     Case: 16-50981   Document: 00514119853     Page: 1   Date Filed: 08/17/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                 No. 16-50981                          FILED
                                                                 August 17, 2017
                                                                  Lyle W. Cayce
                                                                       Clerk
GEORGE TRAMMELL,

             Plaintiff–Appellant,

v.

KEVIN FRUGE, in his individual and official capacity; MIKE KROGMANN,
in his individual and official capacity; BRIAN NEVEU, in his individual and
official capacity; E. F. DELAROSA, in his/her individual and official capacity;
HUNTER WEBB, in his individual and official capacity; M. GARZA, in
his/her individual and official capacity; SHELBY INGLES, in her individual
and official capacity; CITY OF ROUND ROCK, TEXAS; JOHN DOES 1-5,

             Defendants–Appellees.



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


Before KING, PRADO, and SOUTHWICK, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Plaintiff–Appellant George Trammel sued Defendants–Appellees Kevin
Fruge, Mike Krogmann, Brian Neveu, E.F. Delarosa, Hunter Webb, Marciano
Garza, Shelby Ingles, and the City of Round Rock, Texas (“Round Rock”) under
42 U.S.C. §§ 1983 and 1988 alleging that the Defendants violated his Fourth
and Fourteenth Amendment rights during his arrest on January 21, 2013. The
district court granted summary judgment in favor of the Defendants. We
AFFIRM in part and REVERSE and REMAND in part.
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                                       No. 16-50981
                                   I. BACKGROUND
A.     Facts
       At approximately 12:00 a.m. on January 21, 2013, the Round Rock Police
Department received a 911 call about an individual who had crashed his
motorcycle after leaving the El New Goal Post Club (“the Goal Post”) and was
believed to be intoxicated. Police officers were dispatched to the scene.
       Officer Kevin Fruge was the first to arrive and was directed to a parking
lot across the street from the Goal Post where the suspect, George Trammel,
was located. Fruge testified that when he pulled into the parking lot he
observed a man in a dark jacket standing near a parked motorcycle. 1 Officer
Fruge contends that on arrival he “immediately detected a strong odor of an
alcoholic beverage emitting from [Trammel’s] breath.” 2
       On exiting his vehicle, Officer Fruge instructed Trammel to “step away
from the motorcycle.” Because he was on the phone and is hearing impaired,
Trammel did not respond to Officer Fruge’s first command. Then Officer Fruge
again requested that Trammel step away from the motorcycle. This time
Trammel responded, “What?” Officer Fruge then raised his voice and
commanded that Trammel “step away from the motorcycle” a third time.
Trammel replied “okay” and complied with Officer Fruge’s request.


       1  Officer Fruge stated the motorcycle appeared to be parked “on its kickstand.”
Trammel, however, claims the motorcycle “was parked on a center stand for long-term
parking, not a kickstand.” Trammel claims that, as a result, he would have been “unable to
do an easy ‘take off.’”
        2 In the incident report, Officer Fruge also stated that he noticed Trammel’s “eyes

were watery and bloodshot and he slurred when he spoke,” that Trammel “had a large wet
area in the crotch of his pants,” and that he “had a difficult time standing up and would sway
back and forth.” While Trammel does not dispute that he was slurring, he questions whether
Officer Fruge could have seen his eyes in the dark and claims that he only had a wet spot on
his pants after his arrest due “to a compression of his bladder by the Officers during the
assault.” Trammel also claims he was not swaying, but this assertion is belied by the dash
cam footage, which clearly shows that Trammel is unsteady on his feet, Even viewing these
facts in the light most favorable to Trammel, a reasonable officer would suspect based on the
smell of alcohol, slurred speech, and swaying that Trammel was intoxicated.
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      Officer Fruge and Trammel then had the following exchange:
      OFFICER FRUGE: “What’s goin’ on? What’s goin’ on?”
      TRAMMEL: “Nothing. I parked my bike.”
      OFFICER FRUGE: “You parked it?”
      TRAMMEL: “Yeah.”
      OFFICER FRUGE: “Did you wreck it?”
      TRAMMEL: “No. I didn’t wreck my bike.”
      OFFICER FRUGE: “Let me ask you a question, sir. How much
      have you had to drink tonight?”
      TRAMMEL: “A whole lot of nothin’.”
      OFFICER FRUGE: “A whole lot of nothing? How much is that?”
      TRAMMEL: “A whole lot of nothin’.”
      OFFICER FRUGE: “How much is that, sir?”
      TRAMMEL: “I’m not going to answer.”
      OFFICER FRUGE: “Huh?”
      TRAMMEL: “I’m not going to answer.”
As the dash cam video confirms, Trammel remained calm throughout this
interaction.
      Officer Fruge then asked Trammel, “Well, can you walk towards me?”
Trammel declined and said, “No.” Officer Fruge then commanded Trammel to
place his hands behind his back. Trammel again told Officer Fruge, “I’m not
answering your questions,” and did not comply with Officer Fruge’s request.
At this point, Trammel took off the jacket he was wearing because he felt hot
and said, “I’m not going to jail.”
      At this point, Officer Fruge believed he had probable cause to arrest
Trammel for public intoxication, and he grabbed Trammel’s right arm as he
told him to put his hands behind his back. Trammel immediately pulled back




