     Case: 13-50521      Document: 00512729130         Page: 1    Date Filed: 08/11/2014




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


                                      No. 13-50521                              FILED
                                                                          August 11, 2014
                                                                           Lyle W. Cayce
CARLOS CHACON,                                                                  Clerk

                                                 Plaintiff – Appellee
v.

OFFICER ERIC COPELAND; OFFICER RUSSELL ROSE,

                                                 Defendants – Appellants




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CV-226


Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Officers Eric Copeland and Russell Rose sought summary judgment on
the basis of qualified immunity in an action brought by Carlos Chacon under
42 U.S.C. § 1983. Chacon’s suit alleges that Officers Copeland and Rose used
excessive force in arresting him. The district court denied the officers’ motion
for summary judgment. Officers Copeland and Rose filed an interlocutory
appeal. We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-50521
                     FACTS AND PROCEDURAL HISTORY
      Carlos Chacon, the plaintiff, testified in a deposition as to the following
events on April 29, 2011. After working out late at a gym in Austin, Texas,
then cleaning up and having supper, Carlos Chacon searched for a massage
service on the internet. Finding one, he called the telephone number and
scheduled an appointment for that night. The woman who answered the call
told him she was a masseuse, that a massage would cost $75, and asked
Chacon to go to her location behind a restaurant. He said he thought it would
be a business location. Once driving to where he had been directed, he saw a
motel but no sign of any other business. Chacon called again and was told to
go to a specific room at the motel. Though suspicious, Chacon said he was
willing to give the ostensible masseuse the benefit of the doubt. He arrived at
the motel room, paid the woman $75, but she made it clear that sexual services
were what she planned on providing. He told the woman that her behavior
was wrong and illegal. Chacon said he would call the police to report her.
During this discussion, a man began kicking the motel room door and yelling
at him that the police were there and going to tow his car unless he moved it.
      Chacon left the room and found the motel manager and on-site security
guard in order to tell them about the problem. When they were reluctant to
help him, Chacon told the two that he was going to call 911 himself and made
his first of two such calls. Chacon testified that as he called, the man who had
been kicking the door reappeared and threatened to kill him, reaching into his
shorts as if to grab a gun. Chacon then ran to his car, got inside, and began
driving for his own safety. From his car, Chacon initiated a second 911 call to
report the incident.
      Recordings of the calls to police show that the first call was about five
minutes long and ended abruptly. The second call began with Chacon’s telling
the operator that his first call had been disconnected. The next call also lasted
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                                    No. 13-50521
about five minutes. In both calls, Chacon identified himself as Carlos Chavez
and provided the operator with his location at the motel. 1 He explained to the
operator that he tried to get a massage but encountered difficulties with the
masseuse, another man, and the motel security officer. Chacon also reported
a man was walking around the motel with a gun, that he had waved the gun
at Chacon, and that he had tried to shoot him as Chacon drove his car in the
motel parking lot.
      During the call, Chacon described the man with the gun as an African
American male wearing a white shirt, black hat, and black shorts.                   He
described other persons he believed were involved with the man including a
Hispanic male in an orange shirt and a woman wearing what appeared to be a
blue security uniform, which Chacon believed to be fake. Chacon indicated he
was driving a silver BMW around the motel parking lot.
      As a result of the calls, two Austin Police Department officers, Officers
Copeland and Rose, were dispatched.            Because a gun had been reported,
Chacon’s call was categorized as a “hot shot” call. Both officers drove to the
scene with their lights and sirens running, which activated their dashboard
cameras and microphones. The district court found that the sound on the
videos from each patrol car confirmed the radio dispatcher at least twice stated
that the report was of an African American male in a white shirt and black
shorts carrying a gun and the complainant was driving a silver BMW.
      Officer Rose arrived on the scene first and encountered a group of four
people near the motel manager’s office: a woman in a security uniform, a
Hispanic male in an orange shirt, a Caucasian woman, and an African
American male in black shorts and a white shirt, later identified as John



