KATIE JOSEPH, on behalf of THE ESTATE OF KENDOLE JOSEPH, DECEASED; SHERESA JACKSON, on behalf of her minor children, K.B.J. and K.A.J.
No. 19-30014
United States Court of Appeals for the Fifth Circuit
November 20, 2020
United States Court of Appeals Fifth Circuit FILED November 20, 2020 Lyle W. Cayce Clerk
Plaintiffs—Appellees,
versus
DAMOND BARTLETT, Officer; EDDIE MARTIN, Officer; ARTHUR MORVANT, Officer; THOMAS THOMPSON, Officer; BRANDON LEDUFF, Officer; DUSTON COSTA, Officer; SHANNON DUGAS, Officer; JULIUS ROLLAND, Officer; STEVEN VERRETT, Officer; ROBERT FAISON, Officer,
Defendants—Appellants.
Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:17-CV-5051
Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
“What is the virtue of a proportional response?” an exasperated President Bartlet demands in a memorable scene from the first season of The West Wing.1 Anything more, the Chairman of the Joint Chiefs of Staff coolly advises, would be a “staggering overreaction . . . you‘ll have doled out a $5,000 punishment for a fifty-buck crime.”2
For those in positions of public trust—from Commanders in Chief (who must “take Care that the Laws be faithfully executed”3) to City of Gretna Police Officers (who “vow to protect life and property while safeguarding constitutional guarantees”4)—proportional responses are good policy. We expect those charged with executing and enforcing our laws to take measured actions that ascend in severity only as circumstances require. A disproportionate response is unreasonable. And if it describes physical force inflicted by a police officer, it is unconstitutional.
That‘s the issue here: Did Gretna police officers respond “with measured and ascending actions that corresponded to” Kendole Joseph‘s behavior?5 The Plaintiffs, Joseph‘s family, maintain that Joseph did not resist arrest, yet Officers Martin and Costa repeatedly tased and struck him, and nine other officers—Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett—did nothing to stop the abuse. The officers tell another story.
I
A
We begin with a 10,000-foot overview of the uncontroversial facts. A middle-school official saw Joseph near the school acting “strange” and asked school resource officers to check him out. When the school resource officers approached, Joseph ran into a nearby convenience store and jumped behind the checkout counter. The school resource officers followed and made radio calls, stating they were pursuing a “suspicious person.” Twelve other officers joined them. About eight minutes after Joseph entered the store, the officers apprehended him and carried him to a police car, after which he became unresponsive and was taken to the hospital, where he died two days later.
The parties dispute what Joseph did and said during the eight-minute encounter in the store and what the officers saw, heard, and knew.
The evidence from surveillance video establishes when each officer entered the store and, to some degree, each officer‘s location and conduct in the store.6 For the most part, Joseph cannot be seen in the video.
B
We now proceed through the facts in detail, including the disputed facts, considering each officer‘s actions independently.7 We draw these facts from the record, prioritizing the video evidence.8 We view the facts and draw reasonable inferences in the light most favorable to Plaintiffs.9 “In qualified immunity cases,” which often involve competing versions of events, we take “the plaintiff‘s version of the facts,” unless that version “is blatantly contradicted by the record, so that no reasonable jury could believe it.”10
1
We begin with the events occurring before Joseph jumped behind the convenience-store
She asked Officer Thompson and Officer Morvant, another school resource officer, to check Joseph out. Officer Morvant approached Joseph and heard him yelling, “Help me from the police.” Before Officer Morvant said anything, Joseph began running away from the school and pulling on the locked door handles of nearby cars, pleading for “help [] from the police.” Officer Morvant found this behavior “odd” and “erratic” and knew that Joseph was possibly “emotionally disturbed.” He radioed other officers in the area to report “a suspicious person who was fleeing.”
Officers Martin and Leduff heard this radio transmission and spotted Joseph near a convenience store. They parked their marked police car, exited, and gave loud verbal commands for Joseph to come to them. Despite these commands, Joseph entered the store, and the officers followed him.11 Officer Martin saw no weapon in Joseph‘s hands or any indication that he had one in
his waistband, nor did he make any threatening moves like he was reaching for a weapon.