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                                       No. 16-50981
and told Officer Fruge that it hurt and not to grab him there. 3 Officer Ingles
then grabbed Trammel’s left arm, but Trammel again pulled away. 4 Officer
Fruge executed a knee strike on Trammel’s right thigh, and Trammel lost his
balance. Officer Garza put Trammel in a headlock as he, Officer Neveu, and
Officer Fruge pulled Trammel to the ground. 5 Trammel states that he initially
had his “arms in front of [his] body . . . [because he] was trying to prevent [his]
fall,” but that the officers were grabbing at his arms and landed on top of his
body so that he landed face first on the pavement. Trammel claims that at some
point when he was on the ground he “lost memory,” but prior to this, he recalled
a brief period of time where he could not breathe.
       While on the ground, the officers tried to grab hold of Trammel’s arms,
which were underneath him. The officers repeatedly asked Trammel to put his
hands behind his back, and he apparently refused to comply. 6 After the officers
tackled Trammel, he can first be heard yelling that he is a cop, and later, as
the officers command him to “stop resisting,” Trammel can be repeatedly heard
yelling that his arm is fused. During this time, the officers administered knee




       3  Trammel states in his declaration that his right arm “has a surgical fusion, which
means there is a rod extending from the end of [his] middle finger to the upper part of [his]
forearm,” and that it hurt when Officer Fruge grabbed it because he had the fusion “surgery
in July and was still recovering.” He also claims that the surgery inhibits his “ability to move
[his] arms behind [his] body and . . . [his] overhead mobility.”
        4 The dash cam footage reveals that this exchange—from the first moment Officer

Fruge requested that Trammel place his hands behind his back until the officers tackled
Trammel—lasted approximately three seconds.
        5 Officers Garza, Neveu, and Ingles arrived at the scene shortly after Officer Fruge

and claim to have witnessed a majority of the interaction between Officer Fruge and
Trammel—beginning with Trammel’s refusal to put his arms behind his back.
        6 One of the officers at the scene told Trammel to put his hands behind his back as the

group tackled him, and the officers can be heard repeatedly making this request on the dash
cam footage while Trammel and the three officers were on the ground.
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                                      No. 16-50981
strikes to Trammel’s arms, thighs, and ribs so that they could subdue and
handcuff him. 7
       Six days after the arrest, Trammel received a medical exam and was
diagnosed with “mildly displaced right L1, L2, and L3 transverse process
fractures.” Since the incident, Trammel has stopped riding his motorcycle,
hunting, sailing, fishing, playing with his grandchildren the way he used to,
and has “very limited mobility.” Trammel has also had to get a “new vehicle
with a scooter” and uses a wheelchair while at home.
B.     Procedural History
       On January 21, 2015, Trammel filed suit against the City of Round Rock
and the above-named police officers pursuant to 42 U.S.C. §§ 1983 and 1988
alleging violations of his Fourth and Fourteenth Amendment rights. Trammel
specifically claimed that the officers violated his constitutional right to be free
from unlawful restraint and excessive force and that Round Rock is liable for
its failure to supervise and adequately train its officers. On June 29, 2016, the
district court granted summary judgment in favor of Round Rock and Officers
Fruge, Neveu, Delarosa, Webb, and Garza. On July 12, 2016, the court also
granted summary judgment in favor of Sergeant Krogmann and Officer Ingles
after giving Trammel an opportunity to offer evidence in support of his claims
against those parties. This appeal followed.




