Buehler v. Dear

Court: Court of Appeals for the Fifth Circuit
Date filed: 2022-03-03
Citations:
Copy Citations
Click to Find Citing Cases
Combined Opinion
Case: 20-50822     Document: 00516222935         Page: 1   Date Filed: 03/03/2022




           United States Court of Appeals
                for the Fifth Circuit                               United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                  No. 20-50822                         March 3, 2022
                                                                      Lyle W. Cayce
                                                                           Clerk
   Antonio Buehler,

                                            Plaintiff—Appellee Cross-Appellant,

                                      versus

   Randy Dear, in his individual and official capacities, Aljoe Garibay,
   in his individual and official capacities; Wesley Devries, in his individual
   and official capacities; Monika McCoy, in her individual and official
   capacities,


                                       Defendants—Appellants Cross-Appellees,

   City of Austin, Quint Sebek, in his individual and official capacities;
   John Leo Coffey, in his individual and official capacities; Ryan
   Adams, in his individual and official capacities; Allen Hicks, in his
   individual and official capacities; Reginald Parker, in his individual and
   official capacities,


                                                  Defendants—Cross-Appellees.


                  Appeal from the United States District Court
                       for the Western District of Texas
                              USDC 1:17-CV-724
Case: 20-50822      Document: 00516222935          Page: 2   Date Filed: 03/03/2022




                                    No. 20-50822



   Before Clement, Southwick, and Willett, Circuit Judges.
   Don R. Willett, Circuit Judge:
           This appeal concerns the line between filming the police, which is
   legal, and hindering the police, which is not. Without question, video footage
   plays a major role in exposing incidents of police brutality. The ubiquity of
   smartphone cameras has made eyewitnesses of us all; as smartphones
   proliferate, so do recordings of police interactions (some commendable,
   others condemnable). The rub is figuring out when filming veers from
   documenting to interfering. For example, how far away should a citizen-
   videographer be so as not to get in the way? How close is “too close” such
   that the filming, however well-intentioned, becomes hazardous, diverting
   officers’ attention and impeding their ability to perform their duties in fast-
   moving, highly charged situations?
           In the wee hours of August 2, 2015, Antonio Buehler, a police-
   accountability activist, was arrested on crowded Sixth Street in downtown
   Austin while “cop watching” (video-recording police activity). Buehler
   insists he was just filming; the officers insist he was interfering. In short,
   Buehler and the officers had repeated verbal confrontations about how close
   to them he was permitted to stand while recording. The bickering escalated,
   with Buehler ultimately arrested for misdemeanor interference with
   performance of official duties. Four Austin police officers took Buehler to the
   ground and handcuffed him, with Buehler suffering minor bruises and lesions
   as a result.
           Buehler brought various constitutional claims against the City of
   Austin and nine officers of the Austin Police Department. Buehler alleged
   false arrest and excessive force in violation of the Fourth Amendment and
   retaliation for the exercise of his First Amendment right to film the police.
   The district court ruled mostly for the Defendants, but not fully. It dismissed
   Buehler’s municipal-liability and First Amendment claims and granted
   summary judgment to the individual Defendants on Buehler’s false-arrest




                                         2
Case: 20-50822     Document: 00516222935          Page: 3   Date Filed: 03/03/2022




                                   No. 20-50822



   claim, while denying summary judgment on his excessive-force claim.
   Defendants filed this interlocutory appeal of the partial denial of their
   summary judgment motion, and Buehler cross-appealed the district court’s
   unfavorable rulings of all but his excessive-force claim.
           We hold that none of the officers involved in Buehler’s arrest used
   excessive force in violation of the Fourth Amendment. We also conclude that
   summary judgment for the officers on Buehler’s false-arrest claim was
   proper; the officers were entitled to qualified immunity on Buehler’s First
   Amendment claim; and Buehler’s bystander- and municipal-liability claims
   fail for lack of an underlying constitutional violation. Accordingly, we
   REVERSE the district court’s denial of summary judgment as to Buehler’s
   excessive-force claim and AFFIRM the district court in all other respects.

                                        I
          Cross-Appellant Antonio Buehler leads the Peaceful Streets Project
   (PSP), a watchdog organization with the stated mission of holding police
   accountable for official misconduct. In the early morning hours of August 2,
   2015, Buehler and several other PSP members were cop watching in
   downtown Austin. Buehler regularly filmed the Austin police, and many
   officers were familiar with him. In footage taken by Buehler, Officer Randy
   Dear can be seen talking to a passerby while Buehler films the encounter.
   Afterwards, Dear turns away, at which point Buehler shouts at Dear to get
   his attention and then begins arguing with Dear about the extent of Buehler’s
   right to film the police. Buehler repeatedly interrupts Dear’s answers to
   questions, and Dear tries several times to walk away while Buehler follows
   with his camera. Towards the end of the clip, Buehler can be heard saying,
   “I’m going after Dear. F***ing pigs. I hate pigs.”
          Other footage shows that, as of around 1:30 a.m., Buehler was standing
   next to a group of police officers standing in the middle of Sixth Street.




                                         3
Case: 20-50822      Document: 00516222935           Page: 4    Date Filed: 03/03/2022




                                     No. 20-50822



   Buehler is positioned extremely close to (though not physically touching)
   Officer Dear, and the two can be heard arguing contentiously from time to
   time. Officers Garibay and DeVries also can be seen arguing with Buehler
   about whether he was maintaining a sufficient distance while filming. In
   footage taken by Buehler, Dear can be seen turning to Buehler and telling
   him, “just going to let y’all know, the next time we go to a disturbance and
   y’all get in the way . . . . The next time you’re interfering, you’re going to be
   arrested.” As he walks away from Buehler, Dear then adds, “You’ve been
   warned, sir.” Buehler follows him briefly before pointing his camera at the
   other officers and asking several times, “What does that mean? Can you
   explain that?” Officer Sebek responds, “arm’s length, please. Arm’s length,
   please.” Footage taken from another angle shows that Buehler continued to
   stand closer to the officers than an arm’s length away (certainly no more than
   two feet, and probably no more than one).
           After nearly two minutes pass with little movement by the officers or
   Buehler, Dear turns to Buehler to give further orders, telling Buehler,
   “you’re interfering with my space here so I can monitor the crowd,” and,
   “I’m going to ask you one more time.” Buehler then takes several steps and
   pivots such that he is directly facing Dear, but standing about the same
   distance away. A few seconds later, Dear tells Buehler, “Go ahead and turn
   around, sir. Go ahead and turn around,” and “You’re under arrest.” While
   Dear is giving these orders, Buehler begins taking steps backward away from
   the officers, even as Dear is walking forward towards Buehler. Buehler then
   turns his back on the officers and takes one or two additional steps away from
   them. Officer Garibay grabs Buehler’s wrists from behind in an attempt to
   restrain him. Footage of the incident taken at ground level appears to show
   Buehler taking another step after being grabbed, lurching forward as Garibay
   attempts to make the arrest, though aerial (“x”) footage taken by an APD
   camera suggests that Buehler’s sudden motion was most likely an attempt to
   throw the device with which he was filming to someone else so as to preserve



                                          4
Case: 20-50822        Document: 00516222935               Page: 5    Date Filed: 03/03/2022




                                           No. 20-50822



   his footage. At that point, Dear, Garibay, and DeVries take Buehler to the
   ground and hold him in a prone position while placing him in handcuffs.
   Officer McCoy also ran to assist after Buehler was taken down, holding
   Buehler’s legs still while the other officers carry out the arrest. Buehler
   remained on the ground for between 40 and 45 seconds.
          Afterwards, the officers took him to the Travis County jail and booked
   him for misdemeanor interference with official duties and resisting arrest.
   Buehler claims to have suffered mental pain, bruises on his tricep and head,
   and abrasions to his face as a result of the arrest (though any facial injuries he
   suffered were apparently not serious enough to be visible in photographs of
   him taken soon after the incident).
                                       *        *         *
           In August 2017, Buehler sued the City of Austin and nine APD
   officers (Dear, Garibay, DeVries, McCoy, Sebek, Coffey, Adam, Hicks, and
   Parker1) under 42 U.S.C. § 1983, alleging false arrest and excessive force in
   violation of the Fourth Amendment, and retaliation for exercise of his First
   Amendment right to film police. Buehler also brought municipal-liability
   claims against the City and bystander-liability claims against the officers not
   directly involved in his arrest. Defendants moved to dismiss under Federal
   Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court
   granted Defendants’ motion in part, holding that they were entitled to
   qualified immunity on the First Amendment claim; and that Buehler had
   failed to state claims for either bystander- or municipal-liability, or for
   excessive force against Defendants Coffey, Sebek, Hicks, or Adam. But the


           1
             For reasons it did not make clear, the district court dismissed Buehler’s claims
   against Parker, who was not present when Buehler was arrested but, according to Buehler,
   violated the Constitution by inadequately investigating the arrest. None of Buehler’s
   appellate briefing challenges or even mentions the dismissal of Parker as a defendant. The
   issue has thus been abandoned, see Akuna Matata Investments, Ltd. v. Tex. Nom Ltd. P’ship,
   814 F.3d 277, 282 n.6 (5th Cir. 2016), and we do not consider it.




