Huang v. Harris County

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 00-20806

Summary Calendar
____________________

CATHERINE KIANG HUANG, Individually,
and as next friend of Jeffrey Huang
and Jonathan Huang, Minors

Plaintiff - Counter Defendant - Appellee

v.

HARRIS COUNTY; ET AL

Defendants

BRIAN ERIC SCUDDER, Harris County
Precinct 5 Deputy; BENJAMIN EDWARD DARBE, JR,
Harris County Precinct 5 Deputy,

Defendants - Counter Claimants - Appellants

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-1029
_________________________________________________________________
June 22, 2001

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

PER CURIAM:*

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 Appellants Brian Scudder and Benjamin Darbe appeal from the

district court’s denial of their motion for summary judgment

based on qualified immunity. For the following reasons, we

REVERSE the judgment of the district court and REMAND for entry

of judgment in favor of Scudder and Darbe.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 16, 1997, Catherine Huang called the Harris County

Constable’s Office after a dispute with a neighbor who complained

that Huang’s son, Jeffrey, had broken a flood light outside the

neighbor’s house and asked that an officer be sent to her home.

Deputy Constable Brian Scudder was dispatched to Huang’s home and

spoke with both parties.1 After this initial investigation,

Scudder returned to the Huang residence and asked Jeffrey if he

had broken the light bulb. Jeffrey responded that the light bulb

had been lying in the alleyway and that he had kicked it.2

Scudder informed Huang that she could either compensate the

1
According to Scudder, he also spoke to a neighbor who
stated that, while gardening, she heard the sound of glass
breaking in the alleyway between her home and the home of the
complaining neighbor and that when she looked down the alleyway a
second or two later she saw Jeffrey kicking a piece of glass and
could see no one else in the alleyway.
2
Specifically, Huang testified that, when asked if he
broke the light bulb, Jeffrey said “Yes, I kick it. Its right
there in the alleyway. I just kick it.” Scudder testified that
Jeffrey responded “I didn’t break the light bulb, I kicked it and
it broke.” Scudder understood the response to mean that Jeffrey
had not removed the light bulb from the fixture, but, seeing the
light bulb in the alleyway, had kicked it, and it broke.

2
neighbor for the broken light bulb or he could issue a Class C

citation to Jeffrey for criminal mischief (a misdemeanor non-

jailable offense) that she and Jeffrey could go to court and

contest. Insisting that her son had not broken the light bulb,

Huang opted to go to court. At this point, the parties’ versions

of the facts diverge slightly.

According to Huang,3 Scudder went to his car and called for

back-up assistance, telling Jeffrey to follow him. Huang heard

Scudder call for back-up for a “white juvenile detained at

[Huang’s address].” Fearing Jeffrey was about to be arrested,

Huang instructed Jeffrey to go back inside the house and closed

the security gate behind him as Scudder, who had seen Jeffrey re-

enter the home, ran up the walkway in an attempt to “grab”

Jeffrey. Scudder told Huang, who was still outside, to bring

Jeffrey back outside or she would be arrested for interfering

with a police investigation. Huang refused. Scudder then told

Huang she was under arrest for interfering with police work and

asked her to identify herself.

Huang refused to identify herself as requested and asked

Scudder to leave her property or she would call the Sheriff’s

office and have him arrested. After Scudder stated he was

placing her under arrest, Huang asked to use the telephone to

3
Huang’s version of the events is taken from her
complaint, her deposition testimony, and the deposition testimony
of her two sons who were present during the incident.

3
call someone to watch her children. Scudder told her “no,” but

she had already proceeded towards her front door, through which

Jeffrey was holding the telephone. Scudder knocked the

telephone, which broke from the fall, out of Huang’s hand,

grabbed Huang’s right wrist, and twisted it until her knees

buckled and she was on the ground. Simultaneously, with her left

hand, Huang held on to her front doorknob while Scudder pulled

her towards the squad car. After she lost her grip on the door,

Huang grabbed the iron security gate located outside her front

door. At this time, Scudder’s back-up, Deputy Constable Benjamin

Darbe, Jr., arrived and assisted Scudder in turning Huang over on

her stomach, handcuffing her, and “dragging” her into the squad

car. Huang sustained bruises and a broken right thumb.

