     Case: 16-50839   Document: 00513957683     Page: 1   Date Filed: 04/18/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                 No. 16-50839                          FILED
                                                                   April 18, 2017

LIONEL ALEXANDER,                                                 Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellant

v.

CITY OF ROUND ROCK, a Municipal Entity; OFFICER MARCIANO
GARZA, Individually and in His Official Capacity; SERGEANT GREG
BRUNSON, Individually and in His Official Capacity; SERGEANT
SAMPSON CONNELL, Individually and in His Official Capacity; OFFICER
TRACY STAGGS, Individually and in His Official Capacity; JOHN DOES,
City of Round Rock Police Officers, Individually and in Their Official
Capacity,

             Defendants - Appellees




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


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Officer Marciano Garza pulled over Lionel Alexander in a hotel parking
lot after observing what he perceived as suspicious activity. Alexander refused
to answer Garza’s questions. After waiting for backup to arrive, Garza and
other officers forcibly removed Alexander from his car, handcuffed him, and
ultimately arrested him for resisting a search. Alexander sued the officers and
the city under 42 U.S.C. § 1983, alleging violations of his First, Fourth, Fifth,
    Case: 16-50839    Document: 00513957683     Page: 2   Date Filed: 04/18/2017



                                 No. 16-50839
and Fourteenth Amendment rights. The district court granted the officers’
motion to dismiss all claims. Alexander appeals. We AFFIRM in part,
REVERSE in part, and REMAND for further proceedings.
                                        I
      We stress at the outset that, because this appeal is from a grant of a
motion to dismiss, all of the following facts are drawn exclusively from the
allegations in Alexander’s complaint.
      Alexander was staying at a hotel in Round Rock, Texas. At
approximately 9:15 p.m. he returned to the hotel from a trip to the grocery
store and saw a stray cat in the hotel parking lot. He stopped his car, exited,
and peered into the grass near his vehicle looking for the cat, intending to feed
it. He could not find the cat and so turned to get back into his car, planning to
park it in a spot nearer his hotel room. Upon turning to reenter his car, he
noticed a police car in the parking lot but, not knowing why the police car was
there and assuming it was unrelated to him, Alexander got back in his vehicle
and proceeded to drive toward his room.
      While Alexander was moving his car, Garza, who was driving the police
car in the parking lot, activated his emergency lights and pulled Alexander
over. Garza approached Alexander’s vehicle and told Alexander that he was
curious as to what Alexander had been doing. Alexander gave Garza his
driver’s license and informed Garza that he would not answer any of the
officer’s questions. At this point, Garza radioed for backup, citing
“noncompliance.” While he was waiting for backup to arrive, Garza stood by
the window of Alexander’s car, told Alexander to keep his hands on the steering
wheel, and continued to question him.
      After some time, backup arrived in the form of Sergeant Greg Brunson,
Sergeant Sampson Connell, Officer Tracy Staggs, and unidentified John Does
(together with Garza, the “officers”). Garza then asked Alexander to exit his
                                        2
    Case: 16-50839     Document: 00513957683     Page: 3   Date Filed: 04/18/2017



                                  No. 16-50839
car. Alexander responded by asking Garza why he wanted him to get out of the
car, and Garza responded, “Because I asked you to.” Alexander began to reply
that he did not believe he was legally required to exit. Before he finished, Garza
and the other officers pulled Alexander from the car and pinned him face down
onto the ground. One officer pressed a boot or knee on the back of Alexander’s
neck as his face was “mashed into the concrete.” Alexander felt at least three
officers on top of his body, “manipulating his limbs and putting pressure on his
torso, neck, and head.”
       The officers handcuffed Alexander and sat him on a curb. Garza asked
Alexander, “[a]re you ready to talk to me now?” Alexander refused, using an
unidentified expletive. The officers then shackled Alexander’s legs. At some
point, either during the forcible removal from his car or while he was on the
curb, Alexander sustained “injuries to his body . . . including injuries to his
mouth.” He “sustained emotional and psychological injuries as well.”
Throughout this ordeal, Alexander did not physically resist the officers in any
way.
       Garza informed Alexander that he was under arrest “for uttering an
expletive where the public could hear him, which [Garza] asserted was a
violation of the [Texas] disorderly conduct statute.” The officers then searched
Alexander’s person and vehicle, finding nothing illegal or suspicious.
Alexander was placed handcuffed into the back of one of the officers’ police cars
and taken to the Round Rock police station. He was then transported to the
Williamson County Jail, where he remained for approximately twenty hours.
In his formal police report, Garza wrote that Alexander was arrested not for
disorderly conduct, but for resisting a search in violation of Texas Penal Code
(“TPC”) § 38.03(a). Alexander was eventually released. No criminal charges
were brought.


