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

                                                                                  FILED
                                                                            September 18, 2015
                                      No. 14-51169
                                                                               Lyle W. Cayce
                                                                                    Clerk
LOUIS V. DOSS, doing business as Mulligan's Pub; CAROLYN DOSS,
Individually and, doing business as Mulligan's Pub,

               Plaintiffs - Appellees

v.

TABC AGENT SCOTT HELPENSTELL,

               Defendant - Appellant




                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-116


Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Scott Helpenstell, an agent of the Texas Alcoholic
Beverage Commission (“TABC”), appeals the district court’s denial of his
motion for summary judgment on the basis of qualified immunity, filed after
Plaintiff-Appellee Louis Doss 1 sued Helpenstell claiming extensive injuries



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1Plaintiff-Appellee Carolyn Doss is deceased. Furthermore, the only claim at issue in
this appeal is Louis Doss’s 42 U.S.C. § 1983 excessive force claim against Helpenstell.
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caused by the use of excessive force when he arrested Doss for disorderly
conduct and resisting arrest with a deadly weapon.             We conclude that
Helpenstell is not entitled to qualified immunity and thus AFFIRM.


                      I.      FACTS AND PROCEEDINGS
         Louis Doss operates Mulligan’s Pub in Kerrville, Texas. Doss alleged
that, during the several years preceding the instant incident, the Kerrville
police department and the TABC had sought to have his business shut down
and embarked on a campaign of threats and harassment. He further alleged
that he resisted these efforts by, inter alia, filing a complaint with the TABC
that specifically named Scott Helpenstell.          Helpenstell alleges that, in
connection with TABC’s investigation of Mulligan’s, he and Doss had an
altercation over the phone.         As a result of this interaction, Helpenstell
considered Doss “a very difficult person to deal with” and a “[v]ery aggressive
person—very confrontational type person.”          Doss does not deny that this
conversation occurred, but does dispute Helpenstell’s characterization of its
tenor.
         On January 30, 2011, Doss noticed a TABC vehicle parked at a
competing pub in Kerrville and decided “to document this vehicle by
photographing it.” Doss parked his car in the parking lot of an adjoining
business and walked toward the chain-link fence separating the lot from the
pub.     After Doss took a photograph of the TABC car and license plate,
Helpenstell got out of the vehicle, and Doss then took a photo of the agent.
         The parties disagree about what occurred next. Helpenstell claims that,
as he walked towards the pub, he heard someone say “Hey, I’ve got you now”
in a loud, “threatenin’ type manner.” He turned around to see a man standing
behind a chain-link fence. He states:



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     I see the gentleman standing back there and he looked like an
     older heavy-set gentleman and he had somethin’ in his hand like
     this. It didn’t appear to be a gun but, you know, I couldn’t really
     tell what he was holdin’ in his hand. I said, “Who are you? What
     are you doin’?” He’s like, “I don’t have to tell you anything but I’ve
     got you now.” So at that point I thought, okay, I need to investigate
     this a little bit further. Especially with a rash of violence against
     police officers that’s been going on—just the suspicious activity. I
     didn’t want to walk in the bar and then have somebody come in
     and confront me there—later on with a bunch of bystanders
     standin’ around, so.

      Helpenstell avers that he repeatedly identified himself as a police officer
and asked the man who he was. The man started walking away and only
answered “I’m Lou Doss” after repeatedly saying “I don’t have to tell you
anything but I’ve got you now.” At this point, Doss had reached and entered
his car. Helpenstell followed him there and, standing by the driver’s side
window, asked Doss for his driver’s license. Doss at first refused, instead
replying that he “didn’t have to show [Helpenstell] anything.” But, he changed
his mind and complied, showing Helpenstell his driver’s license and concealed
handgun license. Helpenstell states:
      So I took those items and then I ask him, “Do you have a firearm—
      uh, do you have a weapon on you at this time?” . . . And at that
      point he said, “I sure do,” and he pulled out a Derringer—2-shot
      Derringer and held it in the air and just kind of wagged it . . . .

