     Case: 15-11295       Document: 00513940670         Page: 1     Date Filed: 04/05/2017




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

                                       No. 15-11295
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                               April 5, 2017

MARCUS HANKS,                                                                Lyle W. Cayce
                                                                                  Clerk
               Plaintiff - Appellant

v.

OFFICER RANDALL ROGERS, Individually,

               Defendant - Appellee




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


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
       Below, the district court dismissed Marcus Hanks’s Section 1983 claim
against a police officer, Randall Rogers, at summary judgment on the basis of
qualified immunity. We REVERSE and REMAND to the district court for
further proceedings consistent with this opinion. 1




       1  This court has previously denied Hanks’s motion to file out of time a motion for
reconsideration in his separate appeal of the district court’s dismissal of claims against the
City of Grand Prairie, Texas. We therefore decline to consider arguments raised in Hanks’s
initial brief regarding those claims.
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                                      No. 15-11295
                           FACTUAL BACKGROUND 2
       On the evening of February 26, 2013, Hanks was driving slowly along
Interstate 30 in Grand Prairie, Texas. Hanks hoped to find his cellular
telephone on the shoulder of the road—Hanks accidentally left the phone on
top of his car at the outset of his trip, and, upon realizing his mistake, aimed
to find where the phone slid off along the roadway.
       Officer Rogers, a member of the Grand Prairie Police Department,
observed Hanks driving with his vehicle’s hazard lights engaged and
approximately 20 miles per hour under the interstate speed limit. Rogers
turned on his patrol car’s emergency lights, and Hanks immediately pulled his
car onto the shoulder of the interstate.
       Officer Rogers stopped his patrol car a short distance behind Hanks’s
vehicle and walked to Hanks’s passenger-side front window. Once at the
window, Officer Rogers stated that he had stopped Hanks because Hanks was
driving 20 miles per hour below the speed limit. Hanks told Officer Rogers that
he was searching for his phone.
       After a brief exchange regarding the phone, Officer Rogers asked Hanks
to produce his driver’s license and insurance. Hanks immediately presented
his driver’s license. Hanks could not, however, locate an insurance card for the
vehicle, which he had borrowed with permission from a relative. After waiting
silently at the window for almost one minute, Officer Rogers stated that he
would “be right back.” Only a second or two later, Officer Rogers instructed
Hanks to “step out of the vehicle and come to the back.”
       According to Officer Rogers, he ordered Hanks to exit the vehicle “[i]n an
attempt to decrease . . . Hanks’ anger.” Officer Rogers states that when he


       2The record on appeal contains an audiovisual recording of the encounter captured by
a camera in Officer Rogers’s police vehicle. The recording may be accessed via the following
internet link: http://www.ca5.uscourts.gov/opinions/pub/15/15-11295.mp4.
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                                  No. 15-11295
asked Hanks for his driver’s license and insurance, “Hanks appeared upset and
began to cuss at [Officer Rogers] for stopping him.” Hanks denies that he
“cuss[ed] at or act[ed] aggressive to Officer Rogers” while sitting in the vehicle.
      Hanks did not immediately exit his vehicle. Instead, he questioned the
basis for Officer Rogers’s instruction. Officer Rogers repeated his instruction
six times during the approximately 45-second exchange, and also calmly told
Hanks to “put his stuff up.” Hanks exited the vehicle after Officer Rogers
adopted a more assertive tone and added “do it now” to his instruction. As
Hanks exited the vehicle, Officer Rogers turned his back to Hanks’s car for
about three seconds and walked towards his patrol car.
      Officer Rogers next pointed his flashlight at a spot on the ground
between the two vehicles and instructed Hanks to stand there. Hanks silently
complied with that instruction. While walking to the spot Officer Rogers
indicated, Hanks pulled his shirt sleeves up to his elbows. Hanks also placed
his right hand into his pants pocket for about three seconds.
      Officer Rogers instructed Hanks to take his hands out of his pockets, but
by that time Hanks only had his thumbs tucked inside his pockets. In response
to the instruction, Hanks said, “what?” Officer Rogers repeated his instruction,
and Hanks lifted his hands to his waist, palms towards Officer Rogers, while
saying “my hands aren’t in my pockets.” Officer Rogers then instructed Hanks
to place his hands on the rear of Hanks’ vehicle.
      In response to Officer Rogers’s command to place his hands on the car,
Hanks moved towards the rear of his vehicle while saying, “for what? I . . . did
nothing.” Hanks initially leaned back against the rear of his vehicle, but after
about one or two seconds, and in response to Officer Rogers repeating his
commands while drawing his taser, Hanks turned his back to Officer Rogers
and placed his hands on the trunk of his car.


