Eric Darden v. City of Fort Worth, Texas

Case: 16-11244 Document: 00514320962 Page: 1 Date Filed: 01/24/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
January 24, 2018
No. 16-11244
Lyle W. Cayce
Clerk

ERIC C. DARDEN, as Administrator of the Estate of Jermaine Darden and
on behalf of the statutory beneficiaries of the Estate of Jermaine Darden
(which are Donneika Goodacre-Darden, surviving mother of Jermaine
Darden, Charles H. Darden, surviving father of Jermaine Darden),

Plaintiff–Appellant,

v.

CITY OF FORT WORTH, TEXAS; W. F. SNOW; J. ROMERO,

Defendants–Appellees.

Appeal from the United States District Court
for the Northern District of Texas

ON PETITION FOR REHEARING
Before KING, PRADO, and SOUTHWICK, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Treating Defendants–Appellees’ petition for rehearing en banc as a
petition for panel rehearing, the petition for panel rehearing is DENIED. The
petition for rehearing en banc is also DENIED. The prior opinion, Darden v.
City of Fort Worth, Tex., 866 F.3d 698 (5th Cir. 2017), is withdrawn, and the
following opinion is substituted:
Fort Worth Police Officers W.F. Snow and Javier Romero arrested
Jermaine Darden, a black man who was obese, while executing a no-knock
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No. 16-11244
warrant at a private residence. In arresting Darden, the officers allegedly
threw him to the ground, tased him twice, choked him, punched and kicked
him in the face, pushed him into a face-down position, pressed his face into the
ground, and pulled his hands behind his back to handcuff him. Darden suffered
a heart attack and died during the arrest. The administrator of Darden’s estate
subsequently brought this 42 U.S.C. § 1983 case against Officers Snow and
Romero and the City of Fort Worth (the “City”). The district court granted
summary judgment in favor of the officers and the City and dismissed all
claims. We REVERSE in part, VACATE in part, and REMAND.
I. BACKGROUND
In 2013, the Fort Worth Police Department investigated claims that
cocaine was being sold from a private residence. A magistrate judge issued a
warrant that allowed the officers to enter the residence without first knocking
and announcing themselves. On May 16, 2013, a large team of heavily armed
police officers executed the warrant. Officer Snow was assigned to the entry
team, which was tasked with breaking down the front door, entering the
residence, and securing the premises. Officer Romero drove the van that
transported the team to the residence. He was also assigned to stand guard
near the front door while other officers entered the residence and arrested the
people inside. Two other members of the team wore cameras on their helmets,
which captured on video some but not all of the events that transpired as the
warrant was executed.
When the police first arrived at the house, the entry team broke down
the front door with a battering ram, yelled that they were police, and ordered
everyone to get down. A large man, later identified as Darden, was kneeling on
the seat of a couch near the door when the officers first entered, and he
immediately raised his hands in the air. Darden weighed approximately 340
pounds. Several other people were sitting and standing in a nearby dining
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No. 16-11244
room. As Officer Snow entered the residence, he reached out and ripped the
shirt off Darden’s back, apparently in an attempt to get Darden from the couch
to the ground. The videos do not show what happened during the twenty-five
seconds that followed, and there is conflicting testimony about what
transpired. 1 According to witnesses for the plaintiff, Darden “had no time to
react” before “[h]e was thrown on the ground” by the officers. Witnesses also
testified that Darden never made any threatening gestures and did not resist
arrest.
After approximately twenty-five seconds, it became apparent that some
sort of incident was occurring in the front room. One of the videos shows
Darden lying on the ground face up. An officer in the front room yelled, “Roll
over on your face,” at which point, Darden appeared to follow directions and
rolled over onto his stomach. The video then pans away from the scene and
does not turn back for approximately fifteen seconds. The second video shows
that Officer Romero then ran into the house to assist. However, in that video,
much of the interaction between Darden and the officers is totally obscured by
the couch. Although not captured by the video, eyewitnesses testified that
Officer Romero proceeded to choke Darden and to repeatedly punch and kick
Darden in the face. 2
At one point, Darden’s body appeared to come up off the ground for a
moment, but it is not clear from the video footage whether he came up of his
own volition or was pulled up by police. The officers then backed away, and
Officer Snow used a Taser on Darden. Shortly thereafter, Darden rolled over
onto his stomach and appeared to push himself up on his hands. He was