Deputy Scudder’s version of the events is substantially

similar. After Huang stated she wanted to go to court, Scudder

told Jeffrey to step outside so Scudder could get his ticket book

and issue a citation. Halfway down the walkway, Scudder told

Jeffrey to remain on the walk while he obtained his ticket book

from his car. As Scudder approached his car, he turned to see

Huang “pushing” Jeffrey into the house and pulling the door

closed behind him. After she refused Scudder’s orders to stop,

Scudder called for back-up. Scudder informed Huang that he

needed to speak with Jeffrey, and she refused. Huang refused to

retrieve Jeffrey, refused to give Scudder any information about

Jeffrey or herself, and told him to leave her property or she

4
would have him arrested. Scudder asked her again for her

information and she refused to give it to him. After repeatedly

asking Huang for her information, Scudder told her she would be

arrested for failure to identify herself if she did not provide

the information. According to Scudder, Huang then ran towards

the front door of her home. Scudder told her to stop and gave

chase. She kept running and grabbed hold of the front door

handle. Scudder grabbed her arm, told her to release her hand

from the door handle, and told her she was under arrest. Huang,

still hanging onto the door handle, began screaming, trying to

shake off Scudder’s grip, and kicking Scudder. At that point,

Darbe arrived. The two officers were able to remove Huang’s hand

from the door handle, whereupon she allowed her body to go limp,

dropping herself to the ground. The two officers attempted to

handcuff her, but she freed her hand from Darbe’s grasp and

grabbed on to the security gate outside of her door. Huang

refused to remove her hand from the gate, and when the officers

freed her hand left hand from the gate, she grabbed it with her

right hand. By the time the officers managed to get both her

hands free from the gate and handcuff her, she had entwined her

legs in the gate. Scudder and Darbe waited until a third unit

responded, and the officers were then able to free her legs from

the gate and subdue her. She refused to walk to the squad car

and the officers were forced to pick her up, carry her to the

squad car, and place her into the back seat. Once in the car,

5
Huang complained of various broken bones in her arms and legs,

and an EMS unit was dispatched. Huang refused treatment.

Jeffrey was never arrested, and Scudder mailed him a Class C

citation charging him with criminal mischief. Jeffrey was

ultimately acquitted of the charges brought against him. Huang

was charged with resisting arrest, a Class A misdemeanor, and

failure to identify, a Class C misdemeanor; however, the judge

suppressed all evidence of her “resisting arrest,” finding that

the evidence was the result of police misconduct.

On April 6, 1999, Huang filed suit individually and on

behalf of her minor children against Appellants Scudder and Darbe

under 42 U.S.C. § 1983, for use of excessive force when effecting

an allegedly wrongful arrest, and under state law, for false

arrest, false imprisonment, intentional infliction of emotional

distress, malicious prosecution, and assault and battery.4

Appellants sought summary judgment for both the federal and state

claims on the basis of qualified immunity.

The district court determined that Huang had raised genuine

issues of material fact for trial regarding Appellants’ qualified

immunity defense under both federal and Texas law. The district

court stated: “Specifically, Huang raises issues as to probable

4
Huang also filed suit against Harris County and Glen
Cheek, a Harris County Constable. Cheek was dismissed from the
suit on April 26, 2000. Summary judgment was granted in favor of
Harris County on August 31, 2000, a judgment from which Huang has
not appealed. Only the qualified immunity claims of Scudder and
Darbe are before us in this appeal.

6
cause for her warrantless arrest for some undefined or legally

unauthorized offense alleged by Defendants not committed in

Defendants’ presence, their purported use of excessive force and

extreme and outrageous conduct, and alleged malicious

prosecution.” Therefore, the district court denied summary

judgment for Scudder and Darbe based on qualified immunity.