                                                5
Case: 20-50822          Document: 00516222935              Page: 6      Date Filed: 03/03/2022




                                           No. 20-50822



   district court denied Defendants’ 12(b)(6) motion as to Buehler’s false-arrest
   and excessive-force claims against the four officers who participated in his
   arrest (Dear, Garibay, DeVries, and McCoy, hereinafter “Officers”).2
           The arresting Officers subsequently moved for summary judgment on
   Buehler’s remaining claims. The district court granted the Officers’ motion
   as to the false-arrest claim but held that Buehler had established a genuine
   dispute of material fact as to whether they were entitled to qualified immunity
   on the excessive-force claim, thus precluding summary judgment.3 The
   district court subsequently denied both Buehler’s motion for reconsideration
   and the Officers’ motion to alter or amend judgment. The Officers then filed
   this interlocutory appeal of the denial of summary judgment on the excessive-
   force claim, and the district court granted Buehler’s request for certification
   of partial final judgment so that he could cross-appeal that court’s judgment
   in all other respects.4

                                                 II
           The standards of review governing Buehler’s cross-appealed claims
   are straightforward. He appeals the dismissals of his First Amendment and
   municipal-liability claims, as well as the grant of summary judgment to
   Defendants on his false-arrest claim. We review both de novo.5 “To survive


           2
             See Buehler v. City of Austin, No. 1:17-CV-724-LY, 2018 WL 4225046 (W.D. Tex.
   Sept. 5, 2018).
           3
               See No. 1:17-CV-724-DAE, 2020 WL 5793008 (W.D. Tex. Mar. 27, 2020).
           4
              We have jurisdiction over the Officers’ appeal because, notwithstanding the
   general rule that only final judgments are immediately appealable, a denial of summary
   judgment on qualified-immunity grounds is immediately appealable under the collateral-
   order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). Similarly, we have
   jurisdiction over Buehler’s cross-appeal under 28 U.S.C. § 1291 because the district court
   granted Buehler’s request for certification of partial final judgment so that he could cross-
   appeal the court’s disposition of his other claims. See FED. R. CIV. P. 54(b).
           5
               Magee v. Reed, 912 F.3d 820, 822 (5th Cir. 2019).




                                                  6
Case: 20-50822          Document: 00516222935              Page: 7       Date Filed: 03/03/2022




                                           No. 20-50822



   a [12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
   matter, accepted as true, to state a claim to relief that is plausible on its
   face.”6 And a motion for summary judgment should be granted if “there is
   no genuine dispute as to any material fact and the movant is entitled to a
   judgment as a matter of law.”7
          A different standard, however, governs the Officers’ interlocutory
   appeal. On interlocutory appeal from an order denying qualified immunity,
   we review de novo the district court’s legal determinations as to the
   materiality of factual disputes, but lack jurisdiction to review its
   determinations that factual disputes are “genuine.”8 The distinction
   between permissible “materiality” review and impermissible “genuineness”
   review can be hazy in practice, but in this case, the parties agree that the facts
   are not in question. The issue presented by the Officers’ interlocutory appeal
   is simply “whether the district court erred in assessing the legal significance
   of the conduct that the district court deemed sufficiently supported for
   purposes of summary judgment.”9
          It is also noteworthy for purposes of appellate review that the record
   here includes extensive video evidence of Buehler’s arrest and the events
   leading up to it from several different angles. “Although we review evidence
   in the light most favorable to the nonmoving party” on appeal from a district
   court’s disposition of a summary-judgment motion, “we assign greater
   weight, even at the summary judgment stage, to the facts evident from video



          6
              Id. (quoting Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017)).
          7
              FED. R. CIV. P. 56(a).
          8
              Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015).
          9
              Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004).




                                                  7
Case: 20-50822           Document: 00516222935              Page: 8       Date Filed: 03/03/2022




                                             No. 20-50822



   recordings taken at the scene.”10 “[W]e are not required to accept factual
   allegations that are ‘blatantly contradicted’” by such evidence.11 Instead, we
   “view[] the facts in the light depicted by the videotape.”12
                                                   A
           We begin by considering the question presented by the Officers’
   interlocutory appeal—namely, whether Dear, Garibay, DeVries, and McCoy
   (the four APD officers involved in Buehler’s arrest) were entitled to
   summary judgment on his excessive-force claim. The Officers moved for
   summary judgment on the ground that their use of force in arresting Buehler
   did not violate the Fourth Amendment or, in the alternative, that they were
   at least entitled to qualified immunity on this issue. The district court denied
   the motion, finding that genuine disputes of material fact existed as to
   whether the Officers had used excessive force or were protected by qualified
   immunity. As we explain below, we disagree.13




           10
                Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
           11
             Tucker v. City of Shreveport, 998 F.3d 165, 170 (5th Cir. 2021) (quoting Scott v.
   Harris, 550 U.S. 372, 380 (2007)).
           12
                Id. (quoting Scott, 550 U.S. at 381).
           13
              The district court, after “f[inding] that there is a genuine issue of material fact
   as to whether” the Officers’ use of force violated the Fourth Amendment, concluded that
   it “need not conduct a full analysis as to whether the right was clearly established or not.”
   Buehler v. Dear, 2020 WL 5793008, at *11 n.5 (W.D. Tex. Mar. 27, 2020). We agree with
   the Officers that this is an incorrect statement of the law. “To deny qualified immunity at
   the summary judgment stage, [a] district court must answer ‘yes’ to two questions.”
   McDonald v. McClelland, 779 F. App’x 222, 225 (5th Cir. 2019) (per curiam). If the court
   finds that “the alleged conduct amounts to a constitutional violation,” then it must also
   determine “whether the right was clearly established at the time of the conduct.” Lytle v.
   Bexar Cnty. 560 F.3d 404, 410 (5th Cir. 2009). Here, since the district court’s opinion
   erroneously skipped the second inquiry, we perhaps could remand for the district court to
   consider the clearly-established-law question in the first instance. That was how we
   disposed of a case involving an interlocutory appeal of a denial of summary judgment where




                                                    8
Case: 20-50822             Document: 00516222935               Page: 9     Date Filed: 03/03/2022




                                               No. 20-50822



             Governing Law. The Fourth Amendment prohibits police from using
   more force than is reasonably necessary to effect an arrest.14 As one American
   court admonished 180 years ago, “[a] person having authority to arrest
   another must do it peaceably, and with as little violence as the case will admit
   of. . . . [I]f resisted he may use force sufficient to effect his purpose; but if no
   resistance be offered or attempt at escape, he has no right rudely and with
   violence, to seize and collar his prisoner.”15 Nevertheless, it is hornbook law
   that “the right to make an arrest . . . necessarily carries with it the right to use
   some degree of physical coercion or threat thereof to effect it.”16
             A plaintiff arguing that a public official has used excessive force in
   violation of the Fourth Amendment thus “must show: (1) injury, (2) which
   resulted directly and only from a use of force that was clearly excessive, and


   the district court erroneously “failed to address [the second] half of the qualified-immunity
   inquiry.” McDonald, 779 F. App’x at 225.
            In this case, however, we believe that remand is unnecessary. After the Officers
   pointed out the district court’s mistake of law in their motion to alter or amend judgment,
   the district court addressed the second step of the qualified-immunity analysis in its order
   denying that motion. And the Officers have appealed both the original denial of summary
   judgment and its denial of their motion to alter or amend judgment. We “generally
   review[s] a decision on [such] a motion to . . . for abuse of discretion,” except “[t]o the
   extent” that the decision was based on “a question of law,” in which case “the standard of
   review is de novo.” Pioneer Nat. Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy
   Workers Int’l Union Loc. 4-487, 328 F.3d 818, 820 (5th Cir. 2003). Here, the district court
   apparently denied the Officers’ motion to alter or amend judgment on the purely legal
   ground that the unconstitutional conduct in which they allegedly engaged violated clearly
   established law. We therefore are satisfied that both steps of the qualified-immunity inquiry
   are properly presented for our de novo review.
             14
                  Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020).
             15
                  State v. Mahon, 3 Del. 568, 569 (1842); accord Golden v. State, 1 S.C. 292, 302
   (1870).
             16
             Graham v. Connor, 490 U.S. 386, 396 (1989); see also Fulton v. Staats, 41 N.Y.
   498, 499 (1869) (Officers may “use as much force as [i]s necessary to make the arrest.”).




