    Case: 17-10467   Document: 00514550912    Page: 1   Date Filed: 07/11/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit
                               No. 17-10467                       FILED
                                                              July 11, 2018
                                                              Lyle W. Cayce
                                                                   Clerk
ISRAEL ESCOBAR,
                                         Plaintiff–Appellee
                                         Cross−Appellant,
versus

LANCE MONTEE,
                                         Defendant–Appellant
                                         Cross–Appellee.




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




Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Israel Escobar assaulted his wife and fled from the police with a knife.
While chasing him, the police were informed—by Escobar’s mother—that they
would have to kill him to get him. The police eventually found Escobar in a
backyard and released a dog to capture and hold him. Escobar was bitten by
the dog until fully handcuffed by the police, even though he avers that he
dropped the knife and lay flat on the ground once discovered. Because he
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                                  No. 17-10467
claims he was trying to surrender, Escobar contends that both the initial bite
and the continued biting were excessive force in violation of the Fourth Amend-
ment. He brought those claims, among others, under 42 U.S.C. § 1983. The
district court dismissed the initial-bite claim on a Federal Rule of Civil Proce-
dure 12(b)(6) motion, then denied Officer Lance Montee summary judgment on
a claim of qualified immunity (“QI”). Montee appeals the denial of QI; Escobar
cross-appeals the dismissal of his initial-bite claim. Finding no Fourth Amend-
ment violation, we reverse the denial of qualified immunity, dismiss the cross-
appeal for lack of jurisdiction, and remand.

                                        I.
      Escobar assaulted his wife in a restaurant parking lot, and then left her
alone in a nearby retail lot. After noticing police vehicles at his house, he fled
into the night. He ran through several neighbors’ yards, finally hiding in the
backyard of a house a few blocks from his own. He remained there, crouched
under an awning near the backdoor, for about twenty minutes while the police
searched for him, both on foot and in a helicopter. They eventually located
Escobar, and the helicopter circled the house while the police decided on a
course of action.

      While the helicopter monitored Escobar, the police were informed that
he had a knife. Furthermore, they were told that Escobar’s mother had called
and said the police would have to kill Escobar to catch him; he would not go
without a fight. Based on those facts, Montee—the K-9 officer in charge of the
police dog “Bullet”—decided not to give his usual warning to the suspect that
he would deploy the canine. Instead, he threw Bullet over the fence surround-
ing the backyard and only then scaled the fence himself.

      Montee followed Bullet alongside the house into the backyard, where he
claims he saw Escobar standing with the knife. Escobar disagrees; according
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to him, once he heard the dog and officers approaching, he dropped his knife
and lay flat on the ground “like a parachute man.” Either way, Escobar was
then bitten by Bullet and wound up lying flat on the ground. Montee agrees
that Escobar then dropped the knife but maintains that the knife remained
within Escobar’s reach—a fact Escobar never disputes.

      Escobar claims he remained on the ground in an attempt to convey his
surrender. But Montee, believing Escobar still posed a threat because of the
knife and warnings by Escobar’s mother, allowed Bullet to continue biting
Escobar until Escobar was fully subdued and in handcuffs. All in all, Escobar
was bitten for approximately one minute. Once he was cuffed, the officers
removed Bullet and took Escobar away; he eventually pleaded guilty of third-
degree family assault.

      Escobar sued Montee under § 1983, alleging that Montee violated his
Fourth Amendment right to be free from excessive force by (1) having Bullet
initially bite him without warning and (2) permitting Bullet to continue biting
after he surrendered and was not resisting. Montee, claiming QI, moved to
dismiss under Rule 12(b)(6).

      The district court granted Montee’s motion as to Escobar’s first claim,
i.e., as to the initial bite. As the court reasoned, Montee’s initial decision to
release Bullet without warning was objectively reasonable because a reasona-
ble officer in Montee’s shoes would not have known Escobar was surrendering.
The court denied the motion as to Escobar’s second claim, i.e., as to the contin-
ued biting.

      Montee moved for summary judgment; he and Escobar submitted duel-
ing affidavits that provide the factual background above. The district court
denied Montee’s motion, reasoning that—with the facts construed in Escobar’s
favor—a reasonable officer would have known that Escobar was not resisting
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                                          No. 17-10467
and was surrendering. And the court found that such force, in the face of sur-
render, is clearly established as violating the Fourth Amendment.

