Freeman v. Gore

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT April 2, 2007
______________________
Charles R. Fulbruge III
No. 05-41684 Clerk
______________________

LINDA FREEMAN,

Plaintiff-Appellee,
versus

JASON GORE, Smith County Deputy Sheriff; JEFF BRAGG, Smith
County Deputy Sheriff; BRIAN ALLISON, Smith County Deputy
Sheriff,

Defendants-Appellants.
________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
________________________________________________

Before HIGGINBOTHAM, DENNIS, AND CLEMENT, Circuit Judges.

DENNIS, Circuit Judge:

Defendants Jason Gore, Jeff Bragg, and Brian Allison appeal

the district court’s denial of their motions for summary

judgment on the basis of qualified immunity in this 42 U.S.C.

§ 1983 action. For the reasons set forth below, we AFFIRM the

district court’s denial of summary judgment on plaintiff’s

unlawful arrest claim and REVERSE the district court’s denial

of summary judgment on plaintiff’s excessive force claim.

1
 I. Background and Proceedings Below

On October 4, 2004, Deputies Jason Gore, Jeff Bragg and

Brian Allison (collectively, the “deputies”) of the Smith

County, Texas Sheriff’s Department attempted to serve a felony

arrest warrant on Kevin Freeman (“Kevin”) at his mobile home,

located at 16449 County Road 15. When the deputies received

no response to their knocks at the door of the mobile home,

they called a telephone number that they had on file for Kevin.

The deputies heard the phone ring inside the mobile home.

Eventually, a woman, later identified as Kevin’s sister, Sheila

Freeman (“Sheila”), answered the phone. Sheila told the

deputies that she was not inside Kevin’s mobile home, but

rather was at the house next door, which belonged to Kevin and

Sheila’s mother, plaintiff Linda Freeman (“Freeman”). Kevin’s

mobile home, 16449 County Road 15, sat very near Freeman’s

house, 16447 County Road 15, and the deputies noticed that

wires and cables ran between the two residences. When asked

why she had answered Kevin’s phone, Sheila responded that it

was a cordless phone that could pick up calls next door. At

some point during this conversation, Sheila stepped out of the

house next door. Sheila also informed the deputies that Kevin

was not at his home.

2
 While Deputy Gore was speaking with Sheila, Freeman emerged

from her house and began yelling at the deputies. When the

deputies asked Freeman whether they could enter her home to

search for her son, Freeman responded that the last time

deputies searched her house, they had trashed it, and that she

would not permit the deputies to enter her home unless they had

a search warrant for her address. Deputy Gore then told

Freeman that he could arrest her if she did not permit the

deputies to search her home. Freeman responded by saying that

the deputies would just have to arrest her. At that point,

Deputy Gore instructed Freeman to place her hands behind her

back, and Deputy Allison handcuffed her and placed her in the

back of his patrol car.1

The district court noted that it was undisputed that

Freeman spent at least some time in the patrol car without air

conditioning or ventilation. The parties differ as to the

amount of time that Freeman spent in the car, however. Freeman

asserts that she was in the car without air conditioning for

between 30 and 45 minutes. Freeman also claims that, despite

knowing that she had a heart condition, the deputies did not

1
After Freeman was handcuffed and placed in the patrol car,
Gore received consent from Sheila to search the house, but the
deputies, apparently convinced by that point that Kevin was not
inside, did not enter the house.

3
allow her daughter to retrieve her nitroglycerin. The deputies

offer contradictory accounts of how long Freeman was in the

patrol car, ranging from 5 to 10 minutes, to 30 to 45 minutes.

In addition, Deputy Bragg stated that he turned on the air

conditioning after approximately 30 seconds or one minute.

Deputy Gore contacted one of his superiors, Lieutenant

Shelton, from the scene and informed him that he had arrested

Freeman for the offense of Hindering Apprehension. During that

conversation, Shelton instructed Gore that he could not search

Freeman’s house without a warrant. Gore disagreed, at which

point another of his superiors, Sergeant North, also informed

him that he could neither search Freeman’s house nor arrest

her. After that conversation, Gore released Freeman from the

patrol car and removed the handcuffs.2

In December 2004, Freeman filed this action against the

deputies, alleging that they unlawfully arrested her and that

they used excessive force in effectuating the arrest. The

deputies moved for summary judgment, claiming that the facts

that Freeman alleged did not establish a violation of Freeman’s

constitutional rights and that, even if they did, the deputies

2
Deputy Gore was ultimately fired from the Smith County
Sheriff’s Department based both on his failure to timely file a
report concerning this incident and on his superiors’ belief that
the report he later filed was untruthful.

