Craig v. Martin

Case: 19-10013    Document: 00516465054          Page: 1    Date Filed: 09/08/2022




              United States Court of Appeals                          United States Court of Appeals
                                                                               Fifth Circuit

                   for the Fifth Circuit                                     FILED
                                                                      September 8, 2022
                                                                        Lyle W. Cayce
                                  No. 19-10013                               Clerk


   Jacqueline Craig, Individually and on behalf of minors J.H., K.H.,
   and A.C.; Brea Hymond,

                                                           Plaintiffs—Appellees,

                                      versus

   William D. Martin,

                                                         Defendant—Appellant.


                 Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 4:17-CV-1020


               ON PETITION FOR REHEARING EN BANC

   Before Richman, Chief Judge, and Barksdale and Duncan, Circuit
   Judges.
   Priscilla Richman, Chief Judge:
         The petition for rehearing en banc has been denied. We withdraw the
   prior opinion that issued February 15, 2022, and substitute the following
   opinion.
         This case concerns the denial of qualified immunity to a police officer.
   Jacqueline Craig and four of her children sued Officer William D. Martin,
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                                     No. 19-10013


   asserting claims for unlawful arrest, bystander injury, and excessive use of
   force. 1 The district court denied Martin’s motion for summary judgment on
   the excessive force claims on qualified immunity grounds. 2                 This
   interlocutory appeal followed. 3 We reverse the district court’s denial of
   qualified immunity on the excessive force claims and render judgment in
   Martin’s favor as to those claims. We express no opinion regarding the
   district court’s dismissal of the plaintiffs’ other claims, which are not part of
   this appeal.
                                           I
          On December 21, 2016, Officer Martin received a call dispatching him
   to a “disturbance” in the South Division of Fort Worth. 4 The initial 9-1-1
   call came from a middle-aged male, stating that several people were on his
   property arguing, had refused to leave, and were intentionally throwing trash
   in his yard. 5 A subsequent 9-1-1 call came from the man’s neighbor,
   Jacqueline Craig, complaining that the man had grabbed her son by the neck
   because the boy had allegedly littered. 6
          Martin responded to the call alone. 7 He activated his body camera as
   soon as he arrived at the scene. 8 One of Craig’s daughters, Brea Hymond,




          1
              ROA.10-11, 31.
          2
              ROA.465-66.
          3
              ROA.485-86.
          4
              ROA.348.
          5
              ROA.348, 361.
          6
              ROA.15, 348, 361.
          7
              ROA.348.
          8
              ROA.349.




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                                        No. 19-10013


   also recorded the event on her cell phone. 9 We detail the record evidence as
   to what transpired during Martin’s encounter with Craig and her children in
   analyzing each of their respective claims.
            As a result of the incident, Craig, individually and on behalf of her
   minor children J.H. and K.H., and Hymond (collectively plaintiffs) sued
   Martin for unlawful arrest and excessive use of force. 10 Craig also sued
   Martin on behalf of her minor child A.C., alleging injuries suffered as a
   bystander to the incident. 11 The district court dismissed A.C.’s claim as
   incognizable; it dismissed all of the remaining plaintiffs’ claims for unlawful
   arrest, holding Martin was entitled to qualified immunity as to those claims.12
   Martin later moved for summary judgment on the remaining excessive force
   claims, but the district court denied Martin qualified immunity, concluding
   that the video evidence submitted by Martin was “too uncertain” to
   determine whether he was entitled to qualified immunity as to those claims.13
   Martin’s interlocutory appeal accordingly concerns only the excessive force
   issue.
                                             II
            “The denial of a motion for summary judgment based on qualified
   immunity is immediately appealable under the collateral order doctrine ‘to




            9
                 ROA.17, 349, 423.
            10
                 ROA.10-11.
            11
                 ROA.31.
            12
                 ROA.285, 292, 294.
            13
                 ROA.314, 465-66.




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   the extent that it turns on an issue of law.’” 14 “[W]e can review the
   materiality of any factual disputes, but not their genuineness.” 15
           “We review the materiality of fact issues de novo.” 16 When the district
   court does not specify what fact issues precluded a grant of summary
   judgment, as is the case here, 17 “[w]e can either scour the record and
   determine what facts the plaintiff may be able to prove at trial and proceed to
   resolve the legal issues, or remand so that the trial court can clarify the
   order.” 18 Given the limited record in this case and the availability of video
   evidence capturing the incident, we have reviewed the record rather than
   remanding, in order to “resolv[e] immunity questions at the earliest possible
   stage in litigation.” 19
           Normally, “[t]he plaintiff’s factual assertions are taken as true to
   determine whether they are legally sufficient to defeat the defendant’s
   motion for summary judgment.” 20 However, if there is video evidence that
   “blatantly contradict[s]” the plaintiffs’ allegations, the court should not
   adopt the plaintiffs’ version of the facts; instead, the court should view those
   facts “in the light depicted by the videotape.” 21 At oral argument, plaintiffs’



           14
              Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (quoting Mitchell v.
   Forsyth, 472 U.S. 511, 530 (1985)).
           15
                Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).
           16
                Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc).
           17
                ROA.465-66.
           18
                Thompson v. Upshur Cnty., 245 F.3d 447, 456 (5th Cir. 2001).
           19
             Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); see also Manis v. Lawson,
   585 F.3d 839, 843 (5th Cir. 2009).
           20
                Manis, 585 F.3d at 843.
           21
                Scott v. Harris, 550 U.S. 372, 380-81 (2007); see also id. at 378.




