     Case: 16-50391      Document: 00514071249         Page: 1    Date Filed: 07/13/2017




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

                                                                                        FILED
                                                                                     July 13, 2017
                                      No. 16-50391
                                                                                     Lyle W. Cayce
                                                                                          Clerk
SHAVONDA BAILEY, as Next Friend of K.A. and P.A.; VIVIAN LAMPKINS,
as Next Friend of J.L.; BELINDA CARRANCO, as Next Friend of Z.A.;
BRANDIE OLIVER, as Next Friend of A.O.; CHRISTINE OWENS, as Next
Friend of M.O.,

              Plaintiffs - Appellants

v.

NATHAN PRESTON, Individually; VIDAL DIAZ, Individually; MICHAEL
FLETCHER, Individually; FRANCISCO GALVAN, Individually; MATTHEW
FLORES, Individually; AUBREY PLAUCHE, Individually; MATTHEW
QUINTANILLA, Individually; ROBERT TAMEZ, Individually; PAUL
TRIGO, Individually,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-700


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Pierre Abernathy died after a struggle with several San Antonio police
officers. The mothers of his children filed suit against the officers (1) under 42


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50391
U.S.C. § 1983 for excessive force and for failure to intervene to prevent the use
of excessive force, and (2) under Texas state law for assault and battery. The
district court granted the officers’ motion for summary judgment on the basis
of qualified immunity and dismissed the claims against them. We affirm.
                                         I.
                               FACTS AND PROCEEDINGS
       In August 2011, after leading San Antonio police officers on a 14.4-mile
pursuit by car, Abernathy pulled over in front of the house where his mother
and sister lived. Abernathy, a 5’11”, 240-pound male with paranoid
schizophrenia, initially complied with the officers’ directives to exit the car, put
his hands in the air, and get on the ground, at which point the officers were
able to place handcuffs on one of Abernathy’s hands.
       Shortly thereafter, however, Abernathy began to resist and pushed
himself up off the ground to a standing position. A struggle ensued, and
Abernathy was tased at least five times, struck with “asp” batons four times,
punched, kicked, and bitten by a K9 dog. Several officers reported that they
repeatedly tried to handcuff Abernathy’s other hand but that he continued to
resist. The uncontroverted evidence reflects that, once the officers were finally
able to handcuff Abernathy, they no longer used any force against him. 1
       Abernathy, who officers said was initially breathing after the struggle,
stopped breathing. Emergency Medical Services personnel transported
Abernathy to a hospital, where staff pronounced him dead shortly after his
arrival. The autopsy concluded that Abernathy’s “manner of death” was a




       1 One officer had a camera on his dashboard recording audio and video, but almost all
of the struggle took place off-camera: Abernathy is seen on video only once after getting out
of his car, running across the frame followed by a dog and six officers. The camera’s
microphone shut off for nearly two minutes and thus failed to capture the audio of most of
the struggle.
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                                        No. 16-50391
homicide and that he “died as a result of the combined effects of intoxication
with cocaine, a prolonged struggle, and a cardiomyopathy (an enlarged heart).”
       The mothers of Abernathy’s children sued the officers on scene in their
individual capacities, asserting claims under 42 U.S.C. § 1983 for excessive
force and for failure to intervene to prevent the use of excessive force. They
also brought claims under Texas state law for assault and battery. The officers
moved for a summary judgment of dismissal of all claims, asserting, inter alia,
that they were entitled to qualified immunity on the plaintiffs’ § 1983 claim for
use of excessive force. The district court granted the officers’ motion and
dismissed the plaintiffs’ claims. The court concluded that “the defendants
deployed force that was neither clearly excessive nor clearly unreasonable.”
The plaintiffs timely appealed, claiming only that the district court erred in
granting summary judgment on the plaintiffs’ § 1983 claim for use of
excessive force. 2
                                               II.
                                  STANDARD OF REVIEW
       We review de novo a district court’s grant of summary judgment on the
basis of qualified immunity and apply the same standards as the district
court. 3 “Summary judgment is proper when the pleadings and evidence
demonstrate that no genuine issue of material fact exists and the movant is