Scudder and Darbe timely appeal.

II. STANDARD OF REVIEW

This court reviews de novo the district court’s denial of a

motion for summary judgment based on qualified immunity. See

Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000). “Summary

judgment is appropriate ‘if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.’” Evans v. City of Houston, 246 F.3d 344,

347-48 (5th Cir. 2001) (quoting FED. R. CIV. P. 56(c)).

“The movant has the burden of showing that there is no

genuine issue of [material] fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986); see Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986) (“[T]he burden on the moving party may be

discharged by ‘showing’——that is, pointing out to the district

court——that there is an absence of evidence to support the

7
nonmoving party’s case.” ). If the movant meets this burden,

“the nonmovant must go beyond the pleadings and designate

specific facts showing that there is a genuine issue for trial.”

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

A fact is “material” if its resolution in favor of one party

might affect the outcome of the lawsuit under governing law. See

Liberty Lobby, 477 U.S. at 248; Int’l Shortstop, Inc. v. Rally’s,

Inc., 939 F.2d 1257, 1264 (5th Cir. 1991) (“[F]actual disputes

over issues not germane to the claim are simply irrelevant

because they are not outcome determinative. The court may grant

a [summary judgment] motion, immaterial factual disputes

notwithstanding.”). An issue is “genuine” if the evidence is

sufficient for a reasonable jury to return a verdict for the

nonmoving party. See Liberty Lobby, 477 U.S. at 248.

This court considers the evidence and all reasonable

inferences drawn therefrom in the light most favorable to the

nonmovant. See Kennedy v. Tangipahoa Parish Library Bd. of

Control, 224 F.3d 359, 365 (5th Cir. 2000).

III. JURISDICTION

As an initial matter, we must determine if we have

jurisdiction to hear this appeal. Scudder and Darbe argue that

we have jurisdiction over this interlocutory appeal of the denial

of qualified immunity because no issue of material fact exists

8
and they are entitled to judgment as a matter of law. Although

Huang does not contest our jurisdiction, we have a duty to

satisfy ourselves of our own jurisdiction. See United Transp.

Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000) (“‘[E]very

federal appellate court has a special obligation to satisfy

itself not only of its own jurisdiction, but also that of the

lower courts in a cause under review, even though the parties are

prepared to concede it.’” (alteration in original) (some internal

quotations omitted) (quoting Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998))).

The denial of a motion for summary judgment based on

qualified immunity is immediately appealable, under the

collateral order doctrine, only when based on an issue of law.

See Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001).

“Accordingly, we have jurisdiction for this interlocutory appeal

if it challenges the materiality of factual issues, but lack

jurisdiction if it challenges the district court’s genuineness

ruling——that genuine issues exist concerning material facts.”

Id. Orders determining “only a question of ‘evidence

sufficiency,’ i.e., which facts a party may, or may not, be able

to prove at trial,” are not based on an issue of law and are not

immediately appealable. Johnson v. Jones, 515 U.S. 304, 313

(1995). This court does have jurisdiction, however, to review a

determination that certain facts (or factual disputes) are

9
“material” to the issue of qualified immunity. See White v.

Balderama, 153 F.3d 237, 240 (5th Cir. 1998).

The district court found that Huang had raised genuine

issues of material fact regarding the existence of probable cause

for her warrantless arrest, the use of excessive force, and

malicious prosecution. The district court stated:

Specifically, Huang raises issues as to probable cause
for her warrantless arrest for some undefined or
legally unauthorized offense alleged by Defendants not
committed in Defendants’ presence, their purported use
of excessive force and extreme and outrageous conduct,
and alleged malicious prosecution. Huang argues that
before the warrantless arrest at her home by the
deputies pursuant to her request for assistance in a
dispute with a neighbor, Huang was suspected of no
crime, did not commit any crime after they arrived, did
not threaten the officers or give them any reason to
fear for their safety or conclude that Huang had
committed a crime, in her own home, not a suspicious
place. Nor, she contends, was the use of such
excessive force objectively reasonable in the light of
the circumstances confronting the officers.