                                                     9
Case: 20-50822          Document: 00516222935               Page: 10         Date Filed: 03/03/2022




                                             No. 20-50822



   (3) the excessiveness of which was clearly unreasonable.”17 “‘The test of
   reasonableness under the Fourth Amendment is not capable of . . .
   mechanical application,’” but instead “requires careful attention” to each
   case’s facts.18 Among the “considerations that inform the need for force:
   [are] (1) the severity of the crime at issue, (2) whether the suspect posed an
   immediate threat to the safety of officers or others, and (3) whether the
   suspect was actively resisting . . . or attempting to evade arrest.”19 Still, at the
   end of the day, the touchstone of our inquiry is simply the reasonableness of
   the force employed. “To be reasonable is not to be perfect, and so the Fourth
   Amendment allows for some mistakes on the part of . . . officials, giving them
   “‘fair leeway for enforcing the law in the community’s protection.’”20
   “‘Not every push or shove, even if it may later seem unnecessary in the peace
   of a judge’s chambers,’ violates the Fourth Amendment.”21
           In addition, even if the Officers violated the Fourth Amendment,
   Buehler’s claims against them cannot proceed unless he overcomes qualified
   immunity, which shields officials performing discretionary functions from
   “liability for civil damages insofar as their conduct does not violate clearly
   established . . . constitutional rights of which a reasonable person would have
   known.”22 The plaintiff has the burden of showing that the unlawfulness of



           17
                Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).
           18
                Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
           19
                Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020).
           20
              Heien v. North Carolina, 574 U.S. 54, 60–61 (2014) (quoting Brinegar v. United
   States, 338 U.S. 160, 176 (1949)).
           21
             Graham, 490 U.S. at 396–97 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
   Cir. 1973)).
           22
                Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).




                                                   10
Case: 20-50822         Document: 00516222935                Page: 11      Date Filed: 03/03/2022




                                            No. 20-50822



   the defendant’s conduct was clearly established at the time it occurred.23
   Although the plaintiff need not identify “a case directly on point” in order to
   make such a showing, he or she must point to “authority at a sufficiently high
   level of specificity to put a reasonable official on notice that his conduct is
   definitively unlawful.”24 “[T]he qualified immunity analysis in an excessive
   force case” such as this one “involves two distinct reasonableness
   inquiries. One is whether the officer’s use of force was objectively reasonable
   in light of Fourth Amendment standards. The other is whether the right was
   clearly established such that a reasonable officer would know that the
   particular level of force used was excessive.”25
          The Supreme Court formerly “mandated a two-step sequence” for
   resolving qualified immunity claims: “First, a court [had to] decide whether
   the facts . . . alleged . . . make out a violation of a constitutional right. Second,
   if the plaintiff . . . satisfied this first step, the court [had to] decide whether
   the right at issue was ‘clearly established’ at the time of defendant's alleged
   misconduct.”26 Today, however, “[c]ourts of appeal are free to decide which
   of the two prongs of the qualified immunity analysis to address first.”27
   Moreover, although we now may also “leapfrog” the first prong and resolve
   cases solely on the basis that defendants’ conduct—even if unlawful—did
   not violate clearly established law, “we think it better to address both steps
   in order to provide clarity and guidance for officers and courts.”28


          23
               Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015).
          24
               Id.
          25
               Hogan v. Cunningham, 722 F.3d 725, 735 (5th Cir. 2013).
          26
               Pearson v. Callahan, 555 U.S. 223, 232 (2009).
          27
               Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (per curiam).
          28
               Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020).




                                                  11
Case: 20-50822           Document: 00516222935                Page: 12   Date Filed: 03/03/2022




                                               No. 20-50822



                                           *        *         *
           Application. The Officers first argue that Buehler’s excessive-force
   theory fails as a matter of law because his injuries were too minor. It is true
   that, “[t]o state a claim for excessive use of force, the plaintiff’s asserted
   injury must be more than de minimis.”29 We have tossed out an excessive-
   force allegation where, for example, “the most substantial injury claimed by
   [the arrestee] [wa]s that she suffered bruising on her wrists and arms because
   the handcuffs were applied too tightly,” reasoning that “minor, incidental
   injuries that occur in connection with the use of handcuffs to effectuate an
   arrest do not give rise to a constitutional claim for excessive force.”30
           Nevertheless, the injury requirement is a sliding scale, not a hard
   cutoff. “[T]he amount of injury necessary to satisfy [the] requirement of
   ‘some injury’ . . . is directly related to the amount of force that is
   constitutionally permissible under the circumstances.”31 “[A]s long as a
   plaintiff has suffered some injury, even relatively insignificant injuries and
   purely psychological injuries will prove cognizable when resulting from an
   officer’s unreasonably excessive force.”32 Here, Buehler suffered abrasions
   to his face, as well as bruises on his tricep and head, as a result of the arrest.
   He also alleges that the incident caused him mental trauma. We therefore
   conclude that Buehler’s injuries, while minor, are not so minor that his
   excessive-force claim necessarily fails as a matter of law.




           29
                Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007).
           30
                Id. at 417.
           31
                Ikerd v. Blair, 101 F.3d 430, 434–35 (5th Cir. 1996).
           32
              Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (quoting Brown
   v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013)).




                                                    12
Case: 20-50822         Document: 00516222935              Page: 13        Date Filed: 03/03/2022




                                           No. 20-50822



           Still, a reviewing court “should . . . consider the seriousness of the
   alleged injuries in determining whether the officer’s conduct was objectively
   reasonable.”33 The district court determined that Buehler had produced
   enough evidence that “a reasonable jury could conclude that [he] had
   suffered an injury as a result of his arrest.”34 As for the extent of the alleged
   bruises, abrasions, and mental pain, the district court remarked only that
   Buehler’s “injuries appear relatively minor” and “are the type that the Fifth
   Circuit has held to be de minimis.”35 We agree. By consulting the largely
   undisputed evidence in the record that relates to this issue,36 we conclude
   that Buehler’s injuries are properly characterized as “minor” for purposes
   of excessive-force analysis. Photographs taken of Buehler’s face immediately
   after the incident reveal that any lacerations he suffered were so minor as to
   be essentially invisible. The security camera footage of Buehler’s booking at
   the Travis County Jail show him moving around comfortably with no signs of
   physical injury or mental distress. What is more, Buehler admitted in his
   deposition that he did not physically suffer “anything beyond . . . bruising
   and pain,” for which he did not seek medical attention while in jail or the day
   he was released (and apparently was never prescribed any treatment except
   “self-care” and “ibuprofen or something”). The limited extent of Buehler’s
   injuries tends to support the Officers’ argument that they acted reasonably.



           33
             Harper v. Harris Cty., 21 F.3d 597, 601 (5th Cir. 1994); accord Deville v. Marcantel,
   567 F.3d 156, 168 (5th Cir. 2009).
           34
                2020 WL 5793008, at *9.
           35
                Id.
           36
              “[W]here a district court does not set out the factual basis underlying its legal
   determinations related to a claim of qualified immunity, the court of appeals”—even in an
   interlocutory appeal such as this one—may “review the record to determine what facts the
   district court assumed.” Beltran v. City of El Paso, 367 F.3d 299, 302 (5th Cir. 2004).