      1 Chacon testified that he used the Chavez name because the operator would find it
simpler to spell, and he did not want to slow down the police response.
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Green. Notwithstanding the reports he just received, Officer Rose, when
flagged down by the African American male and the woman in the security
guard uniform, asked if either had called about a gun. The African American
male, Green, responded that no one had called about a gun and explained that
a drunk man came to his room, refused to leave, and was now circling the
parking lot in a BMW. One of the women present added that she saw the driver
on his phone and she suggested that he was the one who called about the gun.
She then claimed that Green called 911 as well. Green then agreed that he
had called the police. The district court noted that the record contains no
evidence of calls other than the two made by Chacon.
      In the midst of Officer Rose’s conversation with the group, Chacon’s
BMW came into view. Green pointed it out as containing the drunk man. The
district court found that as “Chacon slowly approached in his vehicle, Officer
Rose immediately drew his gun and pointed it at Chacon.” The district court
noted that Officer Rose “never identified himself as an Austin Police
Department officer or any other law enforcement official, and laced nearly
every statement with profanity.” While pointing a flashlight as well as his
patrol car’s headlights at Chacon, Officer Rose told Chacon to stop the car and
show his hands. The district court found that Chacon “immediately responded,
‘I don’t have a gun, he’s the one,’ presumably referencing Green.” Officer
Copeland, having just arrived at the scene, drew his gun and joined Officer
Rose as they approached Chacon’s car. Officer Rose instructed Chacon to put
his hands out the window. Chacon initially reached his hands out the window
as instructed, but then withdrew them. The district court found that Chacon
put his hands back in the car “allegedly to put the car in park.”
      Officers Copeland and Rose grabbed Chacon as he opened his car door
and ordered him to get out. As the district court characterized the incident,
“Chacon calmly explained, yet again, he did not have a gun, while Officer Rose
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                                 No. 13-50521
continued to yell at him to get on the ground.”            Officer Rose “followed
immediately, before Chacon could possibly have complied, [with] a new order
to ‘not move.’ Chacon replied calmly, ‘I’m not moving.’” Officer Rose looked
into Chacon’s car and did not see a gun. When Chacon then asked Officer Rose
if he was a police officer, Officer Rose replied, “you’re damn right I am.”
      Officer Rose tried to handcuff Chacon. The district court determined
that Chacon tried to pull away from Rose, and “a scuffle broke out between the
three men, with both officers (who are much smaller than Chacon) struggling
to take Chacon to the ground.” The district court noted that Chacon “never
appeared to swing at either officer, nor did he appear to be interested in
fleeing,” but described the interaction as “a true struggle” where “Chacon spins
around and shoves one of the officers off of him.”
      The district court explained what occurred next this way:
             Chacon testified he was attempting to lower himself to the
      ground slowly and safely, and was concerned the officers were
      going to throw him to the ground and injure him. Once Chacon was
      down but apparently still resisting the handcuffs, Officer Copeland
      punched him twice in the face in an attempt to subdue him. The
      officers continued to struggle with Chacon’s arms and at one point
      instructed Chacon not to reach for one of the officers’ weapons.

      At some point in the incident, Chacon was on his back on the ground.
After securing a handcuff on one wrist, the officers tried to turn Chacon on his
stomach to secure both of his hands behind his back. The district court found
that “Chacon continued to resist, and Officer Rose fired his Taser at Chacon.”
After only one of the two Taser probes seemed to hit Chacon, Officer Rose
“administered two short ‘drive stuns’ from the Taser.” Both officers managed
to “shock themselves with the Taser wires in the scrum,” but the Taser also
subdued Chacon.        The district court found that Chacon “eventually
surrender[ed], exclaiming ‘I’m done, I’m done, I’m done.’”           The officers

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                                  No. 13-50521
handcuffed him and kept him on the pavement until additional police arrived.
Chacon was arrested for resisting a search. Following his arrest, an emergency
medical team arrived and treated Chacon for a cut above his eye that the
district court found was “caused by Officer Copeland’s punches.” Chacon was
taken to the hospital where he received stitches for the cut.
      Chacon brought a claim alleging excessive force on the part of Officers
Copeland and Rose under 42 U.S.C. § 1983. Officers Copeland and Rose filed
a motion for summary judgment on the basis that they were entitled to
qualified immunity from Chacon’s excessive force claim. The district court
denied the motion. It held that Chacon had presented sufficient evidence to
raise a dispute of material fact about whether the conduct of Officers Copeland
and Rose had violated Chacon’s constitutional rights and that such conduct
was objectively unreasonable in light of clearly established law.
      Officers Copeland and Rose filed this interlocutory appeal from the
district court’s denial of their motion for summary judgment. The officers
contest certain aspects of the district court’s version of the events. They assert
that the video evidence of the incident is uncontroverted and supports their
accounts. They ask this court to review the footage of their encounter with
Chacon and analyze the facts in light of the video evidence rather than the
district court’s findings.
                                 DISCUSSION
       We have jurisdiction to consider an interlocutory appeal from the denial
of a motion for summary judgment based upon qualified immunity because “its
denial is a collateral order that is immediately reviewable to the extent the
denial was based on an issue of law.” Ramirez v. Martinez, 716 F.3d 369, 373
(5th Cir. 2013). As to factual questions, we have no jurisdiction to review the
district court’s decision that a genuine issue of fact exists. Brown v. Strain,
663 F.3d 245, 248 (5th Cir. 2011). We do, though, have jurisdiction to decide
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                                 No. 13-50521
whether a particular factual dispute found to exist by the district court is
legally material. See Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012).
Within these limitations, we review de novo a district court’s denial of a motion
for summary judgment on the basis of qualified immunity.              Kovacic v.
Villarreal, 628 F.3d 209, 211 (5th Cir. 2010).
      In considering a challenge to a denial of a motion for summary judgment
on the basis of qualified immunity, we assume the validity of a plaintiff’s
version of facts. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007) (citation
omitted). A narrow exception to our acceptance of a plaintiff’s evidence on
summary judgment is if video evidence undeniably contradicts the plaintiff’s
version of the facts such that no reasonable jury could believe it. See Scott v.
Harris, 550 U.S. 372, 380 (2007). Officers Copeland and Rose contend that
uncontroverted video evidence shows that the actions taken against Chacon
were reasonable as a matter of law in light of the circumstances presented. We
consider the available video evidence.


