Solis v. SerrettSolis v. Serrett
Foundational to our qualified immunity doctrine is the concept that we must view an officer‘s actions from that officer‘s point of view without the benefit of hindsight. From the comfort of a courtroom or chambers, it is often possible for judges to muse on how an officer could have handled a situation better. But that does not mean the officer is not entitled to qualified immunity. In this case, we cannot say that the officers violated clearly established law when we view the events from the officers’ point of view at the very moment they acted. Accordingly, we reverse and remand.
On May 27, 2019, Officer Samuel Serrett pulled over Timothy Robinson and his girlfriend Jessica Solis in Baytown, Texas near a self-storage center.1 Serrett told Robinson, the driver, that he had been pulled over for failing to properly signal and driving outside of his lane. Serrett posed a series of questions to Robinson, but Solis interjected and answered the questions before Robinson could respond. Eventually, Serrett had to clarify to Solis that unless he was directing a question specifically to her, he wanted a response from Robinson as he was the driver. Serrett requested Robinson‘s license and registration. Solis informed Officer Serrett that she owned the vehicle. The couple further informed Serrett that they lived in an apartment unit in the storage unit building across the street. Because Serrett believed that either Robinson or Solis (or both) may have been intoxicated, he requested the assistance of a backup officer.
Serrett ordered Robinson to exit the vehicle. Serrett then asked Robinson a variety of questions, and the exchange became tense. Eventually, Serrett began a field sobriety test of Robinson. Robinson objected, stating “I am not intoxicated.” Serrett viewed this as refusing the field sobriety test. He arrested Robinson and placed him into the police vehicle.
When Serrett asked Robinson to exit the vehicle, Solis began
When Serrett arrested Robinson for refusing the field sobriety test, Solis objected, and Sims informed her that Robinson “refused, so he‘s taking him in.” Solis stepped closer to Serrett and Robinson, and Sims asked her to step back to the grassy area because he did not “want to put [Solis] in cuffs for interference.” Solis began to narrate the events, and Sims interjected stating “well actually, he gave him multiple opportunities, I‘m gonna say it for the camera . . . multiple opportunities, and he refused.”
Once Robinson was in Serrett‘s vehicle, Serrett walked over to where Solis and Sims stood. Serrett informed Sims that Robinson‘s license was “ineligible.” Sims responded, “Oh that‘s why they were acting like that.” At this point, Solis stopped filming but continued to hold her cell phone. She twice requested Serrett‘s badge number. Serrett reached out and said, “Can I see your phone for a second please?” Solis jerked the phone away from Serrett‘s hand and responded, “No you can‘t.” Serrett continued to reach for the phone stating, “Well I don‘t want you to drop it when I arrest you.” Solis let her left hand fall to her side and exclaimed, “Drop it? Excuse me!” Sims came up behind Solis and quickly pulled her left arm behind her back. Serrett reached for Solis‘s other arm. Solis fell to the ground, either from the officers forcing her down or from the momentum as she struggled. Sims then held his knee on Solis‘s back as Serrett handcuffed her. Officer Serrett
Solis sued Serrett and Sims, asserting various
The officers later moved for summary judgment, arguing they were entitled to qualified immunity on all of Solis‘s claims. The district court granted summary judgment on all of Solis‘s claims except her excessive force
II.
“Qualified immunity 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.” Kokesh v. Curlee, 14 F.4th 382, 391 (5th Cir. 2021) (cleaned up). “This court reviews de novo the district court‘s resolution of legal issues on a motion for summary judgment on the basis of qualified immunity.” Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017) (quoting Griggs v. Brewer, 841 F.3d 308, 311 (5th Cir. 2016)). “Summary
Importantly, appellate review of an interlocutory appeal is circumscribed. “District court orders denying summary judgment on the basis of qualified immunity are immediately appealable and reviewed de novo only if they are predicated on conclusions of law and not genuine issues of material fact.” Kokesh, 14 F.4th at 390. Put another way, “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court‘s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319–20 (1995). “But we do have jurisdiction to decide whether the district court erred in concluding as a matter of law that officials are not entitled to qualified immunity on a given set of facts. In other words, this court can review whether any factual dispute found by the district court is material for summary judgment purposes.” Whittington v. Maxwell, 455 F. App‘x 450, 454 (5th Cir. 2011) (cleaned up). Accordingly, “[t]his Court is essentially reviewing the district court‘s decision that a ‘certain course of conduct would, as a matter of law, be objectively unreasonable in light of
III.