                                                 13
Case: 20-50822          Document: 00516222935              Page: 14          Date Filed: 03/03/2022




                                            No. 20-50822



           Moreover, we believe Buehler’s self-reported mental suffering is
   entitled to relatively little weight in our Fourth Amendment reasonableness
   analysis, given that we have noted in another case that “any non-physical
   injury [the plaintiff-arrestee] may have suffered due to the time spent
   handcuffed lasted at most 20 seconds and was therefore de minimis,” and
   thus supported the ultimate conclusion that the arresting officer’s use of
   force in that case did not violate the Fourth Amendment.37 That reasoning
   applies with almost as much force here, as Buehler spent fewer than 45
   seconds on the ground while the Officers handcuffed him. Indeed, 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.38
           The Officers and Buehler further dispute whether interfering with
   officers’ public duties is a “severe” offense.39 But we have already spoken to
   this issue in a precedential case—holding that, for excessive-force analysis
   purposes, “interference with public duties” under Texas law is “a minor
   offense.”40 This consideration favors Buehler’s position for purposes of the
   Fourth Amendment reasonableness inquiry.




           37
                Johnson v. Hollins, 716 F. App’x 248, 254 (5th Cir. 2017).
           38
             See Tarver, 410 F.3d at 752; Mesa v. Prejean, 543 F.3d 264, 272–73 (5th Cir.
   2008); Brooks v. City of W. Point, 639 F. App’x 986, 990 (5th Cir. 2016).
           39
              Buehler also attempts to bolster his excessive force-claim by arguing that “no
   crime [was] taking place” when he was arrested. This argument fails to appreciate that
   excessive-force and false-arrest claims are “separate and distinct,” such that an “excessive
   force claim” must be “analyze[d] . . . without regard to whether the arrest itself was
   justified.” Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007).
           40
                Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018).




                                                  14
Case: 20-50822          Document: 00516222935               Page: 15   Date Filed: 03/03/2022




                                            No. 20-50822



           The Officers and Buehler also disagree as to whether Buehler’s
   actions can be characterized as resisting arrest. According to Garibay’s
   affidavit, when Dear told Buehler to turn around and that he was under
   arrest, Buehler “turned around” and began “walking away.” Buehler, on the
   other hand, asserts that he was merely turning around in preparation for his
   arrest, in accordance with Dear’s orders. Footage of the incident, consistent
   with Garibay’s description, depicts Buehler taking several steps backwards
   away from officers immediately after Dear tells Buehler to turn around and
   informs him that he is under arrest. Buehler turns his back on the Officers
   and begins to walk away. Based on the video evidence, we conclude that, at
   the very least, the Officers could reasonably have believed that Buehler was
   turning to walk away rather than complying with their orders. We “must
   measure the force used under the facts as a reasonable officer would perceive
   them, not necessarily against the historical facts.”41 And we have
   acknowledged that, as the Officers in this case duly point out, a “suspect
   [who] . . . back[s] away from the arresting officers” is “actively resist[ing]
   arrest”—albeit mildly.42
           The Officers further contend that when Garibay grabbed Buehler’s
   wrists from behind in an effort to restrain him, Buehler lurched forward in an
   attempt to get away—a maneuver the Officers characterize as another form
   of resistance by Buehler. Again, the street-level video tends to support this
   account. And “[t]he great weight of Texas authority indicates that pulling
   out of an officer’s grasp is sufficient to constitute resisting arrest” for




           41
                Griggs v. Brewer, 841 F.3d 308, 313 (5th Cir. 2016).
           42
             Cadena v. Ray, 728 F. App’x 293, 296 (5th Cir. 2018) (per curiam) (cleaned up)
   (quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)).




                                                  15
Case: 20-50822          Document: 00516222935              Page: 16       Date Filed: 03/03/2022




                                            No. 20-50822



   purposes of Texas Penal Code § 38.03(a)43—and, it stands to reason, for
   purposes of excessive-force analysis. While the HALO footage tends to
   suggest (and the district court apparently believed44) that Buehler’s jerking
   motion was probably an attempt to hand off his recording device, the Officers
   likely thought at the time that Buehler’s sudden motion was an effort to break
   free of Garibay’s grasp. And once again, 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.”45
           Finally, yet another consideration bearing upon the reasonableness of
   an arresting officer’s use of force is whether “it involved ‘measured and
   ascending responses’ to a [suspect’s] noncompliance.”46 We held in one
   case, for instance, that arresting officers’ use of force to subdue a suspect did
   not violate the Fourth Amendment, emphasizing that “the Officers spoke
   calmly to [the suspect] for several minutes despite his attempt to interfere
   with his wife’s arrest and his erratic behavior throughout the interaction.
   Furthermore, [the suspect] not only disobeyed the Officers’ order to submit
   to arrest, he had disobeyed their prior order to leave the [hotel] lobby” where



           43
                Ramirez v. Martinez, 716 F.3d 369, 376 (5th Cir. 2013).
           44
               The district court described the relevant chain of events as follows: “The video
   footage shows [the Officers] each physically restraining Plaintiff mere moments after Dear
   instructed Plaintiff to turn around and stated to Plaintiff that he was under arrest. Plaintiff
   turned around and took maybe a step or two away from Dear, yet certainly does not appear
   to be resisting or evading arrest. He appears to be mostly focused on passing his camera to
   someone else.” 2020 WL 5793008, at *11. We do not take issue with the district court’s
   literal description of the events depicted in the video; rather, we disagree with the district
   court’s “assess[ment] [of] the legal significance” of those events. Kinney, 367 F.3d at 348.
           45
                Graham v. Connor, 490 U.S. 386, 396–97 (1989).
           46
             Poole, 691 F.3d at 629 (quoting Galvan v. City of San Antonio, 435 F. App’x 309,
   311 (5th Cir. 2010) (per curiam) (unpublished)).




                                                  16
Case: 20-50822         Document: 00516222935              Page: 17       Date Filed: 03/03/2022




                                           No. 20-50822



   these events were taking place.47 This reasoning lends support to the
   Officers’ position in this case. While Buehler’s conduct leading to his arrest
   was perhaps not as “erratic,” he relentlessly followed around officers for
   hours, disobeying their repeated and unambiguous commands that he step
   back at least arm’s length away so as not to block the Officers’ field of vision.
   We believe their conduct in dealing with Buehler can accurately be described
   as “measured and ascending.”
          Based on these considerations, we are quite certain at the outset that
   at least Officer McCoy is entitled to summary judgment on the excessive-
   force claim. Where such claims are brought against multiple officers in
   connection with a single arrest, a reviewing court of course “must analyze
   the officers’ actions separately.”48 And in our view, it is beyond reasonable
   debate that McCoy did not violate the Fourth Amendment, let alone “clearly
   established” Fourth Amendment caselaw. She explains in her affidavit that,
   consistent with what footage of the arrest appears to show, she merely placed
   her knee on Buehler’s legs to hold them still while he was handcuffed, (or, in
   his words, “grabbed one of my legs”) and, as he admits, did not “cause [him]
   any injury.”
          Precedent confirms the commonsense notion that McCoy, in so
   doing, did not violate the Fourth Amendment. We held, in an arrestee’s
   similar excessive-force suit against the two officers who arrested her, that the
   officer who threw her to the ground and injured her spine was not entitled to
   summary judgment, but the other officer (who restrained the arrestee once
   she was on the ground) was so entitled: “the reasonable cause of [the
   plaintiff’s spinal] injury is [the first officer’s] body-slam and not [the second


          47
               Cadena, 728 F. App’x at 296.
          48
               Darden v. City of Fort Worth, 880 F.3d 722, 731 (5th Cir. 2018).




                                                 17
Case: 20-50822          Document: 00516222935              Page: 18        Date Filed: 03/03/2022




                                           No. 20-50822



   officer’s] assistance in holding [the plaintiff] on the ground. [The plaintiff’s]
   other injuries, including the abrasions and bruises, bloody urine, and high
   blood pressure and heart rate, which may have been caused by [the second
   officer’s] actions, are . . . de minimis.”49 So too with McCoy’s actions here.50
           As for the other three arresting Officers (Dear, Garibay, and DeVries),
   the excessive-force analysis is slightly closer. On the one hand, working in
   Buehler’s favor is the fact he was not being arrested for a “serious” offense,
   nor did he pose an obvious danger to the Officers or to passersby. On the
   other hand, however, the Officers rightly point out that Buehler’s conduct
   amounted to active resistance to arrest, that they used gradually ascending
   means of attempting to gain control of the situation before resorting to force,
   and that Buehler’s injuries were extremely minor. We think the balance tips
   in the Officers’ favor. Still, in an abundance of caution, we turn to caselaw
   for further guidance as to whether the Officers’ use of force was reasonable.
   On that score, Buehler directs our attention to several of our decisions that
   supposedly clearly establish that the use of force in this case violated the
   Fourth Amendment. We examine each in turn.
           First, Buehler cites a case where we held that “a reasonable jury could
   find that [an arrestee’s] pulling his arms away from the officers, along with



           49
                Westfall v. Luna, 903 F.3d 534, 549–50 (5th Cir. 2018).
           50
              The district court, despite conceding “that it is a close[] call whether Plaintiff
   has an excessive force claim against McCoy, particularly considering here that he does not
   allege any injury to his knees or legs,” reasoned that her “physical restraint . . . contributed
   to [Buehler’s] overall injuries and certainly to his alleged psychological injuries.” 2020 WL
   5793008, at *9. We do not know what led the district court to conclude that McCoy
   “contributed to [Buehler’s] overall injuries,” a finding that is contradicted by the evidence.
   But even if the district court’s remark to that effect is a factual “genuineness” holding that
   we may not second-guess on interlocutory appeal, we are still confident based on the record
   that any “contribut[ion]” by McCoy to Buehler’s injuries was de minimis as a matter of law.




