Case: 22-60349 Document: 00516704720 Page: 1 Date Filed: 04/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 7, 2023
No. 22-60349
Lyle W. Cayce
Clerk
Robert Chambers,
Plaintiff—Appellee,
versus
Officer Kenneth Short, individually and in his official capacity,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:20-CV-58
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Per Curiam:*
Officer Kenneth Short brings an interlocutory appeal of the denial of
his motion for summary judgment. He contends that qualified immunity
(“QI”) precludes Robert Chambers’s 42 U.S.C. § 1983 claims of excessive
force arising from an incident in which Chambers’s femur was broken after a
traffic stop. We dismiss the appeal in part for want of jurisdiction, affirm the
denial of summary judgment to the extent it asks the legal question, and
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60349
remand for further proceedings.
I.
The parties provide disparate accountings of the facts. According to
Chambers, who was then seventy years old, he and his friend, Anthony
Thornton, were “hanging out” at a gas station when several police officers,
including Short, approached them. Short told Chambers and Thornton that
both needed to leave the premises. Without seeing Short, Chambers replied,
“yes, ma’am,” alleging that he did not realize Short was a man and that he
had a “higher-pitched, feminine sounding voice.” Thornton posits that
Short became upset after this misunderstanding. Thornton and Chambers
then left, and as Thornton was walking away, he saw Chambers driving from
the gas station with a police car following him.
Shortly afterward, Thornton arrived at the block where he and Cham-
bers lived, about half a mile from the gas station, and saw approximately five
police cars near Chambers’s house. Multiple other neighbors came out of
their homes to observe the fracas. Chambers was sitting in his car, parked in
his carport. Short was standing next to the driver’s side door. Chambers
made no moves to flee, assault an officer, or otherwise resist Short or the
other nearby officers.
According to all the neighbors, Thornton, and Chambers, Short
opened the car door, lifted Chambers, and slammed him into the concrete
driveway, causing injury. Next, an officer handcuffed Chambers while he
was on the ground. Several officers gathered for a brief discussion, after
which one approached Chambers, who was still lying on the ground, and
according to Thornton, ordered Chambers to get up. Chambers could not do
so because of his injury. The officers instead carried Chambers, placed him
into a police car, and drove him to the police precinct. An ambulance then
took him to a hospital, where he was diagnosed with a broken femur.
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Chambers contends that he is now permanently handicapped and continues
to experience extreme pain and difficulty walking.
In contrast to Chambers’s account, Short alleges that he and the other
officers noticed several persons drinking and smoking marihuana at the gas
station, including a “heavily intoxicated” Chambers. Short avers that he
instructed Chambers not to drive home, and Chambers agreed, got out of his
vehicle, and locked his car before walking away. Short then continued his
patrol and only minutes later witnessed Chambers driving. He then alleges
that he turned on his lights and attempted to make a traffic stop. Chambers
did not comply and drove off.
Short followed Chambers to Chambers’s home. On arrival, Chambers
exited his vehicle and attempted to flee. The officer ordered Chambers to
stop, but Chambers ignored these orders. Unfortunately for Chambers, he
fell while trying to escape and injured himself. Short then put Chambers,
who smelled of alcohol, in handcuffs, informed him he was under arrest, and
called for a DUI officer. While the DUI officer was en route, Chambers com-
plained of pain but refused medical assistance.
The DUI officer took Chambers into his custody, and eventually, after
he was transported to the police precinct, Chambers was sent to the hospital.
At the hospital, Short issued Chambers four traffic citations for “(1) Failure
to Yield for blue lights and sirens; (2) Driving with an expired or no driver’s
license; (3) Driving on the wrong side of the road; and (4) No Insurance.”
As Short was leaving, Chambers apologized to him and said, “I’m sorry man
I should have listen [sic] to you. I shouldn’t have done that. I’m sorry.”
No breathalyzer test was performed on Chambers. According to
Short, the DUI officer said no breathalyzer was performed because “the test
is not performed when someone is in pain.” At the hospital, Chambers’s
alcohol level on arrival was “somewhat elevated at 136,” and the hospital
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diagnosed him with a right femur fracture.
Chambers sued Short under § 1983, alleging that the officer had vio-
lated his Fourth Amendment rights by using excessive force. Short moved
for summary judgment based on QI. The district court denied Short’s
motion, reasoning that Chambers had offered sufficient evidence to create a
genuine fact dispute regarding whether Short’s conduct was objectively
unreasonable. Short appeals the denial of summary judgment.
II.
A denial of summary judgment based on QI is “immediately appeala-
ble to the extent that the appeal turns on a question of law.” 1 Cooper v. Brown,
844 F.3d 517, 522 (5th Cir. 2016). Such denials are reviewed de novo. See Orr
v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016).