       Montee appealed, claiming QI. Escobar cross-appealed the Rule 12(b)(6)
dismissal of his initial-bite claim, contending we have pendent appellate juris-
diction over that dismissal.

                                                 II.
       We start by assessing our jurisdiction. 1 Montee’s appeal is based on QI
and thus, although this is an interlocutory appeal, the order denying QI is
appealable. Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). Beyond the
limited right to an interlocutory appeal, the ability to enjoy pendent appellate
jurisdiction is carefully circumscribed. The Supreme Court has recognized two
exceptions to the bar on court-created interlocutory appeals: (1) If the pendent
decision is “inextricably intertwined” with the decision over which the appel-
late court otherwise has jurisdiction, pendent appellate jurisdiction may lie, or
(2) if “review of the former decision [is] necessary to ensure meaningful review
of the latter.” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 51 (1995). 2 Such
exceptions are proper because courts should “extend their Cohen jurisdiction[ 3]
to rulings that would not otherwise qualify for expedited consideration” “[o]nly

       1 “[E]very federal appellate court has a special obligation to ‘satisfy itself . . . of its own
jurisdiction’ . . . even though the parties are prepared to concede it.” Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244
(1934)).
       2 Thus, in Clinton v. Jones, 520 U.S. 681, 707 n.41, (1997), the Court found that pen-
dent appellate jurisdiction was proper over an equitable stay of trial proceedings against the
President where it otherwise had jurisdiction over the President’s claim of immunity from
trial proceedings. The issue of Presidential immunity was “inextricably intertwined” with
the equitable grant of a stay; indeed, “review of the latter decision is necessary to ensure
meaningful review of the former.” Id. (omitting brackets). And as the court of appeals had
noted, the issues of immunity and equitable stay turned on one question: the degree to which
a President should be immune from suit. See id. at 707 & n.41; Jones v. Clinton, 72 F.3d
1354, 1357 n.4 (8th Cir. 1996).
       3   See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
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                                   No. 17-10467
where [those rulings are essential] to the resolution of properly appealed collat-
eral orders.” Id. (quoting Riyaz A. Kanji, The Proper Scope of Pendent Appel-
late Jurisdiction in the Collateral Order Context, 100 YALE L.J. 511, 530
(1990)).

      Pendent appellate jurisdiction “is only proper in [the] rare and unique
circumstances” articulated by Swint. 4 Escobar believes he has such a “rare”
and “unique” case, reasoning that his claim based on the first bite is “inextric-
ably intertwined” with the claim for continuing bites. But the claims are obvi-
ously severable. The district court considered and decided them separately,
finding for Montee on one claim and for Escobar on the other. And the court
issued individualized orders on each claim at distinct stages of the proceedings.
Plainly the decision to dismiss the first-bite claim was not “inextricably inter-
twined” with whether summary judgment was proper on the continued-bite
claim.

      A survey of our caselaw exposes the flaws in Escobar’s position. To sup-
port pendent appellate jurisdiction, Escobar cites Anderson v. Valdez, 845 F.3d
580 (5th Cir. 2016), where, as here, the court had interlocutory appellate juris-
diction over the appeal of a QI-based motion to dismiss. Id. at 588–89. The
court exercised pendent appellate jurisdiction only over an additional appeal
of whether the plaintiff had even stated a claim. Id. The question whether a
plaintiff has alleged a constitutional violation can be seen as inextricably inter-
twined with whether an officer has QI. See Saucier v. Katz, 533 U.S. 194, 201
(2001). Read properly, Anderson does not support Escobar’s position.

      Pendent appellate jurisdiction may be proper where (1) the court will
decide some issue in the properly brought interlocutory appeal that necessarily


      4 Byrum v. Landreth, 566 F.3d 442, 449 (5th Cir. 2009) (quoting Thornton v. Gen.
Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998) (per curiam)).
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                                       No. 17-10467
disposes of the pendent claim; 5 (2) addressing the pendent claim will further
the purpose of officer-immunities by helping the officer avoid trial; 6 (3) the pen-
dent claim would be otherwise unreviewable; 7 or (4) the claims involve pre-
cisely the same facts and elements. 8 Escobar’s cross-appeal does not fit any of
those categories. Deciding Montee’s appeal will not necessarily dispose of Esco-
bar’s cross-appeal, as evidenced by the disposition in the district court. Nor
would addressing Escobar’s first-bite claim further the purposes of QI by help-
ing Montee avoid trial. And Escobar’s claim is reviewable through the normal
course of appellate review.