       7 There is some disagreement about the number and location of the knee strikes. While
Officer Neveu claimed he struck Trammel only two or three times and only made contact
with his thigh, Officer Fruge claimed to have observed Officer Neveu administer knee strikes
to the “upper arm, body area,” and Trammel claims that multiple officers were striking him
in the ribs and lower back with their fists and knees. Trammel’s medical records following
the altercation support his version of events given that he reported to medical professionals
that he was experiencing right-sided abdominal pain. Because we resolve fact disputes in
favor of the nonmoving party, we resolve this discrepancy in favor of Trammel.
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                                  No. 16-50981
                               II. DISCUSSION
A.    Standard of Review
      “This court reviews de novo the district court’s resolution of legal issues
on a motion for summary judgment on the basis of qualified immunity.” Hanks
v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017) (quoting Griggs v. Brewer, 841 F.3d
308, 311 (5th Cir. 2016)). Summary judgment must be granted “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). “[W]e view
the facts in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.” Hanks, 853 F.3d at 743 (internal quotation
marks omitted) (quoting Griggs, 841 F.3d at 312). But “a plaintiff’s version of
the facts should not be accepted for purposes of qualified immunity when it is
‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.” Id. at 744
(quoting Curran v. Aleshire, 800 F.3d 656, 664 (5th Cir. 2015)). “A qualified
immunity defense alters the usual summary judgment burden of proof. Once
an official pleads the defense, the burden then shifts to the plaintiff, who must
rebut the defense by establishing a genuine fact issue as to whether the
official’s allegedly wrongful conduct violated clearly established law.” Id.
(citation and internal quotation marks omitted) (quoting Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010)).
B.    Analysis
      On appeal, Trammel argues that the district court erred in granting
summary judgment: (1) in favor of Officers Fruge, Garza, Neveu, and Ingles on
the basis of qualified immunity with respect to his excessive force and failure-




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                                      No. 16-50981
to-intervene claims; and (2) in favor of Round Rock on his municipal liability
claims. 8 We address each argument in turn.
   1. Officers Fruge, Garza, Ingles, and Neveu
       Qualified immunity protects government officials “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.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether qualified
immunity applies, a court engages in a two-part inquiry asking: first, whether
“[t]aken in the light most favorable to the party asserting the injury, . . . the
facts alleged show the officer’s conduct violated a constitutional right”; and
second, “whether the right was clearly established.” Saucier v. Katz, 533 U.S.
194, 201 (2001). Although the Supreme Court has recognized considering these
two questions in order “should not be regarded as mandatory in all cases . . . it
is often beneficial.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
       In order for a right to be clearly established, “[t]he contours of the right
must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). Although this does not mean that “a case directly on point” is required,
“existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “The central
concept is that of ‘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