       2  Because the appellants do not raise the failure-to-intervene claim and do not
adequately address their assault-and-battery claim on appeal, the only issue before us is
whether the district court erred in granting summary judgment on their § 1983 claim for use
of excessive force. See Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007)
(“[F]ailure to advance arguments in the body of the appellant’s brief, even when those issues
were referenced in the Statement of Issues section, resulted in waiver of those arguments.”);
Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 561 (5th Cir. 1997); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993); see also FED. R. APP. P. 28(a).
       3 Curtis v. Anthony, 710 F.3d 587, 593 (5th Cir. 2013) (per curiam); Davila v. United
States, 713 F.3d 248, 257 (5th Cir. 2013).
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entitled to judgment as a matter of law.” 4 We construe all facts and inferences
in the light most favorable to the nonmoving party. 5 “In reviewing the
evidence, the court must refrain from making credibility determinations or
weighing the evidence.” 6
                                             III.
                                           ANALYSIS
      “To state a claim under § 1983, a plaintiff must first show a violation of
the Constitution or of federal law, and then show that the violation was
committed by someone acting under color of state law.” 7 “The doctrine of
qualified immunity protects government officials from civil damages liability
when their actions could reasonably have been believed to be legal.” 8 When a
defendant raises the qualified-immunity defense, the plaintiff has the burden
of demonstrating the inapplicability of that defense. 9 In resolving questions of
qualified immunity at summary judgment, we engage in a two-pronged
inquiry: (1) whether the facts, taken in the light most favorable to the party
asserting the injury, show that the officer’s conduct violated a federal right;
and (2) “whether the right in question was ‘clearly established’ at the time of
the violation.” 10 Like the district court, we have the discretion to decide which
prong of the qualified-immunity analysis to address first. 11 “[Q]ualified



      4   Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004); see FED. R. CIV. P. 56.
      5   Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
      6  Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (per curiam) (internal
quotation marks omitted).
      7   Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).
      8   Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
      9   Atteberry, 430 F.3d at 253.
      10 Tolan v. Cotton, 134 S. Ct. 1861, 1865–66 (2014) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001); Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
      11   Morgan, 659 F.3d at 371.
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                                          No. 16-50391
immunity may be granted without deciding the first prong. Deciding the
second prong first is often advisable[.]” 12 We choose to begin with the second
prong of the qualified-immunity analysis.
       The instant defendants are entitled to qualified immunity if their use of
force was “objectively reasonable in light of clearly established law at the time
the challenged conduct occurred.” 13 “[W]hile the right to be free from excessive
force is clearly established in a general sense, the right to be free from the
degree of force employed in a particular situation may not have been clear to a
reasonable officer at the scene.” 14 “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 reasonable warning that the conduct then at issue violated
constitutional rights.’” 15 There need not be a case directly on point, but
“existing precedent must have placed the statutory or constitutional question
beyond debate.” 16 “If officers of reasonable competence could disagree as to
whether the plaintiff’s rights were violated, the officer’s qualified immunity
remains intact.” 17
       In their brief, the appellants failed to address whether the officers’ force
was excessive in light of clearly established law. 18 When pressed at oral