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   counsel acknowledged that the uses of force at issue are captured in the video
   evidence. 22
           Once a defendant properly pleads qualified immunity, the burden of
   proof shifts to the plaintiffs to negate the defense. 23 To meet this burden, the
   plaintiffs must establish “(1) that the official violated a statutory or
   constitutional right, and (2) that the right was clearly established at the time
   of the challenged conduct.” 24
           The plaintiffs allege that Martin’s use of force violated their Fourth
   Amendment right to be free from excessive force during a seizure. 25 To
   prevail on a Fourth Amendment excessive force claim, a plaintiff must show
   “(1) an 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.” 26 “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.’” 27
           “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




           22
                Oral Argument at 33:08-33:35.
           23
             King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (quoting Collier v. Montgomery,
   569 F.3d 214, 217 (5th Cir. 2009)).
           24
             Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014) (internal quotation marks
   omitted) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011)).
           25
                ROA.24, 26.
           26
              Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009) (quoting Freeman
   v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).
           27
            Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (quoting
   Graham v. Connor, 490 U.S. 386, 396 (1989)).




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   20/20 vision of hindsight.” 28 “Factors to consider include ‘the severity of
   the crime at issue, whether the suspect poses an immediate threat to the
   safety of the officers or others, and whether [the suspect] is actively resisting
   arrest or attempting to evade arrest by flight.’” 29                 “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.” 30 Viewing the evidence in the light most
   favorable to the plaintiffs, Martin’s use of force against each plaintiff was not
   objectively unreasonable.
                                                A
          We first consider Martin’s use of force against Craig. When Martin
   arrived at the scene, he spoke with the male complainant; Martin then
   approached Craig to obtain her version of the events. 31 Craig told Martin that
   the man had grabbed her son, A.C., after A.C. had allegedly littered. 32 In
   response, Martin asked: “Why don’t you teach your son not to litter?” 33
   Craig, visibly agitated, told Martin that it did not matter whether her son had




          28
               Graham, 490 U.S. at 396.
          29
               Deville, 567 F.3d at 167 (quoting Graham, 490 U.S. at 396).
          30
               Graham, 490 U.S. at 396-97.
          31
               ROA.349; Martin Body Camera at 00:36-00:56.
          32
               ROA.349, 421.
          33
               ROA.421; Compilation Video at 00:51-00:53.




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   littered, asserting that the man did not have the right to put his hands on her
   son. 34 Martin replied: “Why not?” 35
          Craig started to shout at Martin after this provocation. 36 Martin asked
   why she was shouting at him, to which Craig responded: “Because you just
   pissed me off telling me what I teach my kids and what I don’t.” 37 Martin
   replied in a calm voice: “If you keep yelling at me, you’re going to piss me
   off, and I’m going to take you to jail.” 38 Immediately after this exchange,
   J.H., Craig’s fifteen-year-old daughter, stepped between Craig and Martin
   and put her hands on Craig’s forearms. 39 Martin grabbed J.H. and pulled her
   away from her mother. 40
          Moments later, K.H., Craig’s fourteen-year-old daughter, began to
   walk around Martin’s right side; K.H. then pushed Martin in the left side of
   his back, using most—if not all—of her body weight. 41 Martin pulled his
   taser and yelled, “Get on the ground!” 42 Martin then allegedly “shov[ed]”
   his taser into the middle of Craig’s back. 43 Although Craig initially pled that
   Martin then “threw her to the ground,” 44 Craig’s affidavit states that Martin



          34
               ROA.350; Compilation Video at 00:56-01:00.
          35
               ROA.350; Compilation Video at 01:00-01:02.
          36
               Compilation Video at 01:05-01:12.
          37
               Compilation Video at 01:22-01:27.
          38
               Compilation Video at 01:27-01:30.
          39
               ROA.350, 374, 443; Compilation Video at 01:32-01:33.
          40
               Compilation Video at 01:32-01:37.
          41
               Compilation Video at 01:37-01:41.
          42
               ROA.353, 375; Compilation Video at 01:40-01:41.
          43
               ROA.422; Compilation Video at 01:41-01:48.
          44
               ROA.422.




