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

                                                                  FILED
                                                                 July 12, 2013

                                 No. 11-41029                    Lyle W. Cayce
                                                                      Clerk

JOHN MICHAEL HOGAN,

                                           Plaintiff–Appellee,
v.

ROBERT CUNNINGHAM; CHRIS POTTER,

                                           Defendants–Appellants.



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



Before JOLLY, OWEN, and SOUTHWICK, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Officers Robert Cunningham and Chris Potter (the Officers) appeal the
district court’s denial of their motion for summary judgment on John Hogan’s 42
U.S.C. § 1983 claims of unlawful arrest and excessive force and his state-law
assault and battery claims. We reverse the district court’s denial of summary
judgment on Hogan’s excessive-force claim because the Officers are entitled to
qualified immunity, but we affirm the district court’s denial of summary
judgment on Hogan’s unlawful-arrest claim. We lack jurisdiction to consider the
Officers’ interlocutory appeal of the district court’s denial of summary judgment
on Hogan’s state-law assault and battery claims.
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                                No. 11-41029

                                       I
      The Officers are members of the Corpus Christi Police Department.
According to Officer Cunningham, on the night of the incident, he was
dispatched in connection with a child-custody matter. He indicated that he was
instructed to meet Hogan’s ex-wife at a convenience store, and by the time he
arrived, Officer Potter was already speaking to Hogan’s ex-wife and examining
some paperwork. Officer Cunningham explained:
      Officer Potter walked to my unit and let me know where we were
      going to, and explained to me that [Hogan’s ex-wife] had court
      paperwork, child custody paperwork that appeared to be in order for
      what we looked for, and that we were going to go ahead and follow
      her over to [Hogan’s] apartment.
The Hogan divorce decree included a standard possession order, which entitled
Hogan’s ex-wife to possession of their minor son at that time. According to
Officer Cunningham, he and Officer Potter were going to “try and resolve the
issue of the child custody.”
      Officer Cunningham indicated that, after arriving at Hogan’s apartment,
he did not receive an answer to his initial knocks on Hogan’s door, but
eventually the door was opened by Hogan’s roommate, Kevin Loudin. When the
door opened, Officer Cunningham placed his foot in the doorway so as to get a
better view of the inside of the apartment. After Loudin informed Officer
Cunningham that he was not Hogan, Officer Cunningham asked him to wake
Hogan, and Loudin agreed. Loudin attempted to close the apartment door as he
left to summon Hogan, but he was prevented from doing so because Officer
Cunningham had his foot in the doorway. Hogan eventually came to the door
and identified himself.    The parties presented different versions of what
happened next.
      According to Officer Cunningham, when Hogan approached the door, he
explained to Hogan that he and Officer Potter “were there in reference to his


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                                  No. 11-41029

son,” and in response, Hogan told him that his son was in the apartment. Officer
Cunningham said that he then explained that Hogan’s ex-wife was with them
and wanted to enforce the custody arrangement contained in the divorce decree.
Officer Cunningham asserted that as soon as he explained to Hogan that he and
Officer Potter were there to retrieve Hogan’s son, “the door was forcefully trying
to be closed.” Officer Cunningham asserted that the door first hit him in the leg.
He explained that once the door hit him in the leg, “I put my hands up to try and
stop the door, and at that point a—just a sudden burst of force pushed me back
with the door, and at that point the door hit me in the forehead.” The Officers
subsequently entered Hogan’s apartment and arrested him for assault on a
peace officer. According to the district court, Officer Potter’s version of the
events comported with that of Officer Cunningham. Officer Potter alleged that
“Mr. Hogan grabbed the door and attempted to slam it shut on us. While
slamming the door Mr. Hogan hit Officer Cunningham in the head with the
door.”
         According to Hogan, when he approached the door, he told the Officers
that they could not come inside the apartment. He could not remember if the
Officers said anything to him, but he indicated that he attempted to close the
door. At his deposition, Hogan was asked whether the door hit one of the
Officers. He stated, “I don’t remember because I got tackled immediately as soon
as I tried to close it.” When asked if it was possible, he said, “I don’t know.”
Based on the conflicting evidence, the district court determined that there was
“a genuine issue of material fact as to whether [Hogan] did in fact hit Officer
Cunningham with the door.”
         What happened inside the apartment was also disputed.            Officer
Cunningham asserted that he attempted to perform a “controlled take-down.”
After the door hit him, he “pushed the door back to get it open to attempt to
arrest Mr. Hogan.” Officer Cunningham asserted that Hogan “started stepping