4
were entitled to summary judgment on the basis of qualified

immunity. The district court denied the deputies’ motions in

their entirety. With respect to Freeman’s unlawful arrest

claim, the court held that, for purposes of summary judgment,

Freeman had shown that the deputies’ actions violated her

Fourth Amendment right to be free from unreasonable seizures.

Specifically, the court held that because the deputies had no

right to search Freeman’s house, they likewise could not arrest

or threaten to arrest Freeman for refusing to permit them to

search the house without a warrant. The district court also

found that the deputies’ conduct in arresting Freeman was

objectively unreasonable in light of clearly established law.

The district court expressly rejected the deputies’ arguments

that (i) they simply detained, rather than arrested, Freeman,

and that they had the requisite reasonable suspicion to do so;

and (ii) they had probable cause to arrest Freeman for

Interference with Public Duties, in violation of Tex. Penal

Code Ann. § 38.15, and Hindering Apprehension, in violation of

Tex. Penal Code Ann. § 38.05.

With respect to Freeman’s excessive force claim, the

district court held that Freeman’s allegations were sufficient

to create a triable issue of fact. The court noted that

5
Freeman claimed that the deputies twisted her arms behind her

back and “jerked her all over the carport” when they handcuffed

her and took her to the patrol car. The court also noted that

Freeman alleged that the handcuffs left bruises on her hands

and arms, for which she had to seek medical treatment. Viewing

these facts in the light most favorable to Freeman, the

district court concluded that the deputies were not entitled to

summary judgment on her excessive force claim.

II. Jurisdiction

A defendant in a section 1983 action can immediately appeal

a district court’s denial of a motion for summary judgment

based on qualified immunity under the collateral order doctrine

to the extent that the appeal turns on a question of law.

Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). Where

the district court has denied summary judgment on the ground

that material issues of fact exist as to the plaintiff’s

claims, this court lacks jurisdiction to review the court’s

determination that a genuine fact issue exists. See Kinney v.

Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc); Martinez-

Aguero v. Gonzalez, 459 F.3d 618, 621 (5th Cir. 2006). This

court can, however, review whether any factual dispute found by

6
the district court is material for summary judgment purposes;

that is, the court can consider the legal sufficiency of the

facts that the district court found to be supported by the

summary judgment record. Kinney, 367 F.3d at 348; Aucoin v.

Harvey, 306 F.3d 268, 272 (5th Cir. 2002); Wagner v. Bay City,

227 F.3d 316, 320 (5th Cir. 2000). In so doing, the court

assumes that the plaintiff’s factual assertions are true and

determines whether those facts are sufficient to defeat the

defendant’s motion for summary judgment. Kinney, 367 F.3d at

348; Martinez-Aguero, 459 F.3d at 621; Wagner, 227 F.3d at

320. Thus, a defendant challenging the denial of a motion for

summary judgment on the basis of qualified immunity “must be

prepared to concede the best view of the facts to the plaintiff

and discuss only the legal issues raised by the appeal.”

Gonzales v. Dallas County, 249 F.3d 406, 411 (5th Cir. 2001);

see Kinney, 367 F.3d at 348 & n.11.

In this case, the deputies recognize the limited nature of

the court’s jurisdiction on this interlocutory appeal, and they

therefore concede that, for purposes of this appeal, they must

accept Freeman’s version of any factual dispute between the

parties. Accordingly, we find that we have jurisdiction to

consider the merits of the deputies’ appeal.

7
 III. Standard of Review and Applicable Law

This court reviews de novo the district court’s resolution

of legal issues on a motion for summary judgment on the basis

of qualified immunity. See Martinez-Aguero, 459 F.3d at 621

(“Our review of the legal significance of the facts is de

novo.”); Flores, 381 F.3d at 394 (“We review de novo the scope

of clearly established law and the objective reasonableness of

the defendant government official’s actions.”); Aucoin, 306

F.3d at 271 (“We review de novo the denial of a public

official’s motion for summary judgment based on qualified

immunity.”).

