Facts
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James Frawley owned real property in Corinth, Mississippi. Between January and April of 2021, the Corinth Police Department had been called eight times to investigate reports of suspicious activity at the property, and it had arrested several individuals for trespassing. When Frawley went to jail for various offenses in April of 2021, he asked the police “for extra patrol” at the property and to “remove anybody” who was there. Frawley sold the property to his bail bondsman, Christopher Dilworth, on August 1, 2021. Dilworth recorded a corresponding deed on April 5, 2021.
On April 8, 2021, Officer Landon Tucker of the Corinth Police Department went to the property, with which he was “very familiar,” in response to another suspicious activity call. He saw Dilworth walking around the front of the property and began interacting with him. Dilworth recorded part of the interaction on a cell phone. Dilworth asked, “Can I help you?” Officer Tucker responded, “I was wondering if I could help you.” Dilworth replied, “I don’t know, can you?” When Officer Tucker asked what Dilworth “was doing,” Dilworth replied, “I’m looking around.” Believing that Frawley still owned the property, Officer Tucker said, “This isn’t your house,” but Dilworth did not respond.
At some point, Officer Tucker told Dilworth to “come here” and to “stop,” but Dilworth began “running away” toward the front door of the home. Officer Tucker stepped in front of Dilworth and tried to grab him, but Officer Tucker somehow “ended up in a thorn bush” nearby. He told Dilworth to get on the ground, and when Dilworth did not, Officer Tucker tased and handcuffed him. Over a minute after he had been placed in handcuffs, Dilworth told Officer Tucker that he was the actual owner of the property. Officer Tucker responded, “Nah, this isn’t your house, dude.” When Dilworth continued to claim that it was “his house,” Officer Tucker asked, “Since when?” Dilworth did not respond.
Dilworth was charged with trespassing, resisting arrest, and disorderly conduct. The trespass charge was dismissed upon confirmation that Dilworth owned the property. The other charges were “retired” to the file, subject to Dilworth not committing another crime for two years. Dilworth sued Officer Tucker in his individual and official capacities under 42 U.S.C. § 1983 for false arrest and excessive force in state court. After removing the matter to federal court, Officer Tucker moved for summary judgment. He argued, in relevant part, that he was entitled to qualified immunity. After Dilworth responded without submitting any evidence, the district court granted summary judgment and dismissed Dilworth’s claims, concluding that Officer Tucker was entitled to qualified immunity because Dilworth failed to show a triable issue concerning the existence of any constitutional violation. Dilworth now appeals. The 5th affirms.
Analysis
As to his false-arrest claim, Dilworth raises no argument that Officer Tucker violated clearly established law by arresting him. And he identifies no case clearly establishing that, under these circumstances, no reasonable officer could have believed that Officer Tucker “arguably” had probable cause to arrest him.
Dilworth claims that Officer Tucker used excessive force while trying to arrest Dilworth when he put his hands on Dilworth, tackled him, and tased him. Each case Dilworth relies upon is inapposite. Doss contemplated use of force during a stop while the suspect remained in the vehicle and did nothing to demonstrate hostile intent. Harper v. Rose, No. 1:09-CV-153-TC, (D. Utah Apr. 5, 2012), involved officers repeatedly tasing a suspect who was only “passively resisting” during a traffic stop. Pinedo v. City of Dallas, No. 3:14-CV-0958-D (N.D. Tex. Jan. 13, 2016), concerned a fact question as to whether an individual was tased after being shot while lying on the ground handcuffed, and the evidence plausibly established that he “posed a threat of serious harm” to himself or the officer. Finally, LaFleur v. Sheriff’s Dep’t of Calcasieu Par., No. 2:10-1537 (W.D. La. Nov. 2, 2011), entailed a factual dispute as to whether an individual was resisting arrest and an alleged “attack” by multiple officers. LaFleur did not even take up the clearly established prong. None of these circumstances are present in this case.
Nor does the published authority Dilworth cites clearly establish “the violative nature of” Officer Tucker’s “particular conduct.” Each case Dilworth cites is distinguishable in key aspects. Because Dilworth failed to carry his burden to show that Officer Tucker violated clearly established law in his use of force, Officer Tucker is entitled to qualified immunity.
https://www.ca5.uscourts.gov/opinions/pub/25/25-60414-CV0.pdf