Lionel ALEXANDER, Plaintiff-Appellant v. CITY OF ROUND ROCK, a Municipal Entity; Officer Marciano Garza, Individually and in His Official Capacity; Sergeant Greg Brunson, Individually and in His Official Capacity; Sergeant Sampson Connell, Individually and in His Official Capacity; Officer Tracy Staggs, Individually and in His Official Capacity; John Does, City of Round Rock Police Officers, Individually and in Their Official Capacity, Defendants-Appellees
No. 16-50839
United States Court of Appeals, Fifth Circuit
April 18, 2017
The district court ruled that Aetna “lacked an objectively reasonable basis for seeking removal of this action almost five months after expiration of the thirty-day deadline for removal.” As stated in the previous section, we agree with the district court‘s conclusion that Aetna‘s removal was untimely. We perceive no abuse of discretion in the district court‘s finding that Aetna had no reasonable basis to think otherwise.
CONCLUSION
Accordingly, we AFFIRM both the district court‘s remand order and award of attorneys’ fees.
Karen Elisabeth Oprea, Law Office of Oprea & Weber, Austin, TX, for Plaintiff-Appellant.
Mike Thompson, Jr., Esq., Archie Carl Pierce, Esq., Wright & Greenhill, P.C., Austin, TX, for Defendants-Appellees.
Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
Officer Marciano Garza pulled over Lionel Alexander in a hotel parking lot after observing what he perceived as suspicious activity. Alexander refused to answer Garza‘s questions. After waiting for backup to arrive, Garza and other officers forcibly removed Alexander from his car, handcuffed him, and ultimately arrested him for resisting a search. Alexander sued the officers and the city under
I
We stress at the outset that, because this appeal is from a grant of a motion to dismiss, all of the following facts are drawn exclusively from the allegations in Alexander‘s complaint.
Alexander was staying at a hotel in Round Rock, Texas. At approximately 9:15 p.m. he returned to the hotel from a trip to the grocery store and saw a stray cat in the hotel parking lot. He stopped his car, exited, and peered into the grass near his vehicle looking for the cat, intending to feed it. He could not find the cat and so turned to get back into his car, planning to park it in a spot nearer his hotel room. Upon turning to reenter his car, he noticed a police car in the parking lot but, not knowing why the police car was there and assuming it was unrelated to him, Alexander got back in his vehicle and proceeded to drive toward his room.
While Alexander was moving his car, Garza, who was driving the police car in the parking lot, activated his emergency lights and pulled Alexander over. Garza
After some time, backup arrived in the form of Sergeant Greg Brunson, Sergeant Sampson Connell, Officer Tracy Staggs, and unidentified John Does (together with Garza, the “officers“). Garza then asked Alexander to exit his car. Alexander responded by asking Garza why he wanted him to get out of the car, and Garza responded, “Because I asked you to.” Alexander began to reply that he did not believe he was legally required to exit. Before he finished, Garza and the other officers pulled Alexander from the car and pinned him face down onto the ground. One officer pressed a boot or knee on the back of Alexander‘s neck as his face was “mashed into the concrete.” Alexander felt at least three officers on top of his body, “manipulating his limbs and putting pressure on his torso, neck, and head.”
The officers handcuffed Alexander and sat him on a curb. Garza asked Alexander, “[a]re you ready to talk to me now?” Alexander refused, using an unidentified expletive. The officers then shackled Alexander‘s legs. At some point, either during the forcible removal from his car or while he was on the curb, Alexander sustained “injuries to his body ... including injuries to his mouth.” He “sustained emotional and psychological injuries as well.” Throughout this ordeal, Alexander did not physically resist the officers in any way.
Garza informed Alexander that he was under arrest “for uttering an expletive where the public could hear him, which [Garza] asserted was a violation of the [Texas] disorderly conduct statute.” The officers then searched Alexander‘s person and vehicle, finding nothing illegal or suspicious. Alexander was placed handcuffed into the back of one of the officers’ police cars and taken to the Round Rock police station. He was then transported to the Williamson County Jail, where he remained for approximately twenty hours. In his formal police report, Garza wrote that Alexander was arrested not for disorderly conduct, but for resisting a search in violation of
Alexander sued the City of Round Rock, Garza, and the other officers in federal district court, asserting claims under
II
We review “a district court‘s dismissal under
When a government official asserts a qualified immunity defense, the burden is on the plaintiff to “show that he pleaded facts showing ... that the official violated a statutory or constitutional right. If the plaintiff makes this showing, then [we must] determine whether the defendants’ actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of.” United States ex rel Parikh v. Brown, 587 Fed.Appx. 123, 127-28 (5th Cir. 2014) (internal quotation marks, citations, and alteration omitted); see also Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005). When engaging in the qualified immunity analysis, we are “permitted to exercise [our] sound discretion in deciding which of the two prongs ... should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). We “review a grant of qualified immunity de novo.” Gonzalez v. Huerta, 826 F.3d 854, 856 (5th Cir. 2016) (quoting Bishop v. Arcuri, 674 F.3d 456, 460 (5th Cir. 2012)).