       12   Newman v. Guedry, 703 F.3d 757, 766 (5th Cir. 2012) (citation omitted).
       13   Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008).
       14   Id. at 502; see also Poole, 691 F.3d at 627–28; Deville, 567 F.3d at 169.
       15Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope, 536
U.S. at 740).
       16   Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
       17   Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).
       18In an “obvious case,” the excessive-force factors outlined in Graham v. Connor, 490
U.S. 386 (1989), “can ‘clearly establish’ the answer, even without a body of relevant case law.”
Brousseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam); see also Hanks v. Rogers, 853
F.3d 738, 747 (5th Cir. 2017); Newman, 703 F.3d at 764. This case, however, is not an obvious
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                                           No. 16-50391
argument, counsel for appellants cited Ramirez v. Martinez as demonstrating
that in 2011 the law was clearly established that the force the officers used in
this case was excessive. 19 But Ramirez is distinguishable. The plaintiff in
Ramirez alleged that he “posed no threat to the officers and yet was tased
twice, including once after he was handcuffed and subdued while lying face
down on the ground,” and the district court found that the plaintiff’s account
was supported by the summary-judgment record. 20 In Ramirez, this court
emphasized that, although our circuit has “not addressed a fact pattern
precisely on point, . . . we have held the use of certain force after an arrestee
has been restrained and handcuffed is excessive and unreasonable.” 21
       The Ramirez panel concluded that the officer’s alleged conduct violated
clearly established law. It relied on (1) Newman v. Guedry, in which another
panel of this court had explained in 2012 that the “[l]awfulness of force . . . does
not depend on the precise instrument used to apply it,” 22 and (2) Bush v.
Strain, in which “we held an officer used excessive and unreasonable force
when he forcefully slammed an arrestee’s face into a vehicle when the arrestee
was handcuffed and subdued.” 23 These cases are inapposite here because the



one. In Graham, the Supreme Court instructed courts to consider a case’s facts and
circumstances when determining whether the force used was objectively reasonable,
“including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate
threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Further, it is well established
that “the need for force determines how much force is constitutionally permissible.” Bush,
513 F.3d at 501. The parties dispute the extent to which Abernathy posed a threat and to
which he was actively resisting arrest, and it is not obvious in light of Graham that the force
the officers used was excessive to the force necessary to subdue Abernathy.
       19   Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013).
       20   Id. at 379.
       21   Id. at 378 (emphasis added).
       22   Id. at 379 (quoting Newman, 703 F.3d at 763–64).
       23   Id. (citing Bush, 513 F.3d at 501).
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                                       No. 16-50391
uncontroverted evidence reflects that the officers in the instant case stopped
using force on Abernathy once he was handcuffed.
       The burden in this case is on the appellants to demonstrate the
inapplicability of the qualified-immunity defense by showing, inter alia, that—
under the specific facts of this case—the officers’ use of force was objectively
unreasonable in light of clearly established law. 24 But the appellants have
made no showing that, under these facts, Abernathy’s right to be free from
excessive force was clearly established and thus have not satisfied their
burden. 25 Therefore, we need not—and do not—reach the first prong of the
qualified-immunity analysis. 26
                                             IV.
                                       CONCLUSION
       The district court’s summary judgment dismissing this action with
prejudice is AFFIRMED. 27




       24Bush, 513 F.3d at 501; Atteberry, 430 F.3d at 253; McClendon v. City of Columbia,
305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam).
       25  See Cass v. City of Abilene, 814 F.3d 721, 732 (5th Cir. 2016) (per curiam)
(“Appellants . . . have the burden to show that Smith violated Cass’s clearly established
rights. Appellants’ entire argument on this second prong of the qualified immunity test is
that ‘it is clearly established in the law that citizens are protected against unjustified,
excessive police force.’ This general statement is insufficient to meet Appellants’ burden.”);
Thompson v. Mercer, 762 F.3d 433, 437 (5th Cir. 2014) (quoting Saucier, 533 U.S. at 201).
       26   See Thompson, 762 F.3d at 437.
       27 Our holding is limited to the circumstances of this case and is based solely on the
appellants’ failure to demonstrate that Abernathy’s right to be free from the force used was
clearly established. We note that an officer’s repeated tasing of a non-dangerous, even non-
compliant suspect could constitute a violation of the suspect’s clearly established Fourth
Amendment rights, especially given the advancing medical and scientific knowledge about
the potential deadly effects of tasing.
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