     Case: 12-41223      Document: 00512619967         Page: 1    Date Filed: 05/06/2014




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


                                      No. 12-41223                             FILED
                                                                            May 6, 2014
                                                                          Lyle W. Cayce
CLAUDIA DAWSON,                                                                Clerk

                                                 PlaintiffBAppellant

v.

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

                                                 DefendantsBAppellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:11-CV-507


Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge: *
       Appellant Claudia Dawson was arrested by Palestine, Texas police for
public intoxication and interference with public duties. She was taken to the
Anderson County jail and, based on probable suspicion, police officers asked
the jail=s officers to perform a strip search. During that search, Dawson was




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41223

shot with a pepperball gun, 1 once in the leg and once in the abdomen. She
sued, alleging civil rights violations under 42 U.S.C. ' 1983 for use of excessive
force by Anderson County jailers and an unreasonable search. She also raised
pendent state law claims for assault and battery. 2 The district court granted
the defendants= motion for summary judgment and dismissed Dawson=s claims.
We AFFIRM.
       AWe review the district court=s summary judgment decision de novo,
applying the same standards as the district court.@ Poole v. City of Shreveport,
691 F.3d 624, 627 (5th Cir. 2012). Summary judgment is appropriate where
Athere is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.@ FED. R. CIV. P. 56(a).
       Appellant first claims that the use of the pepperball gun constituted
excessive force in violation of the Fourth Amendment. 3 Contrary to her jailers,
Dawson stated she initially complied with their directive to Asquat and cough@
during the strip search. This initial compliance removed any need for the
pepperball gun (which left small marks and broke the skin) and, she
contended, its use therefore was excessive. The defendants responded with a
claim of qualified immunity. To overcome this defense, Dawson must show an

       1APepperball guns are, in essence, paintball guns that fire rounds containing oleoresin
capsicum (>OC=) powder, also known as pepper spray.@ Nelson v. City of Davis, 685 F.3d 867,
873 (9th Cir. 2012).

       2The original complaint included an Eighth Amendment violation that was dropped
during summary judgment.

       3 The district court correctly characterized this claim as a Fourth Amendment issue
rather than a Fourteenth Amendment oneCeven though Dawson claimed her substantive
due process rights were violated. The claim is against Jailer Giles (who shot the pepperball
gun) and Sergeant Watson (who authorized the use of the pepperball gun) for their direct
actions. It is also raised against Anderson County and Sheriff Taylor for deficient policies,
procedures, etc. that allowed the incident. Because we find the use of the pepperball gun to
be objectively reasonable, we do not reach Appellant=s argument against Anderson County
and Sheriff Taylor.

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injury caused by actions that were objectively unreasonable in light of clearly
established law. Poole, 691 F.3d at 627. AThe defendant=s acts are held to be
objectively reasonable unless all reasonable officials in the defendant=s
circumstances would have then known that the defendant=s conduct violated
the United States Constitution or the federal statute as alleged by the
plaintiff.@ Thompson v. Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001).
      We cannot conclude that all reasonable officers would believe that the
use of force in this case violated the Fourth Amendment, because it is
undisputed that Dawson did not comply with successive search commands
given at her arrestee intake encounter. Even crediting her that she obeyed at
first, Dawson admitted refusing a renewed command to Asquat and cough.@
Law enforcement officers are within their rights to use objectively reasonable
force to obtain compliance from prisoners. Compare Tillis v. Garcia, 99 F.3d
1135 (5th Cir. 1996) (affirming judgment as matter of law for defendants in
Eighth Amendment excessive force case, in which officers applied physical
force to restrain plaintiff after he concededly Aengaged in provocative conduct
toward the officers@), with Comeaux v. Sutton, 496 F. App=x 368 (5th Cir. 2012)
(reversing summary judgment for defendants in excessive force case in which
plaintiff denied offering any resistance to officers= commands and officers
forcibly removed handcuffed plaintiff from his wheelchair to floor to remove
clothing).   Measured force achieved compliance with the officers= search
directives in this case, again, crediting, as we must, Dawson=s contention that
she complied at first but then refused a search order given twice believing it to
be abusive. Measured force 4 used on an arrestee who refuses immediately