This court applies a two-step analysis to determine whether

a defendant is entitled to summary judgment on the basis of

qualified immunity. First, we determine whether, viewing the

summary judgment evidence in the light most favorable to the

plaintiff, the defendant violated the plaintiff’s

constitutional rights. See, e.g., Tarver v. City of Edna, 410

F.3d 745, 750 (5th Cir. 2005); McClendon v. City of Columbia,

305 F.3d 314, 322-23 (5th Cir. 2002) (en banc); Glenn v. City

of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). If not, our

analysis ends. If so, we next consider whether the defendant’s

actions were objectively unreasonable in light of clearly

8
established law at the time of the conduct in question. See,

e.g., Tarver, 410 F.3d at 750; Glenn, 242 F.3d at 312. To make

this determination, the court applies an objective standard

based on the viewpoint of a reasonable official in light of the

information then available to the defendant and the law that

was clearly established at the time of the defendant’s actions.

See Glenn, 242 F.3d at 312; Goodson v. City of Corpus Christi,

202 F.3d 730, 736 (5th Cir. 2000); see also Tarver, 410 F.3d at

750 (“If officers of reasonable competence could disagree as to

whether the plaintiff’s rights were violated, the officer’s

qualified immunity remains intact.”).

IV. Freeman’s Wrongful Arrest Claim

The deputies advance several arguments in support of their

claim that the district court erred in denying their motion for

summary judgment on Freeman’s wrongful arrest claim. First,

they assert that the district court improperly considered the

deputies’ subjective motivations when determining whether their

actions violated Freeman’s constitutional rights. Second, the

deputies claim that, whether they merely detained Freeman or

actually arrested her, the undisputed facts do not show a

violation of Freeman’s constitutional rights. Third, the

deputies assert that, in any event, they are entitled to

9
qualified immunity because their actions were not objectively

unreasonable in light of clearly established law. We consider

each argument in turn.

A. The Standard Applied by the District Court

Although the district court recited an accurate legal

standard for the probable cause determination, several passages

from the district court’s opinion suggest that it improperly

focused on the deputies’ subjective motivations for detaining

Freeman.3 See Freeman v. Gore, No. 6:04-CV-526, slip op. at 16

(E.D. Tex. Oct. 5, 2005) (“[Deputy Gore] did not have the

option of threatening to or actually arresting Freeman because

she chose to exercise a constitutional right that was clearly

established over twenty years ago.”); id. at 19 (noting that

“Deputy Gore admitted in his sworn testimony that he arrested

Freeman because she was irate and she wouldn’t allow him to

interview her”); id. at 23 (discussing evidence concerning

defendants’ subjective reasons for detaining Freeman). Even

assuming that the district court applied an incorrect standard,

however, defendants are entitled to reversal only if this

3
See Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004) (“Our
cases make clear that an arresting officer’s state of mind (except
for the facts that he knows) is irrelevant to the existence of
probable cause. That is to say, his subjective reason for making
the arrest need not be the criminal offense as to which the known
facts provide probable cause.”) (internal citations omitted).
10
court, applying the correct legal standard, determines that

they are entitled to summary judgment.

B. Did the Deputies Violate Freeman’s Constitutional Rights?

As a general matter, it is beyond question that Freeman has

a clearly established constitutional right to be free from

arrest absent an arrest warrant or probable cause. See, e.g.,

Flores, 381 F.3d at 402; Glenn, 242 F.3d at 313. The deputies

make a number of arguments as to why their arrest or detention

of Freeman in this case was lawful. The deputies first argue

that they did not arrest Freeman, but rather simply detained

her. They claim that this detention was permissible both under

the principles of Michigan v. Summers, 452 U.S. 692 (1981), and

because they had reasonable suspicion to believe that Freeman

had committed the offenses of Interference with Public Duties

and Hindering Apprehension. They also argue that, even if they

did arrest Freeman, they had probable cause to arrest her for

those offenses.