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                                 No. 15-11295
      Within two or three seconds, Officer Rogers next instructed Hanks to put
his hands behind his head. Hanks immediately raised his left hand to the back
of his head, and placed his right hand behind his head moments later,
simultaneously with Officer Rogers’ repetition of the command.
      As soon as Hanks’s hands reached the back of his head, Officer Rogers
instructed Hanks to “go to [Hanks’s] knees.” In response, Hanks looked over
his right shoulder and asked, “for what?” Hanks simultaneously moved his
hands to his rear, so that they were folded behind his back with his empty
palms facing Officer Rogers. Officer Rogers repeated his command twice more
over the next five seconds, and, with his hands still plainly visible behind his
back, Hanks looked over his left shoulder to ask whether he was under arrest.
Officer Rogers responded by repeating his command, and Hanks said
something inaudible on the recording before again asking whether he was
under arrest. Officer Rogers only responded by repeating his command.
      About five seconds after Hanks asked whether he was under arrest for
the second time, and immediately after Officer Rogers repeated his command
for Hanks to “go to [his] knees,” Hanks made a small lateral step with his left
foot. When Hanks took this small step, his empty hands remained surrendered
behind his back. He continued to face away from Officer Rogers, so his hands
stayed in Officer Rogers’s view. Officer Rogers still had his taser trained on
Hanks.
      Almost simultaneously with Hanks’s small step, Officer Rogers rushed
towards Hanks and administered a blow to Hanks’s upper back or neck (the
parties refer to this as a “half spear”). The blow forced Hanks’s upper body onto
the trunk of his vehicle. Officer Rogers maintained contact with Hanks as
Hanks shifted onto the ground.
      Once on the ground, Hanks laid face-down and placed his hands behind
his back. Hanks offered no resistance while Officer Rogers handcuffed him.
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                                 No. 15-11295
      Later, while sitting in Officer Rogers’s patrol car, Hanks requested
medical care. Officer Rogers issued Hanks a traffic citation, and medics
transported Hanks to Baylor Medical Center. Hanks states that he received
treatment for “Assault; Contusion; Strain; [and] Acute Myofascial Strain” and
received prescriptions for pain medications. Hanks asserts that the blow
administered by Officer Rogers has caused him “continuous pain in [his] upper
back, neck, head, and ribs,” as well as psychological fear.
      The Grand Prairie Police Department subsequently conducted an
investigation that led to Officer Rogers’s indefinite suspension. The
department’s investigation concluded Officer Rogers’s “half spear . . . was not
objectively reasonable to bring the incident under control . . . based on Mr.
Hanks’ lack of resistance.” The department’s investigation noted Officer
Rogers’s “fail[ure] to communicate to a citizen [i.e., Hanks] [that] he was under
arrest.” Notably, the investigation report viewed Hanks as a “compliant
subject.”
                         PROCEDURAL HISTORY
      Several months after the incident, on December 16, 2013, Hanks filed a
complaint against Officer Rogers and the City of Grand Prairie. Hanks’s
complaint included a claim against Officer Rogers under 42 U.S.C. § 1983,
alleging Officer Rogers used excessive force against him in violation of the
Fourth Amendment. On August 6, 2015, the district court granted summary
judgment in favor of Officer Rogers on the basis of his qualified immunity
defense. In relevant part, the district court concluded that, “[e]ven drawing all
inferences in light most favorable to [Hanks], [Hanks] has not shown that the
force used was objectively unreasonable.” The district court entered a final
judgment dismissing Hanks’s claims against Officer Rogers with prejudice on
the same day.