                                                 18
Case: 20-50822          Document: 00516222935              Page: 19       Date Filed: 03/03/2022




                                            No. 20-50822



   the other circumstances of [his] arrest, did not justify the officers’ decision
   to tackle [him] to the ground.”51 The use of force in that case, however, was
   far more extreme than the force used against Buehler.52 Buehler also cites a
   decision in which we held that an arresting officer violated the clearly
   established law governing excessive force when he “rushed towards [a
   suspect] and administered a blow to [his] upper back or neck,” and then
   “took [the suspect] to the ground” to handcuff him, even though the suspect
   engaged in no “active resistance or an attempt to flee” during the whole
   encounter.53 The suspect visited the hospital later that day for treatment,
   where he was diagnosed with fairly serious injuries54—certainly more serious
   than those sustained by Buehler in this case. Buehler similarly points to a case
   where we held that arresting officers were not entitled to qualified immunity
   from the excessive-force claim of an arrestee who “suffered a broken
   shoulder as a result of being tackled” by the officers, “from whom he was not
   fleeing.”55 Once again, however, a closer look at the facts reveals that the
   injuries sustained by this unfortunate suspect were orders of magnitude
   greater than those suffered by Buehler as a result of his arrest.56




           51
                Trammell v. Fruge, 868 F.3d 332, 342 (5th Cir. 2017).
           52
              The force in that case included repeated strikes to the arrestee’s arms, thighs,
   and ribs, and resulted in him suffering “‘mildly displaced right L1, L2, and L3 transverse
   process fractures” that required him to “use[] a wheelchair while at home.” Id. at 338.
           53
                Hanks v. Rogers, 853 F.3d 738, 743, 746, 745 (5th Cir. 2017).
           54
             He had suffered “contusions, acute strains, and bruised ribs” and “received two
   prescriptions for pain medication and a form releasing him from work for two days.” Id.
           55
                Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000).
           56
            The arrestee in that case “spent 8 days in the hospital, at a cost of almost
   $32,000. He needed a plate and screws inserted into his shoulder,” “missed a year of
   work,” and was “likely [to] need his entire shoulder replaced in the future.” Id. at 734.




                                                  19
Case: 20-50822           Document: 00516222935               Page: 20        Date Filed: 03/03/2022




                                             No. 20-50822



           In our view, the forced used in each of these cases was far more
   egregious than that used by the Officers in arresting Buehler—who actively
   resisted (albeit mildly) and whose injuries were far less severe. Since “[t]he
   extent of an injury is an element of an excessive force claim that must be
   clearly established in . . . the qualified immunity analysis,”57 we disagree with
   Buehler that these decisions would have put the Officers on notice that the
   comparatively negligible injury suffered by Buehler during his arrest
   rendered the force used to carry out that arrest unconstitutional.
           With that said, some of the cases Buehler cites involved facts closer to
   those here. First, he cites Ramirez v. Martinez, where we held that it “was
   objectively unreasonable” for “several officers [to] force[] [a misdemeanor
   arrestee] to the ground” and tase him twice (including once after he was
   already handcuffed), resulting in burns—particularly given the absence of
   “resistance on [the arrestee’s] part,” except for “pulling his arm out of [an
   officer’s] grasp.”58 Still, this was an appreciably more severe use of force than
   what was employed by the Officers who arrested Buehler (which did not
   involve a taser59); the arrestee in Ramirez alleged, and the Officer-Defendants
   in that case did not contest, that he “‘sustained numerous injuries to his
   body, including, but not limited to, contusions and abrasions to his body, and
   burn marks from the taser probes.’”60 Further, our reasoning in Ramirez
   focused on the fact that the forceful arrest measures in question were



           57
                Flores v. City of Palacios, 381 F.3d 391, 400 n.7 (5th Cir. 2004).
           58
                716 F.3d 369, 378 (5th Cir. 2013).
           59
              This is a meaningful distinction. As we have observed in the past, the use of “a
   taser can cause death or serious injury.” Pena v. City of Rio Grande City, 816 F. App’x 966,
   972 n.8 (5th Cir. 2020).
           60
                716 F.3d at 377.




                                                     20
Case: 20-50822           Document: 00516222935               Page: 21        Date Filed: 03/03/2022




                                            No. 20-50822



   employed “after [the] arrestee ha[d] been restrained and handcuffed,”61
   whereas here the Officers took Buehler to the ground and held him there face-
   down for only as long as it took to handcuff him. It therefore seems quite a
   stretch to say that Ramirez alone “clearly established” that the lesser degree
   of force used by the Officers in arresting Buehler violated the Fourth
   Amendment.
           Similarly, Buehler points to our decision in Sam v. Richard, where we
   held that an arresting officer’s “use of force was objectively unreasonable at
   the summary judgment stage. Although [the suspect] initially ran, . . . he was
   lying face down on the ground with his hands on his head when [the officer]
   kneed him in the hip and pushed him against a patrol car.”62 Even though the
   suspect’s injuries were mild (though still marginally more serious than
   Buehler’s),63 we concluded in that case that “[s]uch a use of force on a
   compliant suspect is excessive and unreasonable,” and also “it was clearly
   established . . . that pushing, kneeing, and slapping a suspect who is neither
   fleeing nor resisting is excessive.”64 To be sure, Sam lends some support to
   Buehler’s argument, yet we think the decision is ultimately distinguishable.
   The Officers here did not “knee” or “slap” Buehler at all, let alone while he
   was already face down on the ground. They only brought him to the ground




           61
                Id. at 378 (emphasis added).
           62
                887 F.3d 710, 714 (5th Cir. 2018).
           63
              The force used against the arrestee in Sam “cause[d] him to bleed on the scene
   and ‘left a scab.’ . . . [O]ne of [his] friends stated in deposition that, after the incident, [the
   arrestee] ‘looked like he got hit’ and ‘his face was a little red and bruised.’ Finally,
   according to medical records generated from a medical appointment about six weeks after
   the incident, [he] complained of lingering pain in his left hip.” Id. at 712–13.
           64
                Id. at 714.




                                                     21
Case: 20-50822        Document: 00516222935              Page: 22        Date Filed: 03/03/2022




                                          No. 20-50822



   in response to movements by Buehler that the Officers reasonably believed
   to be resistance to arrest.
           In our view, of the five cases relied upon by Buehler and discussed
   above, only Ramirez and Sam are similar enough to this case to lend any
   support to his claim that the Officers (or at least Dear, DeVries, and Garibay)
   violated clearly established law, and still Ramirez and Sam involved more
   severe and less appropriate uses of force than that used by the Officers here.65
          On the other hand, there is ample circuit authority supporting the
   Officers’ position that their use of force did not violate the Fourth
   Amendment, or at least not clearly established Fourth Amendment law.66 We
   have frequently held that officers were either constitutionally justified or
   entitled to qualified immunity for taking suspects to the ground in response
   to forms of physical resistance similar to those in which Buehler engaged.67