      4  Of course, we do not cast judgment on the use of pepperball projectiles in other
factual contexts. See, e.g., Nelson, 685 F.3d 867 (holding that qualified immunity did not
protect police officers from Fourth Amendment seizure claim stemming from their firing
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successive search orders cannot be deemed objectively unreasonable under our
qualified immunity caselaw.
       We next consider Dawson=s argument that the search was conducted in
an unreasonable manner. 5 Dawson=s assertion is that, in addition to using a
pepperball gun, the defendants laughed at her and made abusive comments.
We have held previously that verbal abuse by a jailer alone does not give rise
to a ' 1983 claim. Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993). We
have already held that the use of the pepperball gun in this case was objectively
reasonable, and we do not find that her assertions about laughter and taunts
combine to overcome defendants= qualified immunity.
       Finally we address Dawson=s state law claims of assault and battery. 6
The defendants argue that they are entitled to official immunity under Texas
law. We agree. The question is whether the officers acted in good faith and
their conduct Ais evaluated under substantially the same standard used for
qualified immunity determinations in ' 1983 actions.@ Meadours v. Ermel, 483
F.3d 417, 424 (5th Cir. 2007). Because the officers were entitled to qualified
immunity on the federal claims, they are also protected by official immunity
under state law.
       In sum, the district court did not err in holding in favor of the defendants.
                                                                             AFFIRMED.



pepperball that struck plaintiff, a university student at a party who was nonresistant and
awaiting instruction from officers, in the eye, causing permanent vision loss).

       5 This claim is raised against Jailers Wells, Giles, and Farmer for their direct roles.
It is also pressed against Anderson County and Sheriff Taylor for deficient policies,
procedures, etc. Dawson explicitly waived the argument that the strip search was invalid at
its inception, citing Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S. Ct.
1510 (2012). We accordingly do not pass on whether the search was justified initially.

       6   These claims are against Sergeant Watson and Jailers Giles, Farmer, and Wells.

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                                         No. 12-41223

JAMES L. DENNIS, Circuit Judge, dissenting:

       The majority concludes that Dawson has failed to present a genuine
issue of material fact regarding whether the Defendants 1 violated clearly
established Fourth Amendment law by repeatedly shooting at her with a
pepperball gun during a strip search in which she was undressed, unarmed,
and surrounded by multiple officers. The majority fails to view the evidence in
the light most favorable to Dawson and disregards reasonable inferences that