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                                  No. 15-11295
      On September 3, 2015, Hanks moved for a new trial, challenging the
district court’s grant of summary judgment in favor of Officer Rogers.
Considering the motion as a motion for reconsideration, the district court
denied the requested relief on December 2, 2015.
      Hanks appealed from the final order denying his motion for a new trial
on December 30, 2015.
                          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.” Griggs
v. Brewer, 841 F.3d 308, 311 (5th Cir. 2016). “Summary judgment is proper
when there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Id. at 311–312.
      “In reviewing an appeal from summary judgment, we ‘view the facts in
the light most favorable to the non-moving party and draw all reasonable
inferences in its favor.’” Id. at 312 (quoting Deville v. Marcantel, 567 F.3d 156,
163–64 (5th Cir. 2009)). However, “[Scott v. Harris] instructs that 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.”
Curran v. Aleshire, 800 F.3d 656, 664 (5th Cir. 2015) (quoting Scott v. Harris,
550 U.S. 372, 380–81 (2007)).
                                   ANALYSIS
      “A qualified immunity defense alters the usual summary judgment
burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “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.
      “In determining qualified immunity, courts engage in a two-step
analysis.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016). “First, they
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                                   No. 15-11295
assess whether a statutory or constitutional right would have been violated on
the facts alleged.” Id. “Second, they determine whether the defendant’s actions
violated clearly established statutory or constitutional rights of which a
reasonable person would have known.” Id. at 312–13.
       “In excessive force cases, ‘the second prong of the analysis is better
understood as two separate inquiries: whether the allegedly violated
constitutional rights were clearly established at the time of the incident; and,
if so, whether the conduct of the defendants was objectively unreasonable in
light of that then clearly established law.’” Id. at 313 (quoting Tarver v. City of
Edna, 410 F.3d 745, 750 (5th Cir. 2005). “If officers of reasonable competence
could disagree as to whether the plaintiff's rights were violated, the officer's
qualified immunity remains intact.” Id. (quoting Tarver, 410 F.3d at 750).
       At the first step, we conclude Hanks has alleged facts which, when
viewed in the manner most favorable to him, would establish a violation of
Hanks’s Fourth Amendment right to be free from excessive force during a
seizure. Turning to the second step, we conclude the constitutional right at
issue was clearly established at the time of the incident, and that Officer
Rogers’s conduct was objectively unreasonable in light of then-existing clearly
established law. We therefore hold that Hanks has met his burden of rebutting
Officer Rogers’s qualified immunity defense.
 I.    Constitutional Violation
       “To prevail on an excessive-force claim, [a plaintiff] must show ‘(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.’”
Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting Elizondo v. Green,
671 F.3d 506, 510 (5th Cir. 2012) and Collier v. Montgomery, 569 F.3d 214, 218
(5th Cir. 2009)). Our precedents recognize that inquiries regarding whether a
use of force was “clearly excessive” or “clearly unreasonable . . . are often
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                                 No. 15-11295
intertwined,” Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012), and
we consider those questions together below. We conclude that Hanks has
adduced sufficient evidence regarding each element of an excessive force claim
to survive summary judgment.
      A. Injury
      “[W]e no longer require ‘significant injury’ for excessive force claims,”
Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005) (citing Harper v.
Harris County, Tex., 21 F.3d 597, 600 (5th Cir. 1994)), but “the injury must be
more than de minimis,” id. (citing Williams v. Bramer, 180 F.3d 699, 703 (5th
Cir.1999)).
      Officer Rogers contends that Hanks’s injuries “are de minimis, and are
thus insufficient to support a claim for excessive force.” Appellee’s Br. at 26.
We disagree.
      On the night of his encounter with Officer Rogers, Hanks received
medical treatment at the Baylor Medical Center at Irving. There, he received
a diagnosis noting contusions, acute strains, and bruised ribs. Hanks received
two prescriptions for pain medication and a form releasing him from work for
two days. According to Hanks, he still experiences pain in his upper back, neck,
head, and ribs as a result of the encounter. Hanks’s allegations, read in light
of the contemporaneous medical documentation in the record, state more than
a de minimis injury.
      B. Clearly excessive and clearly unreasonable use of force
      “Excessive force claims are necessarily fact-intensive; whether the force
used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of
each particular case.’” Deville, 567 F.3d at 167 (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)). “Factors to consider include ‘the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the


