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

                                      No. 19-40217
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 8, 2020

MARIA V. PENA; DANIEL PENA; MARIA JULISSA PENA,                            Lyle W. Cayce
                                                                                Clerk
              Plaintiffs - Appellants

v.

CITY OF RIO GRANDE CITY, TEXAS; ROSA SALINAS, in her Individual
and Official Capacity; LIEUTENANT JOSE SOLIS, in his Individual and
Official Capacity; OFFICER HUMBERTO VELA, in his Individual and
Official Capacity,

              Defendants - Appellees



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:16-CV-00079


Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Maria Peña filed an excessive force action under 42 U.S.C. § 1983 for
injuries she sustained when she was tased by Rio Grande City police officers.
Peña appeals the district court’s adverse summary judgment on the basis of
qualified immunity. Because the district court erred in granting summary
judgment, we reverse and remand.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                             I.
       On the morning of June 30, 2014, a Rio Grande City juvenile officer,
Humberto Vela, met with the parents of then-seventeen-year-old Maria Julissa
Peña (Peña) because Peña and her younger sister had run away from home the
prior evening. 1 Although neither girl was suspected of a crime, Peña’s parents
asked Vela to talk with the girls when they returned home and “scare” them
into believing they would be arrested in order to teach them a lesson. Later
that afternoon, Peña and her parents 2 returned to the Rio Grande City Police
Department and encountered Vela outside. The events that followed, including
the circumstances surrounding the tasing, are disputed by the parties.
       Peña asserts that when they arrived in the parking lot at the corner of
Washington Street and Main Street, her father got out of the vehicle and called
over Vela, who was outside of the police department. Vela, however, claims he
approached the family car after observing an altercation between Peña and her
father. Peña’s father instructed her to get out of the car, but she refused
because she was scared. Vela, who was standing by the rear driver’s side door
closest to Peña’s father, leaned over and threatened to tase Peña if she did not
give him her hands and get out of the car.
       In response to Vela’s report of a “domestic in progress” and request for
assistance, Lieutenant Jose Solis, Officer Rosa Salinas, and Officer Ana
Balderas Ramirez exited the police department and approached the car.
Although the extent of the interaction between Vela and Peña is disputed, it is



       1  Earlier that same morning, at approximately 1:55 a.m., Daniel Peña (Peña’s father)
filed a missing person report with Rio Grande City Police Officer Alex Rivera in reference to
his two juvenile daughters that he reported had been missing since 10:00 p.m. the prior
evening. The report, including the missing children’s dates of birth and identifying
information, was entered into the NCIC/TCIC System.
        2 Peña’s cousin’s girlfriend was also in the vehicle.

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undisputed that Peña was in the backseat of the car and Vela ordered Peña to
get out of the car and attempted to handcuff her. Peña refused. Peña alleges
that she was extremely fearful throughout the encounter, particularly because
she had not experienced “problems like this before,” because she thought her
father brought her to the police department for her to go to jail, and because
Vela had his hand on his taser and threatened to tase her if she did not get out
of the vehicle. Soon after the other officers arrived, Peña opened the back
passenger car door and ran south down Washington Street toward Mirasoles
Street. Salinas and Solis chased after Peña. Solis ordered three times for
Salinas to tase Peña, and, without stopping to properly aim, Salinas fired her
taser at Peña. 3
      The steel taser prongs lodged into Peña’s back and scalp. Peña fell face
first and struck the pavement near the stop sign at the corner of Washington
and Mirasoles. Peña suffered significant injuries, including several broken
teeth as well as burns, bruises, and lacerations to her nose, lip, chin, cheek,
forehead, foot, breast, arms, legs, and knees.         Peña was transported by
ambulance to the hospital where she received treatment for her injuries,
including stitches in her nose and lip. Additionally, Peña alleges that she
suffers from headaches, loss of memory, and scarring as a result of the incident.
      After Peña was discharged from the hospital, she was taken to jail and
booked for evading arrest and resisting arrest. Peña initially sued the city in
state court, alleging negligence under the Texas Tort Claims Act, then added
claims under 42 U.S.C. § 1983 against the city, Salinas, and Solis, alleging that
Salinas and Solis used excessive force to seize her in violation of the Fourth
Amendment. The case was removed to federal court. The district court denied


