     Case: 16-51349      Document: 00514407972         Page: 1    Date Filed: 03/29/2018




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

                                      No. 16-51349
                                                                               Fifth Circuit

                                                                             FILED
                                                                       March 29, 2018

EUGENE CADENA,                                                          Lyle W. Cayce
                                                                             Clerk
              Plaintiff–Appellant,

v.

CHRISTOPHER RAY, San Antonio Police Officer; CRAIG RODRIGUEZ, San
Antonio Police Officer; MICHAEL MAROTTA, San Antonio Police Officer,

              Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CV-552


Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
       San Antonio Police Officers Christopher Ray, Craig Rodriguez, and
Michael Marotta, among others, arrested Eugene Cadena. Cadena claims they
used excessive force in doing so. Cadena sued the officers under 42 U.S.C.
§ 1983, alleging they violated his First, Fourth, and Fourteenth Amendment
rights. The district court granted summary judgment for the officers on all



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-51349      Document: 00514407972   Page: 2   Date Filed: 03/29/2018



                                 No. 16-51349
claims. Cadena appeals the ruling on his Fourth Amendment claim, and we
affirm.
                                       I
      The principal summary judgment evidence in this case consists of two
videos, one recorded by Cadena on his cell phone and one taken by a nearby
security camera. As Cadena filmed his wife’s arrest for public intoxication in
a hotel lobby, an officer, who later gave an affidavit stating that “Cadena
smelled of intoxicants, had bloodshot eyes, [and] was unsteady on his feet,”
ordered Cadena to leave the lobby and wait outside. Cadena did not comply
with this order but instead spoke to his wife, yelled to his brother-in-law, who
was also intoxicated and had approached the scene, and accused Officer
Rodriguez of assault.
      Cadena started toward the lobby exit, but then proceeded around a
column, returning to the scene of the arrest of his wife, and approached Officer
Rodriguez from behind. Officer Rodriguez instructed Cadena to “put [his]
hands behind [his] back.” Cadena said “No, I’m not” five times and began to
backpedal. Officer Rodriguez pushed Cadena against a wall, and Officers
Rodriguez and Ray attempted to subdue him by wrestling him face-down to
the ground, but he refused to surrender his arms.
      Assisted by two other officers, Officers Rodriguez and Ray flipped
Cadena onto his back. One of the officers kneeled on him as Officer Marotta
entered the lobby from the street. Officer Marotta fired a taser round at
Cadena, who responded by swiping at one of the officers standing over him.
Cadena alleges that Officer Marotta fired a second taser round shortly
thereafter.   The officers then handcuffed Cadena and arrested him.
Simultaneously, Cadena’s brother-in-law approached the arresting officers
and was himself placed under arrest.


                                       2
     Case: 16-51349       Document: 00514407972         Page: 3     Date Filed: 03/29/2018



                                       No. 16-51349
       Cadena suffered a cut next to his right eye and taser marks on his
buttocks. He also alleges numbness in his left hand and anxiety as a result of
the incident. Cadena brought suit under 42 U.S.C. § 1983 against several of
the officers, alleging that they violated his First Amendment “right to record
the conduct of officers,” Fourth Amendment right against excessive force, and
various Fourteenth Amendment rights.
       The district court granted summary judgment in favor of Officers Ray,
Rodriguez, and Marotta on all claims. In this appeal, Cadena challenges only
the district court’s ruling that qualified immunity shields the officers from his
excessive force claim.
                                             II
       We review a district court’s grant of summary judgment de novo. 1 When
a party moving for summary judgment asserts qualified immunity, the non-
movant has the burden to rebut qualified immunity 2 by “establish[ing] a
genuine fact issue as to whether the [officers’] allegedly wrongful conduct
violated clearly established law.” 3 While we generally consider the facts in the
light most favorable to the non-moving party, in a case involving video evidence
taken at the scene we also view “the facts in the light depicted by the
videotape.” 4 We review “the scope of clearly established law and the objective
reasonableness of the defendant government official[s’] actions” de novo. 5




       1 See, e.g., Royal Ins. Co. of Am. v. Hartford Underwriters Ins. Co., 391 F.3d 639, 641
(5th Cir. 2004).
       2 See Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quoting Cousin v. Small,

325 F.3d 627, 632 (5th Cir. 2003)).
       3 Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Brown v. Callahan,

623 F.3d 249, 253 (5th Cir. 2010)) (second alteration in original).
       4 Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).
       5 Flores v. City of Palacios, 381 F.3d 391, 394 (5th Cir. 2004).

                                              3
     Case: 16-51349       Document: 00514407972      Page: 4    Date Filed: 03/29/2018



                                     No. 16-51349
                                          III
           Police officers are immune from suit under the doctrine of qualified
immunity “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” 6 To make out a Fourth Amendment excessive force claim, a plaintiff
must establish “(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.” 7       Whether force was excessive to the need and objectively
unreasonable depends on the totality of the circumstances 8 and “must be
judged from the perspective of a reasonable officer on the scene.” 9 In this
analysis we pay particular attention to (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 [the suspect] is actively trying to resist arrest” or
flee. 10
           Cadena challenges the propriety of the “take down,” arguing the Officers
“thr[ew] [him] against the hotel wall, wrestled [him] to the ground . . . [and]
pinned and kneed” him. He also takes issue with being tased twice. Because
we conclude that neither the “take down” nor the tasing violated Cadena’s
Fourth Amendment rights, qualified immunity applies. The district court
properly granted summary judgment.