       1   I use the term “Defendants” as a short-hand to refer to the individual Anderson
County officers who Dawson alleges violated her Fourth Amendment rights. In addition to
her claims against the officers in their individual capacities, Dawson also filed suit against
Anderson County, Texas, and Sheriff Greg Taylor, in his official capacity. For the reasons
set forth infra, I believe that Dawson presented competent summary-judgment evidence to
overcome the individual Defendants’ summary judgment motions. However, I would affirm
the district court’s summary judgment as to Anderson County and Sheriff Taylor because
Dawson failed to present sufficient evidence that her injury was a result of an official policy
or custom in Anderson County law enforcement. See, e.g., Piotrowski v. City of Houston, 273
F.3d 567, 578 (5th Cir. 2001) (“[M]unicipal liability under section 1983 requires proof of three
elements: a policymaker; an official policy; and a violation of constitutional rights whose
‘moving force’ is the policy or custom.” (quoting Monell v. Dep’t. of Social Serv., 436 U.S. 658,
694 (1978))). Dawson does not point to any official “statement, ordinance, regulation, or
decision that is officially adopted and promulgated” by Anderson County which was the
“moving force” behind Ms. Dawson’s alleged constitutional deprivations. Duvall v. Dallas
Cnty., 631 F.3d 203, 209 (5th Cir. 2011); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.
1984) (en banc). Likewise, no record evidence exists which suggest that any other similar
incidents have occurred, let alone a sufficient pattern or custom, to establish municipal
liability. See, e.g., Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 171 (5th Cir. 2010).
Dawson has presented evidence of only the single incident with which she was personally
involved. Compare DeShay v. Bastrop Indep. Sch. Dist., 180 F.3d 262 (5th Cir. 1999) (“[T]he
district court correctly determined that, when read in the light most favorable to the
[plaintiffs], the summary judgment evidence shows at most an isolated incident . . . which is
not actionable under section 1983.”) (citation omitted), with Sharp v. City of Houston, 164
F.3d 923 (5th Cir. 1999) (upholding jury verdict finding a city liable for damages in a § 1983
action when the plaintiff presented evidence from nine witnesses who all testified to the city’s
repeated practices that exhibited “deliberate indifference to her constitutional rights by its
inaction.”). Viewing the facts in the light most favorable to Dawson, she alleges conduct
arising out of one incident, involving four individual officers. Although the evidence before
the court gives rise to a triable issues of fact regarding the individual officers’ (“Defendants’”)
liability, Dawson’s allegations are limited to this single occurrence and thus are insufficient
to raise a genuine issue of material fact regarding an unconstitutional policy or custom in
Anderson County.
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jurors could draw from the record to conclude that under clearly established
law, the officers used excessive force and conducted a strip search in an
unreasonable manner in violation of Dawson’s Fourth Amendment rights.
Accordingly, I respectfully dissent and would reverse and remand for trial.
                                            I.
      Although a summary-judgment motion premised upon qualified
immunity shifts the burden to the plaintiff, this burden shift does not alter the
requirement that a court view all evidence and make all reasonable inferences
in the light most favorable to the plaintiff. Brown v. Callahan, 623 F.3d 249,
253 (5th Cir. 2010) (“The plaintiff bears the burden of negating qualified
immunity, but all inferences are drawn in his favor.”) (citation omitted). The
majority fails to view the evidence in the light most favorable to Dawson, as it
must at this procedural posture. Employing similar reasoning as the district
court, the majority affirms the summary-judgment order as to Dawson’s
excessive-force claim, 2 concluding that not all reasonable officers would have
known that the use of the pepperball gun here violated the Fourth Amendment
because it is “undisputed that Dawson did not comply with successive search
commands given at her arrestee intake encounter.” Maj. Op., ante at 3. I
respectfully dissent.
      I will begin by describing the evidence in the light most favorable to
Dawson. Next, I will note the specific errors the district court, and, in turn,
the majority, committed when it credited the Defendants’ version of events to
conclude that the use of force here was objectively reasonable. Lastly, I will
explain why the record evidence sufficiently creates genuine issues of material




      2 Dawson’s excessive-force claim is asserted against Officer Karen Giles and Sergeant
Darryl Watson.
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                                 No. 12-41223

facts to overcome Defendants’ assertion of qualified immunity and, thus, why
reversal and remand is necessary.
                                       A.
      On April 26, 2010, at approximately 11:00 p.m., officers of the Palestine
Police Department [hereinafter “PPD”] stopped a vehicle in which Claudia
Dawson was a passenger. During the traffic stop, Dawson was arrested for
public intoxication and interference with public duties, two misdemeanor
charges. PPD officers brought Dawson to the Anderson County Sheriff’s Office
and requested that the Anderson County Officers conduct a strip search. The
Anderson County officers were never informed of the basis for the PPD officers’
request for the strip search but nonetheless complied.
      Officers Sarah Wells and Cheneya Farmer took Dawson into the “dress-
out room” where they instructed Dawson to remove her clothes.              Once
undressed, Dawson was ordered to squat down and cough. Dawson attests
that she complied with this initial order. Once the strip search was in progress,
a third officer, Karen Giles, entered. According to Dawson, after she had
already complied with the order to squat and cough, one of the officers then
stated that she would force Dawson to “squat and cough all night until [she
got] tired of looking.” Dawson asserts that in response, without yelling, she
told the officers that she could not be forced to squat and cough all night.
Promptly after this exchange, Sergeant Darryl Watson briefly entered the
dress-out room and instructed Officer Giles to shoot Dawson with a pepperball
gun. Officer Giles then fired the first shot, which did not hit Dawson. Giles
then quickly fired the second shot, which hit Dawson in the left side of her
abdomen, causing her to bend over in a “fetal” position. Dawson attests that
she then told the officers that she could be pregnant and, if she was, that they
could not shoot at her. Officer Giles then fired the third shot, which hit Dawson