       8 The district court also granted summary judgment in favor of Officers Fruge, Garza,
Neveu, and Ingles on Trammel’s unlawful arrest claim, in favor of Sergeant Krogmann on
Trammel’s failure-to-intervene and failure-to-supervise claims, and with respect to
Trammel’s claims against Officers Delarosa and Webb. Because Trammel does not address
these claims on appeal, we find them waived. See United States v. Griffith, 522 F.3d 607, 610
(5th Cir. 2008).
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                                 No. 16-50981
that the conduct then at issue violated constitutional rights.’” Ramirez v.
Martinez, 716 F.3d 369, 379 (5th Cir. 2013) (quoting Kinney v. Weaver, 367
F.3d 337, 350 (5th Cir. 2004) (en banc)).
      Here, Trammel contends that the force used by Officers Fruge, Garza,
Neveu, and Ingles was excessive to the need and that his right to be free from
such force was clearly established. In addition, Trammel claims that the
conduct of the officers during the arrest was so egregious they should each be
“liable for failing to intervene to protect Trammell from the other Officers’ use
of excessive force.” Accordingly, he argues that the officers are not entitled to
qualified immunity.
      a. Constitutional violation
      Starting with the first prong of the qualified immunity analysis, we
consider, viewing the facts in the light most favorable to Trammel, whether
the officers’ actions during Trammel’s arrest violated his Fourth Amendment
rights. The Fourth Amendment creates a “right to be free from
excessive force during a seizure.” Poole v. City of Shreveport, 691 F.3d 624, 627
(5th Cir. 2012); accord U.S. Const. amend. IV. “To establish a claim of excessive
force under the Fourth Amendment, plaintiffs must demonstrate: ‘(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.’”
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Tarver v. City
of Edna, 410 F.3d 745, 751 (5th Cir. 2005)).
      The test used to determine whether a use of force was reasonable under
the Fourth Amendment “is not capable of precise definition or mechanical
application.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Bell v.
Wolfish, 441 U.S. 520, 559 (1979)). Rather, “its proper application requires
careful attention to the facts and circumstances of each particular case,
including” (1) “the severity of the crime at issue,” (2) “whether the suspect
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                                  No. 16-50981
poses an immediate threat to the safety of the officers or others,” and (3)
“whether he is actively resisting arrest or attempting to evade arrest by flight.”
Id. “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. Thus, the overarching question is “whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them.” Id. at 397.
      Here, the parties only dispute whether the force used during Trammel’s
arrest was excessive. As an initial matter, public intoxication is a Class C
misdemeanor, see Tex. Penal Code § 49.02(c), and thus is a minor offense
militating against the use of force, see Reyes v. Bridgwater, 362 F. App’x 403,
407 n.5 (5th Cir. 2010) (finding the “severity” factor from Graham militated
against a use of force where the alleged crime was a misdemeanor).
      Moreover, a fact question exists as to whether Trammel posed a danger
to himself or others. Officer Fruge testified that Trammel was swaying and
that he believed that Trammel could endanger himself by “stumbl[ing] out into
the roadway” or endanger others by “get[ting] on the motorcycle, and driv[ing]
away.” But viewing the facts in the light most favorable to Trammel, it is not
clear that a reasonable officer would have perceived such a danger. First,
Officer Fruge admitted, and the dash cam footage confirms, that even though
Trammel was swaying, it did not appear that he was going to fall over. Thus,
there is a question of fact as to whether Trammel posed any danger to himself.
Second, Trammel claims that his motorcycle was parked on a “center stand,”
which is intended for long-term parking and would have prevented him from
quickly taking off. Although Officer Fruge testified that it “looked like [the
motorcycle] was on its kickstand,” we view the facts in the light most favorable
to Trammel. Given the circumstances as presented by Trammel, we conclude
that, at minimum, a fact issue exists as to whether a reasonable officer would
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                                   No. 16-50981
have perceived Trammel as being a danger to others, considering that
Trammel had stepped away from the motorcycle and showed no intention of
mounting and riding away on it, and considering that the motorcycle that was
turned off and parked on a center stand. Accordingly, we find that there is a
fact issue as to whether the dangerousness factor bears in favor of using force
to subdue Trammel.
      Finally, it appears that Trammel was not attempting to flee, and it
remains unclear whether he was actively resisting arrest. The only indication
that Trammel may have intended to flee was his statement that he was “not
going to jail.” But none of Trammel’s other conduct indicated that he was going
to run away from the officers—Trammel did not make any motions indicating
an attempt to escape and his motorcycle was not running. See Deville, 567 F.3d
at 167 (finding that “while [the plaintiff] was in control of the vehicle and its
motor was running and its gear in park,” according to her version of events,
“there was no evidence or other indication that she would flee or use the vehicle
as a weapon”). On such facts, we cannot find that a reasonable officer would
have believed that Trammel was attempting, or intended, to flee the scene.
      We also find that there is a factual dispute as to whether Trammel was
actively resisting arrest throughout his encounter with the police officers.
“Officers may consider a suspect’s refusal to comply with instructions . . . in
assessing whether physical force is needed to effectuate the suspect’s
compliance. However, officers must assess not only the need for force, but also
‘the relationship between the need and the amount of force used.’” Id. (citations
omitted) (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)). For
instance, where an individual’s conduct amounts to mere “passive resistance,”
use of force is not justified. See Hanks, 853 F.3d at 746 (determining the
plaintiff’s initial refusals to follow a police officer’s instructions amounted to,
“at most, passive resistance” and did not justify the officers use of a “‘half spear’
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                                  No. 16-50981
takedown” against the plaintiff); Deville, 567 F.3d at 168 (the plaintiff’s refusal
to get out of her car before her husband arrived on the scene constituted
passive resistance).
      It is unclear at what point passive resistance becomes the sort of active
resistance which justifies force. See Goodson v. City of Corpus Christi, 202 F.3d
730, 734, 740 (5th Cir. 2000). For example, in Goodson, two police officers
stopped the plaintiff, believing that he matched the description of an individual
suspected of assault. Id. at 733. One of the police officers instructed the
plaintiff to “put his hands on the [police] car.” Id. at 734. The plaintiff claimed
that before he could comply the officer grabbed his arm. Id. The plaintiff
“stated that he pulled his arm away from [the officer] in surprise and stumbled
back in an attempt to regain his balance and maintain a little distance from
the police officers.” Id. Thereafter, the plaintiff claimed the two officers
together tackled him to the ground. Id. In reversing the district court’s
summary judgment based on qualified immunity, this Court held that a fact
question “exist[ed] as to the objective reasonableness of the force used” under
the circumstances. Id. at 740. The Court did not describe the plaintiff’s decision
to pull his arm away from the officer as resistance. Id. And given that the
officers lacked reasonable suspicion to detain or frisk the plaintiff and that the
plaintiff was not fleeing, the Court declined to conclude that the plaintiff’s
decision to pull away from the officers justified the amount of force used. Id.
      Just as in Goodson, it appears that Trammel’s only physical resistance
prior to being tackled was his attempt to pull his arm away. In fact, the dash
cam footage reveals that Trammel did not even use much force in pulling away
from the officers; although Trammel can clearly be seen moving his arm in the
opposite direction from Officer Fruge, he is only able to move it away by a few
inches such that the officer’s hand never lost contact with Trammel’s arm. It
also appears that Officer Fruge himself was not pulled forward. Trammel was
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neither aggressive nor violent toward the officers prior to being tackled. As
discussed above, Trammel was suspected of only a minor offense, and there
was little indication he would flee. It is also unclear whether a reasonable
officer would have thought that Trammel posed a danger to himself and others.
Thus, as in Goodson, we conclude that a reasonable jury could conclude that
the officers’ use of force was clearly excessive to the circumstances.
      Moreover, even if Trammel’s decision to pull his arm away from the
officers can be characterized as some degree of resistance that would justify an
officer’s use of force, the quickness with which the officers resorted to tackling
Trammel to the ground militates against a finding of reasonableness. This
Court has several times found that the speed with which an officer resorts to
force is relevant in determining whether that force was excessive to the need.
See Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012) (holding that
disputes of fact were material because “a reasonable jury could find that the
degree of force used was not justified where the officer ‘engaged in very little,
if any, negotiation’ with the suspect and ‘instead quickly resorted to’” force);
Deville, 567 F.3d at 168 (determining that “[a] reasonable jury could infer from
[the plaintiff’s] deposition testimony that [the defendant officer] engaged in
very little, if any, negotiation with [the plaintiff]—and find that he instead
quickly resorted to breaking her driver’s side window and dragging her out of
the vehicle”).
      Given that only three seconds elapsed between Officer Fruge’s initial
request that Trammel place his hands behind his back and when Officers
Fruge, Garza, and Neveu tackled Trammel, we find that a reasonable jury
could infer that the officers used very little, if any, negotiation before resorting
to physical violence, and that the officers’ conduct did not constitute the
required “measured and ascending” actions calibrated to Trammel’s conduct.
Poole, 691 F.3d at 629 (quoting Galvan v. City of San Antonio, 435 F. App’x
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309, 311 (5th Cir. 2010)). Accordingly, we hold that a reasonable jury could find
that Trammel’s pulling his arms away from the officers, along with the other
circumstances of Trammel’s arrest, did not justify the officers’ decision to
tackle Trammel to the ground. Thus, there is a genuine dispute of material fact
as to whether the officers’ use of force was objectively unreasonable.
       Similarly, we find that Trammel has independently presented a question
of material fact as to whether the force used to gain control of his arms was
excessive to the need. Viewing the facts in the light most favorable to Trammel,
after the officers tackled him, they pummeled Trammel with their knees and
fists in an attempt to get him to put his arms behind his back. Trammel
contends the officers continued to do so even after he shouted that his arm was
fused. Because Trammel’s yelling about his arm can clearly be made out from
the dash cam footage, a jury could reasonably infer that the officers heard
Trammel’s plea but nevertheless continued to beat him without consideration
for his limited mobility and strength. Since Officer Fruge testified that
Trammel never exhibited a desire to harm any of the officers, a reasonable jury
could determine that, under the circumstances, the officers’ decision to
continue using force was objectively unreasonable.
       Thus, we hold that Trammel has presented sufficient facts to allege a
violation of his constitutional right to be free from excessive force against
Officers Fruge, Garza, and Nevue. 9




