Newman v. Guedry

• Decision Date: 21 December 2012
• Docket Number: No. 11–41192.,11–41192.
• Parties: Derrick NEWMAN, Plaintiff–Appellee, v. James Cody GUEDRY; David Todd Burke, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

703 F.3d 757

Derrick NEWMAN, Plaintiff–Appellee,

v.James Cody GUEDRY; David Todd Burke, Defendants–Appellants.

No. 11–41192.

United States Court of Appeals,Fifth Circuit.

Dec. 21, 2012.

Langston Scott Adams (argued), Port Arthur, TX, for Plaintiff–Appellee.

Craig J. Schexnaider (argued), Bruce Wayne Cobb (argued), William Henry Conley, I (argued), Conley & Schexnaider, Beaumont, TX, for Defendants–Appellants.

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

Before KING, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

James Guedry and David Burke appeal the denial of their motion for summary judgment based on qualified and official immunity from Derrick Newman's 42 U.S.C. § 1983 excessive-force and state-law claims. We dismiss the appeal for want of jurisdiction on account of our finding material those facts the district court determined to be in genuine dispute.

I.

Late one night in August 2007, Officer Jason Torres pulled Willie Cole (“Willie”) over for failing to yield to oncoming traffic while making a lefthand turn in Beaumont, Texas.¹ Torres approached the car and asked Willie, as well as Newman, who was the passenger in the front seat, and Mario Cole (“Mario”), in the back seat, for identification. Upon checking with dispatch, Torres learned that Mario had an outstanding warrant for unpaid traffic tickets.

Torres and Officer John Brown, who had arrived as backup, asked Mario to step out of the car and proceeded to handcuff him. Although allowing himself to be handcuffed, Mario yelled and cursed and made it difficult for the officers to search him and put him into the squad car. While Mario was struggling, Newman and Willie stepped out of Willie's car and urged Mario to “chill out” and comply with the officers' commands. Although the officers instructed them to stay in the car, they remained outside. Standing in the open doorway on the front passenger side, Newman raised his hands, palms open, while talking with Mario, then turned to lean against the car and placed his hands on its roof.

While restraining Mario, Torres radioed dispatch to ask for additional backup. Dispatch “coded” the channel, which locked all other radio traffic off the channel and allowed officers en route to hear what was going on. Responding officers could hear Mario yelling and cursing in the background.

Officer Charles Duchamp and his trainee, Guedry, arrived at the scene just as Torres and Brown were putting Mario into Torres's car. Duchamp approached Willie as Guedry walked up to Newman, taser drawn. Guedry reholstered his taser as he ordered Newman to the rear of the car; Newman complied, consenting to a protective pat-down search.

The parties dispute how the pat-down unfolded. Newman alleges that after Guedry's hand remained on Newman's crotch for an uncomfortable length of time, he informed Guedry, “Ain't nothing there but nuts. You acting like you trying to get them.” At that point, Newman alleges, Guedry shoved him in the back. Guedry contends that Newman grabbed Guedry's hand, placed it on his privates, and said “Get you some of that.” Guedry further contends that Newman refused two commands to “let go of my hand,” so Guedry pushed him forward. The videotapes neither contradict nor confirm either account.

Seeing Guedry push Newman forward onto the car, Burke, who had arrived just after Guedry, strode toward Newman. Burke planted his left foot between Newman's feet, pushed Newman forward onto the car with his hip and forearm, and proceeded to strike Newman's arm with his baton. After five strikes at his upper right arm, Newman stepped back. Burke replanted his feet and struck Newman five more times on the arm. Newman's shorts fell down, and Burke hit him three more times on his exposed right thigh. Burke struck Newman a total of thirteen times in about nine seconds, during which, Newman alleges, neither officer gave him any command with which he failed to comply.