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in her right knee. According to Dawson, the two shots broke her skin and
caused substantial bleeding. Dawson further alleges that throughout the strip
search, the officers laughed at her expense and were verbally abusive. One
female officer allegedly stated that she “wish[ed] [she] was certified to shoot
this bitch up with the pepper ball gun.”
      It is undisputed that throughout the strip search, and while all of the
shots were fired, Dawson was unclothed, standing within one to two feet of the
wall in the dress-out room, and was surrounded by multiple officers, at least
one of whom was armed with a perpperball gun. It is also undisputed that
Dawson never struck or attempted to strike an officer.
      What is disputed is Dawson’s level of compliance. Officer Giles testified
that during the strip search, Dawson was belligerent, yelled, threatened the
officers, and got “too close” to Officer Farmer. Officer Farmer testified that
Dawson did not comply with the initial order to squat and cough, or any order
thereafter, until she was shot with the pepperball gun. Sergeant Watson
testified that if Dawson had complied with the first order to squat and cough—
as Dawson asserts she had—then she would have been in compliance and that
any further orders to squat and cough would have been improper, agreeing
that the officers “don’t have any business harassing [detainees].”
                                       B.
      When the evidence is viewed in the light most favorable to Dawson, the
record establishes that she was initially compliant, was not yelling or arguing
with the officers, and that after telling officers that she would not comply with
a harassing request to squat and cough all night, she was met with near-
immediate use of force, while she was undressed, unarmed, and did not pose
any threat to the officers’ safety.     The majority improperly credits the
Defendants’ version of events when it concludes that Dawson’s conduct was


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undisputedly non-compliant and thus reasonably warranted “measured force”
to “achieve[] compliance with the officers search directives.” Maj. Op., ante at
3.   By describing Dawson’s alleged non-compliance as “undisputed” and
characterizing the officers response as “measured”—disregarding testimony
that creates an inference that the officers’ immediately resorted to force
without sufficient negotiation—the majority, like the district court, fails to
view the record evidence in the light most favorable to Dawson. Accordingly, I
respectfully dissent and would reverse the grant of summary judgment on this
issue. See, e.g., Comeaux v. Sutton, 496 F. App’x 368, 371 (5th Cir. 2012)
(reversing summary judgment in favor of defendants when the district court
failed to view the facts in the light most favorable to the plaintiff).
      First, Sergeant Watson’s acknowledgment that a detainee would be in
compliance if he or she obeyed the first order to squat and cough—read in
conjunction with Dawson’s testimony that she did just that—creates a genuine
issue of material fact as to whether Dawson’s behavior was in fact non-
compliant and therefore whether repeatedly shooting her with a pepperball
gun, while naked and surrounded by at least three officers, was an
unreasonable, excessive use of force in violation of Dawson’s Fourth
Amendment rights. Accordingly, summary judgment was improper. See, e.g.,
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (reversing summary
judgment when the nature of the plaintiff’s resistance to officer’s directives
during a minor traffic stop was in dispute); see also Tarver v. City of Edna, 410
F.3d 745, 754 (5th Cir. 2005) (“At a minimum, determining whether [the
defendant officer’s] conduct was objectively reasonable requires factfinding
and credibility assessments; dismissal is thus inappropriate at the summary
judgment phase.”).