As Officer Martin entered the store, he trained his gun on Joseph, who was shouting, “Help me, help me somebody call the cops . . . . They‘re trying to kill me.” When Officer Martin instructed Joseph to get on the ground, Joseph jumped over the checkout counter.12
2
The convenience-store manager, who was behind the counter at the time, testified that Joseph looked scared and immediately “went face down.” Once on the ground, Joseph covered his face with his hands and assumed the fetal position. Seconds later, Officers Martin and Leduff followed Joseph over the counter. Officer Martin, weighing 300 pounds, immediately placed his full weight onto Joseph, who was still lying on the floor with his legs bent toward his chest. Officer Leduff began holding Joseph‘s upper body down. Officer Morvant entered the store next, briefly stopped to look over the counter, then walked behind the counter and began holding Joseph‘s lower body down. Officer Thompson then entered, followed by Officer Dugas, and both observed Joseph and the officers from the front side of the counter. At that point, approximately thirty seconds after Officer Martin jumped over the counter, he ordered Joseph to put his hands behind his back and deployed his taser for eleven seconds. Meanwhile, Officers Thompson and Dugas walked around the counter and continued observing from behind the counter. Officer Dugas handed a baton to Officer Martin, who jabbed it
A few seconds later, Officers Varisco, Costa, and Rolland entered the store, followed shortly by Officer Faison. Officers Varisco and Faison observed from the front side of the counter, and Officers Costa and Rolland walked behind the counter. Officer Varisco reached over to offer his taser to the officers behind the counter. Officer Costa briefly observed from behind the counter, then entered the scrum, holding Joseph‘s lower body down. At that point, Officer Morvant left the scrum and made his way to the front side of the counter, where he continued to observe. Officer Rolland continued to observe from behind the counter.
Officer Verrett then entered the store. Two seconds later, Officer Martin deployed his taser again, for three seconds. A few seconds later, Officer Bartlett entered the store and began to observe from the front side of the counter. Officers Faison and Verrett walked behind the counter and observed from there.
Officers Martin, Thompson, Dugas, and Costa began attempting to drag Joseph from the narrower area behind the counter to the wider area, on the path to the door.
Officer Costa then kicked Joseph twelve to thirteen times while holding onto the counter. During this time, Officer Verrett entered the scrum. Officer Martin then punched Joseph in the head three times. Officers Martin, Thompson, Dugas, Costa, Faison, and Verrett resumed their efforts to drag Joseph toward the wider area, while Officer Leduff observed. Once in the wider area, Officer Martin punched Joseph in the face three times. Officer Bartlett then jumped over the counter and began holding Joseph down. Seconds later, Officer Costa punched Joseph in the head six times.
Three-and-a-half minutes after Officer Costa‘s last strike, Officers Martin, Costa, and Verrett placed Joseph in handcuffs and leg shackles. Officers Martin, Verrett, Rolland, and Varisco carried him, face down, to Officer Martin‘s patrol car. There, all officers except Officer Thompson placed Joseph feet-first in the car and pulled him “across the seat from the other side, bent his legs up, and shut the doors with [Joseph] in a prone position on the seat facedown.” Joseph became unresponsive, at which point medical personnel, who had arrived on the scene before Joseph was carried out of the store, examined him for the first time. They performed CPR and took Joseph to the hospital, where he died from his injuries two days later.
3
In total, Joseph endured twenty-six blunt-force injuries to his face, chest, back, extremities, scrotum, and testes. Throughout the eight-minute encounter, Joseph was on the ground, experiencing acute psychosis, and continuously yelling. Officer Bartlett recalled Joseph “yelling random things” and pleading for someone to “call the police.” Officer Faison and the store manager recalled him pleading for someone to “call the real police.” Officer Leduff recalled Joseph calling for his mother and “saying all types of things,” including that he was “about to be killed.” The store manager recalled Joseph calling out for his mother and repeatedly yelling, “My name is Kendole Joseph,” and “I do not have a weapon.”
II
Joseph‘s family sued for violations of Joseph‘s Fourth Amendment rights, bringing excessive-force claims against Officers Martin and Costa and failure-to-intervene claims against Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison,
The district court determined that genuine disputes of material fact exist as to whether Joseph actively resisted arrest during the encounter, and whether and when the officers became aware that Joseph was experiencing a mental-health crisis. Specifically, the parties dispute the points at which Joseph was on his stomach, back, and side. They also dispute the extent to which Joseph struggled against the officers, and the extent to which Joseph was physically able to comply with the officers’ orders about putting his hands behind his back and rolling over. They dispute what the officers saw, heard, and knew—about Joseph‘s condition and about the actions of their fellow officers. And they dispute the cause of Joseph‘s death.
The district court concluded that, construing all facts and inferences in favor of Plaintiffs, the record supports the following account: Once behind the counter, Joseph immediately dropped into the fetal position, with his hands over his face. The officers then pinned him to the floor, rendering him incapable of complying with orders to put his hands behind his back and roll over. Joseph did not strike, kick, or threaten any officer, nor did he try. He squirmed, wiggled, and flailed at times, and he gave no struggle at other times. No officer attempted to negotiate with Joseph or otherwise de-escalate the encounter. No officer attempted to intervene, despite seeing and hearing Officers Martin and Costa tase, jab, punch, and kick Joseph, while he was pinned to the ground and experiencing a mental-health crisis. Joseph died from his injuries.
The district court concluded that the officers violated Joseph‘s Fourth Amendment rights in a manner prohibited by clearly established law, and that the officers were not entitled to qualified immunity. The court thus denied summary judgment.14
III
Our review involves multiple legal standards, corresponding to qualified immunity, summary judgment, interlocutory review of qualified immunity denials, and the Fourth Amendment. The intersection of these standards gets tricky, so we address each in turn, starting with qualified immunity.