      Helpenstell claims that, at this point, he was “scared [he] was gonna get
shot” and thought he was “about to be in a gunfight.” He drew his pistol and
pointed it at Doss, who slowly lowered his gun. Helpenstell next ordered Doss
to put his hands on the steering wheel, which Doss did. But, when Helpenstell
then ordered him out of the car, Doss refused, saying “I’m not gonna do it.
You’re gonna have to shoot me. You’re gonna have to kill me.” Helpenstell
continued ordering Doss to get out of the car. Then, finding the window rolled

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                                   No. 14-51169
down, he unlocked the door, opened it, and reached inside the car to pull Doss
out.
        Helpenstell asserts that Doss resisted him, yelling “Let me go. Let go of
me.” He then saw Doss’s right hand go “down to the area where the pistol was,”
so Helpenstell “grabbed [Doss] by his collar and around the shoulders and
pulled him out of the vehicle.”
        In contrast, Doss states that Helpenstell immediately recognized him
when he noticed Doss taking his picture, and he denies saying anything other
than “I took your picture.” According to Doss, Helpenstell chased him back to
his car and “violently” banged on the window and door, frightening Doss. He
also denies ever brandishing his gun, which was inside the center console of
his car at all times, and he never took his hands off the steering wheel. Doss
further avers that, once Helpenstell opened the car door, he brutally and
without provocation punched Doss several times in the head and struck him
with his pistol.        This attack knocked Doss unconscious, at which point
Helpenstell “violently threw [him] to the concrete” outside the car and
handcuffed him. Doss was charged with resisting arrest with a deadly weapon
and disorderly conduct, but both charges were later dropped.
        Doss maintains that, as a result of the altercation, he suffered injuries
to his “neck, left elbow, shoulder, writs [sic], thumb, hip, nose, and head
causing disorientation and troubled vision.” He points to “an impact wound on
[his] head,” which he claims was the result of Helpenstell’s punches to Doss’s
head, and which is visible in his booking photograph.
        Doss filed suit against various parties, including Helpenstell, alleging a
number of civil rights claims related to this incident and to the ongoing dispute
over Mulligan’s Pub. The only one at issue in this appeal, however, is Doss’s
§ 1983 claim against Helpenstell for excessive force. The district court denied


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                                        No. 14-51169
Helpenstell’s motion for summary judgment based on qualified immunity, 2 and
Helpenstell timely appealed. 3


                                     II.     ANALYSIS
A.     Standard of Review
       This interlocutory appeal arises from the partial denial of a motion for
summary judgment based on qualified immunity, so we have jurisdiction to
review only the legal issues raised by the district court’s decision. 4 We review
those legal questions de novo. 5 To the extent that the district court’s ruling
rests on its finding a genuine issue of material fact, we do not review whether
the factual dispute is genuine; only whether it is material. 6 Finally, as with all
motions for summary judgment, we view the evidence in the light most
favorable to the nonmovant—in this case, Doss—and affirm the district court’s


       2  In the same order, the district court granted Helpenstell’s motion for summary
judgment on the basis of qualified immunity on Doss’s § 1983 claim for unlawful arrest.
Doss, who is proceeding pro se, also urges us to reverse this ruling. In “‘rare and unique’
circumstances,” we may exercise pendent appellate jurisdiction over a plaintiff’s interlocutory
appeal of a district court’s grant of summary judgment based on qualified immunity. Gros v.
City of Grand Prairie, 209 F.3d 431, 436 (5th Cir. 2000). In this case, however, Doss has not
filed a notice of appeal with regard to this part of the district court’s ruling, so we have no
jurisdiction over this putative cross-appeal. See FED. R. APP. P. 3; Heck v. Triche, 775 F.3d
265, 286–87 (5th Cir. 2014).
        3 Doss also contends that the district court erred by granting Helpenstell leave to file

his motion for summary judgment after the deadline for dispositive motions had passed.
According to Doss, Helpenstell’s defense of qualified immunity was untimely raised and the
district court should not have considered it. See id. Striking Helpenstell’s entire motion,
however, would impermissibly enlarge Doss’s rights, as he has not cross-appealed the district
court’s partial grant of Helpenstell’s motion on his unlawful arrest claim. See Jennings v.
Stephens, 135 S. Ct. 793, 798 (2015) (“An appellee who does not take a cross-appeal may ‘urge
in support of a decree any matter appearing before the record, although his argument may
involve an attack upon the reasoning of the lower court[,]’ [b]ut . . . may not ‘attack the decree
with a view either to enlarging his own rights thereunder or of lessening the rights of his
adversary.’” (citation omitted) (quoting United States v. Am. Ry. Express Co., 265 U.S. 425,
435 (1924))). Thus, we do not consider Doss’s challenge to the district court’s order granting
Helpenstell leave to file his motion for summary judgment.
        4 See Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc).
        5 See id. at 349.
        6 See id. at 346–47.