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                                  No. 12-41223

      Second, the district court found that Dawson was “arguing” with the
officers. However, when viewed in the light most favorable to Dawson, the
record evidence presents a factual dispute as to whether Dawson was
argumentative during the strip search or rather whether any verbal
noncompliance on her part was justified given the officers’ alleged harassment.
The Defendants testified that Dawson was belligerent, screaming, and non-
cooperative. Comparatively, Dawson testified that she did not yell at the
officers and merely said, in response to the threat that she would have to squat
and cough all night, that: “You can’t make me do this all night and I am not
going to do it.”    The district court appears to have erroneously credited
Defendants’ testimony and rejected Dawson’s characterization of her
conversation with the officers during the strip search and thus improperly
weighed the evidence. See Provident Life & Acc. Ins. Co. v. Goel, 274 F.3d 984,
991 (5th Cir. 2001) (“[T]he weighing of the evidence . . . [is a] jury function[],
not [that] of a judge. . . . The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.”).     A jury question
remains as to whether Dawson’s account of her response to the officers’ second
request to squat and cough is credible and therefore whether or not she was in
fact argumentative.
      Third, the district court concluded that the use of the pepperball gun was
reasonable in part because Dawson did not dispute Officer Giles’s testimony
that Dawson “was moving toward another jailer” during the strip search.
However, Dawson elicited testimony from the Defendants that throughout the
entire strip search she was within one or two feet from the wall and never
struck or attempted to strike the officers. The record evidence thus creates a
genuine issue of material fact as to whether Dawson approached the officers
and, in turn, whether the use of the pepperball gun was reasonably warranted,


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                                 No. 12-41223

precluding summary judgment.        See Tarver, 410 F.3d at 753 (reversing
summary judgment because “reasonable officers could disagree about whether
[the officers conduct] was not unreasonable under the circumstances, [and
thus] this decision should not be made at the summary judgment stage. Any
credibility determination made between the officers’ and [the plaintiff’s]
version of events is inappropriate for summary judgment.”).
      Moreover, even if we were to classify Dawson’s refusal to comply with
the second order to squat and cough all night as non-compliant and her
response to the officers as argumentative, a jury could nonetheless reasonably
infer from the record that the pepperball shots were fired in quick succession,
immediately after Sergeant Watson stuck his head into the room and gave the
order to shoot, and thus amounted to an unreasonable use of force. Dawson
testified that none of the jailers said anything to her between the firing of the
first two shots, one of which made contact with her body. Thus, viewed in the
light most favorable to Dawson, the evidence raises a genuine issue of material
fact with regard to whether—even if she was technically noncompliant—her
refusal to continue to squat and cough warranted the jailers’ immediate resort
to repetitively shooting her with a pepperball gun, without first attempting to
utilize any other form of sanctions, such as additional negotiation. “[O]fficers
must assess not only the need for force, but also ‘the relationship between the
need and the amount of force used.’” Deville, 567 F.3d at 167. A juror could
thus reasonably infer that the jailers did not use measured, gradual force to
extract compliance, but rather resorted too quickly and unreasonably to the
use of the pepperball gun. See, e.g., Newman v. Guedry, 703 F.3d 757 (5th Cir.
2012) (reversing summary judgment and reasoning that “a reasonable jury
could find that the degree of force used was not justified where the officer
engaged in very little, if any, negotiation with the suspect and instead quickly