      3 According to the dispatch notes in the Incident Report, there were 19 seconds
between the time Vela called for backup and the time the taser was reported deployed.
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Peña’s motions to amend her complaint, granted the city’s motion for judgment
on the pleadings, and dismissed her claims against the officers for failure to
state a claim without reaching the qualified immunity defense.
      On appeal, this court vacated in part and remanded, concluding that the
district court erred in disregarding Peña’s proposed amended complaint. 4 Peña
v. City of Rio Grande City, 879 F.3d 613 (5th Cir. 2018). Further, this court
held that, because the amended complaint stated plausible claims against
Salinas and Solis, the district court should consider in the first instance
whether Peña’s pleadings survive the officers’ qualified immunity defense.
       On remand, the district court accepted Peña’s amended complaint for
filing, denied Peña’s motion to strike defendants’ motion for summary
judgment, and dismissed with prejudice the claims against Vela as barred by
res judicata. As to Peña’s remaining excessive force claims against Salinas
arising out of her use of a taser, and against Solis as a supervisor ordering
Salinas to deploy her taser, the district court held that both Salinas and Solis
were entitled to summary judgment on the basis of qualified immunity. Peña
filed this appeal, challenging only the grant of summary judgment in favor of
Salinas and Solis.
                                            II.
      We review summary judgment de novo, applying the same standard as
the district court. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
The court shall grant summary judgment 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). “A dispute is genuine if the evidence



       4  The district court’s dismissal of Peña’s claim against the city was affirmed. The
amended complaint included additional claims against Vela and changed the style of the case
to reflect that Plaintiff was no longer a minor.
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is sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Poole, 691 F.3d at 627. A fact is material if its resolution could affect the
outcome of the action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).   In deciding whether there are genuine disputes of material fact
precluding summary judgment, “all of the evidence introduced and all of the
factual inferences from the evidence are viewed in a light most favorable to the
party opposing the motion.” Terrebonne Par. Sch. Bd. v. Mobil Oil Corp., 310
F.3d 870, 877 (5th Cir. 2002).
      “The doctrine of qualified immunity shields officials from civil liability so
long as their conduct ‘does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). When a defendant moves for summary judgment on the
basis of qualified immunity, the court must decide: (1) whether the facts, taken
in the light most favorable to the plaintiff, show the officer’s conduct violated
a constitutional right; and (2) whether that right was “clearly established” at
the time of the defendant’s alleged misconduct so that a reasonable official in
the defendant’s situation would have understood that his conduct violated that
right. See Tolan v. Cotton, 572 U.S. 650, 655–56 (2014).
      A court has discretion to decide “which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in
the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“But under either prong, courts may not resolve genuine disputes of fact in
favor of the party seeking summary judgment.”           Tolan, 572 U.S. at 656.
Rather, courts must view the facts and draw reasonable inferences in favor of
the nonmovant. Id. at 657; see also Scott v. Harris, 550 U.S. 372, 378 (2007)
(“In qualified immunity cases, this usually means adopting . . . the plaintiff’s

