TIMOTHY BETTS, SR. v. ROSS BRENNAN; LOUISIANA STATE POLICE; DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
No. 21-30101
United States Court of Appeals for the Fifth Circuit
January 11, 2022
Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:19-CV-14680
STUART KYLE DUNCAN, Circuit Judge:
During a routine traffic stop, Timothy Betts repeatedly challenged Officer Ross Brennan‘s reasons for stopping him, refused to comply with his orders, batted his hand away, called him a liar, warned him to call in backup, and dared him to use his taser. After going round-and-round like this for several minutes, Brennan tased Betts once and arrested him. Betts pled guilty to resisting arrest. He then sued Brennan for using excessive force. The district court denied Brennan qualified immunity. We reverse and remand.
A.
Early in the afternoon of November 23, 2018, Officer Brennan stopped Betts for speeding. Brennan exited his cruiser and asked Betts to exit his truck. Initially, Betts complied. Once Betts was outside the truck, Brennan explained he had stopped Betts for going thirteen miles per hour over the speed limit. Betts immediately disagreed, arguing there was “no way” he was going that fast. After a short exchange, Betts sat back down in the driver‘s seat of the truck. Although continuing to maintain he had not been speeding, Betts remarked: “That‘s fine, I ain‘t going to argue with you.” Brennan asked Betts for his license, insurance, and registration while Betts sat in the truck, angled toward Brennan.
Betts, continuing to argue about the stop, handed the documents to Brennan. Brennan then stepped away from the truck, creating distance between himself and Betts, and asked Betts to stand at the back of the truck. Betts refused, saying: “I‘m fine . . . I‘m not causing you no threat . . . .” Brennan moved slightly closer and, over Betts‘s protests, told him to “go walk to the back of the truck or I‘m going to make you walk to the back of the truck.” Betts replied that Brennan had no reason or authority to order him to do that. This exchange continued for several seconds, with Brennan repeatedly commanding Betts to walk to the back of the truck and Betts refusing. Betts then told Brennan: “I‘m not disobeying . . . I‘m not causing you no threat. I‘ve done this before.” Brennan responded by stating: “For my safety and your safety, I‘m asking you to step to the back of the truck.”
Betts began shouting that Brennan was lying. Brennan disagreed. Amid this verbal struggle, Betts told him: “If you tase me, I‘m going to sue you.” Betts repeated he was “not being aggressive” and “not even reaching for [his] phone.” As the argument continued, Brennan leaned closer to the
Again stepping away from the truck, Brennan shouted to Betts to turn around and put his hands behind his back. Betts stood near the driver‘s compartment at a 45-degree angle away from Brennan with his hands raised over his head. Brennan repeatedly ordered Betts to put his hands behind his back, and after several commands Betts did so. Brennan then repeatedly told Betts to turn and face him. Betts did not do so but instead kept his body at an angle. Brennan repeated this command several more times, warning Betts that he would tase him if Betts did not comply. When Betts did not comply, Brennan deployed his taser, hitting Betts in the upper leg.
Betts screamed and fell to the ground. Brennan ordered Betts to turn over on his stomach, and Betts complied. Brennan then handcuffed Betts, warning that if he continued to resist Brennan would tase him again. As Brennan handcuffed Betts and sat him up, Betts began shouting profanities: “You just damn shot me for fucking nothing . . . you owe me, you fucked up . . . I‘m getting something out of this . . . .” The entire encounter—from the initial stop to Betts‘s arrest—lasted about four minutes. Betts later pled guilty to resisting arrest.
B.
Betts sued Brennan, the Louisiana State Police (“LSP“), and the Louisiana Department of Public Safety and Corrections (“DPSC“) in state
The district court denied Brennan summary judgment. It concluded his use of force was objectively unreasonable under the Fourth Amendment because Betts had been stopped for a minor traffic infraction, posed no threat or flight risk, and was “at most” passively resisting when he was tased. The court also found Brennan‘s actions were clearly established as unlawful by our decision in Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017), which the court found factually indistinguishable.
Brennan timely appealed.
II.