                                        3
     Case: 16-50839       Document: 00513957683         Page: 4     Date Filed: 04/18/2017



                                       No. 16-50839
       Alexander sued the City of Round Rock, Garza, and the other officers in
federal district court, asserting claims under 42 U.S.C. § 1983 and various
provisions of the Texas Constitution. Alexander argued, among other things,
that: (1) there was no reasonable suspicion supporting his detention; (2) there
was no probable cause supporting his arrest; (3) he was retaliated against for
exercising his constitutional rights; and (4) the officers used excessive force
when pulling him from his vehicle. 1 The officers moved to dismiss all claims,
asserting that they were entitled to qualified immunity. The district court
granted the officers’ motion to dismiss, holding that, with regard to some of
Alexander’s claims, he had not alleged any violations of his constitutional
rights, and with regard to the others, Alexander was unable to overcome the
qualified immunity defense. Alexander now appeals.
                                             II
       We review “a district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) de novo,” Thompson v. City of Waco, Tex., 764 F.3d 500, 502
(5th Cir. 2014) (emphasis omitted), “accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to the plaintiff.” Stokes v.
Gann, 498 F.3d 483, 484 (5th Cir. 2007). Dismissal is appropriate only when a
plaintiff has not alleged “enough facts to state a claim to relief that is plausible
on its face” and has failed to “raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
       When a government official asserts a qualified immunity defense, the
burden is on the plaintiff to “show that he pleaded facts showing . . . that the
official violated a statutory or constitutional right. If the plaintiff makes



       1Alexander raised other arguments in the district court as well, but these four are the
only contentions he presses on appeal. Furthermore, Alexander’s briefing on appeal makes
no argument regarding the culpability on the part of Round Rock itself. Consequently,
Alexander has waived his appeal as to any claims against the City of Round Rock.
                                              4
    Case: 16-50839    Document: 00513957683     Page: 5   Date Filed: 04/18/2017



                                 No. 16-50839
this . . . showing, then [we must] determine whether the defendants’ actions
were objectively unreasonable in light of the law that was clearly established
at the time of the actions complained of.” United States ex rel Parikh v. Brown,
587 F. App’x 123, 127–28 (5th Cir. 2014) (internal quotation marks, citations,
and alteration omitted); see also Atteberry v. Nocona Gen. Hosp., 430 F.3d 245,
253 (5th Cir. 2005). When engaging in the qualified immunity analysis, we are
“permitted to exercise [our] sound discretion in deciding which of the two
prongs . . . should be addressed first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). We
“review a grant of qualified immunity de novo.” Gonzalez v. Huerta, 826 F.3d
854, 856 (5th Cir. 2016) (quoting Bishop v. Arcuri, 674 F.3d 456, 460 (5th Cir.
2012)).
                                      III
      Alexander argues on appeal that Garza and the other officers are liable
for: (1) unlawfully detaining him; (2) arresting him without probable cause; (3)
retaliating against him for exercising his First and Fifth Amendment rights;
and (4) using excessive force against him. We address each argument in turn.
      A.    Unlawful Detention
      “Warrantless searches and seizures are ‘per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-
delineated exceptions.’” United States v. Hill, 752 F.3d 1029, 1033 (5th Cir.
2014) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The Supreme
Court carved out one such narrow exception in Terry v. Ohio, 392 U.S. 1 (1968).
“Under Terry, if a law enforcement officer can point to specific and articulable
facts that lead him to reasonably suspect that a particular person is
committing, or is about to commit, a crime, the officer may briefly detain—that
is, ‘seize’—the person to investigate.” Hill, 752 F.3d at 1033 (citing United
States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000)); see also United States v.
                                       5
    Case: 16-50839     Document: 00513957683     Page: 6   Date Filed: 04/18/2017