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   “shov[ed]” her to the ground. 45 Craig claims that, as she was going to the
   ground, her “left arm and shoulder blade [were] still suspended in [Martin’s]
   grip—causing [her] severe pain.” 46 The video does not show any throwing
   or slamming motion; however, it does show Martin pushing Craig to the
   ground while maintaining a hold on Craig’s left arm and releasing it as she
   slowly descends to the ground. 47 Martin then handcuffed Craig. 48
          Under the circumstances, it was not objectively unreasonable for
   Martin to grab Craig and force her to the ground to effectuate her arrest.
   Martin was the only police officer at the scene, he had just been pushed from
   behind, and he was facing numerous people who were shouting and jostling
   as he attempted to separate Craig from the crowd and arrest her.
                                               B
          After Martin handcuffed Craig, he walked over to J.H. 49 As recounted
   above, before Martin arrested Craig, J.H. stepped between Craig and Martin
   and put her hands on Craig’s forearms. 50 Martin pulled J.H. away from her
   mother, 51 and after K.H. pushed Martin in the side, Martin ordered all of
   them to “get on the ground.” 52 After Martin arrested Craig, he again
   shouted, “Get on the ground.” 53 J.H., who was initially still standing,


          45
               ROA.444.
          46
               ROA.443-44.
          47
               See Compilation Video at 01:41-01:49.
          48
               ROA.353; Compilation Video at 01:58-02:06.
          49
               ROA.353-55; Compilation Video at 02:04-02:07.
          50
               ROA.350, 374, 443; Compilation Video at 01:32-01:33.
          51
               Compilation Video at 01:32-01:37.
          52
               ROA.353, 375; Compilation Video at 01:40-01:50.
          53
               Compilation Video at 02:05-02:08.




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                                          No. 19-10013


   squatted to the ground as Martin moved closer to her. 54 Martin approached
   her, grabbed her left arm and the back of her neck, and placed her on the
   ground. 55
          Martin then walked Craig and J.H. to his vehicle. 56 As Martin
   approached the rear passenger door of the vehicle, K.H. appeared from
   behind the back of the vehicle. 57 She stood in front of the passenger door in
   an apparent attempt to block Martin from placing Craig and J.H. in the
   vehicle. 58 Martin shouted: “Get back, or you’re going to jail too,” to which
   K.H. responded: “I don’t care.” 59 Martin allegedly “struck” K.H. in the
   throat, moving her out of the way. 60 Martin then attempted to get J.H. into
   the vehicle. 61 J.H. resisted, leaving her left leg hanging out of the vehicle. 62
   Martin repeatedly told her to get in the police cruiser, but she refused. 63 He
   then allegedly “kicked” J.H.’s left leg into the vehicle. 64
          The plaintiffs argue that Martin violated J.H.’s Fourth Amendment
   rights when he took her to the ground and when he allegedly kicked her leg




          54
               ROA.355; Compilation Video at 02:04-02:07.
          55
               Compilation Video at 02:06-02:11.
          56
               ROA.355, 375-76; Compilation Video at 02:24-03:08.
          57
               ROA.355-56, 376; Compilation Video at 03:06-03:08.
          58
               ROA.355-56, 376; Compilation Video at 03:06-03:08.
          59
               ROA.356, 376; Compilation Video at 03:09-03:11.
          60
               ROA.356, 423; Compilation Video at 03:10-03:11.
          61
               ROA.377; Compilation Video at 03:33-03:35.
          62
               ROA.377; Compilation Video at 03:36-03:43.
          63
               Compilation Video at 03:36-03:43.
          64
               ROA.393, 423, 429, 446; Compilation Video at 03:42.




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                                            No. 19-10013


   into the police vehicle. 65 In both instances, J.H. was not complying with
   Martin’s commands. Physical force may be necessary to ensure compliance
   when a suspect “refus[es] to comply with instructions.” 66                         However,
   “officers must assess not only the need for force, but also ‘the relationship
   between the need and the amount of force used.’” 67 A use of force is
   reasonable if an officer uses “‘measured and ascending’ actions that
   correspond[] to [a suspect’s] escalating verbal and physical resistance.” 68
           Martin’s actions were sufficiently measured in relation to J.H.’s
   resistance. Martin had commanded J.H. and others to get on the ground. 69
   Although J.H. initially complied, she stood back up while Martin was
   handcuffing Craig. 70 Martin approached J.H. and again ordered her to get on
   the ground, at which point J.H. squatted. 71 Martin then took J.H. to the
   ground, 72 applying the necessary force to restrain and handcuff her. With
   regard to the alleged “kicking,” Martin had commanded J.H. to get into the
   police vehicle. 73 J.H. continued to argue with Martin and kept her left leg
   outside of the vehicle. 74 Martin used his foot to force J.H.’s leg into the
   vehicle because he was holding Craig with one arm and the door of the vehicle


           65
                ROA.16-17, 20-21.
           66
                Deville, 567 F.3d at 167.
           67
                Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)).
           68
              Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (quoting Galvan v.
   City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (unpublished) (per curiam)).
           69
                ROA.353; Compilation Video at 01:40-01:50.
           70
                Compilation Video at 01:49-02:07.
           71
                Compilation Video at 02:04-02:07.
           72
                Compilation Video at 02:06-02:11.
           73
                Compilation Video at 03:40-03:42.
           74
                Compilation Video at 03:40-03:45.