       Finally, as explained above, the first-bite claim and continued-bite claim
do not involve precisely the same facts in such a way as to be “inextricably
intertwined.”      Indeed, the claims “were treated separately by the district


       5  Compare Anderson, 845 F.3d at 588–89; Comstock Oil & Gas, Inc. v. Ala. & Cou-
shatta Indian Tribes of Tex., 261 F.3d 567, 570–71 (5th Cir. 2001) (exercising pendent appel-
late jurisdiction over the question of a trial council’s members’ immunity from suit where the
appeal turned on the tribal council’s immunity from suit and both immunities turned on the
nature of the relief sought); and Thornton, 136 F.3d at 453–54 (exercising pendent appellate
jurisdiction over a non-final attorney’s fee sanction because that sanction was inextricably
intertwined, and based on the same conduct, on a properly appealed, final suspension sanc-
tion); with Byrum, 566 F.3d at 450–51 (declining to exercise pendent appellate jurisdiction
over a summary judgment motion even though it had jurisdiction over the denial of a prelim-
inary injunction because it was possible to rule on the latter without disposing of the former).
       6 Compare Morin v. Caire, 77 F.3d 116, 119–20 (5th Cir. 1996) (permitting pendent
appellate jurisdiction over state tort claims against an officer who was also appealing the
denial of QI as to constitutional claims because refusing to do so would defeat the purpose of
interlocutory review of QI, i.e., “allowing an appeal of immunity issues before a government
employee is forced to go to trial”) with Gros v. City of Grand Prairie, 209 F.3d 431, 436–37
(5th Cir. 2000) (declining pendent appellate jurisdiction in part because doing so would not
force the officer to go to trial).
       7See Gates v. Cook, 234 F.3d 221, 227–228 & n.5, 6 (5th Cir. 2000) (exercising pendent
appellate jurisdiction over the denial of a post-judgment motion to substitute counsel that
could have been unreviewable without immediate appellate review).
       8 See Byrum, 566 F.3d at 450 (in declining pendent appellate jurisdiction, noting that
the court could rule on one motion without necessarily disposing of the other); Gros, 209 F.3d
at 437 (in declining pendent appellate jurisdiction, noting that the claims “were treated sepa-
rately by the district court; each has unique elements and relevant facts”).
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                                       No. 17-10467
court,” and differences in facts include whether Montee gave warnings before
releasing Bullet and whether the knife remained within grabbing distance
once dropped. See Gros, 209 F.3d at 437. Because Congress has provided “stat-
utory instructions . . . to control the timing of appellate proceedings,” Swint,
514 U.S. at 45, we must be cautious about creating “ad hoc appellate jurisdic-
tional rules.” Byrum, 566 F.3d at 449. This is not the “rare and unique” case
to warrant such an ad hoc exception to the normal course of review. Id.
Accordingly, we dismiss the cross-appeal for want of jurisdiction.

                                             III.
       We turn to whether the district court properly denied Montee QI and
summary judgment on the continued-bite claim. Our review is de novo. Cooper
v. Brown, 844 F.3d 517, 522 (5th Cir. 2016). When reviewing the denial of
summary judgment based on QI, “we have jurisdiction to ‘review the material-
ity of any factual disputes, but not their genuineness.’” Id. (quoting Hogan v.
Cunningham, 722 F.3d 725, 730–31 (5th Cir. 2013)). If there are factual dis-
putes, “we accept the plaintiff’s version.” Id.

       To overcome QI, Escobar must show (1) “a violation of an actual consti-
tutional right,” and (2) that “the right was clearly established at the time of
violation.” Id. We may address either prong first. Pearson v. Callahan,
555 U.S. 223, 236 (2009). We begin with the former.