       9 However, we hold that Trammel has not raised sufficient facts to allege an excessive
force claim against Officer Ingles. Officer Ingles’s only involvement in the altercation was
apparently an attempt to grab Trammel’s left arm. Because Trammel has not alleged any
injury stemming from Officer Ingles’s conduct, and given that it is reasonable for an officer
to attempt to grab a noncompliant suspect’s arm in an attempt to handcuff the suspect, we
find that Trammel has not raised sufficient facts to allege an independent excessive force
violation against Officer Ingles. Qualified immunity as to this claim is thus appropriate.
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                                  No. 16-50981
      b. Clearly established law
      We next turn to whether the law at the time of Trammel’s arrest was
clearly established. We conclude that it was. As discussed above, this Court’s
opinion in Goodson outlines a scenario very similar to this case. Both Goodson
and this case involve a plaintiff who was tackled by officers after very minimal
physical resistance—pulling away from an officer after the officer grabbed the
plaintiff’s arm. The primary distinction between Goodson and this case
appears to be the fact that in Goodson, the defendant officers lacked any
reasonable suspicion to detain or frisk the plaintiff in the first place. Goodson,
202 F.3d at 740. Here, on the other hand, it is virtually undisputed that the
officers had probable cause to arrest Trammel for public intoxication. But we
find this distinction is merely a matter of degree.
      In Graham, the Supreme Court directed lower courts to consider “the
severity of the crime at issue” in determining whether police officers used
excessive force. Graham, 490 U.S. at 1872. We interpret Goodson’s focus on
reasonable suspicion as a consideration of this factor. So, while in Goodson, the
officers lacked reasonable suspicion that the plaintiff had committed any
crime, here the officers believed the plaintiff was guilty of the minor offense of
public intoxication. Although the severity factor may have weighed slightly
more in favor of finding a use of force reasonable in this case than it did in
Goodson, we nevertheless conclude that Goodson gave officers “fair warning”
that their conduct was unconstitutional. See Ramirez, 716 F.3d at 379.
Accordingly, the law at the time of Trammel’s arrest clearly established that it
was objectively unreasonable for several officers to tackle an individual who
was not fleeing, not violent, not aggressive, and only resisted by pulling his
arm away from an officer’s grasp.