As a theoretical backdrop, the doctrine of qualified immunity attempts to balance two competing societal interests: “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”15 These interests are distilled into a legal standard, an affirmative defense, that shields public officials sued in their individual capacities “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”16
In practice, applying that standard involves significant departures from the norms of civil litigation—particularly summary-
A plaintiff suing for a constitutional violation has the ultimate burden to show that the defendant violated a constitutional right—that is, the plaintiff must make this showing whether or not qualified immunity is involved.18 But when qualified immunity is involved, at least in this circuit, a plaintiff has the additional burden to show that the violated right was “clearly established” at the time of the alleged violation.19
This expanded substantive burden isn‘t the only special feature of qualified immunity. Burden shifting changes, too. Under the ordinary summary-judgment standard, the party who moves for summary judgment bears the initial burden to show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”20 The movant satisfies this burden by showing that a reasonable jury could not find for the nonmovant, based on the burdens that would apply at trial.21 For a defendant, this means showing that the record cannot support a win for the plaintiff—either because the plaintiff has a failure of proof on an essential element of its claim or because the defendant has insurmountable proof on its affirmative defense to that claim.22 The defendant can show this by
introducing undisputed evidence or by “pointing out . . . an absence of evidence to support the [plaintiff‘s] case.”23 If the defendant succeeds on that showing, the burden shifts to the plaintiff to demonstrate that there is a genuine issue of material fact and that the evidence favoring the plaintiff permits a jury verdict in the plaintiff‘s favor.24
But that changes with qualified immunity. When a public official makes “a good-faith assertion of qualified immunity,” that “alters the usual summary-judgment
Once the burden is on the plaintiff, things briefly sound familiar again: The plaintiff must show that there is a genuine dispute of material fact and that a jury could return a verdict entitling the plaintiff to relief for a constitutional injury. That would be the same if the plaintiff did not face qualified immunity. But, to overcome qualified immunity, the plaintiff‘s version of those disputed facts must also constitute a violation of clearly established law. This requires the plaintiff to “identify a case“—usually, a “body of relevant case law“—in which “an officer acting under similar circumstances . . . was held to have violated the [Constitution].”27 While
there need not be “a case directly on point,” the unlawfulness of the challenged conduct must be “beyond debate.”28 This leaves the “rare” possibility that, in an “obvious case,” analogous case law “is not needed” because “the unlawfulness of the [challenged] conduct is sufficiently clear even though existing precedent does not address similar circumstances.”29
Moving from the bar to the bench, qualified immunity similarly changes the court‘s normal task on summary judgment. A court decides whether summary judgment is appropriate by “view[ing] the facts in the light most favorable to the nonmoving party and draw[ing] all reasonable inferences in its favor” (so far normal), then determining whether the plaintiff can prove a constitutional violation (still normal) that was clearly established (not normal).30
Things change for appellate courts, too—we review earlier than we otherwise would, and we review less than we otherwise would. An official who unsuccessfully moves for summary judgment on qualified-immunity grounds may immediately appeal the denial of qualified immunity, which would otherwise not be final and appealable.31 An official can take multiple immediate appeals because the official can raise qualified immunity at any stage in the litigation—from
judgment, to
Our review is de novo, as summary-judgment review usually is.33 But we only review a denial of summary judgment based on qualified immunity “to the extent that it turns on an issue of law.”34 Both steps—the constitutional merits and the “clearly established law” inquiry—are questions of law. That means we do not second-guess the district court‘s determination that there are genuine disputes of material fact, as we otherwise might.35 When the district court identifies a factual dispute, as it did here, we consider only whether the district court correctly assessed “the legal significance” of the facts it “deemed sufficiently supported for purposes of summary judgment.”36 But we do not evaluate whether the district court correctly deemed the facts to be “sufficiently supported“; that is, whether the “evidence in the record” would permit “a jury to conclude that certain facts are true.”37 In short, we may evaluate whether a factual dispute is material (i.e., legally significant), but we may not evaluate whether it is genuine (i.e., exists).38
IV
While we have discretion to leapfrog the merits and go straight to whether the alleged violation offended clearly established law,39 we think it better to address both steps in order to provide clarity and guidance for officers and courts.40 We consider
A
1
The constitutional provision governing the claims against Officers Martin and Costa is the Fourth Amendment, which protects the right to be free from excessive force during a seizure.41 A violation of this right occurs when a seized person suffers an injury that results directly and only from a clearly excessive and objectively unreasonable use of force.42 Determining whether force was excessive or unreasonable is a “necessarily fact-intensive” and case-specific inquiry.43 The test for reasonableness is “not capable of precise definition or mechanical application.”44 But in Graham v. Connor, the Supreme Court outlined a few considerations that inform the need for force: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.45 We review these considerations “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”46
