Case: 21-20654 Document: 00516528578 Page: 1 Date Filed: 10/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 31, 2022
No. 21-20654 Lyle W. Cayce
Clerk
Malea Byrd,
Plaintiff—Appellee,
versus
Johnny Cornelius; George Sweetin,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-4473
Before Clement, Duncan, and Wilson, Circuit Judges.
Edith Brown Clement, Circuit Judge:
In the 2019 school year, Appellant police officers Johnny Cornelius
and George Sweetin allegedly used excessive force in removing and arresting
Malea Byrd, a student, from a high school basketball game. The district court
denied summary judgment based on qualified immunity, finding a dispute of
material fact regarding the events surrounding Byrd’s arrest. The officers
filed an interlocutory appeal challenging the district court’s decision.
Because our jurisdiction is limited to reviewing the materiality of any factual
disputes identified by the district court, we DISMISS the appeal for lack of
jurisdiction.
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I
In the fall of 2017, Byrd was a student at Madisonville High School,
which is operated by the Madisonville Consolidated Independent School
District. On November 14, 2017, Byrd, with some of her friends and family,
attended a basketball game and decided to sit on the visitors’ side of the gym.
Officers Sweetin and Cornelius approached Byrd’s group and asked them to
move to the home side of the court. The teenagers complied with their
request.
Later in the evening, Byrd and her cousin decided to go to the
concession stand to buy some pizza. On the way, Kathleen Golden, an
assistant principal at MHS, stopped Byrd and asked her about her nose ring.
Following this encounter, Byrd rejoined her cousin in line at the visitors’
concession stand. Golden then re-engaged with Byrd, admonishing her not
to go to the visitors’ section of the gym. Golden then asked Byrd to talk
outside. During the conversation, Byrd became uncomfortable and decided
to call her mother. Golden refused to speak to Byrd’s mother and asked Byrd
to leave the game. Because she did not have a coat and it was cold, Byrd
refused to leave the building and waited inside of the gym for her mother to
pick her up. The parties disagree regarding what exactly occurred at this
point.
Byrd alleges that she was calmly talking to her mother on her cell
phone near the doorway when Golden suddenly grabbed her shirt and
forcefully pulled her. Byrd claims Golden then called Officers Cornelius and
Sweetin over to assist her in removing Byrd from the game. Byrd alleges that
Cornelius then violently handled her, spilled his hot coffee on her, ripped her
shirt, and threw her to the ground. She then apparently felt Cornelius press
his knee into her back and painfully twist her arm before placing her in
handcuffs. Byrd alleges that while Cornelius undertook these actions,
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Sweetin handled her very roughly and ripped her shirt. Byrd lastly claims that
after Cornelius had her in custody, Sweetin kicked her arm and broke her cell
phone by throwing it on the ground.
The officers’ account of the event differs markedly. Cornelius and
Sweetin claim they witnessed Byrd yell at and start a physical confrontation
with Golden. Cornelius claims he asked Byrd to leave the gym but that she
refused his order. Cornelius states he took Byrd by the arm to escort her from
the building, but Byrd resisted by pulling away, thrashing, and kicking. They
allege Byrd’s elbow hit Cornelius on the cheek. Cornelius states it was at this
point that he swept Byrd’s legs out from under her, placed her on her
stomach, and handcuffed her.
The officers turned Byrd over to the Madisonville Police Department,
who eventually released her. Byrd then sought treatment at the Madisonville
St. Joseph Hospital for injuries to her elbow and shoulder, bruising, and
multiple lacerations. MHS ultimately expelled Byrd for assaulting a school
administrator and police officers during the events of November 14, 2017.
Byrd filed suit against the Officers and the MCISD on November 13,
2019. On December 16, 2019, she submitted her Second Amended
Complaint. The MCISD moved to dismiss the excessive force claims in her
Second Amended Complaint, and the district court granted the motion. On
April 14, 2021, Defendants moved for summary judgment premised on
qualified immunity and on the merits of Byrd’s due process claim. 1
The magistrate judge found a genuine dispute of material fact between
the evidence provided by the officers, namely their recollection of events and
a short security video, and the evidence supplied by Byrd in her declaration.
1
The district court’s decision denying summary judgment on Byrd’s due process
claim is not reviewable on interlocutory appeal.