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                                  No. 11-41029

backwards into his apartment” and that he instructed Hogan “to turn around,
put his hands behind his back because he was being placed under arrest.”
According to Officer Cunningham, Hogan rejected his instructions, which
eventually prompted Officer Cunningham to attempt the controlled take-down.
Officer Cunningham stated:
      While I was trying—while Mr. Hogan was in the process of losing
      his balance and going down to the floor, he grabbed on to my arms
      as well, and that caused me to lose my balance and I fell on the
      ground with Mr. Hogan as he went down.
      Hogan claimed that “as soon as [he] attempted to close the door [he] got
tackled.” Hogan related that two officers tackled him, causing him to fall on his
back. Hogan initially said the Officers fell on top of him, but when asked if both
fell on him, he responded, “To the best of my knowledge. I mean, I don’t know
for sure.” Hogan could not remember how long the Officers were on top of him.
Hogan suffered two broken ribs. The district court noted that the parties did not
contest that Hogan suffered an injury, but the court determined that there was
“a factual dispute as to whether [the Officers] purposefully tackled [Hogan] or
Defendant Cunningham accidentally fell on [Hogan] while attempting a
controlled take-down.”
      Hogan filed suit against the Officers, bringing 42 U.S.C. § 1983 claims of
excessive force, unlawful arrest, and malicious prosecution as well as Texas
state-law claims of assault, battery, and malicious prosecution. Hogan also
asserted claims against the City of Corpus Christi, but all of these claims were
dismissed voluntarily. Eventually, the Officers moved for summary judgment,
and the district court granted their motion in part and denied it in part. The
court denied the Officers’ motion with respect to Hogan’s § 1983 claims of
unlawful arrest and excessive force and his state-law claims of assault and
battery. The court granted the Officers’ motion with respect to Hogan’s § 1983



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                                         No. 11-41029

and state-law malicious prosecution claims. The Officers then filed notice of the
present appeal.
                                               II
       Ordinarily the denial of a defendant’s motion for summary judgment is not
appealable, but we have “limited jurisdiction to conduct an interlocutory review
of a district court’s order denying a motion for summary judgment based upon
qualified immunity.”1 Our jurisdiction “extends to these appeals only ‘to the
extent that [the denial of summary judgment] turns on an issue of law.’”2 The
district court makes two distinct determinations when it denies an official’s
motion for summary judgment predicated upon qualified immunity: “First, the
district court decides that a certain course of conduct would, as a matter of law,
be objectively unreasonable in light of clearly established law. Second, the court
decides that a genuine issue of fact exists regarding whether the defendant(s)
did, in fact, engage in such conduct.”3 While “we lack jurisdiction to review
conclusions of the second type on interlocutory appeal, . . . [w]e do . . . have
jurisdiction to . . . review the first type of determination, the purely legal
question whether a given course of conduct would be objectively unreasonable
in light of clearly established law.”4              “In other words, ‘we can review the
materiality of any factual disputes, but not their genuineness.’”5
       Because we lack the authority to review the district court’s decision that
a genuine factual dispute exists, we do not apply the ordinary summary


       1
           Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011).
       2
        Id. (alteration in original) (quoting Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004)
(en banc)).
       3
           Kinney, 367 F.3d at 346.
       4
           Id. at 346-47.
       5
           Juarez, 666 F.3d at 331 (quoting Kinney, 367 F.3d at 347).