         Thompson v. Mercer, 762 F.3d 433, 436-37 (5th Cir. 2014) (quoting Pearson v.
           6

Callahan, 555 U.S. 223, 231 (2009)).
       7 Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013) (quoting Flores, 381 F.3d

at 396).
       8 See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
       9 Graham v. Connor, 490 U.S. 386, 396 (1989).
       10 Id.

                                           4
     Case: 16-51349       Document: 00514407972        Page: 5    Date Filed: 03/29/2018



                                      No. 16-51349
                                             A
       The Officers were justified in the “take down” because they had reason
to believe Cadena posed a threat to their safety and resisted arrest. In Poole
v. City of Shreveport, we held that a suspect who “refus[ed] to turn around and
be handcuffed . . . posed an ‘immediate threat.’” 11 Here, when ordered to place
his hands behind his back, Cadena instead backed away from Officer
Rodriguez. Cadena also “actively tr[ied] to resist arrest.” 12 When the suspect
in Poole “backed away from the [arresting] officers,” we said he had “actively
resist[ed]” arrest. 13 Similarly, Cadena backed away from Officer Rodriguez
after being ordered to put his hands behind his back.
       Cadena’s intoxicated state and erratic behavior gave the Officers further
reason to believe he was a threat, which makes this case unlike Trammell v.
Fruge. 14 In Trammell, we held that a reasonable jury could find that an officer
used excessive force in tackling the plaintiff in the course of arresting him for
public intoxication. 15    Though the Trammell plaintiff similarly refused to
submit his arms for handcuffing, the arresting officers had only a brief
exchange with him 16 and “used very little, if any, negotiation before resorting
to physical violence.” 17 Here, by contrast, the Officers spoke calmly to Cadena
for several minutes despite his attempt to interfere with his wife’s arrest and
his erratic behavior throughout the interaction. Furthermore, Cadena not only
disobeyed the Officers’ order to submit to arrest, he had disobeyed their prior
order to leave the lobby. His failure to comply twice, along with the potentially



       11 691 F.3d 624, 629 (5th Cir. 2012) (quoting Deville v. Marcantel, 567 F.3d 156, 167
(5th Cir. 2009) (per curiam)).
       12 Graham v. Connor, 490 U.S. 386, 396 (1989).
       13 Poole, 691 F.3d at 629 (quoting Deville, 567 F.3d at 167).
       14 868 F.3d 332 (5th Cir. 2017).
       15 Id. at 340, 342-43.
       16 Id. at 336-37.
       17 Id. at 342.

                                             5
     Case: 16-51349       Document: 00514407972          Page: 6     Date Filed: 03/29/2018



                                       No. 16-51349
threatening nature of his going around a column behind Officer Rodriguez
after appearing to leave the scene, distinguishes these facts from those of
Trammell. Thus, it was reasonable for Officer Rodriguez to believe Cadena
was resisting.
       Furthermore, we have approved of “‘measured and ascending’ actions
that correspond[] to [an arrestee’s] escalating verbal and physical resistance.” 18
Cadena continued to resist even after he was wrestled to the ground. The
security camera footage shows that Officers “pinned and kneed” Cadena when
he resisted while the Officers effected the arrest. Each element of the Officers’
“take down” corresponded to Cadena’s level of resistance, and was thus
reasonable. 19
                                              B
       Officer Marotta’s use of a taser also did not violate Cadena’s Fourth
Amendment rights. Use of a taser is appropriate when a suspect continues to
resist arrest.     We have held that tasing is permissible “after [a suspect]
continuously fail[s] to comply” and “resist[s] handcuffing,” particularly when it
is not “the first method to gain . . . compliance.” 20 But we have also said that
tasing is inappropriate where either it is unclear that the plaintiff was
resisting 21 or the plaintiff was not resisting at all. 22 Here, four officers helped
“take down” Cadena, and the video evidence clearly shows that he nonetheless
continued to resist handcuffing. Only after the Officers tried conventional
methods to subdue Cadena did Marotta intervene with the taser.



       18  Poole, 691 F.3d at 629 (quoting Galvan v. City of San Antonio, 435 F. App’x 309, 311
(5th Cir. 2010) (per curiam) (unpublished)).
        19 See id.
        20 Pratt v. Harris Cty., Tex., 822 F.3d 174, 182 (5th Cir. 2016) (emphasis omitted).
        21 See Darden v. City of Fort Worth, 880 F.3d 722, 729-31 (5th Cir. 2018) (noting that

police bodycam footage did not clearly contradict plaintiff’s claim that he was not resisting
arrest, so Scott v. Harris, 550 U.S. 372 (2007) did not apply).
        22 See Pena v. Rio Grande City, 879 F.3d 613, 619-20 (5th Cir. 2018).

                                              6
     Case: 16-51349       Document: 00514407972          Page: 7     Date Filed: 03/29/2018



                                       No. 16-51349
       In Poole, we also approved of the use of a taser as a response to escalating
resistance. 23 Though the video does not clearly show when Marotta fired the
second taser round, it does show that immediately after the first taser shot
Cadena swiped at one of the arresting officers with his arm. Marotta could
have reasonably interpreted Cadena’s swipe as an escalation of resistance,
justifying the second taser shot as a proportional response. 24
                                       *          *      *
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       23 Poole, 691 F.3d at 629 (quoting Galvan v. City of San Antonio, 435 F. App’x 309, 311
(5th Cir. 2010)).
       24 See Darden, 880 F.3d at 729 (“[O]fficers must assess not only the need for force, but

also the relationship between the need and the amount of force used.” (internal quotation
marks omitted) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam))).
                                              7
