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

                                No. 16-40611
                                                                             Fifth Circuit

                                                                           FILED
                              Summary Calendar                      January 12, 2017
                                                                      Lyle W. Cayce
BRANDY HAMILTON; ALEXANDRIA RANDLE,                                        Clerk


             Plaintiffs—Appellees,

v.

AARON KINDRED,

             Defendant—Appellant.




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


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Brazoria County Sheriff’s Office Deputy Aaron Kindred appeals the
district court’s denial of qualified immunity in this case involving the roadside
body cavity searches of two women during a traffic stop. This case arises from
an investigatory traffic stop in 2012. Three officers were involved in the
incident. The two Department of Public Safety (“DPS”) officers, Nathaniel
Turner and Amanda Bui, have reached settlement agreements with Plaintiffs
Brandy Hamilton and Alexandria Randle. The question presented by this case
is whether the third officer at the scene, Deputy Kindred, is liable under 42
U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity
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searches. Because material issues of fact remain, we do not have appellate
jurisdiction over this interlocutory appeal. Accordingly, we DISMISS.
                                  I. BACKGROUND
A.    Factual Background
      On Memorial Day weekend in 2012, Hamilton and Randle were pulled
over by DPS Officer Turner for speeding. Turner smelled marijuana and asked
the women to exit the vehicle. Hamilton was wearing a bikini bathing suit, and
Randle was similarly dressed. Turner did not allow the women to cover
themselves before exiting the vehicle. He used his radio to request help from
local law enforcement and a female officer to conduct a search of the women.
On the radio, Turner stated that the car smelled like marijuana and that one
of the women “had the zipper open on her pants, or Daisy Duke shorts,
whatever they are.” Turner handcuffed and separated the women before
ordering Hamilton to sit in the front passenger seat of his patrol car. He then
conducted a search of the vehicle. When Kindred arrived, Turner asked him to
identify the drivers of several other cars that had arrived near the scene. When
Bui arrived, she parked next to Turner’s patrol car. When he had completed
the vehicle search, Turner informed Bui and Kindred that he had finished the
search but wanted Bui to search the women. Bui asked the men if they had
any gloves, and Turner gave her the gloves he had used to search the vehicle.
      At that point, Kindred asked Turner, “Do you want me to make this
easier and go in the back?” Turner agreed that Kindred should stand behind
the car. Kindred stood behind Turner’s patrol car and can be seen in that
position in the video. Turner told Hamilton: “[Bui] is going to search you, I ain’t
going to do that . . . cause I ain’t getting up close and personal with your women
areas.” Turner and Kindred stood together behind the car while Bui performed
the body cavity search. During the search, Turner told Kindred: “I don’t know
if she stuck something in her crotch or this one did.”
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      After the search, Turner asked Bui if Hamilton had “[n]othing on her,”
and then requested she search Randle because “she is the one who had the
zipper open.” Hamilton immediately asked, “Do you know how violated I feel?”
and said she felt so embarrassed. Turner replied that if they “hadn’t had weed
in the car they wouldn’t be in this situation.” Randle, who had been standing
by Hamilton’s car, was escorted to Bui’s patrol car. Kindred was still standing
behind Turner’s vehicle. When Bui performed the body cavity search on
Randle, Randle began to scream: “That is so fucked up! I am so done!” Hamilton
yelled at her a couple times to “calm down” and “be quiet.” Randle sounded as
if she was crying when she again said, “Man, this is so fucked up!” After the
searches were complete, Hamilton stated to Turner that “it was going to the
extreme” to have someone “put their fingers up your stuff.” In their complaint,
Hamilton and Randle describe Bui’s actions as “forcibly search[ing] in their
vaginas and anus[es] against protest,” and explain that the search was
“physically and emotionally painful.”
B.    Procedural Background
      Hamilton and Randle filed their complaint on June 27, 2013, asserting
§ 1983 claims against the officers involved and their employers. They alleged
that the invasive cavity searches violated their Fourth Amendment rights to
be free from unreasonable searches and seizures. Kindred moved for summary
judgment, arguing that he was entitled to qualified immunity because at the
time of the incident, bystander liability was not clearly established in the Fifth
Circuit in cases not involving excessive force. The district court denied
Kindred’s motion for summary judgment on April 28, 2016. The district court
found that the Plaintiffs had asserted an excessive force claim and that it was
clearly established that bystander liability would apply. Additionally, the
district court held that there was a “serious dispute as to material facts” in the