Burke reholstered his baton as someone yelled, “taser, taser, taser.” Guedry tased Newman, and tased him again before Newman fell to the ground. ² Guedry then tased Newman a third time. Newman rolled onto his stomach, yelling “ok, ok, I didn't do nothing, sir, I didn't do nothing.” The officers then handcuffed Newman; Guedry dragged him by the arm to the sidewalk; Newman waited, lying prone with his shorts around his ankles, for emergency medical personnel to remove the taser barbs from his skin. Again, Newman alleges, he was not given any commands with which he failed to comply.

II.

Newman sued in state court, alleging various state-law claims against all five officers. After he amended his petition to include claims against each officer for use of excessive force in violation of the federal Constitution under 42 U.S.C. § 1983, defendants removed to federal court.³ Each defendant—Guedry, Burke, Torres, Duchamp, and Brown—moved for summary judgment on all state-law claims on the ground of official immunity and on the § 1983 claim on the basis of qualified immunity. The district court granted summary judgment to Torres, Duchamp, and Brown, finding that Newman had not shown any evidence that they had a reasonable opportunity both to realize that excessive force was being used and to intervene to stop it.⁴ The court denied summaryjudgment to Guedry and Burke, concluding that there were issues of material fact as to whether the force used by the officers was clearly excessive and objectively unreasonable.

III.

Under the collateral-order doctrine, this court has jurisdiction to hear a defendant's immediate appeal of the denial of a motion for summary judgment based on qualified immunity “to the extent that the appeal turns on a question of law.” Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.2007). Where the district court has found that a material issue of fact exists, we have jurisdiction to review the materiality, but not the genuineness, of the factual dispute. Id. That is, we “can consider the legal sufficiency of the facts that the district court found to be supported by the summary judgment record.” Id.

We review a summary judgment de novo, “using the same standard as that employed by the district court under Rule 56.” Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 435 (5th Cir.2000). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

When reviewing a summary judgment, we “must 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). Even so, “we assign greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene.” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011) (citing Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). When one party's description of the facts is discredited by the record, we need not take his word for it but should view “the facts in the light depicted by the videotape.” Scott, 550 U.S. at 380–81, 127 S.Ct. 1769.

A.

As public officials, Guedry and Burke (“the officers”) are entitled to qualified immunity on Newman's § 1983 excessive-force claim unless (1) Newman has “adduced sufficient evidence to raise a genuine issue of material fact suggesting [their] conduct violated an actual constitutional right,” and (2) the officers' “actions were objectively unreasonable in light of clearly established law at the time of the conduct in question.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). Although qualified immunity is “nominally an affirmative defense,” the plaintiff bears a heightened burden “to negate the defense once properly raised.” Id.

To prevail on his Fourth Amendment excessive-force claim, Newman 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 v. City of Edna, 410 F.3d 745, 751 (5th Cir.2005). Claims of excessive force are fact-intensive; whether the force used was “clearly excessive” and “clearly unreasonable” depends on “the facts and circumstances of each particular case.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Some relevant considerations include “the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Id.

We do not judge the reasonableness of the officers' use of force from the safety of our chambers or “with the 20/20 vision of hindsight” but rather “from the perspective of a reasonable officer on the scene ....” Id. Our inquiry is “whether the officers' actions [we]re ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. We examine each officer's actions independently to determine whether he is entitled to qualified immunity. Meadours v. Ermel, 483 F.3d 417, 421–22 (5th Cir.2007).

1.

The officers contend that their use of force was objectively reasonable. They assert that Newman resisted search and arrest, that he struggled and was noncompliant, that he reached for his waistband, potentially for a weapon, and that their actions were necessary to prevent serious injury or death to themselves. Newman denies that he resisted the officers or failed to comply with any commands. He alleges that the officers used force in response to nothing more than an off-color joke. Mindful that we are to view the facts in a light most favorable to Newman, and seeing nothing in the three video recordings to discredit his allegations, we conclude, based only on the evidence in the summary-judgment record, that the use of force was...