                                  No. 16-50839
Sanders, 994 F.2d 200, 203 (5th Cir. 1993) (“[A]fter the Supreme Court’s
opinion in Terry v. Ohio, it is now axiomatic that the police are allowed to stop
and briefly detain persons for investigative purposes if the police have a
reasonable suspicion supported by articulable facts that criminal activity may
be afoot.”) (internal quotation marks and footnote omitted). “While ‘reasonable
suspicion’ is a less demanding standard than probable cause . . . the Fourth
Amendment requires at least a minimal level of objective justification for
making the stop. The officer must be able to articulate more than an ‘inchoate
and unparticularized suspicion or hunch’ of criminal activity.” Illinois v.
Wardlow, 528 U.S. 119, 123-24 (2000) (quoting United States v. Sokolow, 490
U.S. 1, 7 (1989); Terry, 392 U.S. at 27).
      Both this court and the Supreme Court have dealt frequently with
reasonable suspicion or its absence. The Supreme Court case with the most
salience is Wardlow, in which the Court had to determine whether an
individual who “fled upon seeing police officers patrolling an area known for
heavy narcotics trafficking” had provided the police with reasonable suspicion
to detain him. Id. at 121. The Court ultimately concluded that he had. Id. at
126. In so doing, it distinguished between “headlong flight . . . the consummate
act of evasion” and the right of the individual to “ignore the police and go about
his business.” Id. at 124–25. “Nervous, evasive behavior [was] a pertinent
factor in determining reasonable suspicion,” id. at 124, but continuing to go
about one’s business was not.
      Our circuit has further interpreted Wardlow; we held in Hill that
Wardlow did not establish a “bright-line rule that flight by itself establishes
reasonable suspicion.” Hill, 752 F.3d at 1036. In Hill, police officers approached
a car parked in an apartment complex; as they neared the car, the defendant’s
girlfriend “exited the car and moved towards the apartment building in a
manner that officers said was ‘quick,’ ‘brisk,’ and ‘hurrying.’” Id. We noted that
                                        6
     Case: 16-50839        Document: 00513957683           Page: 7     Date Filed: 04/18/2017



                                        No. 16-50839
the girlfriend “could have exited the car out of a desire to flee the police; or, she
could have simply exited the car because Hill drove her home, they finished
saying their ‘goodbyes,’ and she was preparing to go inside.” Id. at 1037. The
officers “lacked a reasonable basis to infer much of anything about the
girlfriend exiting the car and taking a few steps towards the apartment during
the same time as their arrival.” Id. In other words, circumstances that could
equally be interpreted as flight from officers or as continuation of previously-
undertaken actions do not create reasonable suspicion. 2
       We have identified additional factors for determining reasonable
suspicion. An informant’s tip is a factor weighing in favor. See United States v.
Martinez, 486 F.3d 855, 861 (5th Cir. 2007) (“An informant’s tip may, in certain
cases, provide reasonable suspicion.”). A suspect’s presence in a high crime
area is also relevant. See, e.g., United States v. Rideau, 969 F.2d 1572, 1575
(5th Cir. 1992) (en banc). So too the time of day. See id.; see also, e.g., Hill, 752
F.3d at 1036 (noting that the suspect was not doing anything “unusual for the
. . . hour”); United States v. Michelletti, 13 F.3d 838, 845 (5th Cir. 1994) (en
banc) (DeMoss, J., concurring) (noting that at 2 a.m. “the overwhelming
majority of law-abiding citizens are at home in bed,” unlike the defendant).
       The district court concluded that Alexander failed to state a claim that
Garza lacked reasonable suspicion to detain him. The district court did not
provide great detail on what led to its conclusion, but it did hold that, “[b]ased
on the totality of the circumstances alleged, Officer Garza had reasonable
suspicion to stop Plaintiff and inquire as to why Plaintiff was peering into the
grass in the dark and appeared to flee upon spotting the police car.” In reaching



       2 We recognize that the alleged flight from officers in Hill was that of Hill’s girlfriend,
not Hill himself, whereas here the alleged flight from officers was Alexander’s. Nevertheless,
this is no reason to distinguish the cases entirely—as we noted in Hill, “the girlfriend’s quick
movements might reflect to some extent on Hill too.” Id.
                                                7
    Case: 16-50839    Document: 00513957683     Page: 8   Date Filed: 04/18/2017