1 In one video, the officer wearing the camera went into one of the bedrooms at the
rear of the residence. In the second video, the officer wearing the second camera went into
the dining room and ordered people to get on the ground.
2 In fact, Officer Romero himself testified that he punched Darden in the face and

explained that he had been trained to do so when arrestees were resisting arrest.
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No. 16-11244
immediately pushed back down into the ground by police. Throughout these
events, other people in the house repeatedly yelled, “He’s got asthma,” and “He
can’t breathe.” Eyewitnesses also testified that Darden himself told the officers
he could not breathe. 3
A few seconds later, the videos briefly show Darden on his knees, with
his hands in the air, before Officer Snow tased him a second time. 4 Darden fell
to the ground and rolled onto his back, where he lay face up for a few seconds.
Officer Romero then pushed Darden over onto his stomach and pressed his face
into the ground. As Officer Romero tried to pull Darden’s left arm behind his
back, Darden seemed to pull his arm away. The officers then pushed Darden
back into the ground, and one officer appeared to put him in a choke hold.
At that point, other people in the residence were still yelling that Darden
could not breathe. Nevertheless, several officers continued to push Darden’s
body into the ground face down, pressed his face and neck into the floor, and
pulled his arms behind his back so that Officer Romero could handcuff him. As
Officer Romero finished securing the handcuffs, Darden’s body went limp. The
officers then pulled Darden’s debilitated body up into a sitting position and left
him there. Darden appeared to be unconscious, and his head hung down on his
chest. It was subsequently determined that Darden had suffered a heart attack
and died.
The administrator of Darden’s estate brought suit under 42 U.S.C.
§ 1983, claiming that Officers Snow and Romero used excessive force in
arresting Darden and that the City was liable for failing to adequately train
the officers. All of the defendants filed motions for summary judgment, and the

3 Eyewitnesses testified that Darden pushed himself up on his hands because he was
trying to get into a position where he could breathe.
4 Officer Snow claims that he had no further contact with Darden after discharging

