          IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                             ___________________           United States Court of Appeals
                                                                    Fifth Circuit

                                No. 12-41223                      FILED
                             ___________________            October 2, 2014
                                                             Lyle W. Cayce
CLAUDIA DAWSON,                                                   Clerk

            Plaintiff - Appellant

v.

ANDERSON COUNTY, TEXAS; SHERIFF GREG TAYLOR; JAILER
KAREN GILES; JAILER CHENEYA FARMER; JAILER SARAH WATSON;
JAIL SERGEANT DARRYL WATSON,

            Defendants - Appellees

                           _______________________

                Appeal from the United States District Court
                     for the Eastern District of Texas
                          _______________________

     ON PETITION FOR REHEARING AND REHEARING EN BANC
               (Opinion May 6, 2014, 566 F. App’x 369)


Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

      The Petition for Rehearing is DENIED. Judge Dennis dissents from the
denial of panel rehearing for the reasons stated in his panel dissent of May 6,
2014, Dawson v. Anderson County, Texas, 566 F. App’x 369, 371–79 (5th Cir.
2014) (Dennis, J., dissenting), and the dissent from the court’s denial of
                                 No. 12-41223

rehearing en banc.
      The court having been polled at the request of one of its members, and a
majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5TH Cir. R. 35), the Petition
for Rehearing En Banc is also DENIED.
      In the en banc poll, five judges voted in favor of rehearing (Judges Jolly,
Dennis, Elrod, Haynes, and Graves) and ten judges voted against rehearing
(Chief Judge Stewart and Judges Davis, Jones, Smith, Clement, Prado, Owen,
Southwick, Higginson, and Costa).



ENTERED FOR THE COURT:



__________________________________
STEPHEN A. HIGGINSON
UNITED STATES CIRCUIT JUDGE




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HAYNES, Circuit Judge, joined by DENNIS and GRAVES, Circuit Judges,
dissenting from Denial of Rehearing En Banc: 1

       Police officers put their lives on the line every day to keep us safe, and I
am grateful for the fact that we have men and women willing to serve for
relatively low pay in these essential positions.              The doctrine of qualified
immunity recognizes that split-second decisions made in (literally) life and
death situations should not be second-guessed by judges or juries far removed
from the scene. However, immunity for officers is qualified, not absolute. The
fact that Section 1983 liability exists in the first place recognizes that when a
person is given a badge and a gun, the potential for abuse of power exists. The
doctrine of qualified immunity is not meant to protect officers who behave
abusively. Cf. Ramirez v. Martinez, 716 F.3d 369, 373, 378–79 (5th Cir. 2013)
(upholding denial of summary judgment where officer tased suspect after he
had been handcuffed and subdued).

       Appellant Claudia Dawson accused several jail officers of using excessive
force by issuing unreasonable orders for sport and shooting her with a
pepperball gun when she refused to comply. The panel majority opinion found
the jailers entitled to qualified immunity based on its conclusion that law
officers may use “measured force” against an arrestee who refuses immediately
successive search orders. Dawson, 566 F. App’x at 370–71 (majority opinion).
Because there are genuine issues of fact as to whether the force was objectively
reasonable, I conclude that the majority opinion erred in affirming the district
court’s opinion.




       1  Judge Dennis joins this dissent for the reasons set forth herein and for the reasons
set forth in his dissent from the panel opinion. Dawson v. Anderson Cnty., 566 F. App’x 369,
371–79 (5th Cir. 2013) (Dennis, J., dissenting).
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      The Supreme Court’s recent decision in Tolan v. Cotton reminds us that,
for summary judgment motions based on qualified immunity, the facts must
be viewed in context and in the light most favorable to the nonmovant. 134 S.
Ct. 1861, 1866 (2014). After Dawson was arrested and brought to the jail, she
was asked to “squat and cough” while undressed in the presence of four armed
jailers. The stated reason for the “squat and cough” was that the jailers needed
to determine whether Dawson had secreted contraband or weapons on her
person. Dawson testified that she complied with the initial command to “squat
and cough.” Anderson County contends she did not comply at all. The jailers
asked Dawson to “squat and cough” again, allegedly stating that they would
make her “squat and cough” “all night long.” Dawson refused. At some point,
the jailers responded by shooting her with a pepperball gun to force
compliance.