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Specifically, the magistrate judge found the video to be unclear and wrote
that it provided “no evidence at all that would support Defendants’
arguments.” Therefore, she turned to Byrd’s declaration and the
Defendants’ declarations and found them to be in conflict regarding what
happened on November 14, 2017. The magistrate judge concluded that these
genuine issues of fact were material to the reasonableness of the force used
against Byrd and recommended that the district court deny summary
judgment. On November 17, 2021, the district court summarily adopted the
magistrate judge’s memorandum and recommendation. Defendant officers
then timely filed their interlocutory appeal on December 8, 2021.
II
We have jurisdiction over the district court’s denial of summary
judgment, which is not a final decision, “only to the extent that the denial of
summary judgment turns on an issue of law.” Kinney v. Weaver, 367 F.3d 337,
346 (5th Cir. 2004) (en banc) (internal quotation marks and brackets
omitted). A district court’s determination that a factual dispute exists in the
record is not an issue of law that we can address during an interlocutory
appeal. See id. at 346–47. When reviewing the district court’s denial of
qualified immunity on summary judgment, we “review the materiality of any
factual disputes, but not their genuineness.” Wagner v. Bay City, 227 F.3d 316,
320 (5th Cir. 2000). Consequently, we do not apply the standard of Federal
Rule of Civil Procedure 56 but consider only whether the district court erred
in its assessment of the legal significance of any factual disputes it found in
the record on summary judgment. See Kinney, 367 F.3d at 348.
III
Cornelius and Sweetin argue that we should reverse the district court
and grant them qualified immunity. The officers argue that we should
disregard the district court’s factual findings because the video evidence
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conclusively contradicts Byrd’s sworn statement and shows her striking
Cornelius, threatening Golden, and kicking Sweetin. They also contend Byrd
has failed in her burden to demonstrate that the officers violated clearly
established law. Finally, Cornelius and Sweetin argue that their undisputed
actions show they were objectively reasonable in arresting Byrd and that she,
regardless, suffered only a de minimis legal injury. We address these
arguments in turn.
A. Excessive Force and Qualified Immunity
The Fourth Amendment creates a “right to be free from excessive
force during a seizure.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.
2012). “To establish a claim of excessive force under the Fourth Amend-
ment, plaintiffs must demonstrate: ‘(1) injury, (2) which resulted directly and
only from a use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable.’” Deville v. Marcantel, 567 F.3d 156, 167
(5th Cir. 2009) (quoting Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir.
2005)).
The test used to determine whether a use of force was reasonable un-
der the Fourth Amendment “is not capable of precise definition or mechan-
ical application.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Bell
v. Wolfish, 441 U.S. 520, 559 (1979)). Instead, “its proper application re-
quires careful attention to the facts and circumstances of each particular case,
including” (1) “the severity of the crime at issue,” (2) “whether the suspect
poses an immediate threat to the safety of the officers or others,” and (3)
“whether he is actively resisting arrest or attempting to evade arrest by
flight.” Id. “The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20–22
(1968)). Thus, the overarching question is “whether the officers’ actions are
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‘objectively reasonable’ in light of the facts and circumstances confronting
them.” Id. at 397 (citing Scott v. United States, 436 U.S. 128, 137–39 (1978)).
When a plaintiff sues police officers for alleged violations of her con-
stitutional rights, qualified immunity protects government officials “from li-
ability for civil damages insofar as their conduct does not violate clearly es-
tablished statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To de-
termine whether qualified immunity applies, courts generally engage in a
two-part inquiry asking: first, whether “[t]aken in the light most favorable to
the party asserting the injury, . . . the facts alleged show the officer’s conduct
violated a constitutional right”; and second, “whether the right was clearly
established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). However, the order
of this test is not mandatory, and “judges of the district courts and the courts
of appeals [are] permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be ad-
dressed first . . . .” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
For a right to be clearly established, “[t]he contours of the right must
be sufficiently clear that a reasonable official would understand that what he
is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Although this does not mean that “a case directly on point” is required, “ex-
isting precedent must have placed the statutory or constitutional question be-
yond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “The central con-
cept is that of ‘fair warning’: The law can be clearly established ‘despite no-
table factual distinctions between the precedents relied on and the cases then
before the [c]ourt, so long as the prior decisions gave reasonable warning that
the conduct then at issue violated constitutional rights.’” Ramirez v. Mar-
tinez, 716 F.3d 369, 379 (5th Cir. 2013) (quoting Kinney, 367 F.3d at 350).