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version of the facts.”). “If the plaintiff fails at either step, the federal court can
grant qualified immunity by addressing either step or both of them.” Cleveland
v. Bell, 938 F.3d 672, 676 (5th Cir. 2019).
      “When a plaintiff alleges excessive force during an investigation or
arrest, the federal right at issue is the Fourth Amendment right against
unreasonable seizures.” Graham v. Connor, 490 U.S. 386, 394 (1989). To
prevail on an excessive force claim, Peña must show an injury that resulted
directly and only from a clearly excessive use of force, and the excessiveness of
which was clearly unreasonable. Trammell v. Fruge, 868 F.3d 332, 340 (5th
Cir. 2017). Excessive force claims are “evaluated for objective reasonableness
based on the information the officers had when the conduct occurred.” Saucier
v. Katz, 533 U.S. 194, 207 (2001).
                                         III.
      In granting summary judgment, the district court found that under the
Graham factors, Salinas’ decision to tase Peña “could be objectively reasonable:
Salinas reasonably believed Plaintiff was a misdemeanant who was fleeing
arrest and posed a danger to herself and others.” However, the court found
that, regardless of whether the tasing of Peña constituted excessive force, there
is no case directly on point to support the finding that the right was clearly
established such that the violation was beyond debate. Specifically, the district
court concluded, “given the totality of the circumstances, that Salinas was not
on notice that utilizing a Taser to deliver a single charge to prevent [Peña] from
running into traffic would constitute excessive force.” The court concluded that
Solis was also entitled to qualified immunity “for similar reasons.”              We
disagree. The district court’s reasoning in granting summary judgment is
flawed for several reasons.


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      As an initial matter, the district court erroneously failed to consider the
facts in the light most favorable to Peña and dismissed genuine disputes of
material fact as merely “slightly differing.” “[A] judge’s function at summary
judgment is not to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.” Id. “The relevant
question is whether, taking [Peña’s] version of the facts as true, the force used
. . . was both excessive to the need and objectively unreasonable.” Autin v. City
of Baytown, 174 F. App’x 183, 185 (5th Cir. 2005). It is irrelevant “whether the
force was justified based on the [defendant’s] claimed interpretation of the
situation at the time.” Id.
      Next, there are a litany of genuine disputed facts material to the
reasonableness determination, particularly with regard to the district court’s
analysis of the Graham factors. In excessive force cases, the reasonableness
inquiry turns on “whether the totality of the circumstances justified a
particular sort of . . . seizure.” Tennessee v. Garner, 471 U.S. 1, 8–9 (1985).
“Determining whether the force used to effect a particular seizure is
‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the
nature and quality of the intrusion on the individual’s Fourth Amendment
interests’ against the countervailing governmental interests at stake.”
Graham, 490 U.S. at 396 (quoting Garner, 471 U.S. at 8). “[T]he question is
whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them . . . .” Id. at 397. In determining whether the
use of force is reasonable, we must assess the totality of the circumstances,
“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 [s]he
is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396
(internal quotation marks and citation omitted).

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       Under the first factor, the court found that it was reasonable for Salinas
to believe that Peña was a criminal suspect of at least a misdemeanor because
it is undisputed that Peña had resisted detainment and was in flight.
However, this is largely disputed: Peña asserts that she did not commit a
crime; disputes kicking Vela or any other officer; and points to testimony from
the officers that they knew she was not a suspect in any crime. Further, both
Peña and her father deny having an argument or physical altercation at the
police department, which Vela explains triggered his attempt to detain Peña.
       Moreover, the officers explained that Peña was tased for her own
safety—not because she was a criminal suspect of a misdemeanor.
Additionally, Vela, Salinas, and Solis all offer contradicting testimony
regarding the crime Peña was allegedly suspected of committing. 5 Salinas and
Solis were responding to Vela’s report of a domestic disturbance, which
provided little reason to believe that Peña was in the process of perpetrating a
crime. See Samples v. Vadzemnieks, 900 F.3d 655, 661–62 (5th Cir. 2018). In
sum, there are disputed issues of material fact as to whether an officer in
Salinas and Solis’ position reasonably believed Peña was suspected of