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                                      No. 15-11295
officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.’” Id. (quoting Graham, 490 U.S. at 396).
       “The calculus of reasonableness must embody allowance for the fact 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.” Graham, 490 U.S.
at 396–97. “We must adopt ‘the perspective of a reasonable officer on the scene,
rather than judge with the 20/20 vision of hindsight.’” Cooper, 844 F.3d at 522
(brackets omitted) (quoting Graham, 490 U.S. at 396). “Our inquiry is ‘whether
the officer’s actions were objectively reasonable in light of the facts and
circumstances confronting him, without regard to his underlying intent or
motivation.’” Cooper, 844 F.3d at 522 (brackets and internal quotations
omitted) (quoting Graham, 490 U.S. at 397).
       We conclude that under the circumstances documented in the recording
in this case, a reasonable officer on the scene would have known that suddenly
resorting to physical force as Officer Rogers did would be clearly excessive and
clearly unreasonable.
                            1. Severity of violations
       Officer Rogers stopped Hanks for driving 20 miles per hour below the
posted speed limit. Hanks was unable to produce proof of insurance for the
vehicle he was driving in the time Officer Rogers allowed. 3 These “minor traffic
violation[s] . . . ma[de] the need for force substantially lower than if [Hanks]
had been suspected of a serious crime.” See Deville, 567 F.3d at 167.




       The Grand Prairie Police Department’s investigation of this incident concluded that
       3

“Mr. Hanks was not given sufficient time to attempt to locate his proof of insurance . . . .”
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                                     No. 15-11295
                            2. Immediate safety threat
       Mindful that “[w]e must adopt ‘the perspective of a reasonable officer on
the scene, rather than judge with the 20/20 vision of hindsight,’” Cooper, 844
F.3d at 522 (brackets omitted) (quoting Graham, 490 U.S. at 396), we
nonetheless perceive little basis in the recording from which Officer Rogers
could have reasonably viewed Hanks as “an immediate threat to the safety of
[Officer Rogers] or others,” Graham, 490 U.S. at 396, at the moment Officer
Rogers applied the “half spear.” We reach this conclusion even accepting, for
the sake of argument, that Officer Rogers might reasonably have feared Hanks
had a concealed weapon. 4
       The recording shows that for approximately the last thirty seconds
before the blow—more than half of the total time between when Hanks exited
his vehicle and when Officer Rogers took him to the ground—Hanks stood
facing away from Officer Rogers. Throughout that time, Hanks displayed his
empty hands on the trunk of his car, on the back of his head, and then behind
his back. During those last thirty seconds, Officer Rogers kept his taser at the
ready, trained on Hanks’ back. Hanks’s resistance “was, at most, passive,”
Deville, 567 F.3d at 167, and consisted chiefly of remaining on his feet for about
twenty seconds after Officer Rogers’ first order to kneel, during which time
Hanks twice asked whether he was under arrest. We cannot conclude that a
reasonable officer would have, under these circumstances, perceived an
“immediate threat” warranting a physical takedown.
                           3. Resistance or evasion
      As just discussed, Hanks displayed, at most, passive resistance and
made no attempt to flee. In the moment before Officer Rogers administered the