I. Video Evidence
      Two decisions guide our consideration of the video evidence: Scott v.
Harris, 550 U.S. 372 (2007), and Ramirez v. Martinez, 716 F.3d 369 (5th Cir.
2013). The Supreme Court concluded that, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that
no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.” Scott, 550
U.S. at 380. We then stated only the obvious by noting that video evidence is
not a source of uncontroverted fact if “[t]he contents of the video are too
uncertain to discount [the plaintiff’s] version of the events under Scott.”
Ramirez, 716 F.3d at 374.


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                                  No. 13-50521
      We have reviewed the videos. We agree with the district court that they
do not clearly reveal the officers’ version of events to be correct. The videos
were taken by dashboard-mounted cameras inside the two police cruisers. The
video footage began when Officer Copeland and Officer Rose each activated the
emergency lights and sirens in their cruisers. It includes Officer Rose’s arrival
and Officer Copeland’s slightly later arrival at the motel, the discussion
between Officer Rose and bystanders, the approach of Chacon’s BMW, the
interaction among Chacon, Officer Copeland, and Officer Rose, the later arrival
of additional officers, and the continued work at the scene up to the departure
of law enforcement.
      The vantage point of each officer’s dashboard-mounted cameras, relative
to Chacon’s car and the interaction between the law enforcement officers and
Chacon, is too distant to depict several of the key actions with clarity. The
recorded statements by Officers Copeland and Rose and by Chacon are
incomplete.    The visual record of the interaction is equally incomplete,
frustrated by the dark of night, the glare of headlights, and a dropped
flashlight’s beam that obscures the video during a significant portion of the
altercation.    Combined, these limitations leave some circumstances
ambiguous, well short of the clarity necessary to conclude that Chacon’s
allegations can be blatantly contradicted by the video evidence. Some aspects
of the fact-based disputes might still be resolved with the aid of video evidence,
but reliance solely on the video would be “too uncertain to discount [the
plaintiff’s] version of the events under Scott.” Ramirez, 716 F.3d at 374.


II. The District Court’s Denial of Qualified Immunity
      We next consider whether the district court erred in finding that Chacon
raised a dispute of material fact as to whether the officers violated his
constitutional rights and that their actions were objectively unreasonable in
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                                 No. 13-50521
light of clearly established law such that qualified immunity is inappropriate.
As noted already, our analysis is guided by the “axiom that in ruling on a
motion for summary judgment, ‘[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.’” Tolan v.
Cotton, 134 S. Ct. 1861, 1863 (2014).
      “Qualified immunity protects public officials from suit unless their
conduct violates a clearly established constitutional right.” See Brumfield v.
Hollins, 551 F. 3d 322, 326 (5th Cir. 2008). Qualified immunity involves two
considerations: (1) whether the public official’s conduct violated an actual
constitutional right based on the facts alleged, and (2) whether the public
official’s actions were objectively unreasonable in light of clearly established
law at the time of the incident. Saucier v. Katz, 533 U.S. 194, 200 (2001),
overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 232-36
(2009). Key to the second consideration is whether the law at the time of the
incident provided “fair warning” to the officers “that their alleged [conduct]
was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). We analyze
both Saucier considerations 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). Even so, we view all evidence “in the light most
favorable” to Chacon, as the nonmoving party. Tolan, 134 S. Ct. at 1863.
      In ruling on the officers’ motion for summary judgment, the district
court’s task was to determine whether a dispute of material fact exists, such
that a grant of qualified immunity would be inappropriate. At times, the
district court seemingly resolved these disputes by rendering its own factual
findings. As we have already discussed, a court should “not make credibility
determinations or weigh the evidence” in ruling on a motion for summary
judgment.   Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). Because Federal Rule of Civil Procedure 56 does not allow the district
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                                   No. 13-50521
court to make findings of fact from disputed evidence when denying a motion
for summary judgment, we construe the district court’s ruling to be that, when
viewed in a light most favorable to the nonmovant, the ultimate fact-finder
could make such findings.        Regardless, as we have stated, the factual
characterizations by the district court do not affect our de novo review.
      On that basis, we agree with the district court’s conclusion that “Chacon
has produced sufficient evidence to survive the Officer Defendants’ motion for
summary judgment” because disputes of material fact exist. Resolution of the
disputes is for the ultimate trier of fact.