Under the collateral order doctrine, we have limited jurisdiction to review a summary judgment denial based on qualified immunity. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). We review the district court‘s order “only to the extent that [it] turns on an issue of law.” Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011) (quoting Kinney, 367 F.3d at 346). That is, we consider “the purely legal question whether a given course of conduct would be
This case involves no disputed facts because the encounter was captured on Officer Brennan‘s bodycam.4 See Scott v. Harris, 550 U.S. 372, 381 (2007) (a court reviewing a summary judgment denial based on qualified immunity “should . . . view[] the facts in the light depicted by the videotape“). That video “clearly show[s] . . . every particular element of the altercation,” Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013), and no party contests its “accuracy or completeness.” Aguirre v. City of San Antonio, 995 F.3d 395, 410 (5th Cir. 2021) (citation omitted). Therefore, while viewing the evidence favorably to the nonmovant, “we assign greater weight, even at the summary judgment stage, to the video recording[] taken at the scene.” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
III.
An officer merits qualified immunity unless (1) he “violated a statutory or constitutional right of the plaintiff” and (2) “the right was clearly established at the time of the violation.” Dyer v. Houston, 964 F.3d 374, 380
A.
Prong one asks whether Brennan‘s tasing Betts violated the Fourth Amendment. See Tolan v. Cotton, 572 U.S. 650, 656 (2014). This happens when an arrestee “suffers an injury that results directly and only from [the officer‘s] clearly excessive and objectively unreasonable use of force.” Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020) (citation omitted); see also Graham v. Connor, 490 U.S. 386, 395 (1989). Our vantage point is “the perspective of a reasonable officer on the scene, rather than . . . the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Various factors guide the analysis, 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.” Ibid. Additionally, we consider “the relationship between the need [for force] and the amount of force used.” Joseph, 981 F.3d at 332 (cleaned up) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). Facing an uncooperative arrestee, officers properly use “measured and ascending actions that correspond to [the arrestee‘s] escalating verbal and physical resistance.” Id. at 332-33 (quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)) (cleaned up).
Of the Graham factors, the extent of Betts‘s resistance is the most important to analyzing Brennan‘s use of his taser. The other two factors—the “severity of the crime at issue” and the “immediate threat to the safety of the officers or others“—are less salient. Betts was stopped for only a minor traffic offense. On the other hand, Brennan was the lone officer on the scene, and Betts‘s persistently confrontational manner created some threat to the officer‘s safety. Cf. Cloud v. Stone, 993 F.3d 379, 384-86 (5th Cir. 2021)
That reasoning misapplies our excessive-force precedents. True, we “have paid particular attention to whether officers faced active resistance when they resorted to a taser.” Cloud, 993 F.3d at 384. But the line between active and passive resistance is sometimes hazy and must be judged in light of the “necessarily fact-intensive” nature of the inquiry. Deville, 567 F.3d at 167. For instance, we have found tasing excessive when an arrestee “did no more than pull his arm out of the officer‘s grasp.” Cloud, 993 F.3d at 385 (citing Ramirez, 716 F.3d at 372, 378; Trammel v. Fruge, 868 F.3d 332, 341–42 (5th Cir. 2017)). We have also said “officers could not tase someone who had not committed a crime, attempted flight, or disobeyed any commands, and who may have only provoked police with an ‘off-color joke.‘” Ibid. (citing Newman v. Guedry, 703 F.3d 757, 762–63 (5th Cir. 2012)). On the other hand, we have found tasing not excessive where a suspect “resists arrest or fails to follow police orders” or “resist[s]” an officer‘s attempt to handcuff him. Ibid. (citing Buchanan v. Gulfport Police Dep‘t, 530 F. App‘x 307, 314 (5th Cir. 2013) (per curiam); Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009)). And we have relied on another circuit‘s decision finding tasing justified when an arrestee “‘used profanity, moved around and paced in agitation, and repeatedly yelled at [an officer]’ while refusing a series of verbal commands.” Id. at 385 n.6 (alteration in original) (quoting Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004)).