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   with the other. 75 There is no indication that Martin’s use of force was
   excessive. The plaintiffs do not allege that J.H. suffered any injury as a result
   of the kick. 76 Martin’s use of force in response to J.H.’s resistance was not
   objectively unreasonable.
                                                  C
           We reach a similar conclusion with respect to K.H. Fourteen-year-
   old K.H. had pushed Martin in his back using most—if not all—of her body
   weight before Martin arrested her mother, Craig. 77 As stated above, after
   Martin had handcuffed and arrested Craig, and just as Martin was attempting
   to place Craig and J.H. into his police cruiser, K.H. appeared from behind the
   vehicle and placed herself immediately in front of Martin, preventing Martin
   from placing Craig and J.H. in the vehicle. 78 Martin yelled, “Get back, or
   you’re going to jail, too!” 79 K.H. stood her ground, responding, “I don’t
   care.” 80 After this response, Martin allegedly struck K.H. in the throat.81
   Martin’s use of force moved K.H. out of his way, but otherwise had limited
   visible effect on her. 82
           On these facts, Martin’s use of force was not objectively unreasonable.
   K.H. had assaulted Martin—pushing him in the back—earlier in the



           75
                See Compilation Video at 03:42.
           76
             See ROA.130, 142 (noting that plaintiffs make no claim of any injury relating to
   Martin’s use of force against J.H.).
           77
                Compilation Video at 01:37-01:41.
           78
                See Compilation Video at 03:07-03:11.
           79
                ROA.356; Compilation Video at 03:09-03:11.
           80
                ROA.356, 376; Compilation Video at 03:09-03:11.
           81
                ROA.423; Compilation Video at 03:10-03:11.
           82
                Compilation Video at 03:09-03:16.




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                                           No. 19-10013


   altercation, and she was interfering with the lawful arrests of Craig and J.H.
   at the time Martin made physical contact with her. K.H. refused to move,
   and Martin used a relatively minimal amount of force to move her out of the
   way. Such conduct does not violate the Fourth Amendment.
                                                D
          We come to Hymond’s claim. Throughout Martin’s encounters with
   and arrests of Craig and J.H., Hymond shouted at him while photographing
   what was transpiring from a close range. 83 After placing Craig and J.H. in the
   back of his police car, Martin turned to Hymond to arrest her for
   interfering. 84 He grabbed her by the wrist, put her up against the side of the
   police vehicle, and attempted to wrangle her cell phone out of her hands, 85
   which he eventually did. 86 As he attempted to restrain her, Hymond tried to
   raise her hands and continued to scream at him. 87 He handcuffed her and
   then put her up against the vehicle a second time. 88 Although Hymond was
   in handcuffs, she continued to resist. Martin told Hymond that she was
   under arrest and asked if she understood, but she continued shouting without
   answering. 89 Hymond shouted for someone to “come here” and then “come
   around here.” 90 There were other people on the scene, including at least one




          83
               See, e.g., Compilation Video at 02:50-03:00.
          84
               ROA.358, 379; Compilation Video at 04:05-04:15.
          85
               ROA.358, 379; Compilation Video at 04:15-04:28.
          86
               See, Compilation Video at 04:30-04:47.
          87
               Compilation Video at 04:28-04:46.
          88
               ROA.358; Compilation Video at 04:43-05:30.
          89
               Compilation Video at 05:05-05:10.
          90
               ROA.358, Compilation Video at 05:08-05:16.




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   of Craig’s family members who had not been arrested. 91 Hymond was also
   twisting her body as she shouted, and she walked away from the squad car at
   one point. 92 Martin moved her back. 93 Hymond continued shouting and
   twisting. 94 She turned her head halfway to her left in an attempt to look at
   Martin. 95 Martin then began asking Hymond for her name and age. 96 As
   Martin continued to ask, Hymond began twisting her body more
   aggressively, her body briefly moved up and down as if she were jumping, and
   she moved her head even more to her left to look squarely at Martin. 97 All
   the while she continued to shout at Martin. 98
          Martin’s sworn declaration filed in the district court states that after
   Hymond was handcuffed, she “continue[d] to yell and squirm,” and Martin
   “beg[a]n to try to control her by applying leverage and slightly raising her
   arms, but the effort is in effective [sic].” 99 The declaration says that Martin
   then “lift[ed] Brea Hymond’s handcuffs slightly further. 100 I never felt any
   particular resistance as she was clearly quite flexible, and I applied very little
   force when I raised her arms.” 101 His declaration continues, “If I had had to
   apply much force to raise her arms it would have forced her to bend forward


          91
               See Compilation Video at 04:34-04:50 (depicting K.H. and others).
          92
               ROA.358, 379; Compilation Video at 05:11-05:28.
          93
               Compilation Video at 05:26-05:30.
          94
               ROA.358-59; Compilation Video at 05:30-05:48.
          95
               ROA.358; Compilation Video at 05:47-05:54.
          96
               Compilation Video at 05:53-06:02.
          97
               Compilation Video at 05:53-06:02.
          98
               Compilation Video at 05:52-06:01.
          99
               ROA.359.
          100
                ROA.359.
          101
                ROA.359.