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                                 No. 12-41223

resorted to [force]”); Deville, 567 F.3d at 168 (“A reasonable jury could infer
from [the plaintiff’s] deposition testimony that [the officer] engaged in very
little, if any, negotiation with her[.]”). According, I respectfully dissent from
the majority’s conclusion that the record evidence does not present a genuine
issue of material fact that the Defendants’ use of force was excessive and in
violation of Dawson’s Fourth Amendment rights.
                                       C.
      At the summary-judgment stage, if a party asserts qualified immunity
in defense of an excessive-force claim, the plaintiff must provide evidence that
raises a genuine issue of material fact regarding: “(1) an 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.” Ontiveros v. City of
Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009); see also Ramirez v. Martinez, 716
F.3d 369, 377 (5th Cir. 2013). When analyzing an excessive-force claim and
determining whether the officials’ conduct was objectively unreasonable, we
must carefully consider the particular facts and circumstances of the case,
including the so-called Graham factors: (1) “the severity of the crime at issue,”
(2) “whether the suspect poses an immediate threat to the safety of the officers
or others, and,” (3) “whether he is actively resisting[].” Hogan v. Cunningham,
722 F.3d 725, 734 (5th Cir. 2013) (quoting Graham v. Connor, 490 U.S. 386,
396 (1989) (quotation marks omitted). “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 v. Marcantel,
567 F.3d 156, 167 (5th Cir. 2009).     Viewing the evidence in the light most
favorable to Dawson, as we must, Dawson has presented competent summary-
judgment evidence to establish all three elements required to rebut
Defendants’ qualified immunity defense.


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                                   No. 12-41223

         First, there is record evidence that Dawson suffered an injury. Dawson
attests that two of the three shots fired with the pepperball gun broke her skin
and caused substantial bleeding. An injury does not need to be “substantial”
if under the totality of the circumstances the force was excessive and
objectively unreasonable, particularly if the defendants’ conduct was
malicious. Schmidt v. Gray, 399 F. App’x 925, 928 (5th Cir. 2010); see also
Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013) (“[A]s long as a plaintiff
has suffered some injury, even relatively insignificant injuries . . . will prove
cognizable when resulting from an officer’s unreasonably excessive force.”)
(citations omitted).     Here, the defendants allegedly laughed at Dawson,
threatened her, and repeatedly shot her with the pepperball gun despite her
compliance. When viewed in the light most favorable to Dawson, the evidence
establishes that the Defendants’ conduct in this context amounted to a
malicious and unnecessary physical assault upon a non-threatening, compliant
detainee. The resulting injury caused by Defendants’ purportedly malicious
conduct sufficiently raises a genuine issue of material fact with regard to the
first prong of her excessive force claim.
         Second, Dawson must establish that her injuries were a direct result of
the use of force. Here, it is undisputed that Dawson’s injuries on her right knee
and left abdomen were caused by the pepperball gun bullets fired by Officer
Giles.
         Third, Dawson must raise a genuine issue of material fact that the use
of the pepperball gun was objectively unreasonable. See, e.g., Goodson v.
Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000).           Without applying the
Graham factors, the majority summarily concludes that because Dawson was
non-compliant, the officers’ use of force was objectively reasonable to achieve
compliance and thus the Defendants are entitled to qualified immunity. I


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                                  No. 12-41223

disagree.   Applying the Graham factors to the record evidence viewed in the
light most favorable to Dawson, I would find that she presented sufficient
evidence to create a genuine issue of material fact to dispute the Defendants’
claims that the use of the pepperball gun was objectively reasonable under
clearly established law.
      First, Dawson was in custody for two misdemeanor charges, neither of
which involve accusations of violence. Thus, the first Graham factor—the
severity of the crime—militates against concluding that the Defendants’ use of
force was objectively reasonable. See, e.g., Reyes v. Bridgwater, 362 F. App’x
403, 407 n. 5 (5th Cir. 2010) (noting that the decedent was in violation of “at
most, a misdemeanor,” suggesting that the “severity of the crime” factor thus
weighs against the district court’s summary-judgment order for the defendant-
officer who used deadly force).
      Application of the second Graham factor—the individual’s threat to
officer safety—similarly supports a conclusion that Defendants’ conduct was
not objectively reasonable. Viewing the evidence in the light most favorable to
Dawson, she was compliant with the officers’ instruction to submit to a strip
search, obediently agreed to squat and cough upon the officer’s first instruction
to do so, was unarmed, unclothed, stood within one to two feet of the dress-out
room’s wall, was surrounded by multiple armed officers, and did not attempt
to strike an officer. On this record, viewing the evidence in her favor, Dawson
did not pose a threat to the officers’ safety.
      Lastly, the third Graham factor—whether the plaintiff actively resisted
the officers—also supports a conclusion that the officer’s use of force was
objectively unreasonable.     Crediting all reasonable inferences in Dawson’s
favor, she presented record evidence that she never resisted the officers’ lawful
directives. Rather, the evidence regarding her refusal to squat and cough after