      a. Violation of Chacon’s constitutional rights
      In considering whether the police violated an actual constitutional right,
the district court correctly considered the three factors articulated in Graham,
490 U.S. at 396, to find a dispute of material fact. These factors are “the
severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether [the suspect] is actively
resisting arrest or attempting to evade arrest by flight . . . .” Id.


             i. First Graham factor
      We first consider whether a dispute of material fact exists as to the first
factor in Graham, the severity of the relevant crime.
      Officers Copeland and Rose contend that the “district court engaged in
improper post-hoc scrutiny when it criticized [them] for relying on the
‘obviously self-serving’ statement of Green” when he accused Chacon of being
“intoxicated, involved in a disturbance at the hotel, and persistently driving
around the area.” They assert it was reasonable for them to rely on Green’s
allegations about Chacon in forming “the suspicion that Chacon was involved
in potentially serious criminal activity.” They further claim they “did not know
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                                  No. 13-50521
the identity of the caller or the precise nature of the complaint” when they
arrived at the scene, only that it was a “high priority ‘hot shot’ call.”
      The district court, in assessing the first Graham factor, emphasized the
competing accounts before it that gave rise to a dispute of material fact. The
officers had been given a clear description of the person alleged to have a gun
and had been told the complainant was driving a silver BMW. It has never
been asserted that Green, or anyone else, accused Chacon of having a gun.
Further, it was Green, not Chacon, that matched the description the dispatcher
provided of the perpetrator.      Officer Rose, nonetheless, acted on Green’s
assertions about Chacon by drawing his weapon, pointing it at Chacon, and
proceeding toward Chacon’s silver BMW as Chacon approached in his vehicle.
      We find that the evidence relevant to the first factor in Graham, viewed
in a light most favorable to Chacon, creates a dispute of material fact as to
whether the severity of the crime permitted the use of force against Chacon.


      ii. Second Graham factor
      We next consider whether there are material facts in dispute as to the
second Graham factor, whether Chacon posed an immediate threat.
      The officers, on appeal, assert that Chacon “posed an immediate threat
to their safety because he repeatedly disobeyed their commands, he actively
resisted a search and the application of handcuffs, and both of the Officers
suspected he was intoxicated.”
      Under the second Graham factor, the district court determined that the
evidence did not clearly support that Chacon posed “an immediate threat to
the officers or others” such that a dispute of material fact was absent and
qualified immunity was appropriate. As the video evidence does not disclose a
complete universe of facts, we agree that there is a dispute of material fact as
to the presence of an immediate threat during the encounter.
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                                  No. 13-50521
      The district court described the sequence of events, construing facts in a
light most favorable to Chacon, and found that a trier of fact could conclude
that there was neither a justifiable fear of Chacon’s possession of a gun nor
suspicion that Chacon was intoxicated. Chacon stopped his car, put his hands
out the window, and stated, “I don’t have a gun.” At some point, Chacon
retracted his hands, “which he claims was to put the car in park and turn off
the ignition.” Chacon retracted his hands only once it was clear the officers
wanted Chacon to exit his vehicle. When Chacon exited his car at Officer
Rose’s demand, Officer Rose looked into Chacon’s car and did not see a gun.
      Considering the events after Chacon exited his car, the district court
correctly considered that a struggle broke out and that Chacon “sp[un] around
and shove[d] one of the officers off of him.” These events might more properly
be considered under the third Graham factor, but we will address them here.
The court noted that it was “undisputed Chacon never swung, kicked, or
attacked the officers in any way.” The seriousness of Chacon’s shove, and
whether a finder of fact could conclude that the shove was not active resistance,
or was disproportionately minor in relation to the severity of force used by the
officers, were fact questions not resolvable by the video and properly put to a
trier of fact. As a result, the district court did not err in concluding a dispute
of material fact exists as to whether Chacon’s actions give rise to an immediate
threat such that the officers’ force was appropriate.
      Further, the argument that Chacon was a threat because he disobeyed
the officers’ orders ignores that he was issued contradictory demands, being
told to “not move,” to “get on the ground,” to “stop moving,” and to “turn over.”
The argument that Chacon disobeyed them could be seen by a fact-finder as
“severely overwrought.” Newman, 703 F.3d at 762.
      The officers also emphasize that Chacon was a “former competitive
bodybuilder who is significantly larger” than they are. While it is unclear when
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                                  No. 13-50521
the officers would have become aware of Chacon’s build, both officers drew
their weapons while Chacon was still in his car.
      We agree that there is sufficient evidence to create a factual dispute as
to whether Chacon posed an immediate threat to the officers and others. The
district court did not err in its consideration of the second Graham factor.