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                                             No. 19-10013


   at the waist, which never happened.” 102 Martin asserted in this declaration,
   “I was trying to use the technique to elicit some level of compliance from
   her . . . .” 103
            Hymond’s briefing in district court in response to Martin’s motion for
   summary judgment asserted that Martin “hyper-extended” her arms when
   she did not respond to questions about her name and age. 104 Her briefing in
   our court did not make such an assertion until a motion for rehearing was
   filed after our initial opinion issued. 105 Hymond’s affidavit filed in the district
   court states that Martin “thrust” her arms up but does not attribute a motive
   or reason for his doing so. 106
            In Hymond’s motion for a rehearing, she argues for the first time that
   Martin’s use of force was excessive because he did it to force Hymond to
   answer his questions. 107 The issue is whether, from an objective standpoint,
   Martin’s use of force was reasonable given all of the facts and circumstances
   surrounding the arrest, not whether, subjectively, Martin raised Hymond’s
   arms to obtain answers to his questions. 108




            102
                  ROA.359.
            103
                  ROA.359.
            104
                  ROA.423.
            105
             Compare Plaintiff’s Br. at 1-22 (not making this allegation), with Pet. for Reh’g
   En Banc at 8 (“When [Hymond] failed to respond suitably, Martin hyper-extended her
   handcuffed arms by flexing them above her head in order to cause pain.”).
            106
                  ROA.453.
            107
                  Pet. for Reh’g En Banc at 8.
            108
              See id. at 628 (quoting Graham, 490 U.S. at 397) (explaining that “[c]rucially,”
   the excessive force analysis “must be objective,” requiring consideration of the officer’s
   actions “without regard to their underlying intent or motivation.”).




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                                          No. 19-10013


          The video evidence shows that in the sixty seconds before Martin
   lifted up Hymond’s arms, Hymond was resisting arrest: Hymond pulled and
   twisted her body back and forth while she was handcuffed; 109 repeatedly
   yelled for someone to “come around here” as several individuals who were
   not detained were nearby; 110 attempted to walk away from the police car;111
   shouted progressively louder as she twisted and turned more aggressively; 112
   refused to answer Martin’s questions about her name and age; 113 briefly
   jumped up and down; 114 and turned her head to the left to look directly at
   Martin. 115 Martin stated in a sworn declaration that he took Hymond’s
   request for others to “[c]ome around here” to mean that “she was maybe
   trying to call others to come assist her and to somehow interfere with [his]
   arrest of her.” 116 He also testified that he has “personally had more than one
   suspect attempt to escape while handcuffed, and [he] ha[s] had one female
   juvenile suspect head-butt [him] while in handcuffs.” 117
          Taken in totality, Hymond’s actions—twisting her body, walking
   away, screaming, jumping up and down, turning her head, and calling for
   others to “[c]ome around here”—reflect that Hymond was resisting arrest.
   The use of force was objectively reasonable as a means of restraining an



          109
                Compilation Video at 05:06-05:09.
          110
                Compilation Video at 05:08-05:16.
          111
                Compilation Video at 05:11-05:26.
          112
                Compilation Video at 05:30-05:54.
          113
                Compilation Video at 05:53-06:02.
          114
                Compilation Video at 05:58-06:02.
          115
                Compilation Video at 06:01-06:02.
          116
                ROA.358.
          117
                ROA.358-59.




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                                          No. 19-10013


   arrestee. The video evidence reflects that Martin lifted Hymond’s arms for a
   total of eight seconds. 118 She did not bend at the waist. 119 Hymond claims
   this maneuver caused “[e]xcruciating pain”; however, the video shows that
   the maneuver had little to any effect on Hymond. 120 She repeated statements
   numerous times in a continuous stream as Martin raised her arms and
   immediately after he lowered them. 121 Neither her tone of voice nor her
   cadence changed. 122 Martin then placed Hymond into a second police
   vehicle that had just arrived at the scene. 123 Hymond’s answers to written
   interrogatories state that she was “forced” into the police car, 124 which
   indicates that she resisted and did not willingly enter that vehicle.
          The procedural posture of this case must be borne in mind. We are
   not reviewing a motion to dismiss, in which we would look only at the
   plaintiff’s allegations. Martin filed a motion for summary judgment, and he
   supported that motion with video evidence and with his own declaration and
   that of his commanding officer. He stated in detail how Hymond responded
   to his efforts to arrest her, 125 and he and his commanding officer explained
   that, in their experiences as police officers, they had each been headbutted by
   a suspect while under arrest and handcuffed. 126 In Martin’s case, he was