       5  Vela claims that he was initially attempting to detain Peña after observing a struggle
between her and her father where she attempted to run into Main Street. While attempting
to detain her to prevent her from running into the street, Vela claims that Peña was resisting
by kicking and hitting him, but also concealing her hands behind her back. Solis identifies
Peña’s crime as disturbing the peace (a misdemeanor) by arguing with her father, but Solis
never saw Peña assault her father, as Vela stated. Both Salinas and Solis testified that they
did not see an argument or struggle between Peña and her father, but rather were informed
of the alleged struggle after the incident. Also, Salinas said the only crime she observed Peña
commit was assaulting Vela by kicking him, but later in the deposition suggests that the
relevant crime is evading and resisting. Peña was subsequently booked with resisting and
evading arrest, a misdemeanor. However, Vela was already in the process of arresting Peña
before she allegedly resisted. “A person cannot be convicted of evading detention unless an
officer had reasonable suspicion or probable cause to detain the suspect for a crime other
than evading arrest.” Zimmerman v. Cutler, 657 F. App’x 340, 344 (5th Cir. 2016). There is
no indication in the record that any charges against Peña were prosecuted.
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committing a crime at the time the use of force was employed, in addition to
disputes regarding the severity of any such potential misdemeanor crime.
Regardless, the severity of the crime, if any, was minimal militating against
the use of force. See Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017); see
also Reyes v. Bridgwater, 362 F. App’x 403, 407 n.5 (5th Cir. 2010).
       The second Graham factor (whether Peña posed “an immediate threat to
the safety of the officers or others”) is equally disputed—but also weighs in
favor of Peña. Graham, 490 U.S. at 396. The officers assert that it was
necessary to tase Peña to protect her from nearby traffic, alleging that they
saw a vehicle on Mirasoles Street at the intersection Peña was approaching on
foot. 6 However, viewing the facts in the light most favorable to Peña it is not
clear that a reasonable officer would have perceived such a danger.
       First, Peña testified that she did not see any vehicles ahead and had no
intention of running into traffic. Further, there is no record evidence Peña had
threatened to hurt herself, was suicidal, or otherwise was a danger to herself.
Cf. Cantrell v. City of Murphy, 666 F.3d 911, 923 (5th Cir. 2012). Nor does the
location of the tasing tend to support the officers’ asserted perceived threat.
Peña was immediately adjacent to a sidewalk and several feet from Mirasoles
Street—a residential street with a speed limit of 20 miles per hour.
       We reject the district court’s unsubstantiated conclusion that it was
objectively reasonable for Salinas and Solis to believe that Peña posed a danger
to herself or others based on a purported fear that the teenager would run into
traffic when she reached the end of the street. Importantly, Salinas and Solis
admit that Peña never threatened to harm herself or anyone else and that they



       6 Curiously, Salinas did not include this fact in her report, which she admits was a
“significant” omission. Additionally, there is a discrepancy in Salinas’ reports of whether she
stopped and aimed before deploying her taser.
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did not feel threatened at any point. Because Peña posed a minimal safety
threat, if any, it is certainly questionable that a reasonable officer would
believe that tasing a teenager running on concrete was necessary for her own
safety. 7
       Moreover, the known risks of secondary injury inherent in tasing a
person in motion and the department policy cautioning against such use
further places the degree of force used under these circumstances outside the
bounds of reasonable conduct. 8 Here, Peña and Salinas were both running
when Solis ordered Salinas to tase Peña. In compliance with Solis’s order,
Salinas deployed her taser without stopping to aim. As a result, a barb lodged
in Peña’s head and another in her back, causing her to fall and sustain
significant injuries.
       At minimum, the summary judgment evidence refutes the belief that it
was necessary to tase Peña to prevent her from getting hit by a car. 9
Additionally, there is no evidence Peña posed a threat to the safety of the
officers or others: at no point was she thought to be armed and never


       7  While our focus is objective rather than subjective, it is noteworthy that even Salinas
did not believe it was necessary to tase Peña because she thought she would be able to catch
up to her; instead, she claims she only deployed her taser in accordance with Solis’ command.
        8 Salinas testified that it is a violation of department policy to tase a person that is

running away or in motion because he or she is no longer a threat. Similarly, Solis admits
that under certain circumstances, tasing a person while running is prohibited. According to
Salinas the department policy only permits tasing someone in motion if he or she is
committing or are going to commit a felony. However, the crimes officers assert they
suspected Peña to have committed were all misdemeanors.
        Salinas and Solis both acknowledged that a taser can cause death or serious injury.
Solis was advised of the warnings about not tasing people in the head and not tasing someone
who is running because they could fall and suffer secondary injuries, such as an impact injury
to the head or other area.
        9 Besides, “where a seizure’s sole justification is preventing harm to the subject of the