Unfortunately, the district court was not very specific in

stating which facts it found to be material to the denial of

summary judgment. We note also that several of the issues raised

by Huang are undisputed. For example, the parties agree that,

prior to her arrest, (1) Huang was responsible for initiating the

request for police assistance; (2) at that time, she was

suspected of no crime; (3) she did not give the officers any

reason to fear for their safety; and (4) she was in her own home.

Further, although noting as a reason for its denial of summary

judgment Huang’s allegation that the force used was objectively

10
unreasonable, the district court identified no disputed material

facts on this issue.

Faced with an order from the district court that denies

summary judgment simply because “fact issues” remain, we have two

choices after determining we have jurisdiction: (1) review the

record to determine what facts the district court likely assumed,

or (2) “remand to the district court for the purpose of allowing

it to articulate specifically what factual scenario it believes

emerges from viewing the summary judgment evidence in the light

most favorable to [Huang].” Id. at 242; see also Behrens v.

Pelletier, 516 U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S.

304, 319 (1995); Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th

Cir. 2000); Colston v. Barnhart, 146 F.3d 282, 285 (5th Cir.

1998) (denial of application for reh’g en banc) (“[W]here the

district court does not identify those factual issues as to which

it believes genuine disputes remain, an appellate court is

permitted to go behind the district court’s determination and

conduct an analysis of the summary judgment record to determine

what issues of fact the district court probably considered

genuine.”).

“In deciding an interlocutory appeal of a denial of

qualified immunity, we can review the materiality of any factual

disputes, but not their genuineness.” Wagner, 227 F.3d at 320.

After having reviewed the record to determine which facts the

district court assumed, in the light most favorable to the

11
plaintiff, we find that we have jurisdiction to determine whether

Appellants are entitled to qualified immunity as a matter of law.

IV. QUALIFIED IMMUNITY

Qualified immunity shields government officials performing

discretionary functions from civil liability so long as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known. See Bazan v. Hidalgo County, 246 F.3d 481, 488 (5th Cir.

2001). The evaluation of a qualified immunity claim is a two-

step process. “The first step is to determine whether the

plaintiff has alleged a violation of a clearly established

constitutional right.” Colston v. Barnhart, 130 F.3d 96, 99 (5th

Cir. 1997); see also Hare v. City of Corinth, MS, 135 F.3d 320,

325 (5th Cir. 1998). “The second step requires the court to

determine whether [the defendant’s] conduct was objectively

reasonable under existing clearly established law.” Colston, 130

F.3d at 99; see also Hare, 135 F.3d at 326. Unlike the first

step, the step-two inquiry applies the law that was clearly

established at the time of the alleged violation. See Hare, 135

F.3d at 326. To ensure that qualified immunity serves its

intended purpose, it is of paramount import, during step two, to

define “clearly established law” at the proper level of

12
generality. See Anderson v. Creighton, 483 U.S. 635, 639-40

(1987); Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998).

“Clearly established” means that the “contours of the right

must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson,

483 U.S. at 640. A defendant is entitled to qualified immunity

“unless, at the time and under the circumstances of the

challenged conduct, all reasonable officials would have realized

that [the defendant’s conduct] was proscribed by the federal law

on which the suit was founded.” Pierce v. Smith, 117 F.3d 866,

871 (5th Cir. 1997). Thus, “‘law enforcement officials who

reasonably but mistakenly commit a constitutional violation are

entitled to immunity.’” Bazan, 246 F.3d at 488 (quoting Glenn v.

City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001)).

The burden of proving the Appellants are not entitled to

qualified immunity rests with Huang.