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                                     No. 16-50981
         c. Failure to intervene
         Trammel also argues that each of the involved officers should be liable
for failing to intervene to prevent the alleged excessive force used by their
fellow officers. Below, Trammel argued only that those officers not directly
involved in the alleged use of excessive force should be liable for failing to
intervene. Because Trammel raises this argument as to Officers Fruge, Garza,
Neveu, and Ingles only on appeal—and because he alleges that all four of these
officers were directly involved in the use of force—we find the failure-to-
intervene claim waived. 10 See Pluet v. Frasier, 355 F.3d 381, 385 (5th Cir.
2004).


   2. Round Rock
         Finally, Trammel argues that the district court erred in granting
summary judgment in favor of Round Rock. First, Trammel contends that the
conflicting statements of Officers Webb and Fruge regarding the Round Rock
Police Department’s policy on the use of knee and fist strikes creates a material
question of fact as to the content of the department’s official policy and as to
whether Round Rock’s training procedures were inadequate. Second, Trammel
seems to contend that Officer Ingles’s failure to prevent Officer Garza from
putting Trammel in a headlock amounts to deliberate indifference which
should be imputed to Round Rock. And third, Trammel claims that Round
Rock’s “Response to Resistance or Aggression Policy, which touts ‘reasonable’
as its standard, does not give a realistic safeguard against” the use of excessive
force.




          As previously noted, we find Trammel’s failure to intervene claim as to the other
         10

defendants—Sergeant Krogmann and Officers Webb and Delarosa—waived because it is not
briefed on appeal.
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                                  No. 16-50981
      a. Unconstitutional policy or practice
      To the extent that Trammel alleges that Round Rock maintained an
unconstitutional policy or practice, we conclude that summary judgment was
appropriate. In general, a municipality cannot be held liable for constitutional
violations committed by its employees or agents on a theory of vicarious
liability. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691–92
(1978). “To establish municipal liability under § 1983, a plaintiff must show
that (1) an official policy (2) promulgated by the municipal policymaker (3) was
the moving force behind the violation of a constitutional right.” Peterson v. City
of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009). An official policy “usually
exists in the form of written policy statements, ordinances, or regulations, but
it may also arise in the form of a widespread practice that is ‘so common and
well-settled as to constitute a custom that fairly represents municipal policy.’”
Id. (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).
      As an initial matter, Trammel has not presented any evidence of the sort
of “persistent, often repeated, constant violations that constitute custom and
policy,” and which could be attributed to Round Rock. Mason v. Lafayette City-
Par. Consol. Gov’t, 806 F.3d 268, 280 (5th Cir. 2015) (quoting Bennett v. City of
Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984) (en banc)). Rather, the evidence
to which Trammel points amounts to no more than the kind of “isolated
instance[]” of conduct for which a “municipality is almost never liable.”
Peterson 588 F.3d at 847, 851. And even if we accepted Trammel’s contention
that a pattern of unconstitutional conduct exists, he has presented no evidence
that this “policy” was promulgated by a municipal policymaker—let alone
identified who that policymaker is—or that such a policy was the moving force
behind the alleged constitutional violation in this case. Finally, Trammel’s
argument about imputing Officer Ingles’s conduct to Round Rock fails. Even if
we agreed that Officer Ingles should have intervened during the arrest,
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                                      No. 16-50981
without more, her actions cannot be attributed to Round Rock. See Monell, 436
U.S. at 691–92; Mason, 806 F.3d at 280. Summary judgment was appropriate
as to Trammel’s municipal liability claim against Round Rock.
        b. Failure to train or supervise 11
       To the extent that Trammel alleges a failure to train claim, we also find
summary judgment was appropriate. “To prevail on a ‘failure to train theory’
a plaintiff must demonstrate: (1) that the municipality’s training procedures
were inadequate, (2) that the municipality was deliberately indifferent in
adopting its training policy, and (3) that the inadequate training policy directly
caused the violations in question.” Zarnow v. City of Wichita Falls, 614 F.3d
161, 170 (5th Cir. 2010). “In order for liability to attach based on an inadequate
training claim, a plaintiff must allege with specificity how a particular training
program is defective.” Id. (internal quotation marks omitted) (quoting Roberts
v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)).
       First, Trammel fails to identify any specific inadequacies in Round
Rock’s training materials or procedures which give rise to his claim. He offers
only the conflicting testimony of Officers Webb and Fruge regarding their
training as to knee and fist strikes. See id. (“[T]his Court has previously
rejected attempts by plaintiffs to present evidence of isolated violations and
ascribe those violations to a failure to train.”); Estate of Davis ex rel. McCully
v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (“To satisfy the



