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
24
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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