the Taser the second time.
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No. 16-11244
district court granted their motions and dismissed the case. The district court
determined that the officers had not violated clearly established law and were
thus entitled to qualified immunity. In addition, the district court stated that
the plaintiff had failed to show that Darden’s death resulted only from the
officers’ use of force. Because it held that the officers had not violated Darden’s
constitutional rights, the district court likewise dismissed the municipal
liability claims. This appeal followed.
II. DISCUSSION
“We review a summary judgment de novo, ‘using the same standard as
that employed by the district court under Rule 56.’” Newman v. Guedry, 703
F.3d 757, 761 (5th Cir. 2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431,
435 (5th Cir. 2000)). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. Officers Snow and Romero
The Supreme Court has “mandated a two-step sequence for resolving
government officials’ qualified immunity claims.” Pearson v. Callahan, 555
U.S. 223, 232 (2009). We must determine (1) “whether the facts that a plaintiff
has alleged . . . make out a violation of a constitutional right” and (2) “whether
the right at issue was ‘clearly established’ at the time of defendant’s alleged
misconduct.” Id. “A right may be clearly established without ‘a case directly on
point,’ but ‘existing precedent must have placed the statutory or constitutional
question beyond debate.’” Hanks v. Rogers, 853 F.3d 738, 746–47 (5th Cir.
2017) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). In the excessive force
context, a constitutional violation is clearly established if no reasonable officer
could believe the act was lawful. See Manis v. Lawson, 585 F.3d 839, 846 (5th
Cir. 2009). Courts are “permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed
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No. 16-11244
first in light of the circumstances in the particular case at hand.” Pearson, 555
U.S. at 236. However, deciding the two prongs in order “is often beneficial.” Id.
Once an official pleads qualified immunity, “the burden then shifts to the
plaintiff, who must rebut the defense by establishing a genuine fact issue as to
whether the official’s allegedly wrongful conduct violated clearly established
law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Still, at the
summary judgment stage, we must “view the facts in the light most favorable
to . . . the nonmoving party.” City & Cty. of San Francisco v. Sheehan, 135 S.
Ct. 1765, 1769 (2015). “The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
“To prevail on an excessive-force claim, [a plaintiff] must show ‘(1) injury,
(2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable.’”
Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting Elizondo v. Green,
671 F.3d 506, 510 (5th Cir. 2012)). “Our precedents recognize that inquiries
regarding whether a use of force was ‘clearly excessive’ or ‘clearly
unreasonable . . . are often intertwined,’ and we consider those questions
together below.” Hanks, 853 F.3d at 744 (omission in original) (quoting Poole
v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)).
1. Injury and Causation
The district court held that the “plaintiff could not establish an excessive
force claim because he cannot show that Darden’s death ‘resulted directly and
only from the use of force that was clearly excessive to the need.’” See Knight
v. Caldwell, 970 F.2d 1430, 1432 n.3 (5th Cir. 1992). According to the plaintiff’s
medical expert, “Darden died as a result of the application of restraint

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No. 16-11244
(physical struggle, 4 taser dart strikes,[ 5] prone position with the weight of
police officers on top of Mr. Darden) and consequential hypoxia[ 6] and
increased cardiac demand.” But the medical expert went on to explain that
“[t]he application of restraint [was] a contributing causal factor along with
natural disease.” The other contributing factors were focal coronary artery
disease, “which can increase the likelihood of developing an arrhythmia during
a struggle,” and chronic lung disease, which “can impede air exchange causing
hypoxia (low oxygen) and increase the risk of cardiac arrhythmia during
exertion such as a struggle.” Thus, the district court’s conclusion that the
injury did not result directly and only from the use of force was essentially
based on the fact that Darden had preexisting medical conditions that
increased his risk of death during the incident.
The district court erred in reaching this conclusion. According to the
eggshell skull rule, “a tortfeasor takes his victim as he finds him.” Dunn v.
Denk, 54 F.3d 248, 251 (5th Cir. 1995), rev’d on other grounds 79 F.3d 401 (5th
Cir. 1996) (en banc); see also Koch v. United States, 857 F.3d 267, 274 (5th Cir.
2017). The eggshell skull rule is applicable in § 1983 excessive force cases. See
Dunn, 54 F.3d at 251. Darden’s preexisting medical conditions increased his
risk of death during a struggle, and in that way, they contributed to his death.
However, the evidence suggests that Darden would not have suffered a heart
attack and died if the officers had not tased him, forced him onto his stomach,
and applied pressure to his back. Indeed, the medical expert ultimately
concluded that “Darden’s manner of death should not have been ruled as

5 When a Taser’s trigger is pulled, a set of two dart-like probes is discharged. Thus,
although Darden was tased only twice, four probes made contact with his body.
6 “Hypoxia means a shortage of oxygen in the blood,” and it can “be induced by