       11 Because a failure-to-supervise claim is evaluated in the same way as a failure-to-
train claim, see Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003), we do not
address Trammel’s claims as to supervision and training separately. Moreover, Trammel’s
only independent argument regarding his supervision claim stems from Officer Ingles’s
conduct. Since municipal liability cannot be imputed based on a respondeat superior theory,
Monell, 436 U.S. at 691–92, we reject this argument as a ground for reversing summary
judgment on the municipal liability claim. Given that Trammel does not raise this argument
on appeal against Officer Ingles in her individual capacity, we find any such argument
waived. See Griffith, 522 F.3d at 610.
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                                No. 16-50981
deliberate indifference prong, a plaintiff usually must demonstrate a pattern
of violations and that the inadequacy of the training is obvious and obviously
likely to result in a constitutional violation.” (internal quotation marks
omitted) (quoting Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003)). But even
if we accepted this testimony as adequate proof of the first element of
Trammel’s failure to train claim, he makes no showing of deliberate
indifference or causation. Summary judgment was thus appropriate.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s summary
judgment as to Trammel’s claims against Round Rock and Officer Ingles. We
REVERSE the district court’s summary judgment as to Trammel’s excessive
force claims against Officers Fruge, Garza, and Neveu and REMAND for
further proceedings consistent with this opinion.




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                                  No. 16-50981
LESLIE H. SOUTHWICK, Circuit Judge, dissenting in part.
      I concur with the majority’s decision to affirm the judgment of the district
court as to Trammell’s claims against the City of Round Rock and Officer
Ingles. I respectfully dissent, however, from the decision to reverse summary
judgment as to Trammell’s excessive-force claims against Officers Fruge,
Garza, and Neveu.
      The district court granted a summary judgment, so we view the facts in
the light most favorable to Trammell. See Griggs v. Brewer, 841 F.3d 308, 312
(5th Cir. 2016). Still, we must judge the reasonableness of the force used “from
the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.”     Graham v. Connor, 490 U.S. 386, 396 (1989).           In
determining whether the officers’ actions were “‘objectively reasonable’ in light
of the facts and circumstances confronting them,” we must be mindful that
“police officers are often forced to make split-second judgments — in
circumstances that are tense, uncertain, and rapidly evolving — about the
amount of force that is necessary in a particular situation.” Id. at 396–97.
      The key moment in the encounter came when Officer Fruge reached for
Trammell’s arm as he told Trammell to put his hands behind his back. At that
point, Officer Fruge had three times asked Trammell to step away from his
motorcycle before Trammell complied.        He had asked Trammell to walk
towards him, to which Trammell responded, “No.” Trammell had already
stated “I’m not going to jail” as he took his jacket off. When Officer Fruge then
reached for Trammell’s arm as he told him to place his hands behind his back,
Trammell concedes he “instantly pulled back,” saying it hurt and not to grab
him there. The other officers saw Trammell pull away from Officer Fruge, and
Officer Ingles reached for Trammell’s other arm. Trammell continued to pull


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                                  No. 16-50981
away. This reaching and pulling escalated quickly — in a matter of seconds —
and the officers responded by taking Trammell to the ground.
      This is the sort of “tense, uncertain, and rapidly evolving” situation that
police officers often face in the performance of their duties. See Graham, 490
U.S. at 397. The officers faced an apparently intoxicated individual, at night
in a dimly lit area, who would not respond to commands. True, Trammell’s
alleged public-intoxication offense was a crime of minor severity, but the
offense itself supports that a reasonable officer would have viewed Trammell
as a danger to himself or others, as the offense requires. See TEX. PENAL CODE
§ 49.02(a). Moreover, it is clear that Trammell refused verbal commands and
then physically resisted the officers’ attempt to arrest him. See Griggs, 841
F.3d at 314. In light of the circumstances confronting the officers, the officers’
decision to use this degree of force, which included a knee strike to Trammell’s
thigh and pulling Trammell to the ground in a headlock, was not objectively
unreasonable.
      The majority concludes there are several genuine factual disputes, but it
does not always view the facts from the perspective of a reasonable officer on
the scene. For example, it concludes there is “a question of fact as to whether
Trammell posed any danger to himself,” and there is “a factual dispute as to
whether Trammell was actively resisting arrest . . . .” When we review a grant
of summary judgment in this context, we “first constru[e] disputed historical
facts in favor of the non-movant,” but we “then ask how a reasonable officer
would have perceived those historical facts.” Hill v. Carroll Cnty., 587 F.3d
230, 234 (5th Cir. 2009). So the question is not, for example, whether “a
reasonable jury might find that [Trammell] was not actually resisting arrest,”
but whether the force used was reasonable “under the facts as a reasonable
officer would perceive them[.]” Griggs, 841 F.3d at 313.