          118
                Compilation Video at 06:02-06:10.
          119
                Compilation Vide oat 06:02-06:10.
          120
                ROA.453.
          121
                Compilation Video at 06:03-06:15.
          122
                Compilation Video at 06:03-06:15.
          123
                ROA.359; Compilation Video at 06:14-06:27.
          124
                ROA.384.
          125
                ROA.358-59.
          126
                ROA.359, 379.




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                                           No. 19-10013


   headbutted by a juvenile who was handcuffed. 127 In the face of this summary
   judgment evidence, it was then incumbent upon Hymond to produce
   evidence, not mere allegations, that raised a genuine dispute of material fact.128
           Hymond failed to produce that evidence. Her response to Martin’s
   motion for summary judgment primarily quoted the allegations in her
   complaint, 129 but those unsworn allegations are not evidence. They cannot
   defeat summary judgment in the face of sworn statements of fact that, if true,
   would entitle the movant to judgment. The only relevant evidence that
   Hymond presented, other than the videos, regarding the specifics of her
   encounter with Martin, was her affidavit. In the affidavit, she made the
   conclusory statements that “I was not resisting arrest or refusing to comply
   with any commands,” “I was not confrontational and I fully complied with
   the commands of the [sic] Officer Martin,” and “I was not actively resisting
   or noncompliant.” 130 Hymond did not deny that she pulled, twisted, turned,
   or walked—all of which is shown on the video while she is handcuffed. She
   did not suggest that her movements on the video were attributable to
   Martin’s conduct rather than her own in the face of Martin’s declaration.
   Stated another way, she did not controvert the specific facts set forth in
   Martin’s declaration, which, if believed, would mean that Hymond was
   resisting arrest and that there was a legitimate concern that her movements
   could lead to an assault on the arresting officer. Instead, she insisted that she
   was wrongfully arrested, and in her answers to written interrogatories, she



           127
                 ROA.359.
           128
               See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Matsushita Elec.
   Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Fed. R. Civ. P. 56(a).
           129
                 ROA.17, 423.
           130
                 ROA.453-54.




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                                            No. 19-10013


   maintained that she was “forced” into a squad car. 131 Asserting that she was
   “forced” into a squad car is directly contrary to her conclusory assertions
   that she complied with all requests Martin made of her and that she was not
   resisting arrest.
           Nothing in our opinion should be construed as suggesting, much less
   holding, that officers may use pain maneuvers to force non-resisting
   individuals to respond to questioning. We hold only that, consistent with our
   precedent, an officer may use reasonable force on someone “actively”
   resisting arrest. 132 “The timing, amount, and form of a suspect’s resistance
   are key to determining whether the force used by an officer was appropriate
   or excessive.” 133 Here, the video shows that Hymond actively resisted
   Martin’s arrest, Martin waited more than a minute before using force, 134 and
   his force was relatively minimal with Hymond visibly experiencing little to
   any pain. 135 Physical force may be necessary to ensure compliance when a


           131
                 ROA.384.
           132
             Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 333 (5th Cir. 2020); see
   also Graham, 490 U.S. at 396.
           133
                 Joseph, 981 F.3d at 332.
           134
                Cf. Trammell v. Fruge, 868 F.3d 332, 342 (5th Cir. 2017) (holding that the
   plaintiff alleged enough for an excessive force claim when “only three seconds elapsed”
   between the suspect’s resistance and the officers’ use of force); Newman v. Guedry, 703
   F.3d 757, 763 (5th Cir. 2012) (same, with the use of force coming “immediately” after the
   suspect’s resistance); Deville v. Marcantel, 567 F.3d 156, 168 (5th Cir. 2009) (per curiam)
   (same, with the force coming “quickly”); see also Compilation Video at 04:22-06:02.
           135
              Cf. Darden v. City of Fort Worth, 880 F.3d 722, 726, 732-33 (5th Cir. 2018)
   (holding that the plaintiff alleged enough for an excessive force claim when officers killed a
   suspect after tasing him twice and putting him in a choke hold); Newman, 703 F.3d at 760,
   763 (same, but with officers “str[iking] Newman a total of thirteen times in about nine
   seconds” with a nightstick and then tasing him three times); Joseph, 981 F.3d at 325, 327
   (same, but with “Joseph endur[ing] twenty-six blunt-force injuries to his face, chest, back,
   extremities, scrotum, and testes” over an “eight-minute encounter”); Deville, 567 F.3d at
   168 (same, but when the plaintiff suffered “contusions to both wrists, neuropathy of her