compressing the lungs, which the weight of several persons on one’s back can do.” Richman
v. Sheahan, 512 F.3d 876, 880 (7th Cir. 2008).
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Natural.” Accordingly, the plaintiff can show that the use of force was the
direct and only cause of Darden’s death.
2. Clearly Excessive and Clearly Unreasonable Use of Force
“Excessive force claims are necessarily fact-intensive; whether the force
used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of
each particular case.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). In making this
determination, a court should consider the totality of the circumstances,
“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. “The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. “The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation.” Id. at
396–97.
a. Severity of the crime
The magistrate judge who issued the warrant determined that there was
probable cause to believe that suspects at the residence were dealing drugs.
These types of drug crimes are certainly serious offenses. See Orr v. Copeland,
844 F.3d 484, 493 (5th Cir. 2016) (noting that an officer “had reason to suspect
that [a driver] was involved in serious drug crimes” when the driver “had a
white residue on his face at the time of the traffic stop” and the officer
“observed drug paraphernalia—plastic baggies—hidden in the backseat of [the
driver’s] car”). Thus, the severity of the crime at issue weighs in favor of the
officers.
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b. Immediate safety threat
There is a genuine factual dispute over whether Darden posed an
immediate safety threat to the officers. There were certainly inherent dangers
associated with executing a narcotics warrant, and the officers were aware that
lookouts were positioned in the house across the street. Still, Darden “was not
suspected of committing a violent offense,” Cooper, 844 F.3d at 522, and
testimony suggests that Darden did not threaten the officers in any way when
they entered the residence. Eyewitnesses testified that Darden put his hands
in the air, and indeed, the video shows Darden raising his hands when the
officers enter the home. Witnesses also testified that Darden made no
threatening gestures and did not resist arrest. Therefore, a jury could conclude
that no reasonable officer would have perceived Darden as posing an
immediate threat to the officers’ safety. See Hanks, 853 F.3d at 743, 746;
Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013); Deville, 567 F.3d at
167.
c. Resisting arrest
The district court’s analysis largely turned on an assessment that
Darden was actively resisting arrest when Officers Snow and Romero used
force on him. “Officers may consider a suspect’s refusal to comply with
instructions . . . in assessing whether physical force is needed to effectuate the
suspect’s compliance.” Deville, 567 F.3d at 167. “However, officers must assess
not only the need for force, but also ‘the relationship between the need and the
amount of force used.’” Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th
Cir. 1999)). According to the district court, “[t]he video makes clear that
Darden did not get on the ground as ordered by the officers and that the taser
was employed to assist them in getting Darden to the ground.”
“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
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it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Thus,
in Scott, the Supreme Court held that because the nonmovant’s version of
events was “so utterly discredited” by a videotape “that no reasonable jury
could have believed him,” the court of appeals “should have viewed the facts in
the light depicted by the videotape.” Id. at 380–81. Yet the standard imposed
by the Supreme Court is a demanding one: a court should not discount the
nonmoving party’s story unless the video evidence provides so much clarity
that a reasonable jury could not believe his account. See Ramirez, 716 F.3d at
374.
In the instant case, the videos do not meet that difficult standard because
they do not show whether Darden got onto the ground when he was
commanded to do so. After the officers entered the house and ripped off
Darden’s shirt, the next shot of Darden shows him lying on the ground
approximately twenty-five seconds later. Neither video shows what transpired
between those two events. Nor do the videos make clear how Darden
transitioned from kneeling on the couch to lying on the floor. The parties offer
conflicting accounts of Darden’s actions during those twenty-five seconds:
witnesses for the plaintiff claim that Darden was compliant with the officers’
commands and was thrown to the ground by police, whereas Officer Snow
claims that Darden was attempting to stand up and was resisting the officers’
attempts to get him on the ground. In contrast to Scott, however, the videos do
not favor one account over the other and do not provide the clarity necessary
to resolve the factual dispute presented by the parties’ conflicting accounts.
Based on the evidence in the record, a jury could conclude that no
reasonable officer on the scene would have thought that Darden was resisting
arrest. The videos show that Darden raised his hands when the officers entered
the residence, and it appears that he rolled over onto his face at one point after
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the officers instructed him to do so. Moreover, eyewitnesses testified that
Darden was thrown to the ground before he could react, that he complied with
the officers’ commands, and that he did not resist arrest. From the video
recordings, it appears that Darden later pushed himself up on his hands, and
eventually onto his knees, and he seemed to pull his arm away from the officers
when they were trying to handcuff him. But those events occurred while other
people in the house were loudly and repeatedly yelling that Darden had
asthma and was trying to breathe. In addition, Darden allegedly told the
officers he could not breathe.
Snow argues that the officers “had no way of knowing in that tense,
uncertain, and rapidly evolving situation” if it was “true or false” that Darden
was struggling to breathe. He contends that “a police officer need not credit
everything a suspect tells him.” See Rodriguez v. Farrell, 294 F.3d 1276, 1278
(11th Cir. 2002). However, the issue of whether reasonable officers in this
situation would have credited the warnings from Darden and the other
suspects is a factual question that must be decided by a jury. As the Supreme
Court has made clear, “at the summary judgment stage the judge’s function is
not himself to weigh the evidence and determine the truth of the matter.”
Liberty Lobby, 477 U.S. at 249. Rather, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Id. at
255. A jury could conclude that all reasonable officers on the scene would have
believed that Darden was merely trying to get into a position where he could
breathe and was not resisting arrest. 7