           65
              Moreover, because Sam was decided long after Buehler’s arrest, the case plays a
   limited role in a qualified-immunity inquiry, which turns on whether the unlawfulness of a
   defendant’s conduct was clearly established at the time it occurred. Harlow, 457 U.S. at 818.
           66
               “In determining what constitutes clearly established law,” we first look to
   “Supreme Court precedent and then to our own,” but “[i]f there is no directly controlling
   authority,” we “may rely on decisions from other circuits to the extent” they have reached
   a consensus on an issue. Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018). We
   have similarly consulted other circuits’ caselaw in determining whether arresting officers’
   uses of force violated the Fourth Amendment. See Sam, 887 F.3d at 714 n.2.
           67
               See Griggs v. Brewer, 841 F.3d 308, 314 (5th Cir. 2016) (holding that arresting
   officers did not violate clearly established law by using “‘takedown’ maneuver” against
   arrestee because “under the totality of the circumstances—that is, a late-night traffic stop
   involving a clearly drunk and obstinate individual, lurching to the side and stating ‘no,
   no,’ in the act of being handcuffed, immediately following the command to ‘put your hands
   behind your back’—[the arrestee’s] actions . . . amount to resistance to arrest”); Priest v.
   Grazier, 860 F. App’x 343, 347 (5th Cir. 2021) (holding that arresting officers “did not
   violate clearly established law by forcing [arrestee] to the ground to handcuff him” after
   arrestee failed to “comply with their repeated instructions to roll down his window, open
   his door, [or] get out of his car.”); Ibarra v. Harris Cty., 243 F. App’x 830, 835 (5th Cir.
   2007) (similar); Tennyson v. Villarreal, 801 F. App’x 295, 296 (5th Cir. 2020) (per curiam)




                                                22
Case: 20-50822        Document: 00516222935                Page: 23        Date Filed: 03/03/2022




                                           No. 20-50822



   Likewise, a survey of our sister circuits’ precedent on this issue turns up
   “[m]any decisions [that] hold that there is no clearly established rule
   forbidding a clean takedown [of a suspect] to end mild resistance.”68 To be
   sure, arrestees in some of the cases to which we have referred were suspected
   of more serious crimes than Buehler’s. But other such cases either involved
   petty crimes or were apparently decided without regard to the severity of the
   suspected offenses,69 suggesting that this consideration ought not affect the
   outcome here. And as we have previously noted in response to an excessive-
   force plaintiff’s emphasis on “the minor nature of the crime that [a suspect]
   had allegedly committed,” “neither the Supreme Court nor this Court has




   (similar, though unclear whether holding in defendant officers’ favor was based on qualified
   immunity or lack of Fourth-Amendment violation); Mathews v. Davidson, 674 F. App’x
   394, 396 (5th Cir. 2017) (per curiam) (finding similar use of force did not violate Fourth
   Amendment); Cadena, 728 F. App’x at 296 (same); cf. Poole v. City of Shreveport, 691 F.3d
   624, 629 (5th Cir. 2012) (similar use of force by officers did not violate Fourth Amendment;
   arrestee’s resistance was greater than Buehler’s, but at the same time his injuries due to
   officers’ use of force were more serious than Buehler’s); Robles v. Ciarletta, 797 F. App’x
   821, 827–28 (5th Cir. 2019) (per curiam) (holding that, although assault suspect “only
   passively resisted” arrest, arresting officer did not violate clearly established law by putting
   suspect’s “arm[] behind [his] back, press[ing] him against a fence,” and bringing him “to
   the ground where [the officer] put [him] in handcuffs”); Fontenot v. Cormier, 56 F.3d 669,
   675 (5th Cir. 1995) (holding that arresting officer’s use of force did not violate Fourth
   Amendment by tackling arrestee in a manner that caused “no significant injury”—
   although that suspect, unlike Buehler, had a “history of violence”).
           68
               Johnson v. Rogers, 944 F.3d 966, 969 (7th Cir. 2019); see Kelsay v. Ernst, 933 F.3d
   975 (8th Cir. 2019) (en banc) (officer entitled to qualified immunity for a bear-hug
   takedown when an agitated suspect walked away from the officer for the second time);
   Hedgpeth v. Rahim, 893 F.3d 802 (D.C. Cir. 2018) (same for an arm takedown and knee to
   the leg of suspect who had pulled his hands away as officer attempted to handcuff him).
           69
              See Griggs, 841 F.3d at 314; Priest, 860 F. App’x at 347; Cadena, 728 F. App’x at
   296; Poole, 691 F.3d at 628–29; see also Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th
   Cir. 2017); Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003); Schliewe v. Toro, 138
   F. App’x 715, 722 (6th Cir. 2005); Horn v. Barron, 720 F. App’x 557, 565 (11th Cir. 2018);
   Kelsay, 933 F.3d at 980; Hedgpeth, 893 F.3d at 809–10.




                                                 23
Case: 20-50822          Document: 00516222935              Page: 24      Date Filed: 03/03/2022




                                            No. 20-50822



   ever held that all of the Graham factors must be present for an officer’s
   actions to be reasonable.”70
          Ultimately, we conclude that the Officers stayed not only within the
   bounds of “clearly established law,” but also within those of the Fourth
   Amendment. Looking beyond our circuit, there is a wealth of appellate cases
   where comparable force by arresting officers under similar circumstances
   was held not violative of the Fourth Amendment. In case after case, courts
   upheld officers’ use of takedowns to gain control of suspects who had
   disregarded lawful police orders or mildly resisted arrest, even when
   arrestees were suspected of minor offenses and the force employed appeared
   greater than necessary in retrospect—at least when officers’ tactics caused
   arrestees only minimal injuries.71 Considering this decisional authority, as
   well as the totality of the factors discussed thus far in our excessive-force
   analysis, we conclude that none of the four Officers involved in arresting
   Buehler (Officers Dear, Garibay, DeVries, and McCoy) used excessive force
   in violation of the Fourth Amendment. The district court thus erred in
   denying their motion for summary judgment on the excessive-force claims.
           Accordingly, Buehler’s bystander-liability claims against the other
   individual Defendants (Officers Sebek, Coffey, Adam, and Hicks) necessarily
   fail, since “[b]ystander liability arises only where the plaintiff can allege and



           70
                Rockwell v. Brown, 664 F.3d 985, 992 (5th Cir. 2011).
           71
              See, e.g., Charles v. Johnson, 18 F.4th 686, 700 (11th Cir. 2021); Horn v. Barron,
   720 F. App’x 557, 564, 565 (11th Cir. 2018); Ehlers v. City of Rapid City, 846 F.3d 1002,
   1011 (8th Cir. 2017); Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003); Griffin v.
   Hardrick, 604 F.3d 949, 954–55 (6th Cir. 2010); Jackson v. City of Bremerton, 268 F.3d 646,
   652 (9th Cir. 2001); Gomez v. City of Whittier, 211 F. App’x 573, 576 (9th Cir. 2006); Bozung
   v. Rawson, 439 F. App’x 513, 520–21 (6th Cir. 2011); Kohorst v. Smith, 968 F.3d 871, 877
   (8th Cir. 2020); Earnest v. Genesee County, 841 F. App’x 957, 960–61 (6th Cir. 2021); see
   also Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013); Schliewe v. Toro, 138 F. App’x
   715, 722 (6th Cir. 2005).




                                                 24
Case: 20-50822        Document: 00516222935               Page: 25        Date Filed: 03/03/2022




                                           No. 20-50822



   prove another officer’s use of excessive force.”72 For similar reasons,
   Buehler’s conspiracy and municipal-liability claims also fail insofar as they
   relate to excessive force, given that both theories likewise require the plaintiff
   to point to an underlying violation of his or her constitutional rights.73
                                                 B
         We now consider the issues raised by Buehler’s cross-appeal,
   beginning with his argument that the district court erred in entering summary
   judgment for the Officers on his false-arrest claims.
           Buehler asserts false-arrest claims against Officers Dear, Garibay,
   DeVries, and McCoy, alleging that they lacked probable cause to arrest him
   for either interfering with peace officers’ official duties in violation of Texas
   Penal Code § 38.15(a)(1)74 or resisting arrest in violation of § 38.03(a).75 The
   Officers argue in response that, because they subsequently obtained arrest
   warrants signed by a magistrate, they are shielded from liability by the


           72
              Windham v. Harris County, 875 F.3d 229, 243 n.19 (5th Cir. 2017) (quoting
   Kitchen v. Dallas County, 759 F.3d 468, 481 (5th Cir. 2014)).
           73
               Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013); Hale v. Townley, 45 F.3d 914,
   920 (5th Cir. 1995) (“[A] conspiracy claim is not actionable without an actual violation
   of section 1983.”) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990)).
   It is not entirely clear whether Buehler’s complaint set forth a conspiracy-based theory of
   liability. The complaint does not use that term, though it makes scattered allegations that,
   in substance, amount to conspiracy claims, and Buehler’s briefing on appeal repeatedly
   accuses Defendants of conspiracy. We need not decide whether Buehler has adequately
   raised a conspiracy claim, however, since any such claim obviously fails anyway for the
   reasons explained in the text to which this footnote is appended.
           74
             That section provides, “A person commits an offense if the person with criminal
   negligence interrupts, disrupts, impedes, or otherwise interferes with a peace officer while
   the peace officer is performing a duty or exercising authority imposed or granted by law.”
           75
             That section provides, “A person commits an offense if he intentionally prevents
   or obstructs a person he knows is a peace officer or a person acting in a peace officer's
   presence and at his direction from effecting an arrest, search, or transportation of the actor
   or another by using force against the peace officer or another.”