Where, as here, a section 1983 defendant pleads
qualified immunity and shows he is a governmental
official whose position involves the exercise of
discretion, the plaintiff then has the burden “to rebut
this defense by establishing that the official’s
allegedly wrongful conduct violated clearly established
law.” We do “not require that an official demonstrate
that he did not violate clearly established federal
rights; our precedent places that burden upon
plaintiffs.”

Pierce, 117 F.3d at 871-72 (citations omitted).

A. Probable Cause/Wrongful Arrest

13
 “The Fourth Amendment requires that an arrest be supported

by a properly issued arrest warrant or probable cause. The

officers are entitled to qualified immunity for the arrest if ‘a

reasonable person in their position could have believed he had

probable cause to arrest.’” Glenn v. City of Tyler, 242 F.3d

307, 313 (5th Cir. 2001) (quoting Goodson v. City of Corpus

Christi, 202 F.3d 730, 740 (5th Cir. 2000)). Probable cause

“exists ‘when the totality of the facts and circumstances within

a police officer’s knowledge at the moment of arrest are

sufficient for a reasonable person to conclude that the suspect

had committed or was committing an offense.’” Spiller v. City of

Tex. City, Police Dep’t, 130 F.3d 162, 165 (5th Cir. 1997)

(citation omitted). “Thus, the central question in our qualified

immunity inquiry is ‘the objective (albeit fact-specific)

question whether a reasonable officer could have believed [the

arrest] to be lawful, in light of clearly established law and the

information the [arresting] officers possessed.’” Sorenson v.

Ferrie, 134 F.3d 325, 328 (5th Cir. 1998) (alterations in

original) (quoting Anderson v. Creighton, 483 U.S. 635, 641

(1987)). In a 42 U.S.C. § 1983 suit alleging false arrest, in

response to defendants’ motion for summary judgment based on

qualified immunity, the burden is on the plaintiff to show that

the officer lacked probable cause, which means that she must show

that the legality of her conduct was clearly established. See

Sorenson, 134 F.3d at 330.

14
 The probable cause inquiry is an objective one. “A police

officer need not actually have had the crime for which probable

cause existed in mind at the time of the arrest; rather, the

question is ‘whether the conduct that served as the basis for the

charge for which there was no probable cause could, in the eyes

of a similarly situated reasonable officer, also have served as

the basis for a charge for which there was probable cause.’”

Gassner v. City of Garland, Tex., 864 F.2d 394, 398 (5th Cir.

1989) (quoting Trejo v. Perez, 693 F.2d 482, 486 (5th Cir.

1982)).

In this case, certain facts are undisputed. After Scudder

told Jeffrey to stay where he was, Huang told Jeffrey to go back

into the house. Further, Huang closed the security gate behind

Jeffrey as Scudder, then aware Jeffrey was re-entering the home,

ran up the walk and attempted to grab Jeffrey. She was informed

by Scudder that if she did not allow Jeffrey to come out of the

house, she would be arrested for interference with a police

investigation. Further, Huang refused to give Scudder

information he requested, such as her identity, and Huang was

ultimately placed under arrest.

There is, however, some dispute as to the order of the

events surrounding Huang’s arrest. While Huang testified that

Scudder placed her under arrest for failure to identify herself

and then asked for her identification, Scudder testified that he

asked Huang for her information and, when she refused to give it

15
to him, placed her under arrest for failure to identify. We do

not find, however, that given the undisputed facts and

circumstances of this case, that this difference is material to

the issue of probable cause.

Texas law recognizes the offense of “failure to identify.”

“A person commits [the offense of failure to identify] if he

intentionally refuses to give his name, residence address, or

date of birth to a peace officer who has lawfully arrested the

person and requested the information.” TEX. PENAL CODE ANN.

§ 38.02(a) (Vernon 1994); see also Presley v. City of Benbrook, 4

F.3d 405, 408-09 (5th Cir. 1993). Viewing the facts in the light

most favorable to Huang, she was not under arrest at the time she

refused to give her information to Scudder. Therefore, we cannot

find as a matter of law that “a reasonable officer could have

believed [the arrest] to be lawful, in light of clearly

established law and the information the [arresting] officers

possessed.’” Sorenson, 134 F.3d at 328 (alterations in original)

(quoting Anderson, 483 U.S. at 641).

