     Case: 16-40486   Document: 00513910836     Page: 1   Date Filed: 03/14/2017




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

                                                                          FILED
                                                                      March 14, 2017
                                 No. 16-40486
                                                                       Lyle W. Cayce
                                                                            Clerk
LINDA SURRATT, Individually and as heir and legal representative of the
Estate of Lesa Ann Surratt, deceased,

       Plaintiff - Appellant

v.

BRIAN MCCLARIN; CITY OF SHERMAN; TOM CAVER; TREVOR
STEVENS,

       Defendants - Appellees




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


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      In this qualified immunity case, the question on appeal is whether—in
light of clearly established law at the time of the incident—officers acted
objectively unreasonably when they applied force to the jaw and throat of a
suspect who was believed to be hiding evidence in her mouth. Because we
conclude that they did not, we AFFIRM.
                                       I.
      On August 20, 2013, police officer Tom Caver of the Sherman Police
Department effected a traffic stop, pulling over Lesa Ann Surratt (“Surratt”)
for signaling one direction but then turning the other. The stop was pretextual.
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                                 No. 16-40486
Earlier that day, Caver had been informed that Surratt was in possession of
narcotics.
      Once officer Trevor Stevens arrived as backup, the officers arrested
Surratt for the traffic violation. They also arrested Surratt’s only passenger,
Monica Garza, on some outstanding traffic warrants. The officers handcuffed
both women and placed them in the backseat of Caver’s patrol car, securing
them with seatbelts. The patrol car was equipped with an in-car video
surveillance system which recorded most of the remaining events at issue.
      The officers returned to Surratt’s vehicle to retrieve the women’s
personal effects, briefly leaving the women alone and unsupervised in the
backseat of the patrol car. During this time, Surratt managed to free her right
hand from her handcuffs, pull a small baggy of narcotics from underneath her
skirt, and place it in her mouth. When Stevens returned to the patrol car a few
moments later, he opened the back door nearest to Surratt and heard what
sounded like an object hitting the floor. He asked, “What did you do? What did
you drop?” When the women stated that they had not dropped anything,
Stevens ordered Caver—who had just returned to the vehicle himself and
opened Garza’s side door—to “[g]et ‘em out, one by one. They were trying to
hide something.”
      Stevens then noticed Surratt’s skirt and observed, “She’s got her britches
pulled up, it’s in her, it’s in her pants.” Caver reached across Garza and
grabbed Surratt’s right arm which was behind her back. He then shined his
flashlight in Surratt’s face and ordered her to “open [her] mouth up.” Less than
four seconds later, Stevens pressed his forearm against Surratt’s left jawline
and neck while Caver pressed his thumb into the back of her right jawline to
try and force her to open her mouth.
      Surratt fought back, grabbing at Caver’s arms as he continued to apply
what the police department called “soft hands techniques.” She also kept
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                                        No. 16-40486
ignoring the officers’ instructions to open her mouth. After several seconds of
struggle, Caver grabbed Surratt’s right hand and attempted to pull her over
Garza and out the door. Because Surratt’s seatbelt was still buckled, this took
nearly a minute. By the time she was completely out of the patrol car, Surratt
was unresponsive and having a seizure.
       The officers noted that Surratt was not breathing and radioed for an
ambulance. By this time, several other officers had arrived on the scene as
backup. The officers assumed that Surratt was choking. Detective Brian
McClaran 1 administered the Heimlich Maneuver in an effort to dislodge the
obstruction in her throat, but was unsuccessful. Eventually, the fire
department arrived and used forceps to remove the plastic baggie from
Surratt’s throat. She was transported to the hospital and placed on life support
but died thirteen days later as a “result of complications of asphyxia due to
airway obstruction by plastic bag.”
       Surratt’s sister, Linda Surratt (“Linda”), then filed the instant lawsuit.
She asserted claims against Caver, Stevens, McClaran, and the City of
Sherman for excessive force, unreasonable search and seizure, violation of due
process, and conspiracy, as well as Texas state-law claims for wrongful death,
assault and battery, and breach of fiduciary duty. The defendants filed a
motion for summary judgment. The district court granted the motion, partly
because it concluded that the officers were entitled to qualified immunity.
While the district court concluded that the officers had violated Surratt’s
Fourth Amendment right to be free from excessive force, it held that the
officers’ actions were not objectively unreasonable in light of clearly
established law at the time of the incident. Linda timely appealed. 2