1. Michigan v. Summers

In Summers, the Supreme Court recognized a specific

exception to the general principle that a warrantless police

seizure of a person requires probable cause by holding that a

valid search warrant “implicitly carries with it the limited

11
authority to detain the occupants of the premises while a

proper search is conducted.” 452 U.S. at 705. The Summers

court began with the recognition that certain types of police

detention “constitute such limited intrusions on the personal

security of those detained and are justified by such

substantial law enforcement interests that they may be made on

less than probable cause.” Id. at 699. After balancing the

intrusion imposed by detaining the occupants of a residence

subject to search pursuant to a lawful warrant against the law

enforcement justifications for such detention, the Court

concluded that this type of detention was reasonable under the

Fourth Amendment. The Court reasoned that the connection

between an occupant and the home for which the search warrant

was issued “gives the police officer an easily identifiable and

certain basis for determining that suspicion of criminal

activity justifies a detention of that occupant.” Id. at 703-

04. In Anderson v. United States, 107 F. Supp. 2d 191

(E.D.N.Y. 2000), upon which the deputies also rely, the court

applied the Summers rule to permit the detention of the other

occupants of a home during the execution of a valid arrest

warrant for someone reasonably believed to be one of the home’s

12
residents.4

Neither Summers nor Anderson helps the deputies here. In

this case, the deputies had a warrant for the arrest of

Freeman’s son, Kevin, who resided at 16449 County Road 15.

While Summers and Anderson would authorize the deputies to

detain anyone found at that address during the execution of

their arrest warrant for Kevin, nothing in either of those

cases provides authority for the proposition that the deputies

could detain Freeman outside of her own home, 16447 County Road

15, while they inquired about Kevin’s whereabouts. Because

Freeman was at her own home when she was detained, and because

the deputies had no right to search Freeman’s home based on

their arrest warrant for Kevin,5 the detention cannot be

justified under Summers.

2. Arrest v. Detention

The deputies next argue that they were justified in

detaining Freeman for violating Texas law. The deputies first

4
In Anderson, the subject of the arrest warrant was not, in
fact, a resident of the home searched, but the district court found
that the police could use the warrant to enter the house if they
reasonably believed that the subject of the warrant resided there.
See 107 F. Supp. 2d at 196.
5
See Steagald v. United States, 451 U.S. 204, 213-14 (1981)
(arrest warrant does not give officers authority to search home of
third-party, even if officers have probable cause to believe that
suspect is within).
13
assert that, because they simply detained Freeman and did not

arrest her, they needed only a reasonable suspicion that she

was violating the law. The district court rejected this

argument because it found that, viewing the facts in the light

most favorable to Freeman, the deputies arrested her, rather

than merely detaining her. We agree.

Police detention constitutes an “arrest,” such that it must

be accompanied by probable cause, if a reasonable person in the

suspect’s position would understand the situation to be a

restraint on freedom of the kind that the law typically

associates with a formal arrest. See United States v. Corral-

Franco, 848 F.2d 536, 540-41 (5th Cir. 1988); United States v.

Bengivenga, 845 F.2d 593, 596-97 (5th Cir. 1988) (en banc). In

this case, viewing the summary judgment evidence in the light

most favorable to Freeman, a reasonable person in her position

would believe that her freedom was restrained to a degree

typically associated with arrest. The district court found

that Gore threatened Freeman with arrest if she did not permit

the deputies to search her home; that Freeman responded by

saying something to the effect of, “Have at it;” that Gore then

instructed Freeman to place her hands behind her back; and that

Freeman was then handcuffed and placed in the back of the

14
police car. In addition, Freeman alleges that she was left in

the car for some 30 to 45 minutes. On these facts, a

reasonable person in Freeman’s situation would surely believe

that she had been restrained to an extent that normally

accompanies a formal arrest.

3. Probable Cause

The deputies argue that, even if Freeman was arrested, they

had probable cause to arrest her for both Interference with

Public Duties, Tex. Penal Code Ann. § 38.15, and Hindering

Apprehension, Tex. Penal Code Ann. § 38.05. Probable cause

exists where the facts and circumstances within the officer’s

knowledge at the time of the arrest “‘are sufficient for a

reasonable person to conclude that the suspect had committed or

was committing an offense.’” Flores, 381 F.3d at 402 (quoting

United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996)).

a. Interference with Public Duties

Texas Penal Code Ann. § 38.15, Interference with Public

Duties, provides that a person commits an offense if she

“interrupts, disrupts, impedes, or otherwise interferes with:

(1) a peace officer while the peace officer is performing a

duty or exercising authority imposed or granted by law.” The

statute contains an express defense to prosecution, however, if

15
“the interruption, disruption, impediment, or interference

alleged consisted of speech only.” Id.