III
Alexander argues on appeal that Garza and the other officers are liable for: (1) unlawfully detaining him; (2) arresting him without probable cause; (3) retaliating against him for exercising his First and Fifth Amendment rights; and (4) using excessive force against him. We address each argument in turn.
A. Unlawful Detention
“Warrantless searches and seizures are ‘per se unreasonable under the
Both this court and the Supreme Court have dealt frequently with reasonable suspicion or its absence. The Supreme Court case with the most salience is Wardlow, in which the Court had to determine whether an individual who “fled upon seeing police officers patrolling an area known for heavy narcotics trafficking” had provided the police with reasonable suspicion to detain him. Id. at 121. The Court ultimately concluded that he had. Id. at 126. In so doing, it distinguished between “headlong flight ... the consummate act of evasion” and the right of the individual to “ignore the police and go about his business.” Id. at 124-25. “Nervous, evasive behavior [was] a pertinent factor in determining reasonable suspicion,” id. at 124, but continuing to go about one‘s business was not.
Our circuit has further interpreted Wardlow; we held in Hill that Wardlow did not establish a “bright-line rule that flight by itself establishes reasonable suspicion.” Hill, 752 F.3d at 1036. In Hill, police officers approached a car parked in an apartment complex; as they neared the car, the defendant‘s girlfriend “exited the car and moved towards the apartment building in a manner that officers said was ‘quick,’ ‘brisk,’ and ‘hurrying.‘” Id. We noted that the girlfriend “could have exited the car out of a desire to flee the police; or, she could have simply exited the car because Hill drove her home, they finished saying their ‘goodbyes,’ and she was preparing to go inside.” Id. at 1037. The officers “lacked a reasonable basis to infer much of anything about the girlfriend exiting the car and taking a few steps towards the apartment during the same time as their arrival.” Id. In other words, circumstances that could equally be interpreted as flight from officers or as continuation of previously-undertaken actions do not create reasonable suspicion.2
We have identified additional factors for determining reasonable suspicion. An informant‘s tip is a factor weighing in favor. See United States v. Martinez, 486 F.3d 855, 861 (5th Cir. 2007) (“An informant‘s tip may, in certain cases, provide reasonable suspicion.“). A suspect‘s presence in a high crime area is also relevant. See, e.g., United States v. Rideau, 969 F.2d 1572, 1575 (5th Cir. 1992) (en banc). So too the time of day. See id.; see also, e.g., Hill, 752 F.3d at 1036 (noting that the suspect was not doing anything “unusual for the hour“); United States v. Michelletti, 13 F.3d 838, 845 (5th Cir. 1994) (en banc) (DeMoss, J., concurring) (noting that at 2 a.m. “the overwhelming majority of law-abiding citizens are at home in bed,” unlike the defendant).
The district court concluded that Alexander failed to state a claim that Garza lacked reasonable suspicion to detain him. The district court did not provide great detail on what led to its conclusion, but it did hold that, “[b]ased on the totality of the circumstances alleged, Officer Garza had reasonable suspicion to stop Plaintiff
Taking all of Alexander‘s well-pleaded allegations as true and drawing all inferences in his favor—as we must at this stage of the litigation—we cannot conclude as a matter of law that he has failed to state a Fourth Amendment claim for unlawful detention. According to Alexander‘s allegations, the most Garza could have observed was a man (Alexander) briefly looking around a vehicle in the parking lot, turning to get into a car, noticing a police car, continuing to get into the car, and beginning to drive further into the parking lot. This is not “headlong flight” as discussed in Wardlow; this is a man “go[ing] about his business.” Wardlow, 528 U.S. at 125. It was not “evasive” behavior. Id. at 124. Garza had no prior tip or information that could have led him to suspect Alexander of criminal activity. Cf. Martinez, 486 F.3d at 861. This stop did not take place late at night; Garza pulled Alexander over at approximately 9:15 p.m., in a parking lot we are required to infer was well-lit. Cf. Hill, 752 F.3d at 1036; Rideau, 969 F.2d at 1575. Nor is there any suggestion in the complaint that this was a high crime area. Cf. id. Indeed, the circumstances in Hill were much more suspicious than they were here; in Hill it was a high crime area, later at night, and Hill‘s girlfriend actively altered her behavior to move away from police officers when they got near her, Hill, 752 F.3d at 1035-36, but we still did not find reasonable suspicion.