                                                 25
Case: 20-50822          Document: 00516222935               Page: 26       Date Filed: 03/03/2022




                                            No. 20-50822



   independent intermediary doctrine—which holds that “if facts supporting
   an arrest are placed before an independent intermediary such as a magistrate
   . . . , the intermediary’s decision breaks the chain of causation for false arrest,
   insulating the initiating party,”76 even if the warrant application was sought
   and granted after the arrest took place.77 This doctrine is derived from the
   time-honored rule that “a constable . . . cannot be held liable” for acts
   authorized by a “warrant . . . regular on its face, and . . . issued by a magistrate
   having jurisdiction over the subject matter”—which “affords a full
   justification for all acts done by [the officer] in its lawful execution.”78 The
   district court sided with the Officers and granted their motion for summary
   judgment on Buehler’s false-arrest claims. We agree.
           Buehler challenges the district court’s rejection of his false-arrest
   claims on several grounds. First, he argues that the independent-
   intermediary doctrine should be rejected as inconsistent with the Fourth
   Amendment. But we have “consistently applied the doctrine in published
   opinions”79 and are bound by those holdings.80 Buehler attempts to sidestep
   our precedent, suggesting that those cases’ underpinnings were called into
   doubt by the Supreme Court’s 1986 decision in Malley v. Briggs.81 There, in a
   footnote, the Court “conceded that the appellant police officer’s argument
   that he could not have proximately caused a defendant’s unlawful arrest by
   filing an affidavit unsupported by probable cause was not before it on



           76
              Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds,
   Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc).
           77
                Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 554 (5th Cir. 2016).
           78
                Clarke v. May, 68 Mass. 410, 413 (1854).
           79
                Buehler, 824 F.3d at 554.
           80
              See Cent. Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001) (“one
   panel of this Court may not overrule another”).
           81
                475 U.S. 335 (1986).




                                                  26
Case: 20-50822           Document: 00516222935              Page: 27        Date Filed: 03/03/2022




                                            No. 20-50822



   appeal,” but nonetheless suggested in dicta “that it would not have been
   receptive to this contention.”82 The problem for Buehler, however, is that
   we have reaffirmed the independent-intermediary doctrine in multiple
   precedential cases in the 36 years since Malley, repeatedly rejecting litigants’
   arguments that we should “disregard firmly ensconced circuit precedent in
   favor of . . . a cursory analysis of Malley’s dicta.”83 And just as we are bound
   by our precedent recognizing the independent-intermediary doctrine, so too
   are we bound by our precedent holding that the doctrine survived Malley.
          Second, Buehler argues that, even if we adhere to the independent-
   intermediary doctrine, his false-arrest claims are still viable because the
   Officers’ conduct in arresting him fell within the doctrine’s “taint”
   exception. Under that rule, “arrest warrants do not insulate” arresting
   officers from false-arrest liability if their own “false and misleading affidavits
   tainted the magistrate’s deliberations.”84 Buehler argues that Officer
   Garibay’s affidavits, which formed the basis for the magistrate’s approval of
   both warrants, were tainted by materially false statements. But, with one
   inconsequential exception,85 Buehler did not bring these supposed
   inaccuracies to the district court’s attention. He has therefore forfeited the



           82
                Murray v. Earle, 405 F.3d 278, 291 (5th Cir. 2005) (citing 475 U.S. at 345 n.7).
           83
                Id. at 292.
           84
                McLin v. Ard, 866 F.3d 682, 691 (5th Cir. 2017).
           85
               Buehler’s filings in the district court identified just “one specific fact . . . in
   support of his [“taint”] argument,” which was his allegation that “Garibay falsely claimed
   that [Buehler] tried to put his arm underneath himself” while being held face-down during
   his arrest. 2020 WL 5793008, at *7. Buehler’s contention that Garibay misrepresented
   what occurred during the arrest, even if true, would at best be relevant to the validity of the
   resisting-arrest charge, but “certainly . . . not . . . [to that of] the Interference with Public
   Duties warrant.” Id. That dooms Buehler’s attempt at a false-arrest claim, which “does
   not cast its primary focus on the validity of each individual charge . . . . If there was probable
   cause for any of the charges . . . then the arrest was supported by probable cause, and the
   claim for false arrest fails.” Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).




                                                  27
Case: 20-50822        Document: 00516222935              Page: 28       Date Filed: 03/03/2022




                                          No. 20-50822



   opportunity to rely on them on appeal.86 “It is a well settled rule that a party
   opposing a summary judgment motion must inform the trial judge of the
   reasons, legal or factual, why summary judgment should not be entered. If it
   does not do so, . . . it cannot raise such reasons on appeal.”87 “It is not enough
   to merely mention or allude to a legal theory in order to raise an argument.
   Rather, a party must press its claims, which entails clearly identifying a theory
   as a proposed basis for deciding the case.”88
           Moreover, even if Buehler’s supposed examples of
   misrepresentations in Garibay’s affidavit were properly presented for our
   consideration, they would not affect our conclusion, for none are inaccuracies
   of a sort that would taint the arrest warrant. All of the affidavit’s claims to
   which Buehler objects either were substantially accurate, were “not material
   to the [magistrate’s] findings of probable cause,” or were merely “different
   interpretations” of events on which “[t]here [wa]s plainly room to




           86
              Buehler attempts to dodge the forfeiture problem by contending that, “Although
   the district court incorrectly stated that [he] provided only ‘one specific fact’” to support
   his “taint” argument, “Buehler attempted to correct this mistake by filing a Motion for
   Reconsideration,” which included other purported examples of misrepresentations in
   Garibay’s affidavit. But this does not help Buehler one whit, since “[t]his court will
   typically not consider an issue or a new argument raised for the first time in a motion for
   reconsideration in the district court,” U.S. Bank Nat. Ass’n v. Verizon Commc’ns, Inc., 761
   F.3d 409, 425 (5th Cir. 2014), especially given that Buehler has offered no explanation for
   why he did not set forth the other allegations supporting his “taint” argument at an earlier
   stage of the district-court proceedings.
           87
             Savers Fed. Sav. & Loan Ass’n v. Reetz, 888 F.2d 1497, 1501 (5th Cir. 1989)
   (emphasis added) (quoting Liberles v. Cook Cty., 709 F.2d 1122, 1126 (7th Cir. 1983)).
           88
              U.S. Bank Nat. Ass’n, 761 F.3d at 425 (cleaned up) (quoting United States v.
   Scroggins, 599 F.3d 433, 446 (5th Cir. 2010)).




                                                28
Case: 20-50822          Document: 00516222935               Page: 29       Date Filed: 03/03/2022




                                            No. 20-50822



   disagree.”89 And an affiant’s presentation of one plausible “version of . . .
   disputed facts to the magistrate judge” does not taint the resulting warrant.90
           Indeed, even were we to discard the independent-intermediary
   doctrine, or to accept Buehler’s argument that the arrest warrant was tainted
   by false statements in Garibay’s affidavit, the result would simply be that we
   would decide ourselves whether Buehler’s arrest for interference with
   official duties was supported by probable cause. It obviously was. We have
   held, based on caselaw from Texas courts interpreting the relevant provision,
   that conduct extremely similar to that in which Buehler was engaged—that
   is, refusing to obey police officers’ repeated and unambiguous warnings to
   step back so as not to interfere with officers’ official duties—establishes
   probable cause to arrest for a violation of Texas Penal Code § 38.15(a)(1).91
           For these reasons, we conclude that the district court properly entered
   summary judgment for Defendants Dear, Garibay, DeVries, and McCoy on
   Buehler’s false-arrest claim. And as with Buehler’s claim against the City
   relating to its excessive-force policies, his false-arrest claim against the City,
   fails for lack of an underlying constitutional violation, since “a municipality
   cannot be liable ‘[i]f a person has suffered no constitutional injury at the
   hands of the individual police officer.’”92
                                                  C
          We now turn to Buehler’s First Amendment claim against the
   individual Defendants. Buehler asserts that the officers arrested him in


           89
                Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 556 (5th Cir. 2016).
           90
                Anderson v. City of McComb, 539 F. App’x 385, 387 (5th Cir. 2013).
           91
             See, e.g., Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017) (citing cases);
   Haggerty v. Tex. S. Univ., 391 F.3d 653, 657 (5th Cir. 2004); see also Holt v. State, No. 05-
   08-00134-CR, 2009 WL 311451, at *2 (Tex. App. Feb. 10, 2009).
           92
              Bustos v. Martini Club Inc., 599 F.3d 458, 467 (5th Cir. 2010) (quoting City of Los
   Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)).




