Kidd, 131 S. Ct. at 2083. This “clearly established” standard protects

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the necessary balance between vindication of constitutional or statutory rights
and effective performance of governmental duties by ensuring officials can
“reasonably . . . anticipate when their conduct may give rise to liability for
damages”. Davis v. Scherer, 468 U.S. 183, 195 (1984).
      The majority’s incantation that the right to freedom from excessive force
was clearly established at the time of Newman’s arrest, Maj. Opn. at 9,
disregards the Supreme Court’s admonition not to define clearly-established
rights at a high level of generality. al-Kidd, 131 S. Ct. at 2084. The fact-specific
nature of excessive-force claims, Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.
2009), requires viewing the Officers’ actions prospectively, in the light of “the
circumstances that appeared to the officer”, to determine whether such conduct
was objectively reasonable. Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir.
1998) (emphasis in original) (internal citation omitted) (Smith, J.).
      Equally important is the Officers’ concomitant, obvious right to use
“measured and ascending responses”, calibrated to physical and verbal
resistance. Galvan v. City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010).
That took place here. (Relevant to this use of measured force, not long after the
challenged conduct, a handcuffed Newman can be seen walking easily to a police
vehicle with no apparent injury.)
      Therefore, the Officers are entitled to qualified immunity unless it was
clearly established that the measured and ascending force they applied would
have been objectively unreasonable to “every reasonable official” in like
circumstances. al-Kidd, 131 S. Ct. at 2078 (internal citation and quotation
marks omitted) (emphasis added). Against this legal backdrop, this claim cannot
be placed among those where excessive-force plaintiffs overcame the qualified-
immunity defense. E.g., Spann v. Rainey, 987 F.2d 1110 (5th Cir. 1993) (no
qualified immunity on summary judgment when arrestee in diabetic coma

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beaten on head with flashlights); Tarver v. City of Edna, 410 F.3d 745 (5th Cir.
2005) (same, when plaintiff provided witness testimony that officer slammed
door on plaintiff’s head in retaliation); Deville, 567 F.3d 156 (same, when two
officers shattered window of driver who refused to exit vehicle, threw her against
side of vehicle before arrest, and applied handcuffs so tightly four reconstructive
surgeries were required); Petta v. Rivera, 143 F.3d 895 (5th Cir. 1998) (same,
when officer shattered window, brandished revolver, and fired round at vehicle
occupied by two children whose driver refused to exit after minor traffic stop).
      The majority cites Deville as justification for holding there is a genuine
issue of material fact on whether the Officers’ conduct was objectively unreason-
able. Maj. Opn. at 8-9. Yet Deville is so factually distinguishable from the
situation at hand that the majority vitiates its own conclusion. In Deville, our
court reversed the district court’s granting summary judgment on qualified-
immunity grounds. 567 F.3d 156. An officer stopped the Deville plaintiff for
speeding, and a second, off-duty officer responded. The second officer demanded
that plaintiff roll down her window, but shattered it before she was able to
comply; the plaintiff maintained she was never asked to sign a ticket, never
threatened to flee, and the minor child inside her vehicle was never in danger.
Id. Viewing this account – which the officers disputed – in the light most
favorable to her, our court held it was objectively unreasonable for the officers,
pursuant to a traffic stop unsupported by probable cause, to shatter her vehicle
window, forcibly extricate her, slam her against the vehicle, and apply handcuffs
so tightly four reconstructive surgeries were required (among other significant
injuries). Id.
      Obviously, the Officers here were confronted with a situation far more
volatile than that in Deville. Therefore, and unlike the Deville officers, it was
not objectively unreasonable for the Officers to forego negotiation; indeed,

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Newman had already refused to comply with Officer Torres’ orders. Moreover,
the Officers were reacting to Newman’s physical resistance, unlike the Deville
officers’ application of force against passive resistance. Importantly, and unlike
Newman, the Deville plaintiff had the state-law right to resist an unlawful
arrest (i.e. arrest unsupported by probable cause). Id.
      The circumstances confronting the Officers put further distance between
this action and Deville. Officers Burke and Guedry responded at midnight, to
a high-crime area, where the first two Officers at the scene were outnumbered
and struggling with an extremely non-compliant, physically-combative, and
verbally-abusive arrestee with outstanding arrest warrants for unpaid traffic
tickets. When Officer Burke arrived, Officer Guedry was preparing to search
Newman. In the ensuing struggle, Officer Burke employed his baton in
accordance with department policy, striking only at the upper arm and leg, to
avoid causing Newman serious or permanent injury.             Unable to control
Newman’s hands, Officer Guedry energized his Taser. After Officer Guedry used
the Taser, Officer Burke re-holstered his baton and ceased all force. Newman
submitted only after being Tased a third time.
      No reasonable officer in Officer Burke’s or Guedry’s position, acting under
those circumstances, could “reasonably [have] anticipate[d] . . . [his] conduct
[would] give rise to liability for damages”. Davis, 468 U.S. at 195. (The majority
incorrectly states that, when Newman was on the ground, Officer Guedry
dragged him while handcuffed. Maj. Opn. at 3. Officer Torres’ video instead
shows Officer Guedry wisely moved Newman out of an active traffic lane. In any
event, this fact is not material.)
      In spite of the on-scene tension, Newman’s refusing to obey Officer Torres,
and the rapid succession of events (which his video clearly establishes), the
majority parades its tactical competency by suggesting Newman could have been

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arrested through “physical skill, negotiation, or [ ] commands”. Maj. Opn. at 8.
Needless to say, neither of my esteemed colleagues was at the scene. This is the
very type of post-hoc, subjective analysis that Graham and its progeny
understandably condemn.
                                        B.
      For official immunity from the state-law claims, and as the majority
recognizes, Texas’ “good faith” element is analogous to qualified immunity’s
“objective reasonableness”. Maj. Opn. at 10-11. Therefore, the Officers are
entitled to official immunity against the state-law claims.




                                        III.
      “It is not the critic who counts . . . . The credit belongs to [those] actually
in the arena . . . spend[ing] [themselves] for a worthy cause”. Theodore
Roosevelt, Address at the Sorbonne, Paris: Citizenship in a Republic (23 Apr.
1910). Most regrettably, the tone and tenor of the majority opinion convey
sarcasm and hostility for the Officers’ conduct in a volatile, hostile, and
dangerous situation; a situation in which split-second decisions must be made
for the safety of all involved – citizen and police. The conduct resulting from
those decisions may not be polite and pretty, but it is necessary. And, it may
require more than hurt feelings. Nor is the interaction between officers and
citizens a debating society. (In that regard, at oral argument, Newman’s counsel
maintained Officers at the scene should have welcomed Newman’s trying to calm
the situation, instead of obeying the clear order to return inside his vehicle.
Simply put, this is an absurd position.)
      And, more to the point here, the Officers’ conduct is shielded by qualified
immunity. In the light of this summary-judgment record, the Officers are

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entitled to qualified immunity against the excessive-force claim and to official
immunity against the state-law claims. To hold otherwise is to turn a blind eye
to the material facts at hand (which are not disputed) and the controlling law.
Therefore, I must respectfully dissent.




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