However, Texas law also recognizes the crime of

“interference with public duties.” A violation occurs when “[a]

person with criminal negligence[5] interrupts, disrupts, impedes,

5
“Criminal negligence” is a state of mind occurring “when
[a person] ought to be aware of a substantial and unjustifiable
risk that the circumstances exist or the result will occur. The
risk must be of such a nature and degree that the failure to
perceive it constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the

16
or otherwise interferes with . . . a peace officer while the

peace officer is performing a duty or exercising authority

imposed or granted by law.” TEX. PENAL CODE. ANN. § 38.15(a)(1)

(Vernon 1994 & Supp. 2001). A defense to prosecution under this

statute is that the alleged interference consisted of speech

only. Id. § 38.15(d); see also Carney v. State, 31 S.W.3d 392,

396 (Tex. App.-Austin 2000, no writ). Huang’s testimony that she

closed the gate behind Jeffrey as he entered the home, thereby

preventing Scudder’s access to him, supports a probable-cause

determination. Cf. Carney, 31 S.W.3d at 398 (defendant’s verbal

challenges to the sufficiency of the search warrant did not

impede officers’ entry under § 38.15 where there was no physical

action on his part). We are not required to determine that

Huang’s actions would be legally sufficient to support a

conviction. We are only required to determine that it was not

unreasonable for Scudder to believe he had probable cause for

arrest.

Although Huang was not charged with the offense of

interfering with public duties, “the legality of an arrest may be

established by proving that there was probable cause to believe

that the plaintiff had committed a crime other than the one with

which [s]he was eventually charged, provided that the crime under

circumstances as viewed from the actor’s standpoint.” TEX. PENAL
CODE ANN. § 6.03(d) (Vernon 1994). Criminal negligence is the
lowest culpable mental state under Texas law. See Carney v.
State, 31 S.W.3d 392, 395 (Tex. App.-Austin 2000, no writ).

17
which the arrest is made and [the] crime for which probable cause

exists are in some fashion related.” Gassner, 864 F.2d at 398

(internal quotations and citation omitted). We conclude that,

given the factual circumstances here, failure to identify and

interfering with public duties were sufficiently related that an

objective officer might have charged the offense of interference

with public duties. After Scudder asked Jeffrey to remain where

he was, Huang told her son to return to the house and, as Scudder

tried to “grab” Jeffrey, shut the security gate. Huang, after

having been warned that she was interfering with a police

investigation, refused to bring Jeffrey back outside and refused

to give Scudder any information about Jeffrey or herself. The

conduct that gave rise to the arrest for failure to identify was

part of the same conduct that would have supported an arrest for

interference with public duties. See Vance v. Nunnery, 137 F.3d

270, 274 (5th Cir. 1998); see, e.g., Babb v. Dorman, 33 F.3d 472,

479 n.12 (5th Cir. 1994); Gassner, 864 F.2d at 400; Trejo v.

Perez, 693 F.2d 482, 485-86 (5th Cir. 1982).

Finally, under Texas law, “[a] person commits [the offense

of resisting arrest] if he intentionally prevents or obstructs a

person he knows is a peace officer . . . from effecting an arrest

. . . of the actor or another by using force against the peace

officer or another.” TEX. PENAL CODE ANN. § 38.03(a) (Vernon

1994). The undisputed testimony is that, after having been

placed under arrest, Huang clung to both her front door and then

18
to her security gate in an effort to resist Scudder’s attempt to

handcuff her. Scudder also asserted, and Huang did not produce

evidence to refute Scudder’s testimony, that she resisted

Scudder’s attempts to place her under arrest by entwining her

legs inside the iron security gate. We note that there is a

split of authority under Texas law whether simply hanging onto

the gate and trying to shake off the peace officer’s grip

constitutes a violation of § 38.03. Compare Leos v. State, 880

S.W.2d 180, 184 (Tex. Ct. App.–Corpus Christi 1994, no writ)

(finding insufficient evidence to support conviction for

resisting arrest when evidence only showed appellant attempted

flight and shook off officer’s grip because such force not

directed against officer), and Luxton v. State, 941 S.W.2d 339,

341 (Tex. Ct. App.–Fort Worth 1997, no writ), with Bryant v.