seizure, the government has little interest in using force to effect that seizure. Rather, using
force likely to harm the subject is manifestly contrary to the government’s interest in
initiating that seizure.” Estate of Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 901 (4th Cir.
2016).
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threatened to harm anyone. Under the particular facts of this encounter, a
jury could find that the officers had no reason to think Peña posed an
immediate threat to herself or anyone else.
      The factual disputes cited in the first factor equally apply—and preclude
resolution by summary judgment—as to the third factor, whether Peña was
actively resisting arrest or attempting to evade arrest by flight. Graham, 490
U.S. at 396. Additionally, we find that there is a factual dispute as to the
nature of Peña’s resistance.     See Trammel, 868 F.3d at 341 (“Where an
individual’s conduct amounts to mere ‘passive resistance,’ use of force is not
justified.”). According to Peña, her only physical resistance prior to being tased
was her refusal to give Vela her hands and get out of the car. Such minimal
resistance does not warrant the degree of force used. See id. (citing Goodson
v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (plaintiff pulling
arm away from an officer after the officer grabbed the plaintiff’s arm was only
minimal resistance, if at all, and did not justify two officers tackling the
plaintiff)). While she does not dispute running away from the officers, Peña
disputes that the officers were lawfully attempting to arrest or detain her in
the first place. See Goodson, 202 F.3d at 736–40 (declining to extend qualified
immunity to two officers on an excessive force claim in part because material
issues remained as to whether the officers had reasonable suspicion to detain
Goodson or probable cause to arrest him); see also Deville v. Marcantel, 567
F.3d 156, 165 (5th Cir. 2009); see also Bush v. Strain, 513 F.3d 492, 502 (5th
Cir. 2008) (Force—irrespective of degree—is only permissible to the extent that
is actually needed to effectuate an arrest or stop.).
      If Peña’s allegations are accepted by the trier of fact as true, the incident
involved an unarmed, teenage girl who neither threatened the officers, herself,
nor anyone else, nor was a suspect in a crime or had any criminal record. She

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was driven to the police department by her parents after she failed to come
home the night before.      Upon arriving on the scene, Vela immediately
threatened to tase Peña for not getting out of her parents’ car and attempted
to place her in handcuffs for reasons unknown to her. Vela admits he did not
have probable cause to arrest Peña at this point. According to Peña, she hid
her hands out of fear and attempted to run because she was “really scared.”
Peña was not given any other commands other than to get out of her parents’
car. Peña was not told that she was under arrest or why she was being ordered
out of the car. Once Peña was running, the officers did not order her to stop or
warn her that she would then be tased.
      Solis, Salinas’ supervisor and highest ranking officer at the scene,
commanded Salinas three times to tase Peña. Salinas acknowledged that she
is instructed to follow her supervisor’s directives and that Solis was the one
who made the decision to tase Peña. While running behind Peña and without
stopping to aim, Salinas tased Peña.
      The speed with which an officer resorts to force, Trammell, 868 F.3d at
342, and the failure of the officer “to use physical skill, negotiation, or even
commands” before applying such force, Newman v. Guedry, 703 F.3d 757, 762
(5th Cir. 2012), weigh in favor of finding that the use of force was excessive to
the need. Here, without warning or ordering her to stop, Salinas deployed her
taser, which according to one report occurred within 19 seconds of Vela’s call
for assistance. In determining the objective reasonableness of the officer’s use
of force, it is also relevant that Peña was seventeen years old and five feet two
inches tall. See Autin, 174 F. App’x at 185.
      Applying the Graham analysis to the facts and circumstances in the light
most favorable to Peña, we are not convinced at this juncture that the degree
of force used was objectively reasonable. Graham, 490 U.S. at 396. Instead, a

