Facts
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On December 27, 2023, Houston Police Sergeant Carrizales encountered an 18-wheeler driving at about 5 mph on I-10 outside of Houston. After Carrizales failed to get the driver’s attention with his lights, siren, or verbal commands, officers used spike strips to immobilize the truck. The driver, Trinidad Cutshall, continued to engage the throttle and change gears—apparently unaware that his truck was immobilized. Officers fired several 40mm non-lethal foam rounds at the passenger window, attempting to break the window to both get Cutshall’s attention and provide a better view inside the cab.
On Lieutenant Calhoun’s orders, Deputy Batton fired four of these rounds, while Deputy Holley fired two. None broke Cutshall’s window or elicited a response from him. Once these efforts failed, SWAT took over the operation. Carrizales, Calhoun, Batton, and Holley withdrew. Next, SWAT members took up positions around Cutshall’s truck. Sergeant Dillow parked an armored vehicle called a BEAR in front of the truck to prevent it from moving. Deputy Sandor fired two 40mm tear gas rounds at the cab. One deputy reported that Cutshall would jump and begin to look around when these rounds were fired, but that Cutshall would then go back into a stare like we were not there. Deputy Hernandez used a ROOK (essentially an armored forklift with a hydraulic ram instead of tines) to break the rear passenger window. Deputy Luna then placed a single CS canister into the cab, which had no effect. Hernandez used the ROOK to remove the passenger door and cleared an opening in the rear of the cab in order to gain a better visual of the suspect and his surroundings inside the vehicle. Deputy Hernandez and Deputy Luna then withdrew.
With the cab open, SWAT members approached and observed Cutshall but could not see his hands. Deputy Poirier then fired three 40mm non-lethal foam rounds at Cutshall, which displayed a desirable effect on the suspect, although Cutshall still refused to exit. After observing Cutshall lower his right hand out of sight, Deputy Marshall deployed police dog Timon, and Timon bit Cutshall’s right arm. Deputy Marshall then entered the cab and unbuckled Cutshall’s seatbelt, but Cutshall still continued to resist. Deputy Marshall removed Timon and backed up approximately 8 feet, taking no further part in removing Cutshall.
Four deputies (Poirier, Faiura, Cogburn, and Klosterman) entered the cab. A tussle ensued, and Deputy Poirier reported punching Cutshall several times due to the level of resistance. Cutshall then grabbed Poirier’s forearm, and in response, Deputy Poirier and Deputy Klosterman punched Cutshall in the face several times each. Cutshall then released Poirier and grabbed Klosterman instead. At the same time, Poirier and Cogburn observed pocketknives clipped to Cutshall’s pants pocket, and saw Cutshall reach for the knives. Deputy Cogburn reported calling out that Cutshall was reaching for a knife during the fight, and that he was able to remove the knives from Cutshall’s pants and throw them out of reach. Deputy Faiura did not see the knives at the time, but did see Cutshall reach for his pants pocket. Finally, the four deputies removed Cutshall from the cab, assisted by another officer, Sergeant Dillow, who pulled Cutshall out, dropped him to the ground, and handcuffed him.
Once handcuffed, deputies walked Cutshall to a waiting ambulance. Cutshall was placed on a stretcher and taken to Ben Taub Hospital. There, he remained uncooperative and tried to hit staff. Cutshall was later indicted for felony evading arrest, but the charges were dropped. Cutshall sued thirteen of the officers involved in his arrest under 42 U.S.C. § 1983. Thirteen of the officers then filed motions to dismiss, which the district court denied. The 5th reversed.
Analysis
We will address only those claims over which we have appellate jurisdiction: (A) the excessive force claims against all thirteen officers and (B) the bystander liability claims against Hernandez, Luna, Sandor, Poirier, Faiura, Cogburn, Dillow, and Klosterman.
A. Excessive force claims
A1. Carrizales, Batton, and Holley
Cutshall alleges that Deputies Batton and Holley fired rubber bullets at him, and shot him with rubber bullets. Cutshall accuses Sergeant Carrizales of authorizing Batton and Holley to fire the bullets and ordering the use of spike strips to stop his truck. The report attached to Cutshall’s complaint, in turn, states that Carrizales initially pulled Cutshall over and that Carrizales and Calhoun authorized the use of rubber bullets by Batton and Holley. It also states that Batton fired four foam rounds at Cutshall’s windows that failed to break the glass, while Holley two foam rounds that missed Cutshall’s truck entirely.
Pressed at oral argument, Cutshall’s counsel could not explain what these officers should have done differently, seeming to concede that none of their actions constituted excessive force. Batton and Holley fired a handful of foam rounds at Cutshall’s window, none of which contacted Cutshall. Carrizales, for his part, initially followed Cutshall in a police cruiser before ordering the use of spike strips to stop Cutshall. Cutshall has pleaded no injuries related to these actions. Simply put, having one’s tires popped and windows struck with foam is not more than a de minimis injury. Stopping the truck and attempting to get Cutshall’s attention with nonlethal rounds was a reasonable—perhaps the only reasonable—response, given the danger to the public posed by a rogue semi-truck on the highway. We hold that Cutshall failed to plead a plausible excessive force claim against Carrizales, Batton, or Holley.
A2. Sandor, Hernandez, and Luna
Once SWAT took over the scene, Deputies Sandor, Hernandez, and Luna next tried to get Cutshall out of his truck. They used tear gas and the ROOK police vehicle. First, Sandor fired several tear gas rounds at Cutshall’s windshield. Then, Deputy Hernandez used the ROOK to break the rear window of Cutshall’s truck, before eventually ripping Cutshall’s passenger door off. Finally, Deputy Luna tossed a tear gas canister into Cutshall’s truck, using the newly cleared ports in the vehicle’s passenger side. Once again, at oral argument Cutshall’s appeared to concede that none of these officers used excessive force either.