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                                 No. 16-50981
      The majority also focuses on the “quickness with which the officers
resorted to tackling Trammell to the ground” as a factor suggesting the force
used was not reasonable. We have previously considered the quickness with
which an officer resorts to force in assessing the reasonableness of that force.
See Deville v. Marcantel, 567 F.3d 156, 168 (5th Cir. 2009). We have also
recognized, though, that arrests are “inherently dangerous and can escalate
precipitously if the arrestee is not overcome immediately.” Poole v. City of
Shreveport, 691 F.3d 624, 631 n.6 (5th Cir. 2012). Here, the disputed use of
force came in response to Trammell’s “instantly” pulling away from the officers
as they attempted to gain control of his hands. In other words, the escalation
started when Trammell physically resisted, and the officers responded in order
to gain control. See Poole, 691 F.3d at 625–26, 629. Perhaps the officers
reached a quick decision to reach for Trammell’s arm to place him under arrest,
but the majority agrees that “it is reasonable for an officer to attempt to grab
a noncompliant suspect’s arm in an attempt to handcuff the suspect[.]” This
was not a situation where mere passive resistance was quickly followed by a
police officer’s sudden escalation of force. See Deville, 567 F.3d at 167–68.
      The majority says it is “unclear at what point passive resistance becomes
the sort of active resistance which justifies force,” suggesting that Trammell’s
actions were on the passive side of resistance. Our cases discussing passive
resistance, however, typically involve suspects that use little if any physical
resistance. See Hanks v. Rogers, 853 F.3d 738, 746 (5th Cir. 2017); Deville, 567
F.3d at 167.     Here, after Trammell declined to follow Officer Fruge’s
commands, and after Officer Fruge asked Trammell to put his hands behind
his back, Trammell actively pulled away from the arresting officers. The
majority is also convinced a fact question exists about the reasonableness of
the force used to gain control over Trammell once he was on the ground.


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                                  No. 16-50981
      Regardless, though, the law was not clearly established so that “every
‘reasonable official would have understood’” that the force used here was
unlawful. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)). The majority relies heavily on one case
to conclude that the law was clearly established. See Goodson v. City of Corpus
Christi, 202 F.3d 730 (5th Cir. 2000). That case focused on whether the officers
violated the defendant’s right to be free from seizure without reasonable
suspicion. See id. at 736–40. After reversing summary judgment on that
claim, the court also held the defendant raised a fact issue regarding whether
the officers, “who lacked reasonable suspicion to detain and frisk [the
defendant] and from whom [the defendant] was not fleeing,” used reasonable
force. Id. at 740. Goodson’s import in the excessive-force context is limited
because it focused on the officers’ lack of reasonable suspicion. For that reason,
we said in Poole that Goodson “lack[ed] analytical force in assessing the
reasonableness of [the officer’s] actions” regarding the amount of force used.
Poole, 691 F.3d at 632.
      Griggs supports that the law was not clearly established in our case. See
Griggs, 841 F.3d at 313–14. In Griggs, after the officer told the defendant to
stop performing a one-legged stand sobriety test and to put his hands behind
his back, the defendant “lurched to one side and said ‘no, no.’” Id. at 313. The
officer “immediately placed [the defendant] in a choke hold, swept his legs out
from under him, and body-slammed him onto the nearby grass.” Id. Once on
the ground, the officer punched the defendant several times with a closed fist
to the back of the head as he struggled to gain control of the defendant’s hands.
Id. at 311, 315. We concluded that our precedent did not clearly establish that
the officer’s takedown maneuver or use of “non-deadly punches” to gain control
of the defendant was constitutionally unreasonable.         Id. at 314–15.     We
distinguished Goodson because that case “turned not on whether the force was
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                                 No. 16-50981
excessive, but on whether the force was justified at all because fact issues
remained as to whether the officer had reasonable suspicion to initiate the
stop.” Id. at 314. Here, as in Griggs, our precedents do not make clear to every
reasonable officer that the force used was unlawful. See id. at 314–15.
      I would affirm the district court in all respects. Therefore, I respectfully
dissent in part.




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