The deputies argue that Freeman’s conduct upon emerging

from her home — yelling and screaming at the deputies — created

probable cause to arrest her for Interference with Public

Duties because she was interfering with their ability to

investigate the whereabouts of her son, Kevin. The district

court rejected the deputies’ argument. It found that Freeman

only “interfered” with the deputies’ attempt to conduct an

unlawful, warrantless search of her home, not with the

deputies’ general ability to investigate Kevin’s whereabouts.

Because the deputies were not granted the authority by law to

conduct a warrantless search of Freeman’s home, the court held

that a reasonable officer could not conclude that Freeman was

committing the offense of Interference with Public Duties.

Viewing the facts in Freeman’s favor, her allegedly

disruptive conduct was essentially limited to insisting that

the deputies could not enter her home unless they had a search

warrant. Had Deputy Gore not told Freeman that he did not need

a warrant to search her home and that he could arrest her if

she did not permit them to search the home, it is not at all

clear that Freeman would have disrupted the deputies’ broader

16
investigation. Although the probable cause inquiry is an

objective one, it must nevertheless be conducted in light of

the actual facts known to the officer at the time of the

arrest. See Devenpeck, 543 U.S. at 152 (“Whether probable

cause exists depends upon the reasonable conclusion to be drawn

from the facts known to the arresting officer at the time of

the arrest.”). Here, at the time of Freeman’s arrest, the

deputies knew that Freeman would not consent to a search of her

home without a warrant; that they did not have a warrant to

search Freeman’s home; and that Freeman’s son Kevin resided not

in Freeman’s home, but in the mobile home next door. On those

facts, a reasonable officer would have known that he could not

lawfully search Freeman’s home,6 and Freeman was not, therefore,

interfering with the exercise of any authority granted to the

deputies by law.

Moreover, the deputies did not have probable cause to

arrest Freeman because her conduct consisted exclusively of

speech. Texas courts have recognized that merely arguing with

police officers about the propriety of their conduct, including

about whether they have the legal authority to conduct a

search, falls within the speech exception to section 38.15. In

6
See Steagald, 451 U.S. at 213-14.
17
Carney v. State, 31 S.W.3d 392, 394, 398 (Tex. Ct. App. 2000),

the court reversed a defendant’s conviction for Interference

with Public Duties where the defendant’s conduct consisted

solely of arguing with officers over validity of a search

warrant, which resulted in delaying the officers’ entry into

the home. After noting that the defendant had not made

physical contact with any of the officers or physically

obstructed their entry into the home, the court concluded that

the evidence could not support a conviction because “[u]nder

section 38.15, arguing with the officers does not constitute an

actionable offense.” Id. at 398. As in Carney, Freeman’s

conduct here consisted only of arguing with the deputies about

whether they had the right to search her home. Although

Freeman was, in the district court’s words, “yelling” and

“screaming,” that alone does not take her conduct out of the

realm of speech,7 and, viewing the district court’s summary

judgment facts in the light most favorable to Freeman, there is

nothing to indicate that her conduct involved anything other

than speech or that she physically obstructed the deputies in

7
See Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003)
(noting that “the First Amendment protects even profanity-laden
speech directed at police officers” and that “[p]olice officers
reasonably may be expected to exercise a higher degree of restraint
than the average citizen”).
18
any way. Accordingly, the deputies did not have probable cause

to arrest Freeman for Interference with Public Duties.

b. Hindering Apprehension

Texas Penal Code Annotated section 38.05(a), Hindering

Apprehension, provides:

A person commits an offense if, with intent
to hinder the arrest, prosecution,
conviction, or punishment of another for an
offense or, with intent to hinder the
arrest, detention, adjudication, or
disposition of a child for engaging in
delinquent conduct that violates a penal law
of the state, or with intent to hinder the
arrest of another under the authority of a
warrant or capias, he:

(1) harbors or conceals the other;

(2) provides or aids in providing the other
with any means of avoiding arrest or
effecting escape; or

(3) warns the other of impending discovery
or apprehension.

The deputies argue that probable cause existed to arrest

Freeman for Hindering Apprehension because a reasonable person

could have concluded that Freeman’s actions were intended to

alert Kevin to impending discovery and that she refused to

consent to a search of her home in order to conceal her son’s

whereabouts.

We conclude that the deputies did not have probable cause

19
to arrest Freeman for Hindering Apprehension. The deputies’

first argument — that Freeman could have been trying to alert

Kevin to the presence of the police — simply rings hollow.