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jury could reasonably find that Salinas and Solis violated Peña’s Fourth
Amendment right to be free from excessive force. 10                     “By failing to credit
evidence that contradicted some of its key factual conclusions, the court
improperly weighed the evidence and resolved disputed issues in favor of the
moving party.” Tolan, 572 U.S. at 657. Peña has established genuine disputes
of material fact regarding whether the officers’ use of force was excessive and
objectively unreasonable. 11 Resolving those disputed facts in her favor, we
conclude that Peña has sufficiently shown that a jury could conclude that the
level of force the defendants used against her was unreasonable in relation to
the threat that she presented and the surrounding circumstances, violating
her right to be free from excessive force.
       Nevertheless, defendants are entitled to qualified immunity unless the
right, defined at a fact specific level, was clearly established at the time of the
violation.    See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).                      “A clearly
established right is one that is ‘sufficiently clear that every reasonable officer



       10  “A supervisory official may be held liable . . . if (1) he affirmatively participates in
the acts that cause the constitutional deprivation, or (2) he implements unconstitutional
policies that causally result in the constitutional injury.” Porter v. Epps, 659 F.3d 440, 446
(5th Cir. 2011). Peña asserts that Solis, Salinas’ supervisor and highest ranking officer at
the scene, affirmatively participated in the constitutional violation by ordering Salinas to
tase Peña. “A superior officer issuing a direct order to a subordinate to use excessive force
demonstrates both the necessary action and causality for a supervisor-liability claim.” Peña,
879 F.3d at 621.
        “Separate consideration does not require courts to conduct a separate analysis for each
officer in those cases where their actions are materially indistinguishable, it merely requires
them to consider each officer’s actions.” Meadours v. Ermel, 483 F.3d 417, 422 n.4 (5th Cir.
2007).
        11 Moreover, Peña offered evidence that a reasonable jury could find undermines the

officers’ credibility. “Summary judgment is not appropriate when questions about the
credibility of key witnesses loom . . . and the evidence could permit the trier-of-fact to treat
their testimony with skeptical scrutiny.” Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir.
2009) (internal quotation and citation omitted); see also Goodwin v. City of Painesville, 781
F.3d 314, 323 (6th Cir. 2015) (“Summary judgment is not appropriate where the opposing
party offers specific facts that call into question the credibility of the movant’s witnesses.”).
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                                  No. 19-40217

would have understood that what he is doing violates that right.’” Id. (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)). “This is not to say that an
official action is protected by qualified immunity unless the very action in
question has previously been held unlawful; but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S.
730, 739 (2002) (internal citations omitted).
      The Supreme Court has consistently instructed lower courts not to define
the applicable “clearly established law” at a “high level of generality.” White v.
Pauly, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al–Kidd, 563 U.S. 731,
742 (2011)). Instead, “the clearly established law must be ‘particularized’ to
the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). The pertinent inquiry is “whether it was clearly established that the
Fourth Amendment prohibited the officer’s conduct in the ‘situation [he or she]
confronted.’” Mullenix, 136 S. Ct. at 309 (quoting Brosseau v. Haugen, 543 U.S.
194, 199 (2004)). Again, we must view the summary judgment evidence in the
light most favorable to Peña in assessing whether the officers’ actions violated
clearly established law. Tolan, 572 U.S. at 657. Correspondingly, “courts must
take care not to define a case’s context in a manner that imports genuinely
disputed factual propositions.” Id.
      A “constitutional violation can be ‘clearly established’ even when there
is no materially similar precedent.” Zimmerman, 657 F. App’x at 346 (citing
Hope, 536 U.S. at 741). “[I]n an obvious case the Graham excessive-force
factors themselves can clearly establish the answer, even without a body of
relevant case law.” Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012)
(quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (internal quotation
marks omitted)). Nevertheless, the unlawfulness must be apparent in light of
pre-existing law. White, 137 S. Ct. at 552.