7 Officer Snow also contends that the “testimony of Plaintiff’s own witnesses fully
undermines his claim.” First, he argues that one of the eyewitnesses, Donna Randle,
“acknowledge[d] that it would have appeared to officers that Jermaine Darden was resisting
them.” Randle was asked by defense counsel, “On the date of the incident in question, is it
your position that the police thought Jermaine was fighting them, but really he was trying
to get into a better position, so he could breathe easier?” Randle responded, “Yes.” This was
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d. Officer Snow’s use of force
At this juncture, we must analyze the officers’ actions separately. In
cases where the defendants have not acted in unison, “qualified immunity
claims should be addressed separately for each individual defendant.” Kitchen
v. Dall. Cty., 759 F.3d 468, 480 (5th Cir. 2014) (quoting Atteberry v. Nocona
Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005)), abrogated on other grounds by
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015); Meadours v. Ermel, 483
F.3d 417, 421 (5th Cir. 2007).
First, we consider whether a jury could conclude that Officer Snow used
excessive force when he allegedly threw Darden to the ground and tased him.
We have previously suggested that a constitutional violation occurs when an
officer tases, strikes, or violently slams an arrestee who is not actively resisting
arrest. See Ramirez, 716 F.3d at 377–78; Newman, 703 F.3d at 762–63; Bush
v. Strain, 513 F.3d 492, 501 (5th Cir. 2008). Thus, if a jury finds that Darden
was not actively resisting arrest, then a jury could likewise conclude that
Officer Snow used excessive force by throwing Darden to the ground and tasing
him twice. The facts the plaintiff has alleged therefore make out a violation of
a constitutional right.
Furthermore, the right at issue was clearly established at the time of
Officer Snow’s alleged misconduct. Our case law makes clear that when an