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                                             No. 19-10013


   suspect “refus[es] to comply with instructions.” 136 However, “officers must
   assess not only the need for force, but also ‘the relationship between the need
   and the amount of force used.’” 137 A use of force is reasonable if an officer
   uses “‘measured and ascending’ actions that correspond[] to [a suspect’s]
   escalating verbal and physical resistance.” 138
           In sum, Martin’s conduct in this case was not objectively
   unreasonable and did not violate Hymond’s or any of the other plaintiffs’
   Fourth Amendment rights. On this basis alone, Martin is entitled to qualified
   immunity.
                                                  III
           Even assuming the plaintiffs could show that Martin committed a
   constitutional violation, Martin is nonetheless entitled to qualified immunity
   under the second prong of the qualified immunity analysis. Analysis of that
   prong requires that we determine whether Martin’s uses of force “violated
   ‘clearly established statutory or constitutional rights of which a reasonable
   [officer] would have known.’” 139 For a right to be clearly established,
   “existing precedent must have placed the . . . constitutional question beyond




   hands, [a] right shoulder strain, left shoulder bruising (with hand prints), and multiple cuts
   caused by broken glass” that required “four surgeries and multiple other injections.”); see
   also Compilation Video at 06:03-06:15.
           136
                 Deville, 567 F.3d at 167.
           137
                 Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)).
           138
              Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (quoting Galvan v.
   City of San Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (unpublished) (per curiam)).
           139
               Bush v. Strain, 513 F.3d 492, 500 (5th Cir. 2008) (quoting Flores v. City of
   Palacios, 381 F.3d 391, 395 (5th Cir. 2004)).




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                                             No. 19-10013


   debate.” 140 “[N]o reasonable officer could believe the act was lawful.” 141
   “That is because qualified immunity is inappropriate only where the officer
   had ‘fair notice’—‘in light of the specific context of the case, not as a broad
   general proposition’—that his particular conduct was unlawful.” 142 Thus,
   “police officers are entitled to qualified immunity unless existing precedent
   squarely governs the specific facts at issue.” 143 “[S]pecificity is especially
   important in the Fourth Amendment context, where . . . it is sometimes
   difficult for an officer to determine how the relevant legal doctrine, here
   excessive force, will apply to the factual situation the officer confronts.” 144
           The plaintiffs have failed to provide controlling precedent showing
   that Martin’s particular conduct violated a clearly established right. They
   also forfeited the argument that this case falls within the “obvious[ness]”
   exception to providing controlling precedent, as they did not raise it in the
   district court. 145 Instead, they have pointed to several cases that discuss the




           140
                 Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011).
           141
              Darden v. City of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018); see also Morrow
   v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019) (explaining that “the law must be so clearly
   established that—in the blink of an eye, in the middle of a high-speed chase—every
   reasonable officer would know . . . immediately” that the conduct was unlawful).
           142
              Morrow, 917 F.3d at 875 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
   (per curiam)).
           143
               Id. at 876 (internal quotation marks omitted) (quoting Kisela v. Hughes, 138 S.
   Ct. 1148, 1153 (2018) (per curiam)).
           144
               Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (alterations in
   original) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)); see also City of
   Tahlequah v. Bond, 142 S. Ct. 9, 11-12 (2021) (per curiam).
           145
               Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[I]n other instances a general
   constitutional rule already identified in the decisional law may apply with obvious clarity to
   the specific conduct in question, even though ‘the very action in question has [not]
   previously been held unlawful.’” (alteration in original) (quoting Anderson v. Creighton, 483




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                                             No. 19-10013


   excessive force issue at a “high level of generality”—precisely what the
   Supreme Court has repeatedly advised courts they cannot do in analyzing
   qualified immunity claims. 146
           The first case the plaintiffs identify is Sam v. Richard. 147 In Sam, the
   plaintiff presented evidence that he was on the ground with his hands behind
   his head when the officer slapped him across the face, kneed him in the hip,
   and then pushed him against a patrol car. 148 The court concluded such a use
   of force on a compliant suspect was “excessive and unreasonable,” noting
   that “it was clearly established at the time of the incident that pushing,
   kneeing, and slapping a suspect who is neither fleeing nor resisting is
   excessive.” 149
           The second case the plaintiffs rely on to show that Martin’s particular
   conduct violated clearly established law is Darden v. City of Fort Worth. 150 In
   Darden, an officer threw a suspect to the ground after the suspect had placed
   his hands into the air in surrender. 151 Officers tased the man multiple
   times. 152 They choked him and repeatedly punched and kicked him in the




   U.S. 635, 640 (1987))); see also Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021);
   ROA.431-33.
           146
              See, e.g., Kisela, 138 S. Ct. at 1152 (quoting City and Cnty. of S.F. v. Sheehan, 575
   U.S. 600, 613 (2015)).
           147
                 887 F.3d 710 (5th Cir. 2018).
           148
                 Id. at 712, 714.
           149
                 Id. at 714 (citing Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)).
           150
                 880 F.3d 722 (5th Cir. 2018).
           151
                 Id. at 725.
           152
                 Id. at 725-26.