                                 No. 16-50839
this conclusion, the district court erroneously failed to draw all inferences in
favor of the nonmovant, i.e. Alexander. There is nothing in the complaint
indicating whether the parking lot was dark or well-lit, for example. Nor is
there any basis to conclude that Alexander appeared to flee—according to the
complaint, he was already getting into the car before he looked up and noticed
Garza’s police vehicle.
      Taking all of Alexander’s well-pleaded allegations as true and drawing
all inferences in his favor—as we must at this stage of the litigation—we
cannot conclude as a matter of law that he has failed to state a Fourth
Amendment claim for unlawful detention. According to Alexander’s
allegations, the most Garza could have observed was a man (Alexander) briefly
looking around a vehicle in the parking lot, turning to get into a car, noticing
a police car, continuing to get into the car, and beginning to drive further into
the parking lot. This is not “headlong flight” as discussed in Wardlow; this is a
man “go[ing] about his business.” Wardlow, 528 U.S. at 125. It was not
“evasive” behavior. Id. at 124. Garza had no prior tip or information that could
have led him to suspect Alexander of criminal activity. Cf. Martinez, 486 F.3d
at 861. This stop did not take place late at night; Garza pulled Alexander over
at approximately 9:15 p.m., in a parking lot we are required to infer was well-
lit. Cf. Hill, 752 F.3d at 1036; Rideau, 969 F.3d at 1575. Nor is there any
suggestion in the complaint that this was a high crime area. Cf. id. Indeed, the
circumstances in Hill were much more suspicious than they were here; in Hill
it was a high crime area, later at night, and Hill’s girlfriend actively altered
her behavior to move away from police officers when they got near her, Hill,
752 F.3d at 1035–36, but we still did not find reasonable suspicion.
      We do not suggest that officers in this circuit have faced this precise
factual situation before. But that is not a condition precedent to denying
qualified immunity—“officials can still be on notice that their conduct violates
                                       8
    Case: 16-50839    Document: 00513957683     Page: 9    Date Filed: 04/18/2017



                                 No. 16-50839
established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S.
730, 741 (2002). Based on these facts alone, we cannot conclude as a matter of
law that Garza had reasonable suspicion to detain Alexander pursuant to the
Fourth Amendment. Moreover, taking the facts as alleged, the lack of
reasonable suspicion was clearly established—the factors we laid out as
relevant in Hill, Martinez, Rideau, and Micheletti, as well as the Supreme
Court’s decision in Wardlow, do not support reasonable suspicion here. We
therefore reverse the district court’s dismissal of Alexander’s unlawful
detention claim.
      B.    Probable Cause
      According to Garza’s formal report, Alexander was ultimately arrested
for resisting a search under TPC § 38.03(a). TPC § 38.03(a) provides that a
person commits an offense “if he intentionally prevents or obstructs a person
he knows is a peace officer or a person acting in a peace officer’s presence and
at his direction from effecting an arrest, search, or transportation of the actor
or another by using force against the peace officer or another.” (emphasis
added). Texas courts have stressed that this section “applies only to resistance
by the use of force.” Washington v. State, 525 S.W.2d 189, 190 (Tex. Crim. App.
1975). Thus, under Texas law, simply “refusing to cooperate with being
arrested” is not sufficient to support an arrest for resisting a search—there
must be some use of force. Sheehan v. State, 201 S.W.3d 820, 823 (Tex. App.—
Waco 2006); see also Martin v. State, No. 03-08-00400-CR, 2009 WL 1980951,
at *4 (Tex. App.—Austin July 10, 2009) (“Non-cooperation with an arrest is not
by itself an act of the ‘use of force against’ a peace officer under [TPC §
38.03(a)].”) (Mem. Op., not designated for publication).
      Here, Alexander alleges that at all times—while being removed from his
car, manhandled on the concrete, handcuffed on the curb, and then placed in
the police car—he was entirely passive and did not physically resist the officers
                                       9
    Case: 16-50839        Document: 00513957683          Page: 10      Date Filed: 04/18/2017