We do not suggest that officers in this circuit have faced this precise factual situation before. But that is not a condition precedent to denying qualified immunity—“officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). Based on these facts alone, we cannot conclude as a matter of law that Garza had reasonable suspicion to detain Alexander pursuant to the Fourth Amendment. Moreover, taking the facts as alleged, the lack of reasonable suspicion was clearly established—the factors we laid out as relevant in Hill, Martinez, Rideau, and Michelletti, as well as the Supreme Court‘s decision in Wardlow, do not support reasonable suspicion here. We therefore reverse the district court‘s dismissal of Alexander‘s unlawful detention claim.
B. Probable Cause
According to Garza‘s formal report, Alexander was ultimately arrested for resisting a search under
Here, Alexander alleges that at all times—while being removed from his car, manhandled on the concrete, handcuffed on the curb, and then placed in the police car—he was entirely passive and did not physically resist the officers in any way. The district court nevertheless found that Garza‘s decision to arrest Alexander for resisting a search “was reasonable,” especially “given [Alexander‘s] refusal to [answer] Officer Garza‘s questions, coupled with his questioning of Officer Garza‘s authority to direct [Alexander] to exit the vehicle.” On these grounds, the district court held that the officers were entitled to qualified immunity and dismissed Alexander‘s claim for false arrest. At no point did the district court identify what allegations in the complaint supported a finding that Alexander had used force against the officers such that they could arrest him for resisting a search.
The only argument the officers make as to the use of force requirement under
The district court granted the officers qualified immunity from Alexander‘s false arrest claim. There can be no doubt
Because, on the facts alleged, the officers did not have probable cause to arrest Alexander for resisting a search under Texas law, and because no objectively reasonable officer would conclude that such probable cause did exist, we hold that: (1) Alexander has stated a Fourth Amendment claim; and (2) the officers are not entitled to qualified immunity from that claim at the motion to dismiss stage.
C. Retaliation
Alexander argues that the officers retaliated against him for exercising his constitutional rights (1) not to answer police questions during a Terry stop, and (2) to utter an expletive in public. He contends that the officers arrested him only because he exercised these rights, in violation of the First and Fifth Amendments. The district court held that Alexander‘s allegations were merely formulaic and conclusory and did not state a valid claim for retaliation under either the First or Fifth Amendments. It therefore did not reach the qualified immunity issue.
1. Fifth Amendment
Alexander‘s argument that Garza and the officers retaliated against him for exercising his Fifth Amendment right not to answer Officer Garza‘s questions is easily disposed of. As this court has noted on multiple occasions, “[a]n individual‘s Fifth Amendment right against self-incrimination is implicated only during a custodial interrogation.” Murray v. Earle, 405 F.3d 278, 286 (5th Cir. 2005) (internal quotation marks omitted); see also United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015) (same). Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.” Murray, 405 F.3d at 285; see also Winn v. New Orleans City, 919 F.Supp.2d 743, 752 (E.D. La. 2013) (same). In other words, the Fifth Amendment protects a defendant from being coerced into making an incriminating statement, and then having that statement used against him at trial. But Alexander was never tried. His Fifth Amendment right against self-incrimination was not violated.4
As the district court explained, “[t]o prevail on a First Amendment retaliation claim, Plaintiff must demonstrate that (1) he was engaged in constitutionally protected activity, (2) the officers’ action caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the officers’ adverse actions were substantially motivated against Plaintiff‘s exercise of constitutionally protected conduct.” Alexander v. City of Round Rock, No. A-15-CA-00617-SS, 2016 WL 3360530, at *6 (W.D. Tex. June 14, 2016) (citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)). Alexander argues that Garza and the officers retaliated against him for exercising his First Amendment right of free expression in two distinct ways: (1) using an expletive in public; and (2) being silent and not answering an officer‘s questions.
The claim that the officers retaliated against Alexander for using an expletive in public is not supported by the facts as alleged in the complaint. As the district court correctly explained, by the time Alexander used the expletive, he had already been removed from his car and handcuffed on the curbside. Furthermore, any adverse action that was taken once the arrest was effected cannot be reasonably attributed to Alexander‘s alleged use of an expletive, as Alexander was ultimately arrested for resisting a search and not for any unfortunate word choice. Thus, Alexander‘s First Amendment retaliation claim fails as far as his use of an expletive is concerned.