“The qualified immunity inquiry includes two parts. In the first we ask whether the officer‘s alleged conduct has violated a federal right; in the second we ask whether the right in question was ‘clearly established’ at the time of the alleged violation, such that the officer was on notice of the unlawfulness of his or her conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (en banc). The court need not decide the first question before the second, and it may decide the case solely on the basis that the right was not clearly established. Pearson v. Callahan, 555 U.S. 223, 236–37 (2009). We address each question in turn.
A. Constitutional Violation
Solis‘s sole outstanding
We first consider Solis‘s injury. At her deposition, Solis testified that her back and her wrists were hurt and that she still has problems with her right wrist, which she said “feels like a nerve thing” and described as “a pulled pain.” Solis also claims that she suffered mental anguish because of the officers’ actions.
Generally, to maintain a claim for excessive force, a plaintiff need not demonstrate a significant injury, but the injury must be more than de minimis. See Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005). Recently, this circuit has characterized the injury requirement as “a sliding scale, not a hard cutoff.” Buehler, 27 F.4th at 982. This approach treats the degree of injury—even if minor—as interrelated to the reasonableness and excessiveness of the officer‘s force. “[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.‘” Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (alternation in original) (quoting Brown v. Lynch, 524 F. App‘x 67, 79 (5th Cir. 2013)). Accordingly, “[a]ny 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. (quoting Brown, 524 F. App‘x at 79). In other words, “as long as a plaintiff has suffered ‘some injury,’ even relatively insignificant injuries and purely
Solis‘s injuries are properly characterized as minor. Courts have found similar or worse injuries to be minor. See, e.g., Westfall v. Luna, 903 F.3d 534, 549–50 (5th Cir. 2018) (holding that abrasions, bruises, bloody urine and high blood pressure were de minimis injuries); Buehler, 27 F.4th at 982 (holding that abrasions to the face, head and tricep bruises, and mental trauma were minor injuries). Moreover, Solis never sought medical treatment. See Buehler, 27 F.4th at 983 (noting that a plaintiff‘s failure to seek medical treatment suggested the injury was minor). Nor do we place much weight on Solis‘s supposed psychological injury, as “we have rejected similar attempts by excessive-force plaintiffs to parlay their minimal injuries into more serious ones by tacking on allegations of psychological suffering.” Id. Accordingly, the limited extent of Solis‘s injuries tends to support a conclusion that the officers acted reasonably.
We next consider the amount of force used and the reasonableness of resorting to such force. Courts generally consider these factors together, as “officers 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 (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)). In Graham v. Connor, the Supreme Court enumerated three non-exclusive considerations for courts to examine when analyzing the reasonableness of the force used, 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.” 490 U.S. at 396.
The third factor—whether Solis was resisting arrest—cuts in favor of the officers. Case law distinguishes between active and passive resistance. “[W]here an individual‘s conduct amounts to mere ‘passive resistance,’ use of force is not justified.” Trammell, 868 F.3d at 341. Here, Solis was generally hostile to the officers from the beginning of the traffic stop. She emphasized that she and Robinson were near their home, argued with the officers, repeatedly implied that Robinson was pulled over only because of his race, pulled away when Serrett asked for her phone, and stepped back and exclaimed “Drop it? Excuse me!” when Serrett told her she was being arrested. This court has also acknowledged that “a suspect who backs away from the arresting officers is actively resisting arrest—albeit mildly.” Buehler, 27 F.4th at 984 (cleaned up). Solis also seemed to struggle against the officers as they grabbed her arms, which viewed from the officers’ perspective could be “another form of resistance.” Id. Accordingly, it may have been reasonable for the officers to perceive Solis as actively resisting arrest, and this factor weighs in the officers’ favor.
Although not listed in the Graham factors, courts also consider the speed with which officers resort to force. See, e.g., Trammell, 868 F.3d at 342
Taking these considerations together, we conclude that the actions of Serrett and Sims were not so objectively unreasonable as to violate Solis‘s constitutional rights. First, Solis‘s essentially de minimis injuries weigh strongly in favor of a finding of qualified immunity. Second, while two of the Graham factors weigh against the officers, qualified immunity can apply even when only one factor weighs against the plaintiff. See Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022). And we have held that the two Graham factors that favor Solis “are less salient.” Id. Moreover, “‘[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge‘s chambers,’ violates the Fourth Amendment.” Buehler, 27 F.4th at 981 (quoting Graham, 490 U.S. at 396–97). The use of force demonstrated on the video evidence was relatively limited, involving only the officers’
B. Clearly Established
We further hold that even had Serrett and Sims violated Solis‘s constitutional rights, such a right was not clearly established at the time of the supposed constitutional violation.4 To determine that a right is clearly established “we must be able to point to controlling authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc) (cleaned up). “Although this does not mean that ‘a case directly on point’ is required, ‘existing precedent must have placed the statutory or constitutional question beyond debate.‘” Trammell, 868 F.3d at 339 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
The most similar Fifth Circuit cases that Solis cites are Trammell v. Fruge, 868 F.3d 332 (5th Cir. 2017), and Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017), each of which we consider in turn. Trammell was the case that the district court held clearly established that the officers’ conduct violated Solis‘s Fourth Amendment rights. In that case, George Trammell, the plaintiff, was suspected of driving his motorcycle while intoxicated. Trammell, 868 F.3d at 336. Four officers, including Officer Fruge, arrived on the scene and asked Trammell a series of questions. Id. at 336–37. Trammell calmly refused to tell Fruge how much he had been drinking, declined to walk toward Fruge, and refused to put his hands above his head. Id. at 337. He also told Fruge “I‘m not going to jail.” Id.