Measured against these cases, we disagree that Betts‘s resistance was “at most passive.” Betts did not just mouth off at Brennan, ignore one of his orders, or move away from his grasp. Rather, as the video shows, Betts adopted a confrontational stance at the outset and things got worse from
Other factors show Brennan‘s use of force was reasonable. For instance, he did not tase as a first resort. That is, he did not “immediately resort[] to [the taser] . . . without attempting to use physical skill, negotiation, or even commands.” Newman, 703 F.3d at 763; see also Trammell, 868 F.3d at 342 (“This Court has several times found that the speed with which an officer resorts to force is relevant in determining whether that force was excessive to the need.“). To the contrary, Brennan “properly use[d] ‘measured and ascending actions that correspond[ed] to [Betts‘s] escalating verbal and physical resistance.‘” Cloud, 993 F.3d at 384 (quoting Joseph, 981 F.3d at 332-33). Brennan tried to get Betts to stand behind the truck by invitation, explanation, command, and even by grasping his arm. And Brennan warned Betts more than once that he would be tased if he did not comply with his orders. Only when all those lesser options appeared to have failed did Brennan use his taser.
In sum, we conclude that Officer Brennan did not violate the Fourth Amendment by tasing Betts one time in order to arrest him.
B.
Even assuming a Fourth Amendment violation, prong two of the qualified immunity analysis asks whether the right was “clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (citation omitted). “[A] right is ‘clearly established’ only if it ‘is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.‘” Cunningham v. Castloo, 983 F.3d 185, 191 (5th Cir. 2020) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). To give officers that notice, the relevant law must not be “define[d] . . . at a high level of generality,” but instead with specificity. See Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citations omitted); see also Morrow v. Meachum, 917 F.3d 870, 874–75 (5th Cir. 2019) (“[W]e must frame the constitutional question with specificity and granularity.“). “[S]pecificity is especially important in the Fourth Amendment context, where . . . it is sometimes
The district court reasoned the unlawfulness of Brennan‘s single tase was clearly established by our decision in Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017). While Hanks shares some similarities with the situation Brennan faced, there are significant differences. We therefore disagree with the district court that Hanks placed the excessiveness of Brennan‘s tase “beyond debate.” al-Kidd, 563 U.S. at 741.6
In Hanks, an officer stopped Hanks and ordered him to exit his vehicle. Hanks, 853 F.3d at 741. After arguing for about a minute, Hanks eventually complied with the officer‘s orders to walk behind the vehicle, place his hands on the trunk, and put his hands behind his head. Id. at 742. Standing behind Hanks with taser drawn, the officer then ordered Hanks to “go to [his] knees.” Ibid. Hanks responded “for what?” and asked whether he was under arrest, but the officer only repeated his command. Ibid. Hanks then “made a small lateral step with his left foot,” his hands remaining behind his back. Ibid. The officer suddenly “rushed towards Hanks and administered a blow to Hanks‘s upper back or neck,” knocking him onto the trunk and to the
Our court denied the officer qualified immunity because his “suddenly resorting to physical force” was “clearly excessive and clearly unreasonable.” Id. at 745. We relied on the fact that Hanks‘s resistance was “at most, passive, . . . consist[ing] chiefly of remaining on his feet for about twenty seconds” after the order to kneel. Id. at 746 (citation omitted). Moreover, Hanks‘s “small lateral step,” which provoked the blow, “was not accompanied by any obvious signs of violence or flight,” nor did Hanks “turn his body or move his hands, which remained folded behind his back and plainly visible.” Ibid. Finally, we found it clearly established law that an officer cannot “abruptly resort[] 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.” Id. at 747.7
For many reasons, Hanks did not settle “beyond debate” whether Brennan‘s use of force was constitutionally excessive. al-Kidd, 563 U.S. at 741. First, although he did argue initially with the officer, Hanks complied with his order to walk behind his car. Hanks, 853 F.3d at 741–42. By contrast, Betts repeatedly resisted a similar order and remained near the
These multiple factual distinctions matter because, as Hanks itself recognized, “[e]xcessive force claims are necessarily fact-intensive” and turn on “the facts and circumstances of each particular case.” Id. at 745 (citations and internal quotation marks omitted). Hanks therefore did not place “beyond debate” whether Brennan‘s single tase of Betts violated the Fourth Amendment. al-Kidd, 563 U.S. at 741. The district court erred in concluding otherwise.
IV.
We REVERSE the district court‘s denial of summary judgment and REMAND for further proceedings consistent with this opinion.