Cutshall at least pleads a plausible injury because he says the gas blinded him and caused permanent vision and nerve damage. But only Sandor and Luna used tear gas—Hernandez only used the ROOK to clear ports in the side of Cutshall’s truck. Considering Hernandez’s acts individually, and in the context of Cutshall’s repeated refusal to exit his truck, breaking a window and removing the truck’s door did not constitute excessive force.
Even if Hernandez is responsible for Sandor and Luna’s use of tear gas, the result is the same. We have repeatedly held that noncompliance or continued physical resistance justifies the use of force. See Rucker. When Hernandez, Luna, and Sandor arrived on the scene, they confronted a suspect at the wheel of a semi-truck, refusing lawful commands to exit, apparently still attempting to drive, all while ignoring every attempt to get his attention. Employing tear gas to force Cutshall out of the truck without physical force was a reasonable escalation under the circumstances.
A3. Marshall
When sirens, loudspeaker commands, foam rounds, and tear gas did not induce Cutshall to exit, SWAT finally decided to physically remove him. The first officer to make contact was Deputy Marshall, who was accompanied by a police dog named Timon. Cutshall’s complaint described Marshall as using “excessive and brutal force” on a “disoriented and confused” victim and alleges that Marshall’s “vicious German Shepherd” “ripped [him] to shreds.”
Marshall reports that he approached the cab along with SWAT members and ordered Cutshall to surrender. After several foam rounds were fired at Cutshall, Marshall states that Cutshall lowered his right hand out of sight, and that Marshall then deployed Timon to secure Cutshall’s hand “in an attempt to prevent a deadly force encounter.” Once the dog bit him, Cutshall “yell[ed]” and still refused “additional commands . . . to come out.” Deputy Marshall followed Timon into the truck and managed to unbuckle Cutshall’s seat belt, but Cutshall “us[ed] his legs to lock himself in the driver’s seat.” When Marshall saw other deputies enter the truck, he “chose to physically take [the K9] off to prevent further injuries to the suspect or team members.”
Cutshall pleaded no excessive force claim against Marshall based on his use of Timon. An officer’s use of deadly force is reasonable when a suspect moves out of the officer’s line of sight such that the officer could reasonably believe the suspect was reaching for a weapon. See Manis. Cutshall failed to plead an excessive force claim against Marshall.
A4. Poirier, Faiura, Cogburn, and Klosterman
As Marshall removed Timon officer from the cab, four other (human) officers entered the truck’s cab. Deputy Poirier and Sergeant Klosterman entered through the rear of Cutshall’s cab, while Deputies Faiura and Cogburn entered through the passenger door. Poirier reported punching Cutshall several times due to the confined space and the suspect’s level of resistance. When Cutshall grabbed Poirier’s arm, both Poirier and Klosterman punched him several more times to get Cutshall to release Poirier. Three of the deputies reported seeing knives, and two reported that Cutshall reached toward those knives throughout the encounter. Cogburn stated that Cutshall managed to place his hands on several of the knives, before Cogburn grabbed his hand, removed the knives from Cutshall’s pants, and threw them aside. Finally, the deputies managed to remove Cutshall’s legs from the bottom of his seat, pulling him from the truck through the passenger door and dropping him onto the ground. Cutshall failed to state an excessive force claim against these officers.
As already noted, noncompliance or continued physical resistance justifies the use of force. Given the potential danger posed by Cutshall, who had by this point refused hours of commands to leave his truck while continually trying to drive away, the use of force to extract him was reasonable. Moreover, Cutshall fought being removed from the truck. Three of the four deputies (Poirier, Faiura, and Cogburn) stated that Cutshall had several knives attached to the front of his pants, and Cogburn explicitly reports that Cutshall tried to use them. Faiura recounts that Cutshall reached for the pockets containing the knives throughout the encounter. Sergeant Klosterman did not see the knives, but did see Cutshall grab Poirier causing him pain. In response, the deputies punched Cutshall in the face several times and dragged him from the truck. While Cutshall alleges that he was unarmed and unconscious at the time, that is directly contradicted by multiple narratives in the exhibits attached to the complaint. Those exhibits state that Cutshall actively fought with officers and attempted to reach for knives. Under those circumstances, officers can reasonably use force to subdue the suspect. Because Poirier, Faiura, Cogburn, and Klosterman’s use of force was objectively reasonable, Cutshall failed to plead an excessive force claim against them.
A5. Calhoun and Dillow
Finally, Cutshall sued two officers who supervised his arrest: Sergeant Dillow and Lieutenant Calhoun. Insofar as Cutshall attempts to pin other officers’ conduct on Calhoun and Dillow as supervisors, he faces a steep road: Supervisors cannot be held liable on a theory of vicarious liability. See Bustos.
Neither the foam rounds nor the spike strips injured Cutshall and their use was a reasonable response to Cutshall refusing to stop his truck. Because the underlying conduct Calhoun supervised was not unconstitutional, Cutshall failed to show a causal link between Calhoun’s failure to supervise and a constitutional violation. His excessive force claim against Calhoun therefore fails.
Dillow assisted in removing a fighting and biting suspect from a cramped truck and understandably dropped that suspect on the ground in the process. That was not objectively unreasonable. Cutshall therefore failed to plead a plausible excessive force claim against Dillow.
B. Bystander liability
A bystander liability claim only arises where an officer (1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act. At least in this appeal, the only underlying claims that could qualify are the excessive force claims against the other officers. But Cutshall failed to plead a plausible excessive force claim against any of the officers. As such, his bystander liability by way of excessive force claims necessarily fail as a matter of law.
https://www.ca5.uscourts.gov/opinions/unpub/25/25-20499.