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                                           No. 19-10013


   face. 153 Not long after these actions, the man’s body fell limp. 154 He had
   suffered a heart attack and died. 155 The court concluded that the officers’
   particular conduct violated a clearly established right. 156             The court
   concluded that it was clearly established at the time of the incident that “a
   police officer uses excessive force when the officer strikes, punches, or
   violently slams a suspect who is not resisting arrest.” 157
          The plaintiffs also cite Joseph ex rel. Estate of Joseph v. Bartlett. 158 In
   Joseph, multiple police officers physically struck Joseph twenty-six times. 159
   The officers also tased him twice. 160 During the incident, Joseph was lying in
   the fetal position, was not actively resisting, and was continuously calling out
   for help. 161 Joseph eventually became unresponsive and died in the hospital
   two days later. 162 The court concluded that the officers used excessive force,
   and that their conduct violated a clearly established right. 163 The court noted
   that “Darden repeated what had long been established in our circuit: Officers




          153
                Id. at 726.
          154
                Id.
          155
                Id.
          156
                Id. at 731-33.
          157
                Id. at 732.
          158
                981 F.3d 319 (5th Cir. 2020).
          159
                Id. at 327.
          160
                Id. at 326-27.
          161
                Id. at 336.
          162
                Id. at 327.
          163
                Id. at 342.




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                                                  No. 19-10013


   engage in excessive force when they physically strike a suspect who is not
   resisting arrest.” 164
           None of these decisions, nor any of the other decisions identified by
   the plaintiffs, 165 provided Martin fair notice that his particular conduct was
   unlawful. To begin with, each of these decisions was issued after the events
   in question occurred on December 21, 2016. In any event, the decisions in
   Sam, Darden, and Joseph would not have provided fair notice because the
   plaintiffs in each case were not resisting arrest when the alleged unlawful
   conduct occurred. 166 In all three cases, the plaintiffs had either signaled their
   surrender by placing their hands in the air and ceasing further movements or
   were lying on the ground before the alleged unlawful conduct occurred. 167 In
   contrast, the plaintiffs in this case—except for Craig—were still resisting
   when the alleged unlawful conduct occurred.
           Martin’s use of force in this case is also far less severe than the use of
   force in any of the cases the plaintiffs have identified. For instance, the
   plaintiffs point to a case from this court in which the officer slammed a
   nonresistant suspect’s face into a nearby vehicle, breaking two of her teeth. 168
   They point to a decision from another circuit in which multiple officers
   punched, kneed, and kicked a suspect—while he was handcuffed on the
   ground—severely enough to fracture the suspect’s neck. 169



           164
                 Id.
           165
                 See Plaintiffs’ Br. at 6 n.16.
           166
             Sam v. Richard, 887 F.3d 710, 714 (5th Cir. 2018); Darden v. City of Fort Worth,
   880 F.3d 722, 732 (5th Cir. 2018); Joseph, 981 F.3d at 342.
           167
                 Sam, 887 F.3d at 714; Darden, 880 F.3d at 725-26; Joseph, 981 F.3d at 326.
           168
                 Bush v. Strain, 513 F.3d 492, 496 (5th Cir. 2008).
           169
                 Krout v. Goemmer, 583 F.3d 557, 561-63, 566 (8th Cir. 2009).




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                                             No. 19-10013


           Although the plaintiffs need not point to a factually identical case to
   demonstrate that the law is clearly established, they nonetheless must
   provide some controlling precedent that “squarely governs the specific facts
   at issue.” 170 The plaintiffs have not provided such precedent here and thus
   have failed to show that the law clearly established that Martin’s particular
   conduct was unlawful at the time of the incident. Moreover, as we have noted
   before, the plaintiffs’ reliance on the cases above “requires us to assume that
   Fifth Circuit precedent alone can clearly establish the law for qualified
   immunity purposes, something the Supreme Court has left open.” 171
   Regardless, the plaintiffs have not overcome Martin’s qualified immunity
   defense.
                                         *        *         *
           For these reasons, we REVERSE the district court’s denial of
   qualified immunity on the excessive force claims and RENDER summary
   judgment in Martin’s favor as to those claims.




           170
              Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019) (internal quotation marks
   omitted) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)).
           171
               Ramirez v. Escajeda, __ F.4th __, 2022 WL 3225405, at *4 (5th Cir. 2022)
   (citing Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam) (“[A]ssuming that
   controlling Circuit precedent clearly establishes law for purposes of § 1983 . . . .”)); see also
   Betts v. Brennan, 22 F.4th 577, 585 n.6 (5th Cir. 2022) (quoting Rivas-Villegas, 142 S. Ct. at
   8) (assuming without deciding that circuit precedent can clearly establish the law).




                                                  24