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grant of summary judgment only if there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. 7
      The district court ruled that genuine factual disputes existed over
“whether the gun was ever brandished, whether Doss’s hands remained on the
wheel the entire time, whether Doss was screaming things at Helpenstell,
whether Doss resisted Helpenstell’s attempts to pull him out of the vehicle,
and the extent of force that was used.” We lack jurisdiction to review whether
these disputes are genuine. 8 We do have jurisdiction to review de novo the
district court’s determination that these disputes are material to Helpenstell’s
qualified immunity defense. 9 Accordingly, we accept Doss’s version of the
facts—that he (1) never waved the weapon, (2) had his hands on the steering
wheel at all times, (3) never screamed at Helpenstell, (4) did not resist
Helpenstell’s attempt to pull him out of the car, and (5) suffered several strikes
to the head while sitting in his vehicle—and we determine whether, even on
these facts, Helpenstell is entitled to qualified immunity. 10
B.    Qualified Immunity
      Government officials may invoke qualified immunity to shield
themselves “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.” 11 “In reviewing a motion for summary
judgment based on qualified immunity, we undertake a two-step analysis.” 12
In the first step, we ask whether an officer’s conduct violated a federal right. 13



      7  See FED. R. CIV. P. 56; Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
      8  See Kinney, 367 F.3d at 346–47.
       9 See id.
       10 See Lytle v. Bexar County, 560 F.3d 404, 409–10 (5th Cir. 2009).
       11 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)).
       12 Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir. 2014).
       13 See id.

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In the second step, we ask whether this right was a clearly established right of
which a reasonable person would have known. 14 We may consider these two
steps in either order. 15
       “When a plaintiff alleges excessive force during an investigation or
arrest, the federal right at issue is the Fourth Amendment right against
unreasonable seizures.” 16        Our analysis therefore concerns (1) whether
Helpenstell’s use of force violated Doss’s Fourth Amendment right against
unreasonable seizures, and (2) whether using this level of force was
unreasonable in light of clearly established Fourth Amendment law at the time
of the incident.
C.    Constitutional Violation
      Starting with the first prong of the qualified immunity analysis, we
consider whether Helpenstell’s actions violated Doss’s Fourth Amendment
rights. “To prevail on an excessive force claim, a plaintiff must show: (1) injury,
(2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable.” 17 Only
the third element of Doss’s excessive force claim appears to be at issue here.
Helpenstell contends that his conduct was not excessive because he reasonably
believed Doss to have been a threat to his safety—as well as noncompliant with
his commands—when he forcibly extracted Doss from the car.
      “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




      14 See id.
      15 See id.
      16 Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).
      17 Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).

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interests’ against the countervailing governmental interests at stake.” 18 This
fact-specific inquiry requires “careful attention to the . . . circumstances of each
particular case, including 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.” 19
       After considering the facts in the light most favorable to Doss, 20 we
conclude that the factual disputes identified as genuine by the district court
are also material to this reasonableness inquiry. In particular, there are
genuine disputes over whether the gun was ever brandished, where Doss’s
hands were located, how much force Helpenstell used, and whether his efforts
to remove Doss from the car were resisted. Doss’s story, distilled to its essence,
describes a violent attack on a person who had a lawful concealed weapon, had
not demonstrated hostile intent, and was presenting non-threatening body
language. Furthermore, the minimal severity of Doss’s suspected crime, the
low level of threat to Helpenstell, and the absence of any indication that Doss
was at risk of escape could allow a jury to conclude that Helpenstell’s use of
force was excessive and unreasonable. 21 Thus, we agree with the district court



       18  Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S.
1, 8 (1985)).
        19 Id.
        20 See Lytle, 560 F.3d at 409. Doss also challenges on an evidentiary basis various

exhibits submitted by Helpenstell in support of his motion for summary judgment. The
district court did not consider these exhibits in its ruling, however, and we similarly need not
rely on them to reach our conclusion.
        21 See Staten v. Tatom, 465 F. App’x 353, 359 (5th Cir. 2012) (unpublished) (“The

parties present a number of disputes of material fact, including, objectively, whether or how
much Plaintiff was resisting, the amount of force Defendant actually used at each stage of
the encounter, and whether that force was reasonable. The parties also dispute whether
Plaintiff had his hands hidden upon stepping out of the vehicle, which implicates the
‘immediate threat to the safety of the officers.’ Accordingly, we conclude that the district
court correctly denied qualified immunity to the Defendant on Plaintiff’s excessive force
claim.” (citation omitted) (quoting Graham, 490 U.S. at 396)).
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that Doss has established a genuine dispute of material fact over whether his
Fourth Amendment rights were violated.
D.     Clearly Established Law
       Turning to the second prong of the qualified immunity analysis, we
consider whether Helpenstell’s conduct was proscribed by clearly established
law at the time of the incident.            In determining what constitutes clearly
established law, we first look to the Supreme Court’s precedent and then to our
own. 22 If we find no directly controlling authority there, we may rely on
decisions from other circuits to the extent that they constitute “a robust
‘consensus of cases of persuasive authority.’” 23
       “To be clearly established, a right must be sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” 24 Ultimately, our touchstone is “‘fair warning’: The law can be clearly
established ‘despite notable factual distinctions between the precedents relied
on and the cases then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional
rights.’” 25
       It is “clearly established that [arrestees] ha[ve] a constitutional right to
be free from excessive force during an investigatory stop or arrest.” 26 This does
not end our inquiry, however, as “[t]he Supreme Court has carefully
admonished that we are ‘not to define clearly established law at a high level of




