Facts
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On July 7, 2021, Nickolas Trabucco parked at a gas station in Hernando, Mississippi, where Andres Rivera was filling up his patrol car. Rivera saw Trabucco drive up, finished filling up his car, and then walked over to the driver’s side of Trabucco’s car. The gas station’s surveillance camera recorded the interaction.
Rivera spoke to Trabucco, who remained in the car, for about thirty seconds. Trabucco then opened the car door, stepped out, and walked towards the back of his car. What happens next is partially obscured by
Trabucco’s vehicle and disputed. At trial, Trabucco testified that Rivera grabbed his arm and spun him around and took him to the ground. He thought that Rivera had told him to walk to the back of his car; he was not
intending to flee. Rivera testified that he asked Trabucco multiple times to hand over his driver’s license and get out of his car. When Trabucco finally got out of the car, Rivera grabbed Trabucco’s arm but he jerked his arm and pushed Rivera’s arm away. Trabucco then attempted to flee, but Rivera tackled him to the ground. Rivera’s intention was to get handcuffs on Trabucco, but he lost control of him when Trabucco twisted away
from him and stood them up.
After a few seconds, Rivera and Trabucco are again visible on the camera footage. Rivera and Trabucco stand up, and Rivera restrained Trabucco by gripping him under his left shoulder. Trabucco struggled until Rivera pushed him away. Once he regained his balance, Trabucco turned to face Rivera, waved his arms, and yelled at him. Rivera pulled out his taser and pointed it at Trabucco, who jumped back but continued yelling and waving
his arms. Trabucco testified that Rivera said nothing, but Rivera testified that he ordered Trabucco to get on the ground and on his stomach. While still yelling, Trabucco kicked off one of his shoes towards Rivera, knelt, and brought his hands towards the back of his head. According to a cell phone video, Trabucco yelled that he did nothing wrong while moving a few steps forward on his knees. Rivera continued approaching Trabucco until he shot Trabucco with the taser. Trabucco fell forward and rolled back and forth face down on the ground. He remained face down on the ground with his hands behind his back while Rivera called for backup. Trabucco was arrested and taken to jail.
Trabucco was charged with a seatbelt violation, reckless driving, resisting arrest, disorderly conduct, and driving under the influence. All charges other than driving-under-the-influence charge were dismissed. Trabucco pled guilty to that charge and, by entering a non-adjudication agreement on the DUI, all charges ended up being dismissed, including the DUI once Trabucco successfully completed the terms of his non adjudication.
Trabucco sued Rivera under 42 U.S.C. § 1983, arguing that the amount of force Rivera used in arresting him was unreasonable and excessive under the Fourth Amendment. On October 18, 2023, the jury found that Rivera had used excessive force against Trabucco but that he was still entitled to qualified immunity.
We AFFIRM.
Analysis
Rivera’s decision to tase Trabucco was not unreasonable in light of clearly established law. Trabucco
argues that the unlawfulness of Rivera’s tasing was established by Trammell and Hanks. While this case shares some similarities with those cases, there are significant differences.
In Trammell, the Round Rock Police Department received a call about a person who crashed a motorcycle and was believed to be intoxicated. Fruge, the first officer to arrive at the scene, saw Trammel standing next to a parked motorcycle and asked him to step away from it. Trammel did not acknowledge Fruge’s first request to step away from the motorcycle, and he responded, “What?” to Fruge’s second request. He complied with Fruge’s third request. Although he told Fruge that he would not answer his questions, he remained calm during their conversation. Fruge then grabbed Trammel’s right arm as he told him to put his arms behind his back. Trammel pulled back and told Fruge that it hurt and not to grab him there; another officer grabbed Trammel’s left arm, but Trammel again pulled it away. Fruge executed a knee strike on Trammel’s right thigh, and another officer put Trammel in a headlock as three officers pulled Trammel to the ground. This court reversed summary judgment in favor of the officers, noting that the law at the time of Trammel’s arrest clearly established that it was objectively unreasonable for several officers to tackle an individual who was not fleeing, not violent, not aggressive, and only resisted by pulling his arm away from an officer’s grasp.