       1 Officer McClaran’s name is misspelled “McClarin” in the case style.
       2 While Linda originally indicated that she intended to appeal all of the district court’s
rulings, her brief focuses exclusively on the district court’s qualified immunity determination
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                                        No. 16-40486
                                              II.
       “We review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th
Cir. 2013). Summary judgment is appropriate where “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).
                                              III.
       Section 1983 enables persons who have been “depriv[ed] of any rights,
privileges, or immunities secured by the Constitution and laws” of the United
States by the actions of a person or entity operating under color of state law to
seek redress from those state actors responsible for the deprivations. 42 U.S.C.
§ 1983. But qualified immunity insulates those government officials “from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts use
a two-prong analysis to determine whether a defendant is entitled to qualified
immunity in a given case. The court must decide both whether the plaintiff has
alleged a violation of a constitutional right and whether the government official
acted objectively unreasonably in light of “clearly established” law at the time
of the incident. Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007). In Pearson
v. Callahan, the Supreme Court determined that courts may tackle these
questions in any order. 555 U.S. 223, 227 (2009).




with respect to her excessive force claims. As such, we consider all other arguments waived.
Health Care Serv. Corp. v. Methodist Hosp. of Dall., 814 F.3d 242, 252 n.38 (5th Cir. 2016)
(“[I]t is clear that a party who fails to raise an issue in its initial brief waives the right to
review of that issue . . . .”).
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                                     No. 16-40486
      Assuming without deciding that the officers’ conduct violated Surratt’s
constitutional rights, Linda has failed to demonstrate that the officers acted
objectively unreasonably in light of clearly established law at the time of the
incident. “[F]or a [law] to be clearly established, ‘existing precedent must have
placed the statutory or constitutional question beyond debate.’” White v. Pauly,
137 S. Ct. 548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 136 S. Ct.
305, 308 (2015)). This is done only when we can “identify a case where an officer
acting under similar circumstances . . . was held to have violated the Fourth
Amendment.” Id. at 552.
      Linda has failed to meet this burden. At oral argument, her counsel
admitted that she could not point to any binding precedent where a similarly
situated officer was found to have violated the Fourth Amendment. The
Supreme Court and Fifth Circuit precedent she does cite “lay out excessive-
force principles at only a general level,” which the Supreme Court has held to
be insufficient outside “an obvious case.” Id.
      Furthermore, Fifth Circuit precedent actually supports the conclusion
that the officers’ conduct was not objectively unreasonable in light of clearly
established law. In Espinoza v. United States, a suspect—when confronted by
police officers—attempted “to swallow and destroy what to the officers
appeared to be . . . a quantity of narcotics.” 278 F.2d 802, 804 (5th Cir. 1960).
The officers responded by “choking [the suspect] and attempting to pry open
his mouth by placing pressure against his jaw and nose.” Id. at 803. The panel
concluded that “no more force was used than was necessary under the
circumstances.” Id. at 804. 3


      3  Surratt asserts that Espinoza has no value after the Supreme Court decision in
Schmerber v. California, 384 U.S. 757 (1996). But Schmerber concerned whether police could
draw a suspect’s blood without his permission to show he was driving under the influence of
alcohol. Id at 759. Schmerber did not address police use of force to prevent a suspect from
swallowing evidence. Surratt cites no case holding that Schmerber overrules or otherwise
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                                       No. 16-40486
       As the district court noted, “previous law has provided no guidance
regarding what is precisely reasonable and what is unreasonable regarding the
use of force to an individual’s throat where the individual appears to be
concealing something in their mouth.” Accordingly, we cannot say that the
officers acted objectively unreasonably in light of clearly established law.
                                             IV.
       In conclusion, we AFFIRM the district court’s grant of summary
judgment.




changes the analysis in Espinoza, nor does she cite any case from this circuit holding that
the bodily intrusion in Schmerber is analogous to the use of force in Espinoza. In addition to
all that, Schmerber found no constitutional violation.
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