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                                       No. 11-41029

judgment standard.6 Instead, we “consider only whether the district court erred
in assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.”7 “Where factual
disputes exist in an interlocutory appeal asserting qualified immunity, we accept
the plaintiffs’ version of the facts as true.”8 “In reviewing the district court’s
conclusions concerning the legal consequences—the materiality—of the facts, our
review is of course de novo.”9
                                             III
      The Officers argue that the district court erred in denying them qualified
immunity with respect to Hogan’s unlawful-arrest and excessive-force claims.
“Qualified immunity shields government officials from civil damages liability
unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.”10
                                              A
      We first address the Officers’ claim that they are entitled to qualified
immunity with respect to Hogan’s unlawful-arrest claim. “It is well established
that under the Fourth Amendment a warrantless arrest must be based on
probable cause.”11 Additionally, “the Fourth Amendment has drawn a firm line
at the entrance to the house. Absent exigent circumstances, that threshold may




      6
          Kinney, 367 F.3d at 348.
      7
          Id.
      8
          Id.
      9
          Id. at 349.
      10
           Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
      11
         United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc) (per curiam)
(citing United States v. Shugart, 117 F.3d 838, 846 (5th Cir. 1997)).

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                                         No. 11-41029

not reasonably be crossed without a warrant.”12 Without a warrant, “police
officers need . . . probable cause plus exigent circumstances in order to make a
lawful entry into a home.”13
       Probable cause justifying an arrest “means facts and circumstances within
the officer’s knowledge that are sufficient to warrant a prudent person, or one
of reasonable caution, in believing, in the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.”14                      “The
possibility that evidence will be removed or destroyed, the pursuit of a suspect,
and immediate safety risks to officers and others are exigent circumstances that
may excuse an otherwise unconstitutional intrusion into a residence.”15 An
individual may also consent to a warrantless intrusion into his home.16 It is
uncontested that the Officers lacked a warrant, and Hogan did not consent to
their entry. For Hogan’s arrest inside his home to be constitutional, there must
have been probable cause and exigent circumstances.
       The Officers assert that they had probable cause to arrest Hogan for
assault on a public servant based upon their allegation that Hogan hit Officer
Cunningham with the apartment door. The district court determined that there
was “a genuine issue of material fact as to whether [Hogan] did in fact hit Officer
Cunningham with the door.”                 As discussed above, when conducting an
interlocutory review of a district court’s order denying a motion for summary


       12
            Payton v. New York, 445 U.S. 573, 590 (1980).
       13
            Kirk v. Louisiana, 536 U.S. 635, 638 (2002).
       14
            Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (collecting cases).
       15
         United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001) (citing United States v.
Richard, 994 F.2d 244, 248 (5th Cir. 1993)).
       16
         See id. at 719 (“A warrantless intrusion into an individual’s home is presumptively
unreasonable unless the person consents or probable cause and exigent circumstances justify
the encroachment.” (collecting cases)).

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                                      No. 11-41029

judgment based on qualified immunity, our jurisdiction is limited. While we
may review the materiality of any factual disputes, we may not review the
district court’s determination that a factual dispute is genuine. We must view
the facts in Hogan’s favor, and according to Hogan’s version of the events, he did
not hit Officer Cunningham with the door. Assuming that fact to be true, the
Officers would not have had probable cause to arrest Hogan for assault upon a
public servant.17
      Nevertheless, the probable cause requirement is satisfied in this case
because the Officers had probable cause to believe that Hogan was committing
the felony offense of interference with child custody. Section 25.03 of the Texas
Penal Code provides that “[a] person commits an offense if the person takes or
retains a child younger than 18 years of age when the person . . . knows that the
person’s taking or retention violates the express terms of a judgment or order,
including a temporary order, of a court disposing of the child’s custody.”18 Hogan
does not contest that, prior to proceeding to his apartment, the Officers learned
from his ex-wife that she had a divorce decree entitling her to possession of their
minor son at that time. Despite Hogan’s and the district court’s reliance on
Hogan’s contention that he took possession of his son at the direction of the
Portland, Texas Police Department, there is no evidence that the Officers knew
this at the time Hogan was arrested. Although the district court said there was
“a factual dispute as to whether [Hogan] knew that he was in violation of the
custody order or whether he believed that he was excused from its terms,”
Hogan’s knowledge is immaterial to the question of whether the Officers had
probable cause; what is important to that question is the Officers’ knowledge, not
Hogan’s. Based on the divorce decree and Hogan’s refusal to turn over his son