Trammell did not settle “beyond debate” whether Rivera’s use of force was constitutionally excessive. First, only three seconds elapsed between the initial request that Trammel place his hands behind his back and when the officers tackled Trammel. From that, a reasonable jury could infer that the officers used very little, if any, negotiation before resorting to physical violence, and that the officers’ conduct did not constitute the required
measured and ascending actions calibrated to Trammel’s conduct. Here, Rivera spoke to Trabucco for at least 30 seconds while he was still in his car, and then another 30 seconds or so elapsed before Rivera tased Trabucco. Rivera and his expert witness, John Tisdale, also testified that Rivera had proceeded through several steps in the use-of-force continuum before tasing Trabucco.
Second, Trammel remained calm throughout the interaction. Rivera, however, testified that Trabucco was irate and loud from their first interaction, so much so that he could not answer Trabucco’s questions or explain what
was happening.
Finally, Trammel did not attempt to flee. But Rivera testified that he did not know what Trabucco was about
to do when he lifted his knees up off the ground while he was kneeling. He thought Trabucco was going to continue something, whether he was going to get up and continue to scream and run in the store or continue to fight with him.
Hanks also offers little support for Trabucco’s argument that the district court erred. In that case, an officer stopped Hanks and ordered him to step out of the vehicle and come to the back. After arguing for about a minute, Hanks eventually walked behind the vehicle, placed his hands on the trunk, and put his hands behind his head. The officer then ordered Hanks to go to his knees as he stood behind Hanks with the taser drawn. Hanks asked whether he was under arrest, but the officer only repeated his command. With his hands behind his back, Hanks then made a small lateral step with his left foot. The officer rushed towards Hanks and administered a blow to Hanks’s upper back or neck, knocking him onto the trunk and then to the ground. This
court found that Hanks’s resistance had been at most, passive, consisting chiefly of remaining on his feet for about twenty seconds after the order to kneel. Hanks’s small lateral step was also not accompanied by any obvious signs of violence or flight, nor did Hanks turn his body or move his hands. Finally, it was clearly established that an officer cannot abruptly resort to overwhelming physical force rather than continuing verbal negotiations with an individual who poses no immediate threat or flight risk, who engages in, at most, passive
resistance, and whom the officer stopped for a minor traffic violation.
Likewise, Hanks did not settle whether Rivera’s use of force was constitutionally excessive. First, Hanks offered no physical resistance. But Rivera testified that Trabucco jerked his hand away when he tried to put him in handcuffs, he was tussling while Rivera tackled him and attempted to handcuff him, and he refused to get on the ground when Rivera pointed his taser at him.
Second, Hanks did not attempt to flee. Rivera testified, however, that he thought Trabucco was going to continue something, whether he was going to get up and continue to scream and run in the store or continue to fight with him.
Third, Hanks was blindsided by an abrupt and unwarned blow to his back. But Trabucco testified that he saw the taser, and Rivera testified that he only tased him after Trabucco failed to comply with numerous orders.
Finally, a police investigation found that Hanks was compliant, that the officer’s blow was unreasonable, and that a Taser Deployment might have been reasonable. By contrast, Rivera’s superiors did not find that he had
acted inappropriately. Trabucco also pleaded guilty to a driving-under-the-influence charge.
These multiple factual distinctions matter because excessive force claims are necessarily fact-intensive and turn on the facts and circumstances of each particular case. The law here is not so clearly established that—in the blink of an eye, in the middle of a high-speed chase—every reasonable officer would know it immediately. This court has even acknowledged that it is unclear at what point passive resistance becomes the sort of active resistance which justifies force.
Trammell and Hanks did not settle “beyond debate” whether Rivera’s use of force was constitutionally excessive. The district court did not err.
https://www.ca5.uscourts.gov/opinions/pub/24/24-60383-CV0.pdf