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      The Graham excessive-force factors do not justify Salinas’ tasering Peña
under the circumstances. Instead, as analyzed above, a reasonable jury could
infer that the Graham factors counsel against the force used against Peña. On
Peña’s account, she was not suspected of a crime, objectively posed no threat
to anyone’s safety, and did not actively resist a lawful arrest. On these facts,
a reasonable officer would have known that the degree of force used against
Peña was unconstitutionally excessive.          See Deville, 567 F.3d at 167–69
(“Officers must assess not only the need for force, but also the relationship
between the need and the amount of force used. . . . it was clearly established
in August 2005 that the amount of force that the officers could use depended
on [the Graham factors].”); see also Bone v. Dunnaway, 657 F. App’x 258, 263–
64 (5th Cir. 2016) (“[T]here is a genuine dispute as to whether any Graham
factor justified Jones’s use of force, and therefore, whether Jones’s force
violated Bone’s constitutional rights. [T]his same factual dispute prevents us
from answering the question [of ‘clearly established law’] in [the officer’s] favor
at summary judgment.”).
      We denied qualified immunity under comparable circumstances in
Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012). In Newman v. Guedry, we
held that the officers use of force during a traffic stop was objectively
unreasonable under the circumstances based on our analysis of the Graham
excessive-force factors.    Id. at 761–63.       The court rejected the officers’
contention that their use of force was reasonable despite their assertions that
Newman resisted 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 themselves. Id. at 762. To the
contrary, Newman, the passenger of the stopped vehicle, denied that he


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                                  No. 19-40217

resisted the officers or failed to comply with any commands; rather, he alleged
that the officers used force in response to an off-color joke. Id.
      As to the severity of the crime, the court reasoned that although the
officers asserted that Newman violated Texas Penal Code § 38.03—Resisting
Arrest, Search, or Transportation—because a struggle ensued, the undisputed
facts did not demonstrate that Newman resisted search and arrest. Id. On
Newman’s account, the officers shoved, hit, and tased him after he made an
off-color joke, denying that he grabbed the officer’s hand. Id. Next, the court
found the officers’ theory that they were trying to prevent serious injury or
death to themselves “severely overwrought” and not supported by the video
evidence. Id. at 762. Instead, while recognizing that traffic stops may be
dangerous encounters, the court concluded that the “particular facts of [the]
encounter did not justify treating Newman as a serious threat, at least at the
summary-judgment stage.” Id. at 762–63. Finally, the court weighed the fact
that Newman did not attempt to flee and allegedly was never given any
commands that he disobeyed. Id. at 763. Moreover, we considered it pertinent
that the officers immediately resorted to using the taser and nightstick
“without attempting to use physical skill, negotiation, or even commands,” in
concluding that the use of force was objectively unreasonable. Id.
      Ultimately, we held that the officer’s use of a taser was objectively
unreasonable because the plaintiff committed no crime, posed no threat to
anyone’s safety, and did not resist the officers. Id. at 762–64. Because, on
Newman’s account, none of the Graham factors justified the officer’s tasering
Newman, the court held that the officers’ conduct was objectively unreasonable
in light of clearly established law at the time of the incident (in 2007).
Newman, 703 F.3d at 763–64; see also Brown v. City of Golden Valley, 574 F.3d
491, 499 (8th Cir. 2009) (“[I]t is clearly established that force is least justified

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                                   No. 19-40217

against nonviolent misdemeanants who do not flee or actively resist arrest and
pose little to no threat to the security of the officers or the public.”).
      Similarly, we have held the use of a taser was excessive to the need and
objectively unreasonable in cases involving minor, non-violent crimes, in which
the suspect posed no objective threat, and was not resisting or attempting to
evade arrest. See Autin, 174 F. App’x at 186 (affirming denial of qualified
immunity to officer who tased the suspect in the back, reasoning that the
suspect “was at most committing the minor crime of criminal mischief,” was
holding a brick, but was “objectively unthreatening,” and was not resisting
arrest).
      For example, in Massey v. Wharton, 477 F. App’x 256 (5th Cir. 2012), we
affirmed the denial of qualified immunity on an excessive force claim because
no reasonable officer would believe the force used against Massey to be
reasonable under the totality of the circumstances. Id. at 263. There, we
reasoned that, taking the plaintiff’s assertions as true, “Massey was arrested
for disorderly conduct and resisting arrest although he was attempting to
comply with the officers’ commands, he was not a threat to the officers or
others, and he was not attempting to flee, but was driving away at the
command of Wharton.” Id. at 263. The court concluded that “in light of Autin”
and because none of the “clearly established Graham factors” supported
Wharton, no reasonable officer would believe it reasonable to tase Massey
twice and pepper spray him to subdue him. Id. Thus, the officer was not
entitled to qualified immunity on Massey’s excessive force claim. Id.
      Our prior decisions, despite factual differences, provide sufficiently
specific guidance to put the officers on notice that their conduct was unlawful.
If Peña’s version of the events is true, no reasonable officer under the
circumstances Salinas and Solis confronted would have believed it was