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Applying the above tests, the magistrate judge concluded first that
there was a genuine dispute of material fact, which precluded granting sum-
mary judgment. Second, she found the Graham factors were sufficiently sat-
isfied by Byrd’s presumed true allegations to show her constitutional rights
were clearly established and violated. Cornelius and Sweetin attack the mem-
orandum and recommendation on both conclusions.
1. The Video Evidence
The magistrate judge found the officers’ video to be unpersuasive.
She concluded that due to the video’s low quality and short duration—the
footage does not depict the arrest or events shortly after the arrest—it does
not clarify the factual dispute. Indeed, the magistrate judge claimed the video
further reinforced her conclusion regarding the Graham factors because of
Byrd’s petite size.
The officers argue that the footage shows that the magistrate judge’s
view of the events is conclusively erroneous; therefore, they contend we
should disregard her factual findings. Specifically, Cornelius and Sweetin
claim the security video exhibits Byrd swinging her arm at Cornelius, at-
tempting to bump Golden, and kicking Sweetin. They cite Scott v. Harris, 550
U.S. 372, 380–81 (2007) in support of the proposition that appellate courts
should rely on video evidence rather than the district court’s factual findings
when the two are in tension. Cornelius and Sweetin conclude that, consider-
ing Byrd’s actions in the video, their use of force was objectively reasonable.
As requested by the Defendants, we have viewed the video in question
numerous times. The footage is only fifteen seconds long and lacks audio. 2 It
shows Byrd talking on her phone when the officers confront her, and
2
The video seems to be a cell phone recording of security footage. The viewer can
hear the person making the video during the recording.
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Cornelius grabs her arm. In response, Byrd appears to swat at or strike Cor-
nelius. The video becomes unclear as the officers and Byrd move their con-
frontation outside.
For us to review the genuineness of a factual dispute identified by a
district court on interlocutory review, the video evidence must conclusively
resolve the dispute of material fact. See Curran v. Aleshire, 800 F.3d 656, 664
(5th Cir. 2015). Although we find the video far more supportive of the offic-
ers’ description of the events than the magistrate judge did, it does not con-
clusively resolve the factual disputes identified by the district court. The video
is of low quality and fails to show Byrd’s arrest, but contrary to the magistrate
judge’s report, the video plainly shows Byrd resisting as she was being re-
moved from the gym’s lobby. The video, however, does not depict when, or
if, Byrd ceased resisting or what happened during the arrest. It also fails to
show the events after Cornelius restrained Byrd. Therefore, under our stand-
ard of review on interlocutory appeal, we defer to the district court’s findings
that there is a genuine dispute of material fact regarding whether the officers
used excessive force during the evening of November 14, 2017.
2. Clearly Established Right
Next, we address, taking the facts in the light most favorable to Byrd,
whether the officers violated clearly established law when they allegedly used
excessive force to arrest a student at a high school basketball game. Defend-
ants first argue that the undisputed facts of this case warranted Byrd’s arrest
and that arrests inherently entail a certain amount of force. suspect’s active
resistance is a critical factor in the Fourth Amendment’s “objective reason-
ableness” test. See Graham, 490 U.S. at 396. Accordingly, the Fifth Circuit’s
qualified immunity case law recognizes the need for officers to use reasonable
force to subdue and handcuff suspects who hit them or otherwise resist. But
the Fifth Circuit has also recognized that the reasonableness of any use of
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force changes substantially once that resistance ends. See Curran, 800 F.3d
at 661 (“[T]he force calculus changes substantially once that resistance
ends.”).
As stated above, we are bound on interlocutory review to the facts as
decided by the district court on summary judgment. There, the magistrate
judge identified genuine disputes of fact regarding whether Byrd was resist-
ing arrest, when any resistance may have ceased, and whether the officers
used excessive force during or after the arrest. Because of our limited review,
we dismiss the officers’ first argument as an improper attack on the genuine-
ness of the district court’s factual findings.
Cornelius and Sweetin next fault Byrd for failing to identify a case that
clearly establishes that they could not forcefully remove and violently arrest
a rowdy teenager at school. However, during the proceedings before the dis-
trict court, Byrd cited Curran v. Aleshire, where we addressed a near identical
factual situation. See generally id. In Curran, a school police officer confronted
a teenage girl using her cell phone to call her mother on school grounds. Id.
at 658. According to the school’s policy, students were prohibited from using
cell phones at school. Id. The officer reached for a lanyard on the student’s
neck to check her identification. Id. The student jerked away from the officer,
so he allegedly threw her against the wall headfirst and handcuffed her. Id.