Fruge then grabbed Trammell‘s right arm. Id. Trammell pulled back and told Fruge that it hurt and not to grab him there. Id. Another officer grabbed Trammel‘s left arm, but Trammell pulled away. Id. Fruge then performed a knee strike on Trammell‘s thighs, and another officer put Trammell in a headlock. Id. Three officers pulled Trammell to the ground, where his face landed on the pavement. Id. While Trammell was on the ground, the officers administered knee strikes to Trammell‘s arms, thighs, and ribs to subdue him. Id. at 337–38. Trammell was eventually diagnosed with “mildly displaced right L1, L2, and L3 transverse process fractures.” Id. at 338. He was forced to give up recreational activities and claimed he had
The court analyzed the Graham factors and held either that they all weighed against the officers or that disputed issues of material fact existed. Specifically, it found that: (1) Trammell‘s offense was minor; (2) a fact question existed as to whether Trammell posed a threat to himself or others; (3) a fact question existed as to whether Trammell was actively resisting; and (4) the quickness with which the officers resorted to force weighed against finding the officers’ actions reasonable. Id. at 340–42. Importantly, the court also held that “Trammell has independently presented a question of material fact as to whether the force used to gain control of his arms was excessive to the need.” Id. at 342. The court emphasized the harsh nature of the officers’ actions and the degree of force used. Id.
The degree of force used sets Trammell apart from the case at hand. Unlike here, three officers “tackled” Trammell to the ground, where he landed face first on pavement. Id. at 337–38. They “pummeled” him with their knees and fists. Id. at 342. They did so after Trammell shouted that his arm was fused. Id. The court held that “a jury could reasonably infer that the officers heard Trammel‘s plea but nevertheless continued to beat him without consideration for his limited mobility and strength.” Id. And unlike Solis‘s minor injuries, Trammell incurred bone fractures that significantly affected his life. Id. at 338. In short, the use of force in Trammell was clearly disproportionate to the need for it. Accordingly, no officer reading that case would reasonably understand it to govern here, where the officers only yanked Solis‘s arms behind her back and—at most—briefly pulled her to the ground.
Hanks involved a similar factual scenario that is also distinguishable. In that case, Marcus Hanks was pulled over by Officer Randall Rogers for driving too slowly. Hanks, 853 F.3d at 741. Rogers asked Hanks to exit the
The court analyzed the Graham factors and, as in Trammell, found that (1) Hanks‘s violation was minor; (2) Hanks offered no immediate safety threat; (3) Hanks was at most passively resisting; and (4) Rogers “abrupt application of physical force rather than continued verbal negotiating” was unreasonable. Id. at 745–49. But again, the court noted the extreme degree of physical force used. See id. at 747 (finding a Fourth Amendment violation when the officer resorts to “overwhelming physical force” rather than continuing verbal negotiations).
As with Trammell, the degree of force Rogers used under the circumstances sets Hanks apart from this case. Rather than just grabbing the plaintiff‘s arms, Rogers “administered a blow to Hanks‘s upper back or neck” which forced his body down and which caused a contusion and an
The remaining cases cited by the district court and Solis are even further afield from the facts here. In Deville v. Marcantel, an officer pulled over a 45-year-old nurse for speeding. 567 F.3d 156, 161 (5th Cir. 2009). In response to her passive resistance, the officers broke her window, pulled her out of her car, and threw her up against the vehicle, resulting in a blow to her abdominal area. Id. at 162. The next day, the plaintiff visited a doctor who observed “contusions to both wrists, neuropathy of her hands, right shoulder strain, left shoulder bruising (with handprints), and multiple cuts caused by broken glass (with one to her forehead).” Id. The plaintiff required four surgeries and missed thirteen to fifteen weeks of work as a result of her injuries. Id. As with the cases discussed above, the court discussed the Graham factors and reasoned they favored a finding the police acted unreasonably and took issue with the fact the officers engaged in “little, if any negotiation” with the plaintiff before resorting to force. Id. at 167–68. But the court also focused on the “the severity of Deville‘s injuries” in determining whether there was excessive force under these circumstances. Id. at 168. Finding that the “facts [were] sufficiently egregious,” the court denied qualified immunity. Id. at 169. As above, although there are parallels to the instant case, Deville dealt with a use of force and an injury far greater than here.