       22  See Morgan v. Swanson, 659 F.3d 359, 412 (5th Cir. 2011) (en banc).
       23  Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011) (quoting Wilson v. Layne, 526 U.S.
603, 617 (1999)).
        24 Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (emphasis added) (quoting Reichle v.

Howards, 132 S. Ct. 2088, 2093 (2012)).
        25 Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v.

Pelzer, 536 U.S. 730, 740 (2002)).
        26 Tarver v. City of Edna, 410 F.3d 745, 753–54 (5th Cir. 2005).

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                                       No. 14-51169
generality.’” 27 To defeat qualified immunity, the plaintiff must demonstrate
that “it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” 28
       In Deville v. Marcantel, we held that qualified immunity did not protect
police officers who broke a driver’s-side window and forcibly removed the driver
for refusing to get out of the car following a minor traffic violation, when there
was no indication that the driver was a flight risk or a danger to the officers. 29
The plaintiff in Deville was stopped for speeding and, on being told by one
officer to step out of her vehicle, said that she “ha[dn’t] done anything wrong,”
rolled her window up, and called her husband. 30 After another officer arrived
on the scene, she was pulled from the car and slammed against it while being
handcuffed, causing an injury to her abdomen. 31
       We acknowledged in Deville that “[o]fficers may consider a suspect’s
refusal to comply with instructions during a traffic stop in assessing whether
physical force is needed,” 32 but we also stressed that officers must assess the
“degree of force” appropriate to the situation. 33 In concluding that a jury could
have reasonably found the force used to be excessive, we placed some weight




       27 Hernandez v. United States, 785 F.3d 117, 120 (5th Cir. 2015) (en banc) (per curiam)
(quoting al-Kidd, 131 S. Ct. at 2084).
       28 Id. (emphasis added) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per

curiam)); see also Brosseau, 543 U.S. at 198–99 (“[T]here is no doubt that Graham v. Connor
clearly establishes the general proposition that use of force is contrary to the Fourth
Amendment if it is excessive under objective standards of reasonableness. Yet that is not
enough. Rather, we emphasized in Anderson [v. Creighton] ‘that the right the official is
alleged to have violated must have been “clearly established” in a more particularized, and
hence more relevant, sense . . . .’” (citation omitted) (quoting Saucier v. Katz, 533 U.S. 194,
206 (2001))).
       29 See 567 F.3d 156, 167–69 (5th Cir. 2009).
       30 Id. at 162.
       31 See id.
       32 Id. at 167.
       33 Id. at 168.

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on the officer’s quickness to escalate from negotiation to force, 34 the fact that
the driver engaged in passive, rather than active, resistance, 35 and the minor
nature of her alleged offense. 36
      As we did when evaluating the first prong of the qualified immunity test,
we define the situation according to Doss’s version of events. Crediting this
account, it is clear that, although Helpenstell might have felt threatened by
Doss’s concealed handgun, Doss did nothing to demonstrate hostile intent, as
his hands remained on the wheel of his car.                Even though he was not
immediately compliant with Helpenstell’s request to produce his license or to
get out of the vehicle, Doss did nothing to suggest that he intended to flee. That
Doss voluntarily gave his concealed handgun permit to Helpenstell along with
his driver’s license further suggests the absence of danger.
      Doss’s actions—hands on the steering wheel, no hostile actions, lawful
gun in the console—were, like those of the driver in Deville, non-threatening
and posed little risk of escape.          Furthermore, like the officers in Deville,
Helpenstell quickly escalated the situation, choosing to reach into Doss’s car
and strike him several times on the head with his pistol, rather than continue
to negotiate. And, like the driver in Deville, any resistance displayed by Doss
was passive, at most.          Thus, we conclude that, on January 30, 2011,
Helpenstell’s conduct, viewed in the light most favorable to Doss, was
unreasonable in light of clearly established law.


                                 III.    CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s denial of
qualified immunity to Helpenstell on Doss’s § 1983 claim of excessive force.



      34 See id.
      35 See id. at 167.
      36 See id.

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