And we “must assess not only the need for force, but also ‘the relationship between the need and the amount of force used.‘”47 The timing, amount, and form of a suspect‘s resistance are key to determining whether the force used by an officer was appropriate or excessive.48 While “a suspect‘s refusal to comply with instructions” may indicate that physical force is justified, officers must also select the appropriate “degree of force.”49 To stay within constitutional bounds, an officer must use force “with measured and ascending
Here, the district court treated the excessive-force claims as brought against only Officers Martin and Costa. The court determined that the parties had agreed that only Officers Martin and Costa—and not the “bystander officers,” Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett—had exerted constitutionally relevant force against Joseph. The court then analyzed each Graham factor. The first factor (the severity of the crime) weighed heavily in Joseph‘s favor, the court concluded, because “it is undisputed that [Joseph] had not committed and was not committing any crime.” Specifically, the court recounted that the radio transmission by Officer Morvant, which Officers Martin and Costa both testified they heard, contained no indication that Joseph was suspected of criminal activity, was armed, or posed a threat to himself or others.53
For the second factor (whether the suspect posed an immediate threat) the court determined that, in the light most favorable to Plaintiffs, Joseph presented “no immediate threat to the safety of the officers or others.” Specifically, Officers Martin and Costa knew Joseph was experiencing a mental-health crisis because they could perceive that he was scared and they could hear him yelling unusual, irrational statements, like asking for his mother and for somebody to call the real police. Officers Martin and Costa knew Joseph was unarmed because he yelled that, too; plus, no officer observed a weapon or an indication of a weapon. Officers Martin and Costa saw Joseph on the floor, having “assumed a fetal, or defensive, position” and knew he presented no threat to the store manager behind the counter. The court found this version of the facts consistent with the video evidence. So, the second factor weighed in Joseph‘s favor, as Plaintiffs’ version of the facts showed that Joseph presented no more of a threat than the inherent threat posed by “virtually all arrestees.”54
For the third factor (whether the suspect was actively resisting or evading arrest)
Evaluating the relationship between the need for force and the amount of force used, the court determined that Officers Martin and Costa failed to employ measured and ascending action by “immediately resort[ing] to force, without any attempt to de-escalate the volatile situation” or “negotiate,” “despite their knowledge that [Joseph] was mentally disturbed.” The court further determined that the degree of force was excessive because Officers Martin and Costa “pin[ned] him to the floor“; Officer Martin “tased him twice, beat him with a baton,” and “punched him in the head“; and Officer Costa punched him and “kicked him in the groin and elsewhere on the body.” The district court concluded that on Plaintiffs’ version of the facts, Officers Martin and Costa had violated Joseph‘s Fourth Amendment rights by applying excessive force. The district court then denied summary judgment as to all officers.
On appeal, the officers argue first that the district court inappropriately relied on the complaint rather than on the evidence. A court may not rely on mere factual allegations in an unverified complaint to make summary-judgment rulings.55 But the district court here relied on the parties’ statements of material facts and video footage, and the court‘s record citations reflect that it also relied on depositions, exhibits, and other materials expressly allowed under
Second, the officers argue that it is immaterial whether Joseph attempted to strike or kick an officer, resisted only passively, or was experiencing mental-health problems. They argue that they took measured and ascending actions corresponding to the threat that Joseph posed by fleeing, ignoring their commands, and struggling against them, while the store manager was nearby. To be sure, the legal significance of an officer‘s awareness of a suspect‘s mental health is murky.56 We need not
thicket today, however, for two reasons. First, the parties did not cite any authority here or in the district court to explain how Joseph‘s mental health affects the legal analysis. We will not decide the issue in the first instance without the benefit of briefing or the district court‘s analysis.
Second, resolving the issue would not change our conclusion in this case. If Joseph was not actively resisting, Officers Martin and Costa inflicted force beyond what the
The Tenth Circuit considers mental illness within the third Graham factor, as to resistance. See Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (“It is not reasonable for an officer to repeatedly use a taser against a subdued arrestee they know to be mentally ill, whose crime is minor, and who poses no threat to the officers or others.“).
The Ninth Circuit says it diminishes the government‘s interest in using force, making force less reasonable. See Vos v. City of Newport Beach, 892 F.3d 1024, 1034 (9th Cir. 2018); accord Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010).
The Fourth and Sixth Circuits say that “officers who encounter an unarmed and minimally threatening individual who is ‘exhibiting conspicuous signs that he is mentally unstable’ must ‘de-escalate the situation and adjust the application of force downward.‘” Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 900 (4th Cir. 2016) (alterations omitted) (quoting Martin v. City of Broadview Heights, 712 F.3d 951, 962 (6th Cir. 2013)).
resistance are legally irrelevant—indeed, the cases uniformly treat a suspect‘s resistance as material.57
Force must be reduced once a suspect has been subdued.58 Notably, “subdued” does not mean “handcuffed.” If the suspect lacks any means of evading custody—for example, by being pinned to the ground by multiple police officers—force is not justified.59 So even if Joseph failed to comply and struggled against the officers at certain points throughout the encounter, that resistance did not justify force indefinitely.