      17
           See TEX. PENAL CODE ANN. § 22.01(b)(1) (West 2011).
      18
           Id. § 25.03.

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                                    No. 11-41029

to his ex-wife, the Officers had probable cause to believe that Hogan was in
violation of section 25.03.
         Although the Officers had probable cause to believe that Hogan was in
violation of section 25.03 of the Texas Penal Code, their warrantless entry into
Hogan’s apartment was unconstitutional because, when the facts are viewed in
Hogan’s favor, there were no exigent circumstances. In arguing that there were
exigent circumstances, the Officers rely solely upon the alleged exigency created
by Hogan striking Officer Cunningham with the apartment door. But, as we
reiterate once again, we lack jurisdiction to review the district court’s
determination that there was a genuine factual dispute as to whether Hogan hit
Officer Cunningham with the apartment door. According to Hogan, he did not,
and therefore no exigency justifying the Officers’ warrantless entry can be based
upon Hogan striking Officer Cunningham with the door.
         We also conclude that no other exigent circumstances justified the Officers’
warrantless entry into the home to arrest Hogan. No evidence of Hogan’s
interference with child custody was likely to be removed or destroyed, and there
was nothing indicating an immediate safety risk that would justify a warrantless
entry.     The district court stated that the Officers “did not . . . have any
knowledge or cause to believe that [Hogan] ever used any violence against his
son or possessed any weapons,” and the Officers concede that this determination
is correct. Standing alone, the fact that the Officers were sent to Hogan’s
apartment to deal with a child-custody matter cannot create the exigency that
would make the Officers’ warrantless entry constitutionally permissible. Here,
when viewing the facts in Hogan’s favor, nothing the Officers knew or observed
indicated a potential safety threat. Furthermore, the Officers cannot justify
their warrantless entry based upon their hot pursuit of Hogan for the offense of
interference with child custody. Hogan did not retreat into his apartment from
a public place. He was fully inside his apartment at all times, and his apartment

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                                         No. 11-41029

was only opened after the Officers had knocked.19 Viewing the facts in Hogan’s
favor, the Officers’ entry into Hogan’s apartment to effectuate his arrest violated
the Fourth Amendment, in light of the lack of exigent circumstances.
       The second inquiry is whether every reasonable official would have
understood that what he was doing violated the Fourth Amendment.20
“[E]xisting precedent must have placed the . . . constitutional question beyond
debate.”21 At the time of the Officers’ conduct, the Supreme Court and this court
had made it abundantly clear that either a warrant or probable cause and
exigent circumstances is required to arrest an individual in his home. The
Officers are not entitled to qualified immunity and summary judgment on
Hogan’s unlawful-arrest claim, assuming, as we must, that Hogan’s version of
the events is accurate.
                                                B
       We next consider Hogan’s excessive-force claim. Even if the Officers
unlawfully arrested Hogan, that alone does not mean that the force used to
effectuate the arrest was excessive.22 Ultimately, we conclude that the Officers
are entitled to qualified immunity and summary judgment on this claim.
       The first prong of qualified immunity is whether a defendant’s conduct
violated a constitutional right.23 To state a violation of the Fourth Amendment


       19
         See United States v. Santana, 427 U.S. 38, 40 & n.1, 42-43 (1976) (concluding that
Santana was in a “public place” when the officers arrived at her residence because she was
“standing directly in the doorway—one step forward would have put her outside, one step
backward would have put her in the vestibule of her residence,” and holding that she could not
“thwart an otherwise proper arrest” by “retreating into her house”).
       20
            See Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
       21
        Id. (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)) (internal quotation
marks omitted).
       22
            Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007).
       23
            See, e.g., Pearson v. Callahan, 555 U.S. 223, 232 (2009).