State, 923 S.W.2d 199, 207 (Tex. Ct. App.–Waco 1996, pet. ref’d)

(“We disagree with the courts’ decisions in Leos[ v. State, 880

S.W.2d 180 (Tex. Ct. App.–Corpus Christi 1994, no writ)] and

Raymond[ v. State, 640 S.W.2d 678 (Tex. Ct. App.—El Paso 1982,

pet. ref’d),] to the extent that they hold that any effort to

shake off an officer’s detaining grip by ‘simply pulling one’s

arm away’ is not sufficient force to sustain a conviction for

resisting arrest.” (citations omitted)). However, we need not

resolve the conflict. Huang did not dispute Scudder’s testimony

that she kicked the constable repeatedly in the shin during the

incident. Kicking Scudder while he attempted to arrest her

19
constitutes using force against him. Under these circumstances,

a reasonable officer would have believed he had probable cause to

arrest Huang for resisting arrest.

Scudder and Darbe have demonstrated probable cause for

Huang’s arrest, entitling them to the defense of qualified

immunity. Huang has failed to carry her summary judgment burden

by producing competent evidence that would create a genuine issue

of material fact on this issue. The officers are entitled to

qualified immunity on the § 1983 claim to the extent it was

grounded on an alleged false arrest.

B. Excessive Force

“‘All claims that law enforcement officers have used

excessive force . . . in the course of an arrest . . . should be

analyzed under the Fourth Amendment and its “reasonableness”

standard[.]’” Gutierrez v. City of San Antonio, 139 F.3d 441,

446 (5th Cir. 1998) (third alteration in original) (quoting

Graham v. Connor, 490 U.S. 386, 395 (1989)). To succeed on an

excessive-force claim under the Fourth Amendment, the plaintiff

bears the burden of showing: “(1) an injury (2) which resulted

directly and only from the use of force that was clearly

excessive to the need and (3) the force used was objectively

unreasonable.” Williams v. Bramer, 180 F.3d 699, 703, clarified,

186 F.3d 633, 634 (5th Cir. 1999). Although a showing of

“significant injury” is no longer required in the context of an

excessive force claim, this court does “require a plaintiff

20
asserting an excessive force claim to have ‘suffered at least

some form of injury.’” Id. (quoting Jackson v. Culbertson, 984

F.2d 699, 700 (5th Cir. 1993)).

To determine whether an injury caused by excessive force is

more than de minimis, the court looks to the context in which

that force was deployed. See id. “‘[T]he amount of injury

necessary to satisfy our requirement of “some injury” and

establish a constitutional violation is directly related to the

amount of force that is constitutionally permissible under the

circumstances.’” Id. at 703-04 (alteration in original) (quoting

Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir. 1996)).

The right to make an arrest necessarily carries with it the

right to use some degree of force or threat thereof to effect it.

Graham v. Connor, 490 U.S. 386, 396 (1989); see also Ikerd v.

Blair, 101 F.3d 430, 434 (5th Cir. 1996) (“[E]ven in the fourth

amendment context, a certain amount of force is obviously

reasonable when a police officer arrests a dangerous, fleeing

suspect.”). When determining whether force used was excessive,

“reasonableness” under the Fourth Amendment is judged according

to the facts of each case, “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.”

Graham, 490 U.S. at 396.