       Escobar alleges his Fourth Amendment right was violated because he
was subject to excessive force when arrested. Such excessive force claims “in
the context of arrests” are analyzed under the Fourth Amendment’s “objective
reasonableness standard.” 9 Because “police officers are often forced to make


       9 Katz, 533 U.S. at 204−05 (quoting Graham v. Connor, 490 U.S. 386, 388 (1989)).
Because the test is objective, we disregard any contentions relating to either party’s subjec-
tive mental state. See Graham, 490 U.S. at 397 (“An officer's evil intentions will not make a
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split-second judgments . . . in circumstances that are tense, uncertain, and
rapidly evolving,” we must not use “the 20/20 vision of hindsight.” Graham,
490 U.S. at 396–97. Instead, we look at the case from the perspective of a
reasonable officer on the scene, paying “careful attention to the facts and cir-
cumstances of each particular case.” Id. at 396. When viewing “the totality of
the circumstances,” we pay particular attention to the Graham factors, i.e. “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.” Darden v. City of Fort Worth, 880 F.3d
722, 728–29 (5th Cir. 2018) (second quoting Graham, 490 U.S. at 396).

       Because we construe any disputed facts in Escobar’s favor, we begin by
laying out the facts as properly viewed: Escobar had dropped the knife and lay
flat on the ground “like a parachute man” just before being bitten; Escobar did
not struggle and begged for the dog to be removed; and the bites lasted for
about one minute. But the following facts are undisputed: The knife remained
within Escobar’s reach; Montee knew about the knife and saw that it was
within Escobar’s reach; Escobar’s mother had called and told the police that
Escobar would have to be killed; the police were rightly informed that Escobar
had committed a felony assault; and Escobar had fled into the night through
multiple backyards before hiding for approximately twenty minutes.

       On those facts, the totality of the circumstances and the Graham factors
establish that Montee’s use of force was not objectively unreasonable. The first
Graham factor―the severity of the offense―favors Montee. This court recently
held in Cooper, 844 F.3d at 522, that driving under the influence is a serious
offense, favoring officers. If DUI is serious, then a fortiori so is felony assault.


Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s
good intentions make an objectively unreasonable use of force constitutional.”).
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      The second factor—whether Escobar posed a threat—is the focus of the
dispute. According to Escobar and the district court, a reasonable jury could
find that Montee allowed Bullet to continue biting after it would have been
apparent “that Escobar was no longer armed and was not resisting arrest.”
That reasoning overlooks several key facts: The chase was at night; Escobar
had hidden from the police for twenty minutes in a neighbor’s backyard; the
chase, along with the warnings from Escobar’s mother, would lead a reasonable
officer to believe that, as he had apparently promised, Escobar would not go
without a fight; and the knife remained within Escobar’s reach, ready to be
used. In the face of such facts, a reasonable officer could believe that Escobar’s
“surrender” was a ploy and that he was ready to snatch the knife again once
the dog was removed. See Crenshaw v. Lister, 556 F.3d 1283, 1292–93 (11th
Cir. 2009) (per curiam) (discussed infra).

      The cases cited by Escobar are not to the contrary. As Escobar rightly
notes, we have consistently held that a suspect does not pose an immediate
threat where he unambiguously surrenders by, for example, placing his hands
in the air and complying with the officers’ commands. See Darden, 880 F.3d
at 729; Cooper, 844 F.3d at 521–23. Thus, in Cooper, 844 F.3d at 522−23, we
held that officers used excessive force by permitting a dog to continue biting a
suspect when they had no reason to think he had a weapon, his hands were
visible, and he complied with officers’ commands. Yet even there, we cautioned
that “we do not say that any application of force to a compliant arrestee is per
se unreasonable.” Id. at 524. And we explicitly declined to “opine on the line
of reasonableness”―with good reason, as the present case reveals. Id.

      Although, as with the suspect in Cooper, Escobar’s hands were visible
and he complied with Montee’s commands, much unlike the situation in
Cooper, Escobar had a knife within reach, and Montee had reason to believe he

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                                       No. 17-10467
still posed a threat. Also unlike Cooper, Montee had been told that Escobar
would have to be killed—by Escobar’s own mother no less. A reasonable officer
could easily conclude that Escobar’s surrender was not genuine.