When considering an appeal of this nature, “we can review the mate-
riality of any factual disputes, but not their genuineness.” Wagner v. Bay City,
227 F.3d 316, 320 (5th Cir. 2000). “[W]e review the complaint and record
to determine whether, assuming that all of [the plaintiff’s] factual assertions
are true, those facts are materially sufficient to establish that defendants
acted in an objectively unreasonable manner.” Id. “We have no jurisdiction
to hear an interlocutory appeal . . . when a district court’s denial of qualified
immunity rests on the basis that genuine [disputes] of material fact exist.”
Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir. 2005). In sum, our “review
is limited to evaluating only the legal significance of the undisputed facts.”
Mitchell v. Mills, 895 F.3d 365, 369 (5th Cir. 2018).
1
The district court is required to draw facts and inferences in the light most
favorable to the nonmoving party. Perez v. United States, 312 F.3d 191, 193–94 (5th Cir.
2002) (per curiam). Here, that is Chambers.
4
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III.
Short purports that we have jurisdiction because of the district court’s
characterization of Chambers’s alleged drunk driving. The officer contends
that Chambers’s intoxication was indisputably established by “uncontra-
dicted and unimpeached testimony.” Accordingly, he asks us to assess the
district court’s determination that this fact was in dispute.
The officer’s contention is colorable. Chambers never directly con-
tradicts that he was intoxicated at any point in his sworn testimony or by
pointing to other evidence. Instead, Chambers primarily relies on the fact
that neither Short nor the DUI officer performed a breathalyzer test as proof
that he was not intoxicated. Furthermore, the hospital’s laboratory results
showing that Chambers had an elevated alcohol level is some evidence that
he was indeed drunk. 2 Still, when the facts and inferences are construed in
the light most favorable to Chambers, the court was entitled to hold that there
was a factual dispute over the issue of Chambers’s purported intoxication.
Thus, because the district court expressly concluded that “Chambers
offer[ed] summary judgment evidence sufficient to create a genuine fact [dis-
pute] as to whether Short’s conduct . . . was objectively unreasonable in light
of clearly established law,” we lack jurisdiction over Short’s arguments on
this point. See Michalik, 422 F.3d at 257. 3
2
That being said, no party submitted testimony or evidence explaining the lab
results, the units of measurement, or any confounding variables the court should be aware
of, so we put little weight on the results.
3
In support of his theory that we do have jurisdiction, Short directs us to Orr, in
which we addressed whether a video is required to determine a lack of a factual dispute.
844 F.3d at 490–91. Orr did not address Wagner. In any case, even if Orr conflicts with
Wagner, we must follow the earlier decision. See H&D Tire & Auto.-Hardware, Inc. v. Pitney
Bowes Inc., 227 F.3d 326, 329 (5th Cir. 2000) (“When panel opinions appear to conflict, we
are bound to follow the earlier opinion.”).
5
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Short also submits a legal question: Whether slamming an allegedly
intoxicated driver to the ground to execute an arrest constitutes excessive
force. Although Short’s contentions as to this point are predicated on dis-
puted facts, we have jurisdiction to consider this legal question. See Cooper,
844 F.3d at 522.
When a police officer invokes QI, the summary judgment burden of
proof shifts to the plaintiff to show that the officer is not entitled to immunity.
Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). Nevertheless, we still
“view the facts in the light most favorable to the non-moving party and draw
all reasonable inferences in its favor.” Deville v. Marcantel, 567 F.3d 156, 164
(5th Cir. 2009) (per curiam). When deciding whether the defendant is enti-
tled to QI, we determine “whether the plaintiff has alleged a violation of a
constitutional right” and “whether that right was clearly established at the
time of the incident.” Orr, 844 F.3d at 492 (cleaned up).
First, Chambers posits that Short used excessive force by slamming
him into the ground. “To prevail on an excessive force claim, a plaintiff must
show: (1) injury, (2) which resulted directly and only from a use of force that
was clearly excessive, and (3) the excessiveness of which was clearly unrea-
sonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). The
excessive-force calculus is fact-intensive, and our review is informed by the
Graham factors: “[T]he severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Graham
v. Connor, 490 U.S. 386, 396 (1989).
Chambers has sufficiently demonstrated an excessive-force claim
when viewing the facts in the light most favorable to him. First, there is no
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dispute that Chambers suffered a broken femur because of Short’s actions. 4
Second, there is little indication that Chambers could have reasonably been
viewed as a threat to any officers or other persons, at least based on the facts
as found in genuine dispute by the district court. 5 Nor, according to those
facts, did Chambers attempt to flee or resist Short. The use of force was
clearly excessive and unreasonable.