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                                         No. 11-41029

prohibition on excessive force, a plaintiff must allege “(1) an injury that (2)
resulted directly and only from the use of force that was excessive to the need,
and that (3) the force used was objectively unreasonable.”24 The objective
reasonableness of the force depends on the facts and circumstances of the
particular case—the need for force determines how much force is constitutionally
permissible.25 The court should consider “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.”26 The Supreme Court explained in Graham v. Connor27 that the
reasonableness of the use of force must be judged from the perspective of a
reasonable officer:
       The “reasonableness” of a particular use of force must be judged
       from the perspective of a reasonable officer on the scene, rather than
       with the 20/20 vision of hindsight . . . . The calculus of
       reasonableness 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.28
Only the objective reasonableness of the force is considered; an officer’s
subjective intent is irrelevant.29




       24
         Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004) (citing Goodson v. City
of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000)).
       25
            Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir. 1996).
       26
         Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Tennessee v. Garner, 471 U.S. 1,
8-9 (1985)).
       27
            490 U.S. 386.
       28
            Graham, 490 U.S. at 396-97 (citations omitted).
       29
            Id. at 397.

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      As discussed earlier, Hogan’s version of events is that when he
encountered the officers at the door, he advised them that they could not come
into the apartment and attempted to close the door. Hogan does not dispute that
from the Officers’ perspective, he had violated the law by failing to return his son
to his son’s mother in accordance with a court order. Attempting to shut the
door on the officers could reasonably be viewed as resisting arrest for a felony.
Entry into the home and tackling Hogan while he remained in sight was an
amount of force calculated to effectuate an arrest of a person who was actively
resisting arrest. The officers could reasonably have feared that Hogan might
retreat into his apartment after shutting the door to arm himself or to obtain a
weapon and then secrete himself in the apartment while the Officers searched
for him. A reasonable officer was also entitled to consider that tackling a suspect
was not necessarily likely to result in broken ribs or similar injuries. Under
these circumstances, no reasonable jury could conclude that the officers used
excessive force to subdue Hogan.30
      Even if we are mistaken, however, and the Officers employed
unreasonable force, that is not the end of the inquiry in a qualified immunity
analysis. If the only question were whether the amount of force used was
unreasonable, then the issue of qualified immunity would be subsumed by
whether there was a constitutional violation. The Supreme Court explained in
Saucier v. Katz31 that the qualified immunity analysis in an excessive force case
involves two distinct reasonableness inquiries.32 One is whether the officer’s use
of force was objectively reasonable in light of Fourth Amendment standards.33


      30
           See Hill v. Carroll Cnty., Miss., 587 F.3d 230, 237 (5th Cir. 2009).
      31
           533 U.S. 194 (1989).
      32
           Saucier, 533 U.S. at 200-02.
      33
           Id. at 201.

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                                          No. 11-41029

The other is whether the right was clearly established such that a reasonable
officer would know that the particular level of force used was excessive.34 While
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 used in a given situation may not
have been clear to a reasonable officer at the scene.35
       To say that the law was clearly established, “we must be able to point to
controlling authority—or a ‘robust consensus of persuasive authority’—that
defines the contours of the right in question with a high degree of
particularity.”36 “Although the Supreme Court has repeatedly admonished
courts not to define clearly established law at a high level of generality, this does
not mean that ‘a case directly on point’ is required. Rather, ‘existing precedent
must have placed the statutory or constitutional question beyond debate.’”37 In
the end, the question is whether the right is “sufficiently clear ‘that every
reasonable official would [have understood] that what he is doing violates that
right.’”38
       Viewing the facts in Hogan’s favor, he approached his apartment door, told
the Officers that they could not come inside, attempted to close the door, and was
immediately tackled by two officers. In tackling him, the Officers caused him to
fall on his back, and they fell on top of him. As a result, he suffered two broken
ribs. We conclude that Hogan has not met his burden to show that existing
precedent at the time of his arrest placed beyond debate the question of whether