And summary judgment is inappropriate when the timing of the officer‘s force may or may not have corresponded to the timing of the suspect‘s resistance. For an officer‘s force to be reasonable, it must be commensurate with the suspect‘s level of contemporaneous, active resistance. In Curran, the district court determined that the suspect had in fact “battered” the officer before the officer
The remainder of the officers’ brief essentially asks us to reconsider the district court‘s factual determinations, which we may not do.64
Viewing the facts in the light most favorable to Plaintiffs, we agree with the district court‘s weighing of factors. We hold that, if a jury found those facts to be true, Officers Martin and Costa violated Joseph‘s right to be free from excessive force during a seizure by failing to employ a measured and ascending response to the threat Joseph posed. Though Joseph was not suspected of committing any crime,65 was in the fetal position, and was not actively resisting, Officers Martin and Costa inflicted twenty-six blunt-force injuries on Joseph and tased him twice, all while he pleaded for help and reiterated that he was not armed. Officers Martin and Costa are not entitled to summary judgment on the constitutional merits.
Here, Plaintiffs may not be able to prove their claims, and the officers may well prevail at trial. But our task at this stage is to ascertain whether, viewing all facts and drawing all reasonable inferences in Plaintiffs’ favor, there exist genuine disputes of material fact that a jury should suss out. Based on the record before us and our standard of review at this stage, there are genuine disputes of material fact, meaning that Plaintiffs are entitled to make their best case to a jury. If, that is, they can also demonstrate these facts amount to a violation of clearly established law, which we confront next.
2
On Plaintiffs’ facts, Officers Martin and Costa violated Joseph‘s
Decades ago, Graham clearly established that the use of force is contrary to the
The Supreme Court has explained that for a court to deny qualified immunity based on “clearly established” law, “existing precedent must have placed the statutory or constitutional question beyond debate.”70 In other words, existing precedent must “squarely govern[]” the specific facts at issue, such that only someone who is “plainly incompetent” or who “knowingly violates the law” would have behaved as the official did.71 Because this “specificity” “is ‘especially important in the
In this case, the district court found that a genuine dispute exists such that, under Plaintiffs’ version of the facts, Officers Martin and Costa used force in a manner that violated clearly established law. The district court undertook the clearly established law analysis itself, as Plaintiffs had twice failed to identify a case putting the officers on notice that their conduct was unconstitutional. The court had ordered supplemental briefing specifically identifying this failure, giving Plaintiffs a second chance. Plaintiffs urged that this was an obvious case, but the court did not adopt that reasoning.
The officers ask us to reverse on grounds of clearly established law, again arguing that the officers’ actions were justified because Joseph was struggling and noncompliant. We have no more ability to review these factual disputes as to clearly established law than we did as to the constitutional merits—which is to say, none.
The officers also ask us to reverse because the district court did not hold Plaintiffs to their burden to identify an analogous case, and this is not the rare obvious case for which no similar case is needed. Plaintiffs now argue that Newman, Deville, and Darden clearly established that “two taser strikes, baton strikes, punches to the head, and kicks to the groin and elsewhere” was excessive force because Joseph “engaged in no violence, committed no crime, caused no harm, surrendered into the fetal position behind a store counter, and . . . at all times presented with psychological disorientation.”
The standard for obviousness is sky high, and this case does not meet it. We have nothing approaching the clarity we have perceived in other obvious cases. For example, we found that it was obviously unconstitutional for an officer to shoot—without warning, despite an opportunity to warn—a suspect who was pointing a gun to his own head and did not know the officer was there.73 We explained that it
In another case, we found that an officer obviously did not have reasonable suspicion to detain a man based on the following: The man briefly looked around a car in a well-lit parking lot, turned to get into another car, noticed the officer, got into that other car, and began to drive.75 The man exhibited no headlong flight or evasive behavior, and the officer had no prior tip or other information providing a reason to suspect the man of criminal activity.76
Here, the parties agree that the officers became involved because the assistant middle-school principal expressed concerns about Joseph being near the school. The parties agree that Joseph ran from the officers and disobeyed commands. The parties dispute how, if, and when Joseph resisted during the encounter in the store. The district court declined to find this case was obvious, and we are not persuaded otherwise.
Therefore, we must “identify a case where an officer acting under similar circumstances . . . was held to have violated the
Surveying the state of the law as of February 7, 2017, we conclude that analogous facts from Newman v. Guedry, Ramirez v. Martinez, and Cooper v. Brown provided notice to any reasonable officer that it was unconstitutional to tase and strike Joseph as Officers Martin and Costa did here.