Alexander also argues that the officers retaliated against him for exercising his First Amendment right to be silent and not answer their questions. This argument was not addressed straight-on by the district court. We hold that Alexander‘s claim on this point cannot overcome the officers’ qualified immunity, because “it was not clearly established that an individual has a First Amendment right to refuse to answer an officer‘s questions during a Terry stop.” Koch v. City of Del City, 660 F.3d 1228, 1244 (10th Cir. 2011).5 Surprisingly few courts have ruled on this precise issue; the parties point to no cases from this circuit directly on point. The sparse case law that does exist, however, indicates no consensus that a defendant has a First Amendment right not to answer an officer‘s questions during a stop like the one at issue here. One court summarized the issue well:
Plaintiffs contend that they can state such a First Amendment retaliation claim because Defendants retaliated against them for exercising their right not to speak.... However, this right not to speak has been limited to the context of government-compelled speech with respect to a particular political or ideological message. See United States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995)[;] Kania v. Fordham, 702 F.2d 475, 478 n. 6 (4th Cir. 1983). Plaintiffs cite no authority to support the application of the First Amendment protection against government-compelled ideological or political speech into the context of police interviews....
McFadyen v. Duke Univ., 786 F.Supp.2d 887, 949 (M.D.N.C. 2011) (internal quotation marks omitted), aff‘d in part, rev‘d in part on other grounds sub nom. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012). It is instructive that Alexander points to no case supporting the contention that there is a clearly established First Amendment right not to answer an officer‘s questions during a traffic stop. We therefore conclude that the officers are entitled to qualified immunity on Alexander‘s First Amendment retaliation claim.
Alexander alleges that the officers used excessive force in violation of his Fourth Amendment rights when they “mashed” his face “into the concrete,” “pinned him by pressing [a] boot or knee on the back of his neck,” and “manipulate[ed] his limbs and put[] pressure on his torso, neck, and head.” Alexander further alleges that, as a result, he “sustained injuries to his body as a result of this attack, including injuries to his mouth.” He also alleges that he “sustained emotional and psychological injuries as well.” The district court found that Alexander did not plead his injuries with enough specificity to overcome the de minimis requirement.
We disagree. “[A]lthough a de minimis injury is not cognizable, the extent of injury necessary to satisfy the injury requirement is ‘directly related to the amount of force that is constitutionally permissible under the circumstances.‘” Brown v. Lynch, 524 Fed.Appx. 69, 79 (5th Cir. 2013) (quoting Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir. 1996)). “Any force found to be objectively unreasonable necessarily exceeds the de minimis threshold, and, conversely, objectively reasonable force will result in de minimis injuries only.” Id. (emphasis added) (footnote omitted). Consequently, “only one inquiry is required to determine whether an officer used excessive force in violation of the Fourth Amendment.” Ikerd, 101 F.3d at 434 n.9. In short, “as long as a plaintiff has suffered ‘some injury,’ even relatively insignificant injuries and purely psychological injuries will prove cognizable when resulting from an officer‘s unreasonably excessive force.” Brown, 524 Fed.Appx. at 79 (footnotes omitted) (quoting Ikerd, 101 F.3d at 434).
On the facts alleged, we conclude that the officers’ use of force was objectively unreasonable. Nothing in Alexander‘s statements or actions indicated that he posed any risk of harm to the officers. Nor did he pose any flight risk—indeed, he stayed in his vehicle and made no attempt to leave while Garza awaited backup. Perhaps Alexander‘s refusal to exit his vehicle on Garza‘s command warranted physical removal from the car, but it did not warrant throwing Alexander onto the ground, kneeing him in the back, and pushing his face into the concrete. The officers’ use of force once Alexander was safely removed from the vehicle was not objectively reasonable. Consequently, Alexander‘s alleged injuries—though perhaps not sufficient on their own to satisfy the de minimis requirement—are enough to support a claim for excessive force at the motion to dismiss stage.
IV
We have only heard one side of the story. After discovery is complete, the district court may well correctly determine that none of Alexander‘s claims can survive summary judgment. But at the motion to dismiss stage, we are bound to accept his allegations as true. And on the facts alleged, Alexander has stated several constitutional claims.
We (1) REVERSE the district court‘s dismissal of Alexander‘s unlawful detention