       34
            Id. at 202 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
       35
            Id. at 201-02; see also Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008).
       36
         Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc) (citation omitted)
(quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011)) (internal quotation marks omitted).
       37
            Id. at 372 (quoting al-Kidd, 131 S. Ct. at 2083).
       38
        Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (alteration in original) (quoting al-
Kidd, 131 S. Ct. at 2078) (internal quotation marks omitted).

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the use of such force amounted to a constitutional violation because the cases on
which Hogan relies are distinguishable from the circumstances of this case.39
       Hogan relies on Blankenhorn v. City of Orange40 and Brown v. Long Beach
Police Department41 to show that it was clearly established that using such force
is excessive. In Blankenhorn, the Ninth Circuit concluded that a rational jury
could find the use of a “gang tackle” to be excessive under the circumstances,42
but the circumstances here are distinguishable.                         The felony offense of
interference with child custody is more severe than misdemeanor trespass, there
is no evidence here that Hogan was cooperative in the past, and this case did
involve a split-second police judgment because—accepting Hogan’s version of the
events—Hogan started to close the door on the Officers as soon as he approached
the door, and the Officers had to decide immediately how to react. This is also
not a case like Brown in which “a teenage girl weighing less than 100 pounds”
was fleeing from a 300-pound officer arresting her for truancy.43 Here, a felony
offense was involved, and the Officers confronted two adult males inside the
entryway of a home.
       Meredith v. Erath,44 cited by the district court, also presented different
circumstances. The income-tax-related crimes investigated in that case were
less likely to create a volatile situation than the child-custody matter involved
here. Similarly, the plaintiff in Meredith—who repeatedly protested the search


       39
           See Sama v. Hannigan, 669 F.3d 585, 591 (5th Cir. 2012) (“Once raised, the burden
shifts to the plaintiff . . . .” (citing Kovacic v. Villarreal, 628 F.3d 209, 211-12 (5th Cir. 2010))).
       40
            485 F.3d 463 (9th Cir. 2007).
       41
            105 F. App’x 549 (5th Cir. 2004) (per curiam).
       42
            Blankenhorn, 485 F.3d at 478.
       43
            Brown, 105 F. App’x at 550.
       44
            342 F.3d 1057 (9th Cir. 2003).

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                                         No. 11-41029
of her residence but only passively resisted her handcuffing—was not a safety
risk, while here there was arguably a greater need for force. The Officers were
confronted with making a split-second police judgment concerning how to deal
with Hogan as he closed the door on them when they knew that another adult
male, Loudin, was also within the apartment. In Meredith, thirteen IRS agents
confronted a single female upon entering the third floor of the building they were
searching.45 Conversely, the two officers here were not yet within the apartment
and knew that they would potentially be evenly matched against two adult
males if further issues arose in arresting Hogan.
                                               IV
       Apart from qualified immunity, the Officers contend that section
105.006(e-1) of the Texas Family Code entitles them to immunity, but we reject
this contention. This provision does not grant immunity itself.46 The reference
to immunity appears to be a general reference to official immunity from state-
law claims under Texas law.47
       To the extent that the Officers may have intended to argue that they are
entitled to qualified immunity because they “acted reasonably and did not offend
any constitutional rights” while “attempting to assist Ms. Hogan in securing
compliance with the divorce decree,” the cases that the Officers cite do not
support their argument because those cases do not present circumstances


       45
            Id. at 1060.
       46
          See TEX. FAM. CODE ANN. § 105.006(e-1) (West 2008) (mandating that, in an order
providing for the possession of or access to a child, notice be prominently displayed regarding
an officer’s right to use reasonable efforts to enforce the terms of child custody and that the
notice state that “[a] peace officer who relies on the terms of a court order and the officer’s
agency are entitled to the applicable immunity against any claim, civil or otherwise, regarding
the officer’s good faith acts performed in the scope of the officer’s duties in enforcing the terms
of the order that relate to child custody”).
       47
       See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994) (defining official
immunity).