After the student was in custody, the officer allegedly slammed her into a wall
to dislodge her hidden cell phone. Id. The district court in Curran found a
genuine dispute of fact regarding the officer’s conduct and that the dispute
was material as to whether the officer violated clearly established law. Id. at
661.
On interlocutory appeal, we held that the video and photographic ev-
idence were inconclusive; therefore, we had to limit our review to the mate-
riality of the factual dispute identified by the district court. Id. at 661–64. We
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concluded that the dispute was material and based our logic on our decision
in Newman v. Guedry, where we held that a reasonable officer should have
realized utilizing force against a non-resisting plaintiff is an “obvious” case
in which the Graham factors alone provide fair warning. Id. at 661–62 (citing
703 F.3d 757, 764 (5th Cir. 2012)).
Sweetin and Cornelius attempt to distinguish Curran by pointing to
the video evidence in this case and the temporal differences between Byrd’s
allegations and the claims made by Curran’s plaintiff. We have already ad-
dressed the video evidence above and will not reiterate our analysis here. Re-
garding the alleged temporal differences, namely that the plaintiff in Curran
was handcuffed and then allegedly suffered excessive force, the facts identi-
fied by the district court, in this case, do not support the argument that there
was no temporal gap between the events that took place in the video and those
that took place after the officers and Byrd move off camera. First, Byrd bases
her excessive force claim on events from before, during, and shortly after
Cornelius took her into custody. Second, Byrd alleges a specific temporal gap
when Cornelius restrained her, and then Sweetin kicked her and broke her
cell phone by throwing it on the ground. Thus, we reject the officers’ at-
tempts to distinguish Curran.
In support of their argument, the officers ask us to see this case as
more analogous to Poole v. City of Shreveport, 691 F.3d 624 (5th Cir. 2012). In
that case, a district court granted summary judgment in favor of officers
where the plaintiff resisted arrest, and the police responded by tasering him.
Id. at 625–26. However, the procedural posture of that case and its facts are
distinct from the matter before us on interlocutory appeal. In Poole, the dis-
trict court granted summary judgment, whereas the district court in this case
denied summary judgment. Id. at 626. Accordingly, the applicable standard
of review constrains our analysis to the materiality of the district court’s
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factual findings. This contrasts with Poole, where we could thoroughly inter-
rogate the factual record. Id. We, consequently, do not see Poole as applicable.
Constrained to analyzing the materiality of the district court’s factual
findings, we agree with the district court that its identified disputes of fact
are material to Byrd’s excessive force claim. Applying the Graham factors to
Byrd’s allegations as we did in Curran, we see a teenager who claims she was
not committing a crime, not a threat to others, and not resisting or attempting
to flee the police when the officers allegedly used excessive force. We, there-
fore, agree with the district court that the officers’ alleged conduct, taking
the facts in the light most favorable to Byrd, clearly violated federal law.
3. De Minimis
The officers’ final argument in support of reversing the district
court’s decision on summary judgment is that Byrd suffered no legally signif-
icant injury from her arrest. “[A]lthough a de minimis injury is not cognizable,
the extent of injury necessary to satisfy the injury requirement is directly re-
lated to the amount of force that is constitutionally permissible under the cir-
cumstances.” Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir.
2017) (alterations in original) (citations and quotation marks omitted) “Any
force found to be objectively unreasonable necessarily exceeds the de minimis
threshold, and, conversely, objectively reasonable force will result in de min-
imis injuries only.” Id. (citation and quotation marks omitted). “Conse-
quently, ‘only one inquiry is required to determine whether an officer used
excessive force in violation of the Fourth Amendment.’” Id. (quoting Ikerd
v. Blair, 101 F.3d 430, 434 n.9 (5th Cir. 1996)). That is, “as 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.” Id. (citations and quotation marks omitted).
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Here, Byrd alleges that during her encounter with the officers, she was
so afraid and in so much pain that she believed the officers would kill her. She
claims her physical injuries required a hospital to treat her for shoulder and
elbow trauma that necessitated a sling. Byrd also alleges that the hospital
treated her for severe bruising and multiple lacerations. These injuries, alleg-
edly caused by unnecessary excessive force, satisfy the de minimis threshold.
IV
The video evidence does not conclusively resolve the factual disputes
identified by the district court in its summary judgment proceedings. These
factual disputes are material to Cornelius’ and Sweetin’s qualified immunity
defense. Thus, we DISMISS the appeal for lack of jurisdiction.
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