both a leading and compound question, so it is difficult to determine what Randle meant.
Even if Officer Snow has accurately characterized Randle’s testimony, however, Officer Snow
has cited no authority to support his contention that a witness’s speculation about what
officers would have perceived can be used to fully discredit the plaintiff’s version of events at
the summary judgment stage.
Officer Snow also asserts that “Clifton Crippen testified that Darden was struggling
against the officers trying to get on his side.” But throughout his testimony, Crippen made
clear that Darden was simply trying to breathe and that others in the residence had
repeatedly informed the officers that Darden was trying to breathe. Accordingly, the
testimony of the plaintiff’s witnesses does not necessarily undermine the plaintiff’s version
of events.
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arrestee is not actively resisting arrest the degree of force an officer can employ
is reduced. See Cooper, 844 F.3d at 524; Newman, 703 F.3d at 763; Bush, 513
F.3d at 502; see also Graham, 490 U.S. at 396 (including whether an arrestee
“is actively resisting arrest” among factors to consider in determining whether
a particular use of force is unreasonable). For instance, we held in Bush that
it was objectively unreasonable for an officer to slam an arrestee’s face into a
vehicle when the arrestee “was not resisting arrest or attempting to flee.” 513
F.3d at 502. Similarly, in Newman we found that it was objectively
unreasonable for officers to tase and strike an arrestee with a nightstick
without resorting to less violent means when the arrestee’s “behavior did not
rise to the level of ‘active resistance.’” 703 F.3d at 763.
In the present case, eyewitnesses claim that Darden put his hands in the
air when the officers entered the residence, complied with the officers’
commands, and did not resist arrest. Yet Officer Snow allegedly threw Darden
to the ground and twice shocked him with a Taser while he was being beaten
by Officer Romero. In light of our prior case law, Officer Snow should have
known that he could not use that amount of force on an individual who was not
resisting arrest.
It is worth pointing out that a jury may ultimately conclude that Darden
did not comply with the officers’ commands and was actively resisting arrest.
Under those facts, Officer Snow’s decisions to force Darden to the ground and
tase him might have been reasonable. See Carroll v. Ellington, 800 F.3d 154,
174–75 (5th Cir. 2015) (declining “to reach the close constitutional question” of
whether “an officer’s application of a Taser to an unarmed, seated suspect who
fail[ed] to comply with an order to get on the ground” was excessive force).
However, on the record before us, there are genuine disputes of material fact
as to whether Darden was actively resisting arrest and whether the force
Officer Snow used was clearly excessive and clearly unreasonable. Thus, we
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hold that Officer Snow was not entitled to qualified immunity, and the district
court erred in granting his motion for summary judgment.
e. Officer Romero’s use of force
Next, we must determine whether a jury could find that Officer Romero
used excessive force when he allegedly choked, kicked, and punched Darden
and forced Darden into a prone position to handcuff him behind his back. As
an initial matter, we note that this was not a situation where an officer arrived
at the scene with little or no information and had to make a split-second
decision. Rather, Officer Romero acknowledges that he stood at his post near
the front door for a while and observed the interaction between Darden and
Officer Snow before running into the house to assist. In other words, Officer
Romero saw whether Darden was resisting and saw how much force had
already been used on Darden. He needed to take those perceptions into account
in assessing how much additional force, if any, was necessary. See Lytle v.
Bexar Cty., 560 F.3d 404, 413 (5th Cir. 2009) (“[A]n exercise of force that is
reasonable at one moment can become unreasonable in the next if the
justification for the use of force has ceased.”).
As stated, we have found that a police officer uses excessive force when
the officer strikes, punches, or violently slams a suspect who is not resisting
arrest. See Newman, 703 F.3d at 762–63; Bush, 513 F.3d at 501–02; see also
Griggs v. Brewer, 841 F.3d 308, 315–16 (5th Cir. 2016) (suggesting that
“punching or otherwise gratuitously harming a restrained suspect constitutes
excessive force” but finding no excessive force violation because arrestee
actively resisted). Thus, if a jury finds that no reasonable officer on the scene
would have perceived Darden to be actively resisting arrest, then a jury could

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No. 16-11244
also conclude that Officer Romero used excessive force by choking Darden and
repeatedly punching and kicking him in the face. 8
Darden’s right to be free from such force was also clearly established at
the time of Officer Romero’s alleged misconduct. The law is clear that the
degree of force an officer can reasonably employ is reduced when an arrestee
is not actively resisting. See Cooper, 844 F.3d at 524; Newman, 703 F.3d at 763;
Bush, 513 F.3d at 502; see also Graham, 490 U.S. at 396. Moreover, at the time
of the alleged misconduct it was clearly established that violently slamming or
striking a suspect who is not actively resisting arrest constitutes excessive use
of force. See Newman, 703 F.3d at 762–63; Bush, 513 F.3d at 501–02.
In the case at bar, eyewitnesses testified that Officer Romero choked,
punched, and kicked Darden, even though Darden was purportedly complying
with the officers’ orders and not resisting arrest. Officer Romero also forced
Darden—an obese man—onto his stomach, pushed his face into the floor, and
pulled Darden’s hands behind his back. All the while, other people in the