      As we must view the facts in the light most favorable to Dawson, we must
assume she did comply with the initial command. Assuming Dawson complied,
a jury could infer that the jailers were not concerned about safety at all but
rather were issuing unreasonable orders for sport. See Tolan, 134 S. Ct. at
1867–68 (vacating grant of summary judgment where “a jury could reasonably
infer that [the plaintiff’s] words, in context, did not amount to a statement of
intent to inflict harm”). In that light, it would be unreasonable for a jailer to
take Dawson’s refusal to comply for the jailer’s amusement a second time (after
already squatting and coughing), without more, as license to begin shooting
pepperballs at her.    No case law suggests this sort of procedure can be
conducted for any reason other than to assure officers there is nothing hidden
inside the cavity. As such, summary judgment was improper.

      I recognize, however, that the fact that a case is wrongly decided on the
merits is not, by itself, a basis for en banc rehearing. FED. R. APP. P. 35(a).
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This case presents larger questions that would benefit from en banc
consideration. Where is the line between a legitimate security protocol and
government oppression? What standard should apply when the alleged victim
of police abuse has been arrested but is not yet processed for pretrial
detainment?    Both questions are worthy of this full court’s attention.       I
therefore dissent from the court’s decision not to rehear this case en banc.

      I agree that Supreme Court precedent makes a strip search with a “squat
and cough” arguably permissible for an initial search.       Florence v. Bd. of
Chosen Freeholders of Cnty. of Burlington, 132 S. Ct. 1510 (2012). But does
Florence mean an officer can make a naked, defenseless arrestee “squat and
cough” “all night long?” Once an arrestee “squats and coughs,” how many more
times must she comply? Is an arrestee required to follow any order from a
group of armed jailers, regardless of how ridiculous, or face a pepperball to
force compliance? Where is the line? Dawson argues that since she complied
once, and no officer indicated a problem with the first “squat and cough,”
requiring her to “squat and cough” “all night long” just to humiliate her is not
a legitimate basis upon which to use force, such as a pepperball shot, to obtain
compliance. I submit that we cannot and should not tolerate unnecessary
harassment and humiliation of arrestees for the amusement of officers.

      Further, we lack clarity as to which standard should apply to determine
whether the use of force was excessive in this case. When a plaintiff alleges
that a government official has employed “excessive force” in violation of the
Constitution, several constitutional standards are potentially applicable (the
Fourth, Eighth, and Fourteenth Amendments). Whether a particular standard
applies turns on the plaintiff’s status during the relevant time period.




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                                  No. 12-41223

      At one end of the timing spectrum are excessive force claims arising
during the initial arrest or apprehension of a free citizen, which are governed
by the Fourth Amendment. As explained by the Supreme Court in Graham v.
Connor, when an “excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment, which guarantees citizens
the right ‘to be secure in their persons . . . against unreasonable . . . seizures’
of the person.” 490 U.S. 386, 394 (1989) (quoting U.S. CONST. AMEND. IV).
Analysis of a Fourth Amendment excessive force claim involves consideration
of the need for force and the so-called Graham factors: the “severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. at 396.

      At the other end of the spectrum are excessive force claims arising during
incarceration, after criminal prosecution is complete. A convicted inmate’s
excessive force claim is governed by the Eighth Amendment. As explained by
the Supreme Court in Hudson v. McMillian, “whenever prison officials stand
accused of using excessive physical force in violation of the Cruel and Unusual
Punishments Clause [of the Eighth Amendment], the core judicial inquiry
is . . . whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” 503 U.S. 1, 6–7
(1992). Analysis of an excessive force claim under the Eighth Amendment
includes consideration of the Hudson factors: “[1] the extent of the injury
suffered; [2] the need for the application of force; [3] the relationship between
the need and the amount of force used; [4] the threat reasonably perceived by
the responsible officials; and [5] any efforts made to temper the severity of a
forceful response.” Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)

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                                 No. 12-41223

(citation and internal quotation marks omitted). In contrast to the Fourth
Amendment excessive force inquiry under Graham, which prohibits
consideration of the officer’s subjective intent, “[t]he focus of [the Eighth
Amendment excessive force inquiry under Hudson] is on the detention facility
official’s subjective intent to punish.” Valencia v. Wiggins, 981 F.2d 1440, 1449
(5th Cir. 1993).