                                        No. 16-50839
in any way. The district court nevertheless found that Garza’s decision to
arrest Alexander for resisting a search “was reasonable,” especially “given
[Alexander’s] refusal to [answer] Officer Garza’s questions, coupled with his
questioning of Officer Garza’s authority to direct [Alexander] to exit the
vehicle.” On these grounds, the district court held that the officers were
entitled to qualified immunity and dismissed Alexander’s claim for false arrest.
At no point did the district court identify what allegations in the complaint
supported a finding that Alexander had used force against the officers such
that they could arrest him for resisting a search.
       The only argument the officers make as to the use of force requirement
under TPC § 38.03(a) is that, “to the extent that physical force is required to
establish resisting arrest, or search, the use of a car as a barrier to avoid the
efforts of an officer to conduct their search acts to constrain the search and may
provide another building block of probable cause.” 3 This argument both strains
credulity and runs counter to Texas precedent on the issue. As noted above,
Texas courts have repeatedly held that merely using tactics to delay an arrest
does not satisfy TPC § 38.03(a)’s use of force requirement. See Dobbs v. State,
434 S.W.3d 166, 173 (Tex. Crim. App. 2014) (defendant who attempted to avoid



       3  For the first time in a Rule 28(j) supplemental letter the week of oral argument,
counsel for the defendants argued that the officers had probable cause to arrest Alexander
under a different provision of the TPC, namely, Section 38.15. It is true that a police officer
is entitled to qualified immunity if he had probable cause to arrest the plaintiff for any
crime—not just the crime that the officer stated at the time of arrest. See Devenpeck v. Alford,
543 U.S. 146 (2004). In stark contrast to the defendants here, however, appellees in previous
cases applying Devenpeck in our circuit have pointed to alternative grounds supporting
probable cause in their briefing to this court. See, e.g., Club Retro, L.L.C. v. Hilton, 568 F.3d
181, 204 (5th Cir. 2009) (defendant officers offered four alternative bases for arrest supported
by probable cause). Were appellees under no obligation to raise such alternative grounds
during briefing, this court would be put in the position of having to prove a negative—
analyzing every criminal statute to be sure that no other plausible grounds for probable cause
exist. There is nothing in Devenpeck or any of our precedents that requires such an absurd
result. The defendants here did not point to Section 38.15 until after briefing was complete.
Their contentions fail for that reason.
                                              10
    Case: 16-50839    Document: 00513957683       Page: 11   Date Filed: 04/18/2017



                                  No. 16-50839
being arrested by putting a gun to his own head and threatening to commit
suicide did not violate § 38.03 because, “although appellant’s refusal to put
down the gun when ordered to do so had the likely effect of delaying his arrest,
that refusal [could not] reasonably be understood as constituting a use of force
against the officers by virtue of its being opposed to the officer’s goal of making
an arrest”). On the facts alleged, there was no probable cause to arrest
Alexander for resisting a search under Texas law.
      The district court granted the officers qualified immunity from
Alexander’s false arrest claim. There can be no doubt that the right not to be
arrested absent probable cause was clearly established at the time of
Alexander’s arrest. See Club Retro, 568 F.3d at 206 (“The Fourth Amendment
right to be free from false arrest—arrest without probable cause—[is] clearly
established . . . .”); Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (“The
right to be free from arrest without probable cause is a clearly established
constitutional right.”). “[E]ven law enforcement officials who reasonably but
mistakenly conclude that probable cause is present are entitled to” qualified
immunity, however. Club Retro, 568 F.3d at 206 (internal quotation marks
omitted) (quoting Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)). We
must therefore determine whether it was objectively reasonable for Garza and
the officers to conclude that probable cause existed to arrest Alexander for
resisting a search. “Objective reasonableness is assessed in light of legal rules
clearly established at the time of the incident.” Mangieri, 29 F.3d at 1016. The
plain meaning of Section 38.03(a)’s text and the ample and longstanding Texas
case law interpreting the statute’s use of force element indicate that, absent
some physical force directed at a law enforcement official, there can be no
violation for resisting a search or arrest. It is telling that, in their brief, the
defendants point to no Texas case interpreting the statute otherwise.