       Officer Rogers later stated that he “intended to perform a Terry frisk for weapons,”
       4

and Hanks briefly placed a hand into his pants pocket while walking to the back of his car.
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                                  No. 15-11295
“half spear,” the recording shows that Hanks took a small lateral step with his
left foot. It is not clear from the recording whether Officer Rogers rushed
towards and made contact with Hanks in response to, or merely
simultaneously with, Hanks’s lateral step. It is clear, however, that Hanks’s
step was not accompanied by any obvious signs of violence or flight: Hanks did
not turn his body or move his hands, which remained folded behind his back
and plainly visible to Officer Rogers. Under the circumstances reflected in the
recording, we cannot conclude that a reasonable officer would have perceived
active resistance or an attempt to flee.
        Having considered the Graham factors, as instructed by Deville, 567
F.3d at 167, we conclude that Officer Rogers applied clearly excessive and
unreasonable force when he employed the “half spear” takedown against
Hanks.
                           *               *        *
        In sum, we hold that Hanks adequately pled a constitutional violation
and has offered sufficient evidence to survive summary judgment.
II.     Clearly established law
        Because we conclude Hanks has sufficiently alleged an excessive force
claim, we next consider “whether [Officer Rogers’s] use of force, though a
violation of the Fourth Amendment, was nevertheless objectively reasonable
in light of clearly established law at the time the challenged conduct occurred.”
See Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008). “Qualified immunity
attaches when an official’s conduct ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” White v. Pauly, 137 S.Ct. 548, 551 (2017) (quoting Mullenix v. Luna,
136 S.Ct. 305, 308 (2015)). A right may be clearly established without “a case
directly on point,” but “existing precedent must have placed the statutory or


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                                         No. 15-11295
constitutional question beyond debate.” See id. (quoting Mullenix, 136 S.Ct. at
308).
        “[C]learly established law must be ‘particularized’ to the facts of the
case,” id. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)), and
“should not be defined ‘at a high level of generality,’” id. (quoting Ashcroft v.
al–Kidd, 563 U.S. 731, 742 (2011)). In other words, outside of “an obvious case,”
the law is only “clearly established” if a prior case exists “where an officer
acting under similar circumstances . . . was held to have violated the Fourth
Amendment.” Id. In “an obvious case,” Graham and Garner 5 may supply the
“clearly established law.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199
(2004) (per curiam)); see also Cooper, 844 F.3d at 524.
        In this case, we conclude that on the night Officer Rogers stopped Hanks,
clearly established law demonstrated that an officer violates the Fourth
Amendment if he abruptly resorts to overwhelming physical force rather than
continuing verbal negotiations with an individual who poses no immediate
threat or flight risk, who engages in, at most, passive resistance, and whom
the officer stopped for a minor traffic violation. See Deville, 567 F.3d at 167–69
(finding qualified immunity inappropriate where, taking the facts in the light
most favorable to the plaintiff, an officer making a minor traffic stop
overpowered an individual who displayed, at most, passive resistance, and
presented no safety threat or flight risk); see also Doss v. Helpenstell, 626 Fed.
App’x 453, 459–60 (5th Cir. 2015) (unpublished) (construing Deville as clearly
establishing that an officer should receive no qualified immunity if he “quickly
escalate[s]” an encounter with a non-threatening, passively-resisting driver
who posed little risk of escape by employing overwhelming force “rather than
continu[ing] to negotiate”); Brothers v. Zoss, 837 F.3d 513, 520 (5th Cir. 2016)