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 Continuing to view the events in her favor, Huang, having

been verbally placed under arrest, asked Scudder if she could

call someone to watch her children and proceeded towards the door

of her home to use the phone after Scudder had told her she could

not do so. Scudder followed her and slammed the phone out of her

hand. Huang grabbed onto the door knob with her left hand and

screamed for help as Scudder simultaneously grabbed her by the

right wrist and put her down on the pavement by twisting her arm

until her knees buckled. As Scudder pulled her away from the

door, Huang grabbed the security gate with her left hand. Darbe

arrived on the scene and helped Scudder turn Huang on to her

stomach, handcuff her, and drag her to the police car.

Huang suffered a broken right thumb. In twisting her right

wrist to bring Huang to her knees, Officer Scudder used a

reasonable amount of force necessary to subdue Huang and prevent

her from kicking him, pry her free hand first off of the door to

her home and then off the iron security gate, and place her in

handcuffs. Considering the way in which she resisted arrest,

Huang’s broken thumb was not caused by an unreasonable amount of

force. The officers have established their entitlement to

qualified immunity. Huang has again failed to come forward with

any evidence, as is her burden, that there exist genuine issues

of material fact whether the officers’ conduct rose to the level

of a constitutional violation. See Pierce, 117 F.3d at 871-72.

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Summary judgment should have been granted in favor of the

officers on the federal claims.

C. State Claims

The district court denied Scudder and Darbe summary judgment

on Huang’s state claims for false arrest, false imprisonment,

intentional infliction of emotional distress, malicious

prosecution, and assault and battery. “[A]n order denying

qualified immunity under state law is immediately appealable as a

‘final decision,’ provided that ‘the state’s doctrine of

qualified immunity, like the federal doctrine, provides a true

immunity from suit and not a simple defense to liability.’”

Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996) (quoting Sorey

v. Kellett, 849 F.2d 960, 962 (5th Cir. 1988)).

Texas law of official immunity is substantially the same as

federal qualified-immunity law. See id. at 808. It provides

government officials with “official immunity” from suit for

matters (1) arising from the performance of their discretionary

duties, (2) if they are acting in good faith, and (3) within the

scope of their authority. See Wren v. Towe, 130 F.3d 1154, 1160

(5th Cir. 1997) (citing City of Lancaster v. Chambers, 883 S.W.2d

650, 653 (Tex. 1994)).

Under Texas law, actions which involve “personal

deliberation, decision, and judgment [are] discretionary,” as

opposed to ministerial “[a]ctions[,] that require obedience to

orders or the performance of a duty to which the actor has no

23
choice.” Tamez v. City of San Marcos, Tex., 118 F.3d 1085, 1097

(5th Cir. 1997). Neither Scudder nor Darbe was acting pursuant

to orders, but instead they exercised their discretion as police

officers in investigating the complaint, attempting to issue a

citation, and arresting Huang. See id.

Whether an officer acts in “good faith” under Texas law is

analyzed by an objective-reasonableness standard derived

substantially from the standard for qualified immunity. See id.

(citing Chambers, 883 S.W.2d at 656) (officer acts in “good

faith” in a pursuit case if “a reasonably prudent officer, under

the same or similar circumstances, could have believed that the

need to immediately apprehend the suspect outweighed a clear risk

of harm to the public in continuing the pursuit”). As previously

discussed in the Fourth Amendment context, Scudder’s and Darbe’s

actions were objectively reasonable. Therefore, as a matter of

Texas law, the officers acted in good faith. See id.

“An officer acts within the scope of his authority if he

discharges the duties generally assigned to him.” Id. There is

no question that Scudder was fulfilling the duties of his office

by responding to and investigating Huang’s call and that Darbe

fulfilled the duties of his office by responding to Scudder’s

call for back-up. We hold, therefore, that Scudder and Darbe are

immune from suit for both the state claims and federal claims

brought against them.

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 V. CONCLUSION

We REVERSE the district court’s denial of summary judgment

and REMAND to the district court for entry of judgment in favor

of Scudder and Darbe. Costs shall be borne by Huang.

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