      iii. Third Graham factor
      Under the third Graham factor, we must determine whether there is a
dispute of material fact concerning whether Chacon actively resisted arrest or
attempted to flee, so as to support the officers’ actions.
      The officers rely on the principle that an arrestee or suspect who refused
to comply with officer commands had “posed an immediate threat to the safety
of the officers and actively resist[ed] the officers' instructions, [such that] the
use of force was not clearly excessive.” Poole v. City of Shreveport, 691 F.3d
624, 629 (5th Cir. 2012) (quotation marks omitted). They argue that the
evidence proves Chacon at one point was turning over, reaching for the officers
and their equipment, and attempting to “throw[] Rose off of him,” all of which
justified their responses.
      These characterizations, not proven by uncontroverted evidence, do not
describe the circumstances “in the light most favorable” to the nonmovant, the
perspective we are required to take when considering summary judgment on
the basis of qualified immunity. Tolan, 134 S. Ct. at 1863.
      Like our discussion of Chacon’s showing under the second Graham
factor, it is unclear from the evidence before the district court that Chacon was
actively resisting. Even if some action by Chacon demonstrated resistance, the
fact question found by the district court remains: whether, even when
considering his possible resistance, shoving Chacon to the ground while he
attempted to explain himself, punching him in the head while he was on the
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                                  No. 13-50521
ground, or shooting him with a Taser, constituted excessive force. Police are
entitled only to “measured and ascending responses” to the actions of a suspect,
“calibrated to physical and verbal resistance” shown by that suspect. Newman,
703 F.3d at 767 (citation omitted).
      The district court did not err in concluding that a dispute of material fact
exists as to Chacon’s resistance under the third Graham factor. Such a dispute
does not counsel in favor of a grant of qualified immunity.
      We agree with the district court that a reasonable jury could find the use
of force by Officers Copeland and Rose excessive and that Chacon has
presented sufficient evidence to create a factual dispute as to whether the
officers’ use of force violated an actual constitutional right.


         b. Reasonableness in light of clearly established law
      Our second consideration in analyzing qualified immunity is whether the
officers’ actions were unreasonable in light of clearly established law. “The
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). As the district court correctly noted, the “central
concept” of this analysis is “fair warning,” which means that a reasonable
official would understand the conduct in this case violated the Fourth
Amendment. Newman, 703 F.3d at 763. “It is beyond dispute that [Chacon’s]
right to be free from excessive force during an investigatory stop or arrest was
clearly established [at the time of the incident].” Id. Further, the Graham
factors, themselves, can place an officer on notice that conduct violates clearly
established law. Id. at 764 (citing Brosseau v. Haugen, 543 U.S. 194, 199
(2004)). And, as the district court found and we upheld, there is a dispute of
material fact concerning whether the level of force used by Officers Copeland
and Rose against Chacon is constitutional under Graham.
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                                  No. 13-50521
      The officers’ arguments against a finding that their actions were
unreasonable in light of clearly established law are premised on their disputed
construction of facts and reliance on the video evidence to support this position.
We have already discussed why we agree with the district court that the video
evidence is not uncontroverted in supporting the officers’ versions of events.
From the officers’ viewpoint, they simply applied “increasingly harsh force,
including Tasers and physical strikes, when faced with struggling or resisting
subjects.” That argument, though, is necessarily premised on a finding that
Chacon was “struggling or resisting,” a fact found in dispute by the district
court and which we conclude, as a matter of law, to be material.
      The district court concluded that disputes of material fact preclude
summary judgment for Officers Copeland and Rose. We AFFIRM.




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