                                                  29
Case: 20-50822          Document: 00516222935        Page: 30    Date Filed: 03/03/2022




                                      No. 20-50822



   retaliation for filming the officers in a public setting, an activity protected by
   the First Amendment’s freedom-of-speech guarantee. The district court,
   relying on our 2017 decision in Turner v. Lieutenant Driver,93 held that the
   officers were entitled to qualified immunity from Buehler’s retaliation claim,
   since it was not clearly established at the time of his arrest in August 2015
   that the right to publicly film police was protected by the First Amendment.
           The district court properly dismissed Buehler’s First Amendment
   retaliation claim. Buehler is correct that the First Amendment guarantees,
   subject to reasonable limitations, a right to publicly film police. We are
   bound, however, by our holding in Turner (a published opinion) that the First
   Amendment right to film police was not clearly established in this circuit as
   of September 2015.94 And it follows a fortiori from Turner’s holding that
   neither was such a right clearly established a month earlier. Buehler’s First
   Amendment claims against the Officers thus cannot proceed.
                                           D
          Finally, we consider Buehler’s municipal-liability claims against the
   City of Austin. Buehler alleged that the City was liable under § 1983 because
   (1) the APD’s policy governing police treatment of citizens filming officers
   in public violated such citizens’ rights under the First Amendment, and (2)
   the City failed to train or discipline officers who used excessive force in
   conducting arrests. The district court dismissed both of Buehler’s theories of
   municipal liability for failure to state claims. First, the district court reasoned
   that because the First Amendment right to film police was not clearly
   established as of August 2015, the claim against the City based on its policies
   governing filming of police could not proceed. The district court also rejected
   Buehler’s failure-to-train and failure-to-discipline theory as insufficiently



          93
               848 F.3d 678.
          94
               Id. at 686.




                                           30
Case: 20-50822         Document: 00516222935               Page: 31      Date Filed: 03/03/2022




                                           No. 20-50822



   supported by factual allegations.95 We agree with the district court, albeit for
   different reasons, that Buehler failed to state claims against the City under
   either theory.
          For one, as we have already explained, Buehler’s claims against the
   City fail at the outset insofar as they are based on APD policies or practices
   relating to use of force in carrying out arrests. A “policy, practice, or custom
   claim[]” against a municipality cannot proceed unless the plaintiff has
   suffered “an underlying constitutional violation,”96 and the force used in
   effectuating Buehler’s arrest did not violate the Constitution.
          That leaves only Buehler’s First Amendment claim against the City.
   The district court dismissed this claim based on its conclusion that the right
   to film police was not clearly established as of August 2015. The district
   court’s reasoning appears to have rested on the incorrect assumption that
   municipalities are entitled to qualified immunity. They are not.97 And of
   course our conclusion above that the individual Defendants are entitled to
   qualified immunity on Buehler’s First Amendment claim does not dispose of
   his corresponding claim against the City, since “a municipality may [still] be
   liable if a plaintiff states a claim against an official but the official is protected
   by qualified immunity.”98
          Nevertheless, we “may affirm a district court’s Rule 12(b)(6)
   dismissal on any grounds . . . supported by the record,”99 and here there is an
   obvious alternate ground on which to affirm dismissal of Buehler’s First


          95
               2018 WL 4225046, at *7–8.
          96
               Whitley v. Hanna, 726 F.3d 631, 648 (5th Cir. 2013).
          97
               See Owen v. City of Independence, 445 U.S. 622, 638 (1980).
          98
               Bustos, 599 F.3d 458, 467 n.50.
          99
               Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007).




                                                  31
Case: 20-50822           Document: 00516222935               Page: 32   Date Filed: 03/03/2022




                                             No. 20-50822



   Amendment claim against the City. Such a claim, just to reiterate, cannot
   succeed unless the harm he claims to have suffered as a result of the City’s
   policies or practices (his August 2, 2015 arrest) violated the First
   Amendment. It did not. As the Supreme Court recently held, a “plaintiff
   pressing a [First Amendment] retaliatory arrest claim must plead and prove
   the absence of probable cause for the arrest.”100 (An exception exists “when
   a plaintiff presents objective evidence that he was arrested when otherwise
   similarly situated individuals not engaged in the same sort of protected
   speech had not been,”101 but Buehler points to no such evidence.102) And as
   we have already explained in affirming summary judgment for Defendants on
   Buehler’s false-arrest claims, the arresting Officers had probable cause to
   arrest Buehler for interference with official duties. The arrest therefore did
   not violate his First Amendment rights, and his municipal-liability claim
   premised on the contrary notion necessarily fails.

                                                   III
           Buehler followed the Officer-Defendants for hours that night for
   purposes of filming them, as is his right. But in the minutes leading up to his
   arrest, Buehler had positioned himself less than arms’ length away from the
   group of officers, obstructing their view and performance of their duties—
   and disregarding their warnings of his conduct’s unlawfulness. The Officers


           100
                 Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019).
           101
                 Id. at 1727.
           102
                Buehler cites several purported examples of other passersby who the Officers
   permitted to “get close” without arresting them shortly before Buehler was arrested. None
   of these individuals, however, continued to stand within arms’ length of the Officers for a
   prolonged period after being ordered to stand back, as Buehler did. We therefore do not
   consider these individuals “similarly situated,” id., and so the Officers’ failure to arrest
   them does not raise suspicion that Buehler’s contemporaneous arrest was made in
   retaliation for his filming of the Officers.




                                                   32
Case: 20-50822        Document: 00516222935              Page: 33       Date Filed: 03/03/2022




                                          No. 20-50822



   then informed Buehler he was under arrest, at which point he turned and
   began walking away (or so a reasonable officer would have believed). When
   the Officers reached for his wrists, he suddenly lurched forward. Reasonably
   believing him to be resisting, the Officers brought him to the ground, where
   they held him for fewer than 45 seconds—only as long as it took to handcuff
   him. He suffered only bruises and lesions so minor they cannot be seen in
   mugshots taken minutes afterwards. Perhaps it was not strictly necessary for
   the Officers to take Buehler down to effect the arrest. But the seizure, even if
   imperfect, was not unreasonable.
           Summing up: None of the Officers involved in Buehler’s arrest used
   excessive force in violation of the Fourth Amendment; summary judgment
   for the Officers on Buehler’s false-arrest claim was proper; the Officers were
   entitled to qualified immunity on his First Amendment claim; and Buehler’s
   bystander- and municipal-liability claims, as well as his conspiracy claim, fail
   for lack of an underlying constitutional violation. We therefore REVERSE
   the district court’s denial of Defendants’ summary-judgment motion as to
   Buehler’s excessive-force claim and RENDER judgment for Defendants on
   that claim.103 We AFFIRM the district court’s judgment in all other
   respects.




           103
              “[W]hen the Rule 56 standard has been met, [a] reviewing court may direct the
   entry of summary judgment . . . . The appellate court either can include the order as part of
   its opinion or remand the case with directions to enter a summary judgment.” 10A
   CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. CIV. § 2716 (April 2021 update).
   Here, we opt for the former path. Defendants have specifically requested rendition, and we
   see no need for a remand given that nothing remains to be done in this case other than entry
   of judgment—which we can do ourselves. Our cases reversing denials of summary-
   judgment motions have sometimes remanded for entry of judgment, sometimes rendered
   judgment outright, and sometimes merely reversed without specifying further procedural
   steps. Compare Keller v. Fleming, 952 F.3d 216, 227 (5th Cir. 2020) (rendering), with Tucker,
   998 F.3d at 185 (remanding), and Joseph, 981 F.3d at 346 (reversing without elaboration).




                                                33