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                                      No. 19-40217

reasonable to tase Peña—a juvenile girl who was not suspected of a crime,
posed no objective threat to the safety of the officers’ or others, and was not
actively resisting arrest—without warning and without attempting to use any
intermediate measures of force. 12 See Newman, 703 F.3d at 766; cf. Poole, 691
F.3d at 629 (holding that officers who “responded with ‘measured and
ascending’ actions that corresponded to Poole’s escalating verbal and physical
resistance” were entitled to qualified immunity). Given the material factual
disputes in this case, we cannot resolve the qualified immunity question in the
officers’ favor at summary judgment. See Bone, 657 F. App’x at 264.
       It is not the law that is not clearly established, rather in this case the
facts are not clearly established. However, viewing the facts in the light most
favorable to Peña at the summary judgment stage, the officers’ conduct was
objectively unreasonable in light of clearly established law at the time of the
incident. Accordingly, the district court erred in granting summary judgment
on qualified immunity grounds.
       Additionally, Peña asserts on appeal that this matter should be assigned
to a different judge on remand because the district court had difficulty
overcoming the fact that her previous findings had been overruled, failed to
apply the appropriate summary judgment standard, and is not impartial. The


       12  Zimmerman v. Cutler, 657 F. App’x 340 (5th Cir. 2016), is not dispositive of our
clearly established analysis because it is non-precedential and distinguishable on its facts.
Unlike Zimmerman where the officers “reasonably suspected Zimmerman of committing
several offenses,” Peña offers evidence disputing that the officers were arresting her or
attempting to seize her for any recognized and lawful reason. Appellees’ assert that Vela had
probable cause to arrest Peña for disorderly conduct based on Vela’s testimony, however the
alleged altercation he observed is directly disputed by the testimony of both Peña and her
father and was not observed by either Salinas or Solis. Further contrasting Zimmerman, the
officers assert that Peña was tased for her own safety—not to make an arrest or investigatory
stop. Finally, Zimmerman is distinguishable because the suspect was an adult male outside
of a bar at 2:00 a.m. who was seen facing another man in a confrontational manner in the
middle of the street.
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                                        No. 19-40217

power to reassign a case to another judge on remand “is an ‘extraordinary’
power that is ‘rarely invoked.’” United States ex rel. Little v. Shell Expl., Prod.
Co., 602 F. App’x 959, 975 (5th Cir. 2015).                  Because the circumstances
presented do not evince impartiality or otherwise warrant reassignment, we
decline to invoke our extraordinary power and deny reassignment. 13
                                              IV.
       On the factual allegations as we must take them for purposes of this
motion, the officers’ use of force against Peña violated clearly established law.
Of course, at trial, Peña will bear the burden of proving the many facts and
inferences that we assume in her favor. Whether the officers are ultimately
protected by qualified immunity or are liable will depend on the facts proven
at trial and the inferences drawn by the jury.
       For these reasons, we conclude that the district court erred in granting
summary judgment on the basis of qualified immunity as to Peña’s excessive
force claims against Salinas and Solis. Accordingly, we reverse and remand
for further proceedings consistent with this opinion. Appellant’s request for
reassignment on remand is denied.




       13 The district judge described this court’s prior opinion as “inaccurate,” “incorrect,”
“contradictory,” “unclear,” “an irreconcilable contradiction,” and “a mischaracterization” of
the district court opinion. Despite this unnecessary criticism, it is nonetheless rudimentary
that an appellate court is charged with the authority to review the decisions of district courts,
and reverse them when they err.
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