Similarly, Newman v. Guedry was a traffic-stop case where all of the Graham factors weighed against the officers and the court expressed a concern about how quickly the officers resorted to force. 703 F.3d 757, 762–63 (5th Cir. 2012). In that case, in response to a plaintiff‘s passive resistance,
Finally, Solis argues that Joseph ex rel. Estate of Joseph v. Bartlett supports her argument that the officers violated a clearly established right. 981 F.3d 319 (5th Cir. 2020). That case (which was issued over a year after the incident at issue here), involved police officers beating and tasing a schizophrenic man to death while he was on the ground, not resisting, and calling out for his mother. Id. at 326–27. Joseph‘s facts are so far afield from the instant case that even were it published before May 2019, it could not establish that the Appellants’ actions here were unconstitutional.
Since May 2019, we have decided numerous cases with facts even more like this case than Trammell or Hanks, and we have repeatedly found no constitutional violation. Consider Tucker v. City of Shreveport, which dealt with a plaintiff who was pulled over for a broken brake light. 998 F.3d 165. An officer asked him to come to the back of the car, where he searched him and found a small knife. See Tucker v. City of Shreveport, No. 17-1485, 2019 WL 961993, at *1 (W.D. La. Feb. 27, 2019). Although the plaintiff was agitated, he was compliant. Id. He was never told that he was under arrest. Id. The plaintiff denied that he ever pulled away from the officers, but they claimed that he jerked his arm when they tried to arrest him, and the video
Or consider Craig v. Martin, 26 F.4th 699 (5th Cir. 2022). There, Jacqueline Craig called the police after a neighbor grabbed her son‘s neck for littering. Id. at 702. Officer Martin responded, and Craig and Martin had a dispute. Id. at 702–03. One of Craig‘s daughters, J.H., grabbed her mother‘s arms during the dispute, and Martin pulled her aside. Id. at 703. Another of Craig‘s daughters, K.H., pushed into Martin, and Martin told the family to get on the ground, shoved Craig into the ground, and pulled Craig‘s arms behind her back. Id. Martin handcuffed Craig and walked over to J.H., grabbed her arm and the back of her neck, and put her on the ground. Id. When he tried to take Craig and J.H. to his vehicle, K.H. appeared and attempted to block access to the vehicle. Id. Martin struck the fourteen-year-old K.H. in the throat. Id. He also kicked J.H.‘s leg as he placed her in the vehicle. Id. Finally, Martin went to arrest another of Craig‘s daughters, Brea Hymond, who had been filming the altercation. Id. Martin handcuffed Hymond and put her against his vehicle. Id. When she refused to answer his questions, Martin pulled her arms behind her back to force compliance, a maneuver Hymond claimed caused excruciating pain. Id.
This court held that Martin was entitled to qualified immunity.
Finally, consider Betts v. Brennan, 22 F.4th 577 (5th Cir. 2022). In that case, a police officer tased a plaintiff who was highly agitated but had mostly complied with the officer‘s orders. Id. at 580–81. The plaintiff in Betts offered more resistance than Solis, but the use of force was also greater. The district court denied qualified immunity but this court reversed, holding that the plaintiff‘s actions rose to active resistance and that Hanks was not sufficiently on-point to illustrate a constitutional violation. Id. at 583–86.
Although Tucker, Craig, and Betts were decided after the incident at issue here, they demonstrate that as of May 2019 the constitutional question at issue here was far from “beyond debate.” Trammell, 868 F.3d at 339. Moreover, it is telling that in none of these cases did the court find a “clearly established” right. If the law was not sufficiently clear to deny qualified immunity in these factual similarly cases, it follows that no “clearly established” right exists here.
IV.
For the foregoing reasons, we DENY Appellee‘s motion to dismiss this appeal, REVERSE the district court‘s order denying Appellant‘s motion for summary judgment, and REMAND with instructions that Solis‘s claims against Appellants be dismissed.