Even if we assume Chambers was intoxicated and modify our review
to reflect the seriousness of a DUI offense, the answer does not change. In
Cooper, we determined that it was objectively unreasonable for an officer to
allow a police dog to attack a suspected drunk driver when the driver did not
attempt to flee or resist, and the officer had no reason to believe the driver
posed a threat. 844 F.3d at 522–24. The present case is quite similar.
In Cooper, the court concluded that the first Graham factor—the
severity of the crime—weighed in favor of the police because the offense
involved a DUI. Id. at 522. Turning to the second factor, the court stated,
“[n]o reasonable officer could conclude that Cooper posed an immediate
threat.” Id. He “was not suspected of committing a violent offense,” and
there was no indication he “might be violent.” Id. Moreover, the officers
“could see [his] hands and knew he had no weapon.” Id. at 522–23. Only
one officer was in pursuit of Cooper, and only that officer testified to being
able to see Cooper’s hands. Finally, as to the third Graham factor, the court
4
See Tarver, 410 F.3d at 752 (“Tarver’s summary judgment evidence adequately
establishes that his injuries that day were caused solely by the conduct of Officer Bubela
rather than from a preexisting condition or an action of a third party.”).
5
We disagree with the officer’s contention that Chambers was a risk to other
motorists. Chambers was not resisting arrest or behaving aggressively, and his car was
surrounded by approximately five police cars. See Cooper, 844 F.3d at 522–23. Moreover,
Chambers was parked in his carport and could not have driven forward without crashing
into his own home.
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noted that although “Cooper was not actively resisting arrest or attempting
to flee or to strike [the police dog biting him],” the officer “subjected Cooper
to a lengthy dog attack that inflicted serious injuries, even though [the officer]
had no reason to believe that Cooper posed a threat, and without first
attempting to negotiate.” Id. at 523.
Though the first Graham factor favored the police officer in Cooper,
that court concluded that “the other factors push heavily for Cooper,” id.
at 522, and, accordingly, determined that “[t]he undisputed facts establish
that Brown’s use of force was objectively unreasonable,” id. at 524. The
similarities between Cooper and the instant case support our conclusion.
Therefore, even if we assume Chambers was intoxicated, the Graham
factors as a whole weigh in his favor, such that if a jury found the facts as set
out by Chambers’s side, the use of force was a constitutional violation. 6
We therefore turn to the second prong and consider whether Cham-
bers’s constitutional right was clearly established when he was injured. To
establish this prong, “we must be able to point to controlling authority . . .
that defines the contours of the right in question with a high degree of particu-
larity.” Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc).
“We do not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011).
Chambers’s right was clearly established. “Our caselaw makes cer-
tain that once an arrestee stops resisting, the degree of force an officer can
6
It is worth noting that Chambers was not charged with DUI. Instead, he was
issued citations for “(1) Failure to Yield for blue lights and sirens; (2) Driving with an
expired or no driver’s license; (3) Driving on the wrong side of the road; and (4) No
Insurance.” These citations were all dismissed or remanded.
8
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employ is reduced.” 7 Cooper, 844 F.3d at 524. Like the plaintiff in Cooper,
when construing the facts in Chambers’s favor, he was not attempting to
resist arrest or flee at the time of the confrontation. And during the alter-
cation in the driveway, Short had no reason to believe that Chambers posed
an immediate threat.
Short attempts to compare his case to Griggs v. Brewer, 841 F.3d 308
(5th Cir. 2016). There, an officer conducted a traffic stop after Griggs ran a
red light. The officer smelled alcohol and attempted to arrest Griggs midway
through a field sobriety test. Griggs refused to comply with orders and
lurched to the side, forcing the officer to place Griggs in a chokehold and
body-slam him to the ground. On those facts, our court ruled that the offi-
cer’s conduct was not constitutionally unreasonable, and he was protected
by QI. Id. at 313–14, 316.
The comparison is inapt. Although Griggs concerned a motorist who
was pulled over for suspected intoxication, the motorist displayed “erratic
behavior” and overtly resisted during the arrest. Id. at 316. Additionally, the
motorist was actually arrested for DUI, which is not the case here.
So Griggs is not sufficiently similar: At no point do undisputed facts
show that Chambers resisted arrest when pulled over. Nor do they indicate
that he was a threat to Short’s or others’ safety when in his carport. Finally,
Short did not even arrest Chambers for DUI.
Accordingly, the second prong is also satisfied, and, assessing solely
the legal question and not the genuineness of the dispute, the district court
did not err in denying QI.
7
See also Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (holding it was unrea-
sonable for an arresting officer to slam the plaintiff’s head into a vehicle when the plaintiff
was not resisting arrest or fleeing).
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Based on the foregoing, we DISMISS Short’s appeal in part for lack
of jurisdiction as to the factual issues and AFFIRM in part the order denying
summary judgment on QI. The case is REMANDED for further proceed-
ings as needed.
10