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                                  No. 12-41223

she initially complied with officers’ orders may reasonably be construed as a
verbalized denial to consent to an unlawful, abusive order and thus would not
qualify as “active resistance” and would not justify the officer’s resort to force.
Cf. Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009) (finding that the
use of measured force was reasonable when there was video evidence that the
plaintiff physically resisted an officer’s attempt to handcuff him).
      On this record, viewing the evidence in Dawson’s favor, a jury could
reasonably conclude that the officers resorted to the use of force without threat
to their safety, in violation of Dawson’s clearly established Fourth Amendment
rights, and that therefore, summary judgment for Defendants was improper.
See, e.g., Newman, 703 F.3d at 763. Under Graham, a reasonable officer would
have sufficient notice that using a pepperball gun to repeatedly shoot a naked,
possibly pregnant, compliant, non-threatening detainee who merely stated she
would not comply with an abusive command, clearly constitutes excessive force
in violation of the Fourth Amendment. Although Dawson was unable to point
to case law forbidding this exact conduct, that alone is insufficient to warrant
qualified immunity.
      When the arrest occurred, [Dawson] had a clearly established right
      to be free from excessive force, and it was clearly established that
      the amount of force that the officers could use “depend[ed] on the
      severity of the crime at issue, whether the suspect posed a threat
      to the officer’s safety, and whether the suspect was resisting arrest
      or attempting to flee.”
Deville, 567 F.3d at 169 (quoting Bush v. Strain, 513 F.3d 492, 502 (5th
Cir.2008)). “Qualified immunity will not protect officers who apply excessive
and unreasonable force merely because their means of applying it are novel.”
Id. at 763-64. “[T]he Graham excessive-force factors themselves can clearly
establish the answer, even without a body of relevant case law.” Id. (internal



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                                          No. 12-41223

quotation marks omitted). Therefore, the district court erred in granting the
Defendants’ motion for summary judgment based upon qualified immunity.
                                                II.
         In addition to the excessive force-claim, 3 Dawson alleges that the strip
search was conducted in an unreasonable, unconstitutional manner, in
violation of the Fourth Amendment. 4 Dawson contends that the search was
unreasonably conducted because she was verbally harassed, laughed at, and,
despite her compliance with the officers’ initial orders, shot repeatedly with a
pepperball gun. The majority opinion reasons that the use of the pepperball
gun was not objectively unreasonable and an unreasonable search claim may
not be established by allegations of mere verbal abuse alone, and affirms
summary judgment on this claim.
         Because I disagree with the majority’s finding that the use of the
pepperball gun here was not unreasonable, I would consider the allegations of
verbal harassment in the context in which it occurred and not in isolation from
the officers’ use of the pepperball gun. While mere verbal threats and gestures