      Between these two periods, i.e., between the time a suspect is initially
arrested and then is incarcerated after being prosecuted, is pretrial
detainment. The Due Process Clause of the Fourteenth Amendment protects
pretrial detainees from excessive force. See Graham, 490 U.S. at 395 n.10;
Brothers v. Klevenhagen, 28 F.3d 452, 455–56 (5th Cir. 1994) (“A pretrial
detainee receives the protection of the Due Process Clause of the Fourteenth
Amendment.”).      Although the Due Process Clause of the Fourteenth
Amendment protects pretrial detainees from excessive force, we have held that
excessive force claims arising during a plaintiff’s pretrial detainment are also
governed by the Supreme Court’s test from Hudson. See Valencia, 981 F.2d at
1446; see also United States v. Daniels, 281 F.3d 168, 179 (5th Cir. 2002)
(explaining that “a claim of excessive force by a law enforcement officer is
correctly examined under the same standard regardless whether the claim
arises under the Eighth Amendment or the Fourteenth Amendment”). That is
because “it is impractical to draw a line between convicted prisoners and
pretrial detainees for the purpose of maintaining jail security.” See Valencia,
981 F.2d at 1446. Thus, “when a court is called upon to examine the amount
of force used on a pretrial detainee[] for the purpose of institutional security,
the appropriate analysis is that announced in . . . Hudson.” Id.

      Less clear is the person who, like Dawson, has been arrested but not yet
processed for pretrial detainment.     We should take this case en banc to
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announce clearly which of these standards applies to such a person. For its
part, the majority opinion does not announce or follow any standard
whatsoever. It rests, instead, on the seemingly unassailable notion that law
enforcement officers are entitled to use force to obtain compliance with
necessary commands. See Dawson, 566 F. App’x at 370–71. The problem here
is that this analysis overlooks a significant factual dispute between the officers,
who contend that Dawson did not comply at all (thus, she refused a “necessary
command”), and Dawson, who contends that she did comply and that the
further commands to “squat and cough” “all night long” were issued merely for
sport.       Three aspects of the evidence support Dawson’s position: (1) the
testimony of jailer Darryl Watson, 2 who agreed that one “squat and cough” is
all that is necessary for security purposes such that subsequent “squat and
coughs” would be “wrong,” see Los Angeles Cnty. v. Rettele, 550 U.S. 609, 615
(2007) (deputies were not “free to force [plaintiffs] to remain motionless and
standing for any longer than necessary”); (2) the fact that, taking Dawson’s
evidence as true, there was no security threat; and (3) the “totality of the
circumstances,” including statements allegedly made by the jailers, suggest
the commands to Dawson were for sport, not security.

         The true import of applying the correct standard becomes clear when
considering the latter point. The Hudson test considers the subjective intent
of the jailers. Valencia, 981 F.2d at 1449. Dawson alleged that the jailers
laughed at her and were verbally abusive throughout the strip search. In this
regard, the majority opinion misapprehended the import of the laughing and
harassing. The majority opinion stated that verbal abuse by a jailer does not



         2 Watson testified: “Q: Now, if she did squat and cough one time when she was told
to . . . then that would have been in compliance . . . ? A: Yes, sir. Q: And it would be wrong
to have her get down and squat again? A: Yes, sir.”
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                                 No. 12-41223

give rise to a Section 1983 claim. See Dawson, 566 F. App’x at 371. While I
agree that verbal abuse, alone, is not actionable, the alleged statements inform
the question of whether or not the commands were legitimate or for
harassment and, in turn, whether force was justified to obtain compliance. In
examining the “totality of the circumstances” and whether the commands were
consistent with a need for security or simply done for sport, the alleged
contemporaneous comments support a conclusion that it was the latter, not the
former.

         The facts as alleged by Dawson—which must be taken as true at this
stage (even if ultimately a jury concluded they were greatly exaggerated)—
suggest a level of sadism and brutality that is totally unacceptable.       The
majority vote of this court not to take this case en banc should not be viewed
as condoning the conduct alleged here.          It is not even necessarily an
endorsement of the panel majority opinion. Judges vote against a grant of en
banc rehearing for a variety of reasons that can include a conclusion that the
particular issue is not squarely presented by the facts of the particular case.
Nonetheless, this case raises serious questions that deserve clarity from this
court.     I therefore respectfully dissent from the court’s decision to deny
rehearing en banc.




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