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                                        No. 11-41029
similar to those present here. Here, Hogan’s constitutional claims involve an
unlawful arrest and the use of excessive force. Neither of the cited cases
involved an arrest or the use of force.48
                                               V
       In addition to his § 1983 claims, Hogan also asserted civil assault and
battery claims under Texas state law. Before the district court, the Officers
argued that they were entitled to summary judgment on these claims because
section 9.51(a) of the Texas Penal Code provides them with a civil-defense
privilege. The district court determined that there were questions of fact
concerning whether the Officers were entitled to the privilege, and therefore the
court denied the Officers’ motion for summary judgment on Hogan’s assault and
battery claims.
       We lack jurisdiction to consider the Officers’ interlocutory appeal of the
district court’s denial of their motion for summary judgment on these claims.
Section 9.51(a) is not a grant of immunity; instead, it is an affirmative defense,
which “privileges the conduct of all peace officers who use reasonable force to
effect an arrest.”49 Because section 9.51(a) is merely an affirmative defense, this




       48
           Brittain v. Hansen, 451 F.3d 982, 985-87 (9th Cir. 2006); Williams v. Blaisdell, 173
F. Supp. 2d 574, 581 (N.D. Tex. 2001) (“[P]laintiff’s only complaints against Lance are
that . . . he threatened to arrest her on the spot if she did not relinquish custody . . . and,
perhaps, that . . . Lance rejected her suggestion that he read the possession order.”).
       49
          Villafranca v. United States, 587 F.3d 257, 263-64 (5th Cir. 2009) (relying on
section 9.51(a) being a privilege and not an immunity); see also TEX. PENAL CODE ANN. § 9.02
(West 2011) (“It is a defense to prosecution that the conduct in question is justified under this
chapter.”); Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 & n.14 (Tex. 2001) (describing
section 9.51 as an “affirmative defense of privilege”).

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    Case: 11-41029        Document: 00512305516          Page: 17      Date Filed: 07/12/2013



                                          No. 11-41029
court lacks jurisdiction to consider this portion of the Officers’ appeal at this
time.50 The cases cited by the Officers do not mandate a different conclusion.51
                                      *        *         *
       We AFFIRM the district court’s denial of summary judgment on Hogan’s
unlawful-arrest claim and REMAND to the district court for proceedings
consistent with this opinion.           We REVERSE the district court’s denial of
summary judgment on Hogan’s excessive-force claim and RENDER judgment in
the Officers’ favor on that claim. We lack jurisdiction to consider the Officers’
interlocutory appeal of the district court’s decision denying them summary
judgment on Hogan’s state-law assault and battery claims.




       50
        See Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (“[A] denial of a
defendant’s motion for summary judgment is ordinarily not immediately appealable . . . .”).
       51
           See Villafranca, 587 F.3d at 260-65 (affirming the district court’s judgment against
the plaintiff on his assault claim after determining that the federal agents’ conduct was
privileged under section 9.51(a)); Fraire v. City of Arlington, 957 F.2d 1268, 1269, 1273-77 (5th
Cir. 1992) (agreeing with the district court that the officer was entitled to qualified immunity
and, in doing so, referencing section 9.51(a) in order to demonstrate that the officer’s actions
were not grossly disproportionate); Petta, 44 S.W.3d at 578-80 (holding that the officer was
entitled to the affirmative defense of privilege based on collateral estoppel arising from the
plaintiff’s prior criminal trial and conviction).

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