Before Freeman emerged from her house, the officers had already

knocked on Kevin’s mobile home door, called Kevin’s telephone,

and talked to Sheila, who was inside Freeman’s house, on

Kevin’s cordless phone about his whereabouts. If Kevin had

been inside Freeman’s house at the time, he surely would have

been aware that the police were present. Under these

circumstances, it is implausible to suggest that a reasonable

officer would think that Freeman exited the house and yelled at

the deputies in order to inform someone back inside the house

that the police were present.

Moreover, Freeman’s refusal to consent to a warrantless

search of her home cannot itself provide probable cause to

arrest her for hindering apprehension. See Fletcher v. Town of

Clinton, 196 F.3d 41, 54 (1st Cir. 1999) (noting that refusal

to consent to warrantless search cannot justify arrest for

hindering apprehension); see also 1 Wayne R. LaFave,

Substantive Criminal Law § 3.5(d), at 235 (2d ed. 2003) (“[T]he

failure to permit another to intrude upon your constitutional

right against unreasonable searches may not be made

20
criminal.”). Accordingly, the deputies did not have probable

cause to arrest Freeman for Hindering Apprehension on the

summary judgment facts found by the district court.

C. Was the Deputies’ Conduct Objectively Unreasonable in
Light of Clearly Established Law?

We next consider whether the deputies’ conduct was

objectively unreasonable in light of clearly established law at

the time of their actions. Because qualified immunity protects

officers who “reasonably but mistakenly” violate a plaintiff’s

constitutional rights, the deputies are entitled to qualified

immunity if a reasonable person in their position “would have

believed that [their] conduct conformed to the constitutional

standard in light of the information available to [them] and

the clearly established law.” Goodson, 202 F.3d at 736.8 Thus,

our task is to determine whether reasonable officers in the

deputies’ position could have believed that probable cause

existed to arrest Freeman.

No reasonable officer could have believed that there was

probable cause to arrest Freeman. As we noted above, Texas

8
Although both the probable cause inquiry above and this
second prong of the qualified immunity inquiry are framed in terms
of how a “reasonable person” would act, our finding that the
deputies did not have probable cause to arrest Freeman does not
foreclose the possibility that they might be entitled to qualified
immunity. See Saucier v. Katz, 533 U.S. 194, 203 (2001); Anderson
v. Creighton, 483 U.S. 635, 643 (1987).
21
Penal Code Ann. § 38.15, Interference with Public Duties,

clearly and plainly excepts from the reach of the statute

conduct that “consist[s] of speech only.” Viewing the facts

found by the district court in the light most favorable to

Freeman, her actions clearly fall within the speech exception

to the statute, and, as a result, no reasonable officer would

believe that there was probable cause to arrest Freeman for

Interference with Public Duties.9 Further, as previously

explained, no reasonable officer would believe that there was

probable cause to arrest Freeman for the offense of Hindering

Apprehension. The deputies’ argument that they could

reasonably have thought that Freeman came outside and

9
We recognize that this court and others have previously found
summary judgment appropriate on qualified immunity grounds in cases
involving Texas Penal Code Ann. § 38.15. See Haggerty v. Texas
Southern University, 391 F.3d 653, 657 (5th Cir. 2004) (qualified
immunity appropriate where plaintiff’s actions, including
repeatedly approaching officer who was restraining another
individual despite several orders to stand back, could have
“stir[red] up [a] potentially explosive situation”); Huang v.
Harris County, 264 F.3d 1141, at *7 (5th Cir. 2001) (unpublished)
(holding that it was not unreasonable for officer to believe that
he had probable cause to arrest plaintiff for Interference with
Public Duties where plaintiff physically blocked the officer’s
access to her son (who was suspected of a minor offense) by closing
a security gate that stood between the officer and her son); see
also Hunter v. City of Electra, No. 7:03-CV-153-R, 2006 WL 1814150,
at *5 (N.D. Tex. June 29, 2006) (officer entitled to qualified
immunity based on arrest for Interference with Public Duties where
plaintiff/bystander was arrested after “noisily brandishing a
firearm” and disregarding repeated warnings to back away from the
scene). This case is, of course, distinguishable from each of
those cases, because Freeman’s actions, as described by the
district court, consisted of speech only.
22
confronted the officers as a way of warning her son Kevin,

inside the house, of impending discovery, is simply too

strained and counterintuitive to accept on these facts.