       The other cases cited by Escobar are similarly distinguishable. In Dar-
den, 880 F.3d at 729, the suspect had done nothing to indicate violence, and
there was no suggestion of a threat. In Newman v. Guedry, 703 F.3d 757, 762–
63 (5th Cir. 2012), the plaintiff alleged that he was tased in response to telling
a joke; according to him, he was a passenger in a car pulled over for a minor
traffic violation, did not attempt to flee or resist, and disobeyed no commands.
And in Bush v. Strain, 513 F.3d 492, 501–02 (5th Cir. 2008), the suspect had
been handcuffed and subdued when officers slammed her face into a car door;
there was nothing to indicate she posed a threat. Although in each case we
found a Fourth Amendment violation because the suspect was compliant or
surrendering, in none of them would an officer have reason to doubt the sus-
pect’s compliance and still perceive a threat. 10

       Further support for that conclusion is the Eleventh Circuit’s opinion in
Crenshaw, 556 F.3d at 1292–93. There, an officer responded to reports of pos-
sibly two armed robberies; after a chase, the suspect abandoned his vehicle and
fled into the woods.        The suspect then yelled his location and intent to



       10 Escobar also cites to several out-of-circuit cases. For the same reasons as above,
they are distinguishable. See, e.g., Edwards v. Shanley, 666 F.3d 1289, 1293, 1296 (11th Cir.
2012) (finding a Fourth Amendment violation where the suspect was pulled over for failing
to stop at a stop sign, fled on foot, but then stopped and yelled, “You got me. I only ran
because of my license”); Campbell v. City of Springboro, 700 F.3d 779, 787 (6th Cir. 2012)
(suspect lying on the ground with hands to his sides, but no indication of a weapon or threat);
Priester v. City of Riviera Beach, 208 F.3d 919, 923, 927 (11th Cir. 2000) (suspect stole $20
worth of snacks, was hiding in the woods, and then stood up with his hands in the air and
complied with a command to lie down; no indication of a threat when suspect was bitten);
Watkins v. City of Oakland, 145 F.3d 1087, 1090, 1093 (9th Cir. 1998) (suspect was not be-
lieved to be armed, was hiding in a car, and was surrounded by officers with guns when
bitten).
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surrender, but the officer released a canine without warning. And despite
screams of pain, the officer did not remove the canine until the suspect was
handcuffed. Yet the court held that the officer’s use of force was not excessive.
Id. at 1292. The officer had reason to believe that the suspect of an armed
robbery was armed and, given the nature of the flight and location in the
woods, “it was objectively reasonable for [the officer] to question the sincerity”
of the surrender. Id. at 1293. Moreover, although the suspect was not actively
resisting while being handcuffed, the officer was not required to call off the dog
until the suspect was secured because he “had no reason to trust that [the
suspect] would not suddenly attempt to do him harm.” Id.

       The same is true here. Given the information from Escobar’s mother and
the nature of the chase (at night, through multiple backyards in a residential
neighborhood), Montee had reason to doubt the sincerity of Escobar’s sur-
render. And because the knife remained within reach, Montee could reasona-
bly believe that Escobar—if the dog was called off before handcuffing—would
then try to harm someone. 11 Accordingly, a reasonable officer could think
Escobar posed a threat.

       Finally, the third Graham factor—whether the suspect was resisting or
attempting to flee—largely folds into the second. If Escobar may have posed a
threat, then he also might have attempted to flee once released by the dog.
Accordingly, based on all the circumstances, it was objectively reasonable to

       11 Also helpful to Montee is Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2004),
abrogated in part by Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir. 2007) (en banc).
The suspect was pulled over for failing to dim his high-beams for oncoming traffic; he ran
into a grassy swamp. Without warning, the officers released a dog, which bit the suspect.
The officers did not call off the dog until the suspect put his hands up. The court found no
Fourth Amendment violation, even though the suspect was nearly naked and plainly had no
weapons on his person. According to the court, the officers acted reasonably because the
suspect inexplicably fled in the early morning from a traffic stop; he was swimming through
a swamp to avoid capture; and the officers were searching the area around the suspect during
the bite to ensure there were no weapons nearby. Id. at 595−601.
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                              No. 17-10467
permit Bullet to continue biting Escobar until he was fully handcuffed and
subdued. Montee did not violate Escobar’s Fourth Amendment rights.

     The order denying QI is REVERSED, the cross-appeal is DISMISSED,
and this matter is REMANDED.




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