In Newman, we held that officers violated the
The officers claimed that their behavior was objectively reasonable because Newman had resisted search and arrest, had struggled, had been noncompliant, and had reached for his waistband.87 But Newman‘s evidence contradicted all of this, and the video evidence did not prove or disprove either party‘s version of the facts. And we noted that, even if Newman “struggle[d]” by pushing himself off from the car and back into the officers, after being struck ten times, this type of “struggle” “did not rise to the level of ‘active resistance.‘”88 We further explained that “the officers immediately resorted to taser and nightstick without attempting to use physical skill, negotiation, or even commands.”89 Therefore, we held, the officers responded disproportionately to the threat and applied excessive force in violation of the
Here, as in Newman, Joseph was not suspected of committing a crime. He was not armed. Even if he disobeyed officer commands, on Plaintiffs’ version of the facts he offered no active resistance. And, according to Plaintiffs, Officer Martin immediately resorted to physical force, including use of a taser and a baton, and he and Officer Costa resorted to punches and kicks without attempting negotiation.
In Ramirez v. Martinez, construing the disputed facts in the plaintiff‘s favor, we found that officers exerted force in violation of the
In this case, Plaintiffs’ view of the facts shows that Joseph resisted, at most, passively, by disobeying similar orders and pulling away from the officers. Plus, the district court concluded that, at points, he was not resisting at all, meaning that, at points, he was subdued and no force was justified. Yet, Officer Martin immediately applied significant physical force by pinning him down, tasing him, and jabbing him with a baton, and Officers Martin and Costa continued applying force by punching and kicking him, even while he was subdued and not resisting. While the officers maintain that Joseph was resisting, the video does not preclude the possibility
And in Cooper v. Brown, we concluded that an officer inflicted excessive force by declining to release his police dog‘s bite until after he had handcuffed the suspect.92 True, the force in this case was non-canine. But as we have explained, the “[l]awfulness of force . . . does not depend on the precise instrument used to apply it.”93 The pertinent fact in Cooper is that the officer encountered the suspect cornered, in a small “cubbyhole” for storing trash bins. This location, combined with the dog physically keeping him from going anywhere, left the suspect with no meaningful way to evade police custody.94
Similarly, here, Joseph was cornered behind the counter and would have had to get past as many as a dozen police officers in order to leave the store. As in Cooper, Joseph was unarmed and the officers had no indication that he was. Yet, viewing the evidence in the light most favorable to Plaintiffs, Officers Martin and Costa “increased the force applied at the same time the threat presented by [the suspect] decreased” by the presence of additional officers in the store and Joseph‘s waning resistance.95
Pratt v. Harris County provides a helpful counterexample.96 In Pratt, officers came upon a car in a ditch and observed the suspect, Pratt, “running in circles, imitating a boxer.”97 Pratt then began approaching the officers, coming within five to seven feet of them. The officers’ initial response to the threat of an approaching suspect was unholstering their tasers and instructing Pratt to stop. Instead of stopping, Pratt ran away. So, as an escalated response to escalated resistance, one officer deployed his taser. But Pratt kept running. Because Pratt was still resisting, the officer deployed his taser two more times, to no avail. Pratt kept running. So another officer deployed his taser, this time successfully ending Pratt‘s flight but not his resistance.
Pratt struggled against the officers who attempted to handcuff him, such that they could only secure one of his arms in the cuffs. So Pratt was tased again. Eventually, Pratt claimed, “okay, okay, I‘ll quit. . . . I‘ll stop fighting.”98 Officers then successfully handcuffed Pratt and began walking him toward the patrol car. A few steps into the journey, Pratt reignited his resistance and broke free of the officer‘s grip. Another officer “returned Pratt to the ground,” where Pratt began kicking the officers—one officer was struck twice in the groin.99 In response to Pratt‘s escalating resistance, the officers handcuffed his ankles. Still, the officers were not able to control him, so they tased Pratt once more. This time, the taser‘s leads directly contacted Pratt‘s body, and the officers were able to get control of Pratt‘s legs and roll him onto his stomach. One officer also placed his knee on Pratt‘s back to keep him under control, at which point Pratt responded,
We concluded that the officers’ actions did not amount to excessive force because “the officers responded with measured and ascending actions that corresponded to Pratt‘s escalating verbal and physical resistance.”102 For instance, we highlighted that the officers did not deploy their tasers “as the first method to gain Pratt‘s compliance.”103 Each escalating use of force was in direct response to Pratt‘s escalating resistance. The officers asked Pratt to comply and warned him multiple times, which Pratt ignored. Under these circumstances, the officers’ force was constitutional.104
The stark contrast between the facts of Pratt and this case emphasize that the behavior of Officers Martin and Costa was clearly unconstitutional. On Plaintiffs’ facts, as Joseph lay on the floor behind the convenience-store counter in the fetal position, repeatedly asking for help and exclaiming that he was not armed, Officer Martin did not request compliance or warn Joseph before tasing him, using his baton on him, or punching him. Officer Costa did not command or warn Joseph before kicking or punching him. Officers Martin and Costa did not reserve their tasings, punches, and kicks as responses to active resistance. They put force first. The evidence here permits a finding that—unlike the proportionately responding officers in Pratt and, instead, like the disproportionately responding officers in Newman, Ramirez, and Cooper—Officers Martin and Costa violated clearly established law by failing to attempt less forceful alternatives and by continuing to inflict force despite Joseph committing no crime, posing no threat, and giving no active resistance.