        5   Tennessee v. Garner, 471 U.S. 1 (1985).
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                                   No. 15-11295
(“In denying qualified immunity, we have placed weight on the quickness with
which law enforcement personnel have escalated from negotiation to force.”)
(citing Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012) and Deville, 567
F.3d at 167–68). This is, moreover, an “obvious case” in which the Graham’s
standards independently and clearly establish the basis for our decision.
      A. Prior cases clearly established the contours of the right at
         issue
      “Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.” Graham, 490
U.S. at 396 (1989). But even an officer who may lawfully use or threaten force
must appropriately calibrate the amount of force he employs to the need for
force he confronts. See Deville, 567 F.3d at 167.
      Officer Rogers faced an individual who, at times, did not immediately
comply with instructions. “Officers may consider a suspect’s refusal to comply
with instructions during a traffic stop in assessing whether physical force is
needed to effectuate the suspect’s compliance.” Id. (citations omitted).
“However, officers must assess not only the need for force, but also ‘the
relationship between the need and the amount of force used.’” Id. (quoting
Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir.1999)). Where, as here, an
individual stopped for a minor traffic offense offers, at most, passive
resistance 6 and presents no threat or flight risk, abrupt application of physical
force rather than continued verbal negotiating (which may include threats of
force) is clearly unreasonable and excessive. See Deville, 567 F.3d at 167–69.
      In Deville, for example, the facts, taken in the manner most favorable to
the plaintiff, showed: (1) the plaintiff was “stopped for a minor traffic


      6As previously noted, the Grand Prairie Police Department’s investigation viewed
Hanks as a “compliant subject.”
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                                        No. 15-11295
violation—exceeding the 40 mph speed limit by 10 mph . . .;” (2) the plaintiff
showed no signs of flight or threat, despite still sitting behind the wheel of a
vehicle; and (3) the plaintiff’s “resistance was, at most, passive in that she
merely refused to leave her grandchild and exit the vehicle until [her husband]
came to get the child.” Id. at 167. We identified sufficient evidence in the
plaintiff’s deposition testimony from which “[a] reasonable jury could infer . . .
that [the 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.” Id. at 168. Both parties’ experts agreed
“that continued negotiations are more appropriate than actual force where the
suspect is only stopped for a minor traffic offense and is making no attempt to
flee.” Id.
       Similarly, in this case, Officer Rogers stopped Hanks for a minor traffic
violation (driving 20 miles per hour under the speed limit), the recording does
not suggest that Hanks posed a threat or flight risk, and Hanks’s resistance to
instructions was, at most, passive. By actually exiting his car, Hanks offered
more compliance than the Deville plaintiff. He also lowered the risk that he
might flee in the vehicle or produce a concealed weapon from within it. 7 For
the last thirty seconds before Officer Rogers administered the “half spear,”
Hanks stood facing away from Officer Rogers, presenting his empty hands on
the trunk of his car, the back of his head, and finally behind his back. Officer
Rogers kept his taser at the ready and trained on Hanks’s back the entire time.
Under such circumstances, which favor the plaintiff even more than those
presented in Deville, our case law clearly establishes that Officer Rogers should



       7A vehicle may be a means of flight, see, e.g., Scott v. Harris, 550 U.S. 372, 374 (2007),
a weapon, see, e.g., Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir. 2016) (“A motor vehicle can
be used as a dangerous weapon. . . .”), or may conceal weapons, see id. (“[A] reasonable officer
could have feared that [the arrestee] might have a weapon . . . in the pickup.”).
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have continued to verbally negotiate—including by threatening force, if
necessary—rather than abruptly resorting to “actual” physical force. 8 See
Deville, 467 F.3d at 168.
       Our decision in Poole is not to the contrary. The Poole majority stated
that the plaintiff had “in response to [one officer’s] command to turn around
and [a second officer’s] attempt to handcuff him, back[ed] away from the
officers and then actively resist[ed] their efforts to turn him around.” 691 F.3d
at 631 (5th Cir. 2012). Hanks presented his hands behind his back, did not
move away from Officer Rogers, and offered no active physical resistance even
after Officer Rogers applied the “half spear.” The Poole majority concluded that
the officers responded with “‘measured and ascending’ actions that
corresponded to [the plaintiff’s] escalating verbal and physical resistance.” Id.
at 629 (quoting Galvan v. City of San Antonio, 435 Fed. App’x 309, 311 (5th
Cir.2010)). Officer Rogers, in contrast, escalated his actions at a point where
Hanks’s verbal and passive physical resistance was on the decline. 9