                                        11
   Case: 16-50839     Document: 00513957683     Page: 12   Date Filed: 04/18/2017



                                 No. 16-50839
      Because, on the facts alleged, the officers did not have probable cause to
arrest Alexander for resisting a search under Texas law, and because no
objectively reasonable officer would conclude that such probable cause did
exist, we hold that: (1) Alexander has stated a Fourth Amendment claim; and
(2) the officers are not entitled to qualified immunity from that claim at the
motion to dismiss stage.
      C.    Retaliation
      Alexander argues that the officers retaliated against him for exercising
his constitutional rights (1) not to answer police questions during a Terry stop,
and (2) to utter an expletive in public. He contends that the officers arrested
him only because he exercised these rights, in violation of the First and Fifth
Amendments. The district court held that Alexander’s allegations were merely
formulaic and conclusory and did not state a valid claim for retaliation under
either the First or Fifth Amendments. It therefore did not reach the qualified
immunity issue.
            1. Fifth Amendment
      Alexander’s argument that Garza and the officers retaliated against him
for exercising his Fifth Amendment right not to answer Officer Garza’s
questions is easily disposed of. As this court has noted on multiple occasions,
“[a]n individual’s Fifth Amendment right against self-incrimination is
implicated only during a custodial interrogation.” Murray v. Earle, 405 F.3d
278, 286 (5th Cir. 2005) (internal quotation marks omitted); see also United
States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015) (same). Indeed, “[t]he Fifth
Amendment privilege against self-incrimination is a fundamental trial right
which can be violated only at trial.” Murray, 405 F.3d at 285; see also Winn v.
New Orleans City, 919 F. Supp. 2d 743, 752 (E.D. La. 2013) (same). In other
words, the Fifth Amendment protects a defendant from being coerced into
making an incriminating statement, and then having that statement used
                                       12
    Case: 16-50839      Document: 00513957683        Page: 13     Date Filed: 04/18/2017



                                     No. 16-50839
against him at trial. But Alexander was never tried. His Fifth Amendment
right against self-incrimination was not violated. 4
             2. First Amendment
      As the district court explained, “[t]o prevail on a First Amendment
retaliation claim, Plaintiff must demonstrate that (1) he was engaged in
constitutionally protected activity, (2) the officers’ action caused him to suffer
an injury that would chill a person of ordinary firmness from continuing to
engage in that activity, and (3) the officers’ adverse actions were substantially
motivated against Plaintiff’s exercise of constitutionally protected conduct.”
Alexander v. City of Round Rock, No. A-15-CA-00617-SS, 2016 WL 3360530, at
*6 (W.D. Tex. June 14, 2016) (citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th
Cir. 2002)). Alexander argues that Garza and the officers retaliated against
him for exercising his First Amendment right of free expression in two distinct
ways: (1) using an expletive in public; and (2) being silent and not answering
an officer’s questions.
      The claim that the officers retaliated against Alexander for using an
expletive in public is not supported by the facts as alleged in the complaint. As
the district court correctly explained, by the time Alexander used the expletive,
he had already been removed from his car and handcuffed on the curbside.
Furthermore, any adverse action that was taken once the arrest was effected
cannot be reasonably attributed to Alexander’s alleged use of an expletive, as
Alexander was ultimately arrested for resisting a search and not for any
unfortunate word choice. Thus, Alexander’s First Amendment retaliation
claim fails as far as his use of an expletive is concerned.



      4 The parties spill much ink on the issue of whether Miranda rights attach during
non-custodial interrogations. That argument is a red herring in this case, because any
incriminating statements Alexander might have theoretically uttered had he answered
Garza’s questions could not have been used against him in court anyway—there was no trial.
                                           13
    Case: 16-50839       Document: 00513957683        Page: 14     Date Filed: 04/18/2017



                                      No. 16-50839
       Alexander also argues that the officers retaliated against him for
exercising his First Amendment right to be silent and not answer their
questions. This argument was not addressed straight-on by the district court.
We hold that Alexander’s claim on this point cannot overcome the officers’
qualified immunity, because “it was not clearly established that an individual
has a First Amendment right to refuse to answer an officer’s questions during
a Terry stop.” Koch v. City of Del City, 660 F.3d 1228, 1244 (10th Cir. 2011). 5
Surprisingly few courts have ruled on this precise issue; the parties point to no
cases from this circuit directly on point. The sparse case law that does exist,
however, indicates no consensus that a defendant has a First Amendment right
not to answer an officer’s questions during a stop like the one at issue here.
One court summarized the issue well:
       Plaintiffs contend that they can state such a First Amendment
       retaliation claim because Defendants retaliated against them for
       exercising their right not to speak. . . . However, this right not to
       speak has been limited to the context of government-compelled
       speech with respect to a particular political or ideological message.
       See United States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995)[;] . . .
       Kania v. Fordham, 702 F.2d 475, 478 n. 6 (4th Cir. 1983). Plaintiffs
       cite no authority to support the application of the First
       Amendment protection against government-compelled ideological
       or political speech into the context of police interviews . . . .
McFayden v. Duke Univ., 786 F. Supp. 2d 887, 949 (M.D.N.C. 2011) (internal
quotation marks omitted), aff’d in part, rev’d in part on other grounds sub nom.
Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012). It is instructive that
Alexander points to no case supporting the contention that there is a clearly
established First Amendment right not to answer an officer’s questions during