As the district court did, we find further confirmation that we have correctly ascertained the clearly established law as of February 7, 2017, because a number of our opinions released after February 7, 2017, conclude that these principles were the clearly established law by 2013.105
Darden announced no new rule; it reaffirmed an already-existing one. Darden repeated what had long been established in our circuit: Officers engage in excessive force when they physically strike a suspect who is not resisting arrest. For us to say that the unlawfulness of such conduct wasn‘t clearly established in 2017, despite the fact that Darden said it was clearly established in 2013, would flout precedent and our rule of orderliness.113
In sum, viewing the facts in Plaintiffs’ favor, Officer Martin struck, punched, and tased Joseph, while Officer Costa repeatedly kicked and punched him—twenty-six blunt-force strikes and two rounds of tasing in total. All the while, Joseph was facedown in the fetal position, not suspected of committing any crime, not posing a threat to officers or others, and not actively resisting arrest. Officers Martin and Costa did not respond to Joseph with measured and ascending force that corresponded to his resistance. If Plaintiffs’ facts are true, the actions of Officers Martin and Costa were disproportionate to the situation, in violation of the
1
Officers Costa and Martin were not the only officers at the scene. Roughly a dozen police officials stood around and behind the checkout counter observing the use of force against Joseph, and not one attempted to stop Officers Martin and Costa from applying the force they did. The officers facing bystander liability claims are Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett.114
An officer is liable for failure to intervene when that officer: (1) knew a fellow officer was violating an individual‘s constitutional rights, (2) was present at the scene of the constitutional violation, (3) had a reasonable opportunity to prevent the harm but nevertheless, (4) chose not to act.115 Bystander liability requires more than mere presence in the vicinity of the violation; “we also consider whether an officer ‘acquiesced in’ the alleged constitutional violation.”116
The district court denied qualified immunity to the “bystander officers,” determining that the officers’ only argument against bystander liability depended on whether Officers Martin and Costa committed an underlying constitutional violation.117 The district court did not separately analyze the constitutional merits and the clearly established law. Before us, neither party engages in a separate analysis for each officer, as qualified immunity requires, and neither party briefed the clearly established law. As we did above, we will address the constitutional merits and then the clearly established law.118
We start by discarding non-starter arguments, one on each side. The officers again argue that the district court inappropriately relied on the complaint. Asked and answered. And Plaintiffs contend that the officers forfeited their argument that the record lacks evidence to support bystander liability. Plaintiffs note that the district
Next, the officers argue that they could not have known a constitutional violation was occurring because the district court could not definitively answer whether Officers Costa and Martin had in fact violated Joseph‘s constitutional rights. But the district court was not incapable of determining whether a constitutional violation occurred; at this stage in the litigation, that was not the district court‘s job. Rather, the district court properly declined to resolve genuine, material factual disputes—that is the jury‘s job. When the jury has decided these factual disputes, then and only then can it be determined whether Officers Martin and Costa violated the Constitution.
The fact that there are competing narratives means only that, at this stage in the litigation, either narrative is possible. It does not mean that the officers saw nothing. If the jury agrees with Plaintiffs, then Officers Martin and Costa inflicted unconstitutional force, so Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett saw conduct that violated the Constitution. If the jury agrees with the officers, then Officers Martin and Costa did not inflict unconstitutional force, so Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett saw conduct that did not violate the Constitution.
Finally, the officers argue that there was no time or opportunity for them to intervene and that they could not perceive what Officers Martin and Costa were doing. But these arguments fall into the category of factual disputes that a jury must decide. The parties tell vastly different stories of what happened, and the video evidence exposes, rather than expunges, the disputed facts.
The video shows Officer Leduff positioned near Joseph‘s head for most of the encounter, at times holding Joseph down. It shows Officer Morvant observing the encounter from behind and in front of the counter, also holding Joseph down at times. It shows Officer Dugas observing from both sides of the counter and handing Officer Martin the baton. It shows Officer Varisco observing from both sides and on top of the counter, at one point offering his taser to Officer Martin. It shows Officers Thompson, Faison, Rolland, and Verrett observing the encounter from behind and in front of the counter, assisting with holding Joseph down or dragging Joseph toward the more open area behind the counter. It shows Officer Bartlett observing from in front of the counter, then jumping over the counter to hold Joseph down.