8 We also find relevant, but not dispositive, the fact that Officer Romero’s alleged
conduct appears to have violated Fort Worth Police Department policies requiring officers to
exercise “[e]xtreme caution” when arresting “a prisoner that is obese . . . since cuffing behind
the back and laying the prisoner in a prone position could lead to positional asphyxia”
(otherwise known as hypoxia). Fort Worth, Tex., Police Department General Orders
§ 314.04(D). While we certainly do not suggest that the violation of police department policies
is sufficient to make out a constitutional violation, we have found their existence and
corresponding notice to officers relevant in analyzing the reasonableness of a particular use
of force under the totality of the circumstances. See Gutierrez v. City of San Antonio, 139 F.3d
441, 448–449 (5th Cir. 1998). In Gutierrez, we found a genuine dispute of material fact as to
whether officers acted reasonably by “hog-tying” an arrestee who eventually died because
evidence suggested that the San Antonio Police Department may have prohibited the practice
or had notice of its potential dangers through a law enforcement study it possessed. Id. at
448–49. We described this factual dispute as “important because it may be difficult to
conclude that the officers acted reasonably if they performed an action that had been banned
by their department or of whose dangers in these circumstances they had been warned.” Id.
at 449; see also Anderson v. Creighton, 483 U.S. 635, 641 (1987) (noting that the information
an officer possesses when acting can affect the objective legal reasonableness of the officer’s
conduct in the Fourth Amendment search context); Tennessee v. Garner, 471 U.S. 1, 18–19
(1985) (looking to policies adopted by police departments to inform its analysis on the
reasonableness of using deadly force to prevent the escape of unarmed suspected felons).
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No. 16-11244
residence were repeatedly yelling that Darden could not breathe. If the
plaintiff’s version of events is true, Officer Romero’s actions were plainly in
conflict with our case law at the time of the alleged misconduct. See Newman,
703 F.3d 763–64; Bush, 513 F.3d at 501–02.
Furthermore, “‘in an obvious case,’ the Graham excessive-force factors
themselves ‘can clearly establish the answer, even without a body of relevant
case law.’” Newman, 703 F.3d at 764 (quoting Brosseau v. Haugen, 543 U.S.
194, 199 (2004)). As is analyzed above, a jury could conclude that no reasonable
officer would have perceived Darden as posing an immediate threat to the
officers’ safety or thought that he was resisting arrest. Therefore, viewing the
facts in the light most favorable to Darden, Officer Romero’s actions—choking,
punching, and kicking Darden—were objectively unreasonable in light of
clearly established law at the time of the incident. Accordingly, we hold that a
reasonable jury could conclude that Officer Romero used excessive force.
Officer Romero was not entitled to qualified immunity, and the district court
erred in granting his motion for summary judgment.
B. The City of Fort Worth
In the proceedings below, the plaintiff also brought claims against the
City, including a claim that the City had failed to properly train its officers.
The district court did not reach the merits of the plaintiff’s municipal liability
claims. Because it held that the officers did not violate Darden’s constitutional
rights, the district court likewise held that the City could not be liable and
granted the City’s motion for summary judgment. See City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no constitutional
injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of constitutionally
excessive force is quite beside the point.”). As discussed above, we hold that the
plaintiff has adequately alleged facts that make out violations of a clearly
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No. 16-11244
established constitutional right. Therefore, we vacate the district court’s
dismissal of the claims against the City and remand the case for further
consideration of municipal liability. We express no opinion on the merits of
that claim.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s dismissal of
the claims against Snow and Romero, VACATE the dismissal of the claims
against the City, and REMAND the case for further proceedings consistent
with this opinion.

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