       5  Because we conclude that Alexander cannot overcome the officers’ qualified
immunity on this claim, we do not rule as to whether he stated a First Amendment retaliation
claim in the first instance.
                                            14
   Case: 16-50839     Document: 00513957683      Page: 15   Date Filed: 04/18/2017



                                  No. 16-50839
a traffic stop. We therefore conclude that the officers are entitled to qualified
immunity on Alexander’s First Amendment retaliation claim.
      D.    Excessive Force
      Alexander alleges that the officers used excessive force in violation of his
Fourth Amendment rights when they “mashed” his face “into the concrete,”
“pinned him by pressing [a] boot or knee on the back of his neck,” and
“manipulate[ed] his limbs and put[] pressure on his torso, neck, and head.”
Alexander further alleges that, as a result, he “sustained injuries to his body
as a result of this attack, including injuries to his mouth.” He also alleges that
he “sustained emotional and psychological injuries as well.” The district court
found that Alexander did not plead his injuries with enough specificity to
overcome the de minimis requirement.
      We disagree. “[A]lthough a de minimis injury is not cognizable, the
extent of injury necessary to satisfy the injury requirement is ‘directly related
to the amount of force that is constitutionally permissible under the
circumstances.’” Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013) (quoting
Ikerd v. Blair, 101 F.3d 430, 434–35 (5th Cir. 1996)). “Any force found to be
objectively unreasonable necessarily exceeds the de minimis threshold, and,
conversely, objectively reasonable force will result in de minimis injuries only.”
Id. (emphasis added) (footnote omitted). Consequently, “only one inquiry is
required to determine whether an officer used excessive force in violation of
the Fourth Amendment.” Ikerd, 101 F.3d at 434 n.9. In short, “as long as a
plaintiff has suffered ‘some injury,’ even relatively insignificant injuries and
purely psychological injuries will prove cognizable when resulting from an
officer’s unreasonably excessive force.” Brown, 524 F. App’x at 79 (footnotes
omitted) (quoting Ikerd, 101 F.3d at 434).
      On the facts alleged, we conclude that the officers’ use of force was
objectively unreasonable. Nothing in Alexander’s statements or actions
                                       15
   Case: 16-50839     Document: 00513957683       Page: 16   Date Filed: 04/18/2017



                                 No. 16-50839
indicated that he posed any risk of harm to the officers. Nor did he pose any
flight risk—indeed, he stayed in his vehicle and made no attempt to leave while
Garza awaited backup. Perhaps Alexander’s refusal to exit his vehicle on
Garza’s command warranted physical removal from the car, but it did not
warrant throwing Alexander onto the ground, kneeing him in the back, and
pushing his face into the concrete. The officers’ use of force once Alexander was
safely removed from the vehicle was not objectively reasonable. Consequently,
Alexander’s alleged injuries—though perhaps not sufficient on their own to
satisfy the de minimis requirement—are enough to support a claim for
excessive force at the motion to dismiss stage.
                                       IV
      We have only heard one side of the story. After discovery is complete, the
district court may well correctly determine that none of Alexander’s claims can
survive summary judgment. But at the motion to dismiss stage, we are bound
to accept his allegations as true. And on the facts alleged, Alexander has stated
several constitutional claims.
      We (1) REVERSE the district court’s dismissal of Alexander’s unlawful
detention claim, (2) REVERSE the district court’s dismissal of Alexander’s
false arrest claim, (3) AFFIRM the district court’s dismissal of Alexander’s
retaliation claims, and (4) REVERSE the district court’s dismissal of
Alexander’s excessive force claim. We REMAND for further proceedings as
appropriate. We place no limitation on the matters the district court may
address and decide on remand.




                                       16