As reflected in the following table, not every officer could have observed every infliction of force but, viewing the video in the light most favorable to Plaintiffs, every officer could have observed some of it:
| | Martin | Leduff | Morvant | Thompson | Dugas | Varisco | Costa | Rolland | Faison | Verrett | Bartlett |
| Tase 1 | MA | OHD | OHD | O | NP | NP | NP | NP | NP | NP | NP |
| Baton | MA | OHD | OHD | O | Supply baton | O | O | O | NP | NP | NP |
| Tase 2 | MA | OHD | O | OHD | OHD | Offer taser | OHD | O | O | OHD | O |
| Costa kicks | OHD | OHD | O | OHD | OHD | O | MA | O | O | O | O |
| Martin punches 1 | MA | O | O | OHD | OHD | O | OHD | O | OHD | OHD | O |
| Martin punches 2 | MA | O | O | OHD | OHD | O | OHD | O | OHD | OHD | O |
| Costa punches | OHD | O | O | OHD | OHD | O | MA | O | OHD | OHD | OHD |
KEY: MA = main actor; O = observed; OHD = observed, held down; NP = not present
We may not disregard Plaintiffs’ version of the facts unless it is “blatantly contradicted by the record, so that no reasonable jury could believe it.”119 And there is no such contradiction here. The video evidence does not eliminate Plaintiffs’ narrative that the officers knew excessive force was being applied, had the opportunity to try to stop it, and did not. If the jury found those facts to be true, then Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett: (1) knew Officers Martin and Costa were violating Joseph‘s constitutional rights, (2) were present at the scene of that constitutional violation, (3) had a reasonable opportunity to prevent the harm, but (4) chose not to act.120
Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett have raised no argument that defeats Plaintiffs’ claim that they violated Joseph‘s
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But, again, that does not defeat qualified immunity. Plaintiffs have the burden to demonstrate that the law was “clearly established“—that, as of February 7, 2017, the date of their encounter with Joseph, any reasonable officer would have known that the Constitution required them to intervene.121 And we cannot deny qualified immunity without identifying a case in which an officer acting under similar circumstances was held to have violated the
Plaintiffs do not identify a single case to support the argument that any reasonable officer would have known to intervene under these circumstances. We make no comment on whether Plaintiffs could have done so—the record in this case simply shows that they have not done so. In fact, they do not make any arguments as to the clearly established law. Nor do they argue that this case is obvious as to these nine officers. The officers don‘t identify cases or make arguments either, but that is not their burden.
But the district court did not fix it here. The court did not assess the clearly established law applicable to the nine other officers. The Supreme Court strictly enforces the requirement to identify an analogous case and explain the analogy.122 With no briefing and no district-court analysis to review, we cannot justify a denial of qualified immunity on the grounds that clearly established law shows that every officer acted unconstitutionally in this case. Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett are entitled to qualified immunity and summary judgment.
V
We are entitled to count on law enforcement to use no more force than necessary. And we are entitled to enforce that standard as a matter of constitutional law when officers fail to honor it.
The factual disputes that remain in this case are not just genuine, they are material, meaning that Plaintiffs are entitled to put their evidence against Officers Martin and Costa before a jury. Viewing the facts in Plaintiffs’ favor, a reasonable jury could find that Joseph was not actively resisting arrest, and that Officers Martin and Costa immediately, repeatedly inflicted significant physical force. This permits a finding that Officers Martin and Costa failed to use measured and ascending force commensurate with Joseph‘s resistance, and therefore used excessive force in violation of the
And, while Plaintiffs meet half their burden to prove that genuine disputes of material fact exist as to whether Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett violated Joseph‘s constitutional rights, halfway is not good enough. Plaintiffs fail to meet their burden to show that Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett violated clearly established law.
We DISMISS the appeal to the extent it challenges the district court‘s factfinding. We AFFIRM the denial of summary judgment as to Officers Martin and Costa. We REVERSE the denial of summary judgment as to Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett.
ANDREW S. OLDHAM, Circuit Judge, concurring in the judgment.
I agree with the majority that police officers cannot beat an unresisting man. See Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012). Under circuit precedent, that‘s enough to send Officer Costa and Officer Martin to trial.
I also agree with the majority that an absence of clearly established law entitles the “bystander officers” to qualified immunity. Where “it is plain that a constitutional right is not clearly established,” the Supreme Court permits us not to reach the underlying constitutional merits. Pearson v. Callahan, 555 U.S. 223, 237 (2009). I would accept that invitation in this case. Doing so
Notes
Forgoing a knotty constitutional inquiry makes for easier sledding, no doubt. But the inexorable result is “constitutional stagnation“—fewer courts establishing law at all, much less clearly doing so. Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one‘s answered them before. Courts then rely on that judicial silence to conclude there‘s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.
Zadeh v. Robinson, 928 F.3d 457, 479–80 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part) (footnote omitted).