       8 Officer Rogers escalated this encounter from his first verbal command to kneel to
the application of overwhelming physical force in the space of just twenty seconds. During
those twenty seconds, Hanks twice asked, to no avail, whether he was under arrest. The fact
that our law clearly establishes the unreasonableness of such a sudden escalation does not,
of course, suggest that police may never employ some degree of force against a
nonthreatening, passively-resisting individual who presents no flight risk. This case merely
requires us to recognize that if police cannot abruptly resort to actual force where such an
individual has refused instructions to exit her vehicle for a long enough period of time for the
officer who initiated the traffic stop to call for and obtain backup, see Deville, 567 F.3d at
161–62, Officer Rogers could not suddenly deploy actual force in response to Hanks’s briefer
reluctance to kneel.
       9 Immediately before Officer Rogers produced a taser, Hanks was leaning back against
the trunk of his car with his hands near his pockets, despite Officer Rogers’s repeated
commands for Hanks to place his hands on the car. After Officer Rogers produced the taser,
Hanks complied with the instruction. Seconds later, Hanks complied with Officer Rogers’s
directive to place his hands behind his head. When Officer Rogers told Hanks to “go to [his]
knees,” Hanks folded his hands behind his back (Officer Rogers stood behind Hanks) and
asked whether he was under arrest. Though Hanks did not immediately drop to his knees,
the recording shows that Hanks had assumed a more compliant, unthreatening position than
had been displayed before Officer Rogers produced his taser.
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                                       No. 15-11295
       B. Graham clearly establishes the violation in this obvious case
       Though we conclude Deville clearly proscribed Officer Rogers’s actions,
we also view this as an “obvious” instance of excessive force in light of the
factors set forth in Graham. Graham directs us to consider the “facts and
circumstances of each particular case, including 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.” Cooper, 844 F.3d at 522 (quoting Graham, 490 U.S. at
396). As noted above, all of these factors strongly favor Hanks. No reasonable
officer who is aiming a taser at the back of an individual such as Hanks—i.e.,
an individual who (1) was stopped for a minor traffic violation; (2) exited his
car and has his hands displayed behind his back, thus presenting no immediate
threat or flight risk; and (3) has displayed, at most, passive resistance,
including asking whether he was under arrest—would escalate the situation
via a physical takedown only seconds after ordering that individual to kneel. 10
                                *             *              *
       We hold that on Feb. 26, 2013, clearly established law demonstrated, and
Graham makes obvious, that it was clearly unreasonable and excessive for
Officer Rogers to abruptly escalate the encounter via a physical takedown
where (1) Officer Rogers stopped Hanks for a minor traffic offense; (2)
immediately before the takedown, Officer Rogers had his taser aimed at
Hanks’s back while Hanks stood against his vehicle, facing away from Officer
Rogers, with his empty hands displayed behind his back, presenting no


       10 Officer Rogers notes that the record contains a letter from a Grand Prairie personnel
and training officer that states Officer Rogers “would have been ok with a Taser Deployment”
during the encounter. That letter does not trump our analysis of the objective reasonableness
of Officer Roger’s actions for the same reasons that the district court correctly acknowledged
its prerogative to reject the Grand Prairie Police Department’s conclusion that Officer
Rogers’s use of force was “not objectively reasonable.”
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   Case: 15-11295    Document: 00513940670     Page: 17   Date Filed: 04/05/2017



                                No. 15-11295
immediate threat or flight risk; and (3) Hanks offered, at most, passive
resistance, including asking whether he was under arrest.
                              CONCLUSION
      Accordingly, we REVERSE and REMAND to the district court for further
proceedings consistent with this opinion.




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