         3   Dawson’s unreasonable-search claim is asserted against Officers Wells, Farmer, and
Giles.
         4Relying upon a flawed reading of Florence v. Board of Chosen Freeholders of the
County of Burlington, 132 S. Ct. 1510 (2012), Dawson contended that the strip search itself,
if conducted properly, would not have violated her Fourth Amendment right to be free from
unreasonable searches by the government. In Florence, the Court found that a strip search
of a detainee prior to admission to the general prison population is reasonable and thus
constitutional under the Fourth Amendment. However, the Florence Court explicitly limited
its holding, noting that “[t]his case does not require the Court to rule on the types of searches
that would be reasonable in instances where, for example, a detainee will be held without
assignment to the general jail population and without substantial contact with other
detainees.” Florence, 132 S.Ct. at 1522. It is unclear from the record whether Dawson—who
was admitted into custody for two misdemeanor crimes and released the following morning—
was admitted to the general prison population or whether she had any contact with other
detainees. Thus, Dawson may have had a viable claim that the strip search was unreasonable
at its inception. However, she waived this argument by conceding that she was not harmed
by the search itself and that she had no objection to it, had it been done “properly.” Thus, I
consider only her claim that the manner in which the search was conducted was
unconstitutional.
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                                  No. 12-41223

may not be cognizable under § 1983, the combination of taunting and harassing
language with the use of excessive force would violate clearly established law
as an unreasonable manner of conducting a search.
      Whether a search is conducted reasonably under the Fourth Amendment
“requires a balancing of the need for the particular search against the invasion
of personal rights that the search entails. Courts must consider the scope of
the particular intrusion, the manner in which it is conducted, the justification
for initiating it, and the place in which it is conducted.” Elliott v. Lynn, 38 F.3d
188, 191 (5th Cir. 1994) (quoting Bell v. Wolfish, 441 U.S. 520, 558 (1979)).
Dawson has presented summary-judgment evidence that during the strip
search, despite her compliance and non-threatening behavior, she was
surrounded by multiple officers, was verbally abused, was seen undressed by
a male officer, and was shot at repeatedly with a pepperball gun. Moreover,
the state’s need for the search is unclear. As noted supra, the search was
conducted pursuant to a request by the arresting officers from the PPD. The
majority states that the search was conducted upon “probable suspicion” and
cites to an Anderson County Unclothed Search form that indicates only that
the strip search was conducted because “PPD asked.” Despite the majority’s
contention to the contrary, there is no evidence in the record that the search
was conducted based upon reasonable or “probable” suspicion. Nor does the
record contain evidence that the search was conducted because, for example,
Dawson posed a threat to officer safety or was carrying any contraband on her
person or had concealed evidence. In light of the absence of any evidence
suggesting there was any need for the search balanced against the way in
which it was conducted, reasonable jurors could conclude that the Defendants
violated clearly established Fourth Amendment law that requires that strip




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                                         No. 12-41223

searches be conducted in a reasonable manner and in light of the government’s
need for the search.
       Rather than viewing the totality of the circumstances as alleged by
Dawson, the majority again improperly discredits and disregards evidence that
gives rise to a genuine issue of material fact regarding the reasonableness of
the search.
       I respectfully dissent from the majority opinion and would hold that the
district court’s summary-judgment order in favor of the Defendants should be
reversed and the case remanded for further proceedings regarding Dawson’s
excessive-force and unreasonable-search claims. 5




       5  Additionally, for the reasons that I disagree with the majority’s conclusions as to
Dawson’s § 1983 claims, I likewise would reverse the summary-judgment order with regard
to her state-law claims of assault and battery raised against Officers Wells, Farmer, and
Giles, and Sergeant Watson. “Under Texas law, government officials are entitled to
immunity from suit arising under performance of their (1) discretionary duties in (2) good
faith as long as they are (3) acting within the scope of their authority. . . . The good faith
element is ‘substantially’ the same as the federal inquiry of qualified immunity . . . . [but is
distinct in that it] focuses solely on the objective legal reasonableness” of the officers’ conduct.
Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872,
885 (5th Cir. 2004). Because, as explained supra, Dawson has presented genuine issues of
material fact from which a reasonable factfinder could conclude that the Defendants acted
unreasonably in causing her injuries, summary judgment as to her state-law claims was
likewise improper.


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