Finally, any reasonable officer would recognize that, under

clearly established law, Freeman’s refusal to consent to a

warrantless search of her home could neither itself justify an

arrest nor create probable cause to arrest Freeman for another

offense. See, e.g., Steagald, 451 U.S. at 213-14; Fletcher,

196 F.3d at 54; 1 LaFave, supra, § 3.5(d), at 235.

Accordingly, we conclude that no reasonable officer would have

believed that there was probable cause to arrest Freeman, and

we therefore affirm the district court’s decision to deny

summary judgment on Freeman’s wrongful arrest claim.

V. Freeman’s Excessive Force Claim

To prevail on an excessive force claim, a plaintiff must

establish: “(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.” Tarver, 410

F.3d at 751; Goodson, 202 F.3d at 740. The district court

denied the deputies’ motion for summary judgment on the

excessive force claim because it found that there was an issue

of material fact based on Freeman’s allegations that the

23
deputies twisted her arms behind her back while handcuffing

her, “jerked her all over the carport,” and applied the

handcuffs too tightly, causing bruises and marks on her wrists

and arms.

Even accepting all of these facts as true, Freeman’s

excessive force claim fails. To state a claim for excessive

use of force, the plaintiff’s asserted injury must be more than

de minimis. See Glenn, 242 F.3d at 314. The determination of

whether a plaintiff’s alleged injury is sufficient to support

an excessive force claim is context-dependent and is “directly

related to the amount of force that is constitutionally

permissible under the circumstances.” Ikerd v. Blair, 101 F.3d

430, 435 (5th Cir. 1996); see Williams v. Bramer, 180 F.3d 699,

703 (5th Cir. 1999) (“In determining whether an injury caused

by excessive force is more than de minimis, we look to the

context in which that force was deployed.”). That the

deputies’ arrest of Freeman was unlawful on the facts alleged

does not, however, mean that any force used by the deputies to

effectuate the arrest was necessarily excessive. Rather,

Freeman’s excessive force claim is separate and distinct from

her unlawful arrest claim, and we must therefore analyze the

excessive force claim without regard to whether the arrest

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itself was justified. See, e.g., Cortez v. McCauley, 478 F.3d

1108, ----, at *13 (10th Cir. 2007) (en banc) (“[I]n a case

where police effect an arrest without probable cause . . . but

use no more force than would have been reasonably necessary if

the arrest or detention were warranted, the plaintiff has a

claim for unlawful arrest or detention but not an additional

claim for excessive force.”); Bashir v. Rockdale County, Ga.,

445 F.3d 1323, 1332 (11th Cir. 2006) (“When properly stated, an

excessive force claim presents a discrete constitutional

violation relating to the manner in which an arrest was carried

out, and is independent of whether law enforcement had the

power to arrest.”); cf. Bodine v. Warwick, 72 F.3d 393, 400

n.10 (3d Cir. 1995) (“Officers who detain a suspect unlawfully

should be liable for the harm proximately caused by their

tortious detention, but this will not necessarily include all

harm resulting from the otherwise reasonable use of force to

carry out the detention.”).

In this case, the most substantial injury claimed by

Freeman is that she suffered bruising on her wrists and arms

because the handcuffs were applied too tightly when she was

arrested. This court has previously held, however, that minor,

incidental injuries that occur in connection with the use of

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handcuffs to effectuate an arrest do not give rise to a

constitutional claim for excessive force. See Glenn, 242 F.3d

at 314 (stating that “handcuffing too tightly, without more,

does not amount to excessive force”); see also Tarver, 410 F.3d

at 751-52 (quoting Glenn). Nor was it excessive force for the

deputies to leave Freeman in the patrol car for, as she

alleges, 30 to 45 minutes. See Glenn, 242 F.3d at 314 (holding

that seizure was not made unreasonable by fact that plaintiff

was left in unventilated vehicle for approximately 30 minutes,

despite plaintiff’s allegation that “her multiple sclerosis was

exacerbated by the heat”). The district court therefore erred

in denying the deputies’ motion for summary judgment on

Freeman’s excessive force claim.

VI. Conclusion

For the reasons stated above, we AFFIRM the district

court’s order denying the deputies’ motion for summary judgment

on Freeman’s unlawful arrest claim, and we REVERSE the district

court’s order denying the deputies’ motion for summary judgment

on Freeman’s excessive force claim.

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