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case regarding the objective reasonableness of Kindred’s actions. Kindred
timely appealed.
                               II. DISCUSSION
      We have jurisdiction to review a district court’s denial of qualified
immunity “only to the extent that the appeal concerns the purely legal question
whether the defendants are entitled to qualified immunity on the facts that
the district court found sufficiently supported in the summary judgment
record.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). “[W]e
lack the power to review the district court’s decision that a genuine factual
dispute exists” and “instead consider only whether the district court erred in
assessing the legal significance of conduct that the district court deemed
sufficiently supported.” Id. at 348. We review the district court’s conclusion de
novo. Id. at 349.
A.    Excessive Force
      Kindred first argues that the district court erred in allowing the
Plaintiffs to go forward on an excessive force theory of liability. He argues that
the Plaintiffs never pleaded excessive force. In qualified immunity cases,
plaintiffs must “rest their complaint on more than conclusions alone and plead
their case with precision and factual specificity.” Nunez v. Simms, 341 F.3d
385, 388 (5th Cir. 2003). “To bring a § 1983 excessive force claim under the
Fourth Amendment, a plaintiff must first show that she was seized.” Flores v.
Palacios, 381 F.3d 391, 396 (5th Cir. 2004). The plaintiff must then “show that
she suffered (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.” Id. We agree with the district court that Hamilton and Randle
alleged facts in their complaint that meet this standard. The pleadings clearly
stated that both Hamilton and Randle were seized during the course of the
traffic stop when they were handcuffed and placed in patrol cars. They alleged
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that they were detained for over thirty minutes and were subjected to invasive
body cavity searches during that time in violation of the Fourth Amendment.
The Plaintiffs asserted that there were no warrants or exigent circumstances
allowing the searches. Furthermore, the Plaintiffs alleged injuries resulting
directly from the cavity searches that took place during the detention.
      Additionally, Kindred argues that excessive force does not apply to the
facts of this case because “[e]xcessive force is a seizure, not a search.” This
argument is meritless. The Plaintiffs were clearly seized when they were
placed in handcuffs and escorted to the patrol cars. Furthermore, excessive
force applies because Hamilton and Randle have alleged that they were
subjected to a use of force—the insertion of Bui’s fingers into their vaginas and
anuses—during the course of an investigatory stop. The Supreme Court has
recognized that excessive force is unconstitutional during such a seizure.
Graham v. Connor, 490 U.S. 386, 388 (1989) (holding that the Fourth
Amendment protects against the use of excessive force during an “arrest,
investigatory stop, or other ‘seizure’ of [the] person”). Likewise, “Fifth Circuit
precedent [has] plainly established [that] . . . [a] strip or body cavity search
raises serious Fourth Amendment concerns.” Roe v. Tex. Dep’t of Protective &
Regulatory Servs., 299 F.3d 395, 409 (5th Cir. 2002). See also Martin, No. SA-
05-CA-0020, 2006 WL 2062283, at *5 (W.D. Tex. 2006) (cataloguing case law
and finding no reasonable officer would have found a roadside body cavity
search reasonable even if they “reasonably suspected that Plaintiff was
concealing contraband in a body cavity” if “there were no exigent circumstances
requiring the search to be conducted on the public roadside rather than at a
medical facility”). Plaintiffs have alleged facts showing they were subjected to
an unreasonable use of force excessive to its need. Therefore, the district court
did not err in determining that excessive force was a viable theory in this case.


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      Finally, Kindred contends that even if excessive force applies, the
Plaintiffs abandoned it as a theory of liability. In support, Kindred points to
statements the Plaintiffs made that suggest they were not asserting an
excessive force claim. In particular, in their response to Kindred’s motion for
summary judgment, the Plaintiffs stated that “‘excessive force’ is not an
element of ‘bystander liability’ but a cause of action, and the Defendants cannot
choose which causes of action for Plaintiffs to plead in a suit against
Defendant.” Additionally, when the Plaintiffs submitted proposed jury
instructions, those instructions explicitly stated that “excessive force does not
apply in this case.”
      Judge Hanks held a lengthy hearing on this issue on February 9, 2016.
At that time, “counsel for Hamilton and Randle unequivocally stated that they
[had] not abandoned their bystander liability claim under an excessive force
theory.” Kindred argued that the Plaintiffs’ vague arguments “show an obvious
intent to remove excessive force from this case,” but he was unable to point to
an exact document in the record evidencing waiver. After reviewing the
pleadings and motions and hearing argument from the parties, the district
court noted that the pleadings exhibited a lengthy and “rather confusing
debate . . . as to whether excessive force is an essential element of a bystander
liability claim or a separate cause of action, whether bystander liability can be
based on theories other than excessive force, and whether Hamilton and
Randle have a claim for ‘direct’ liability.” But the district court concluded that
the excessive force claim had not been waived.
      After reviewing the record, we agree with the district court’s
determination. While the Plaintiffs never used the words “excessive force” in
their complaint and were less than clear during the proceedings about exactly
which theories they were advancing, the district court did not err in finding
that excessive force had not been waived. Throughout the case, Plaintiffs have
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clearly argued that they were subject to an unreasonable search and seizure in
violation of the Fourth Amendment, and have alleged facts that support a
claim for excessive force.
B.     Bystander Liability
       Kindred argues that the district court erred in denying summary
judgment because even if bystander liability applied in this case, there is no
genuine issue of material fact as to the elements of bystander liability. In
Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013), this Court stated that “an
officer may be liable under § 1983 under a theory of bystander liability where
the officer ‘(1) knows that a fellow officer is violating an individual’s
constitutional rights; (2) has a reasonable opportunity to prevent the harm;
and (3) chooses not to act.” Id. at 646 (quoting Randall v. Prince George’s Cty.,
302 F.3d 188, 204 (4th Cir. 2002)). At the time of the incident, it was clearly
established in the Fifth Circuit that an officer could be liable as a bystander in
a case involving excessive force if he knew a constitutional violation was taking
place and had a reasonable opportunity to prevent the harm. See Hale v.
Townley, 45 F.3d 914, 918 (5th Cir. 1995). And “[o]fficials can still be on notice
that   their   conduct   violates   established    law   even   in   novel   factual
circumstances.” Roe, 299 F.3d at 409 (quoting Hope v. Paltzer, 536 U.S. 730,
741 (2002)).
       The district court found that “there [was] a serious dispute as to the
material facts” regarding each element of bystander liability. We lack
jurisdiction to review the district court’s determination that a genuine factual
dispute exists. Kinney, 367 F.3d at 347–48. Because we find that excessive
force applies in this case and disputes of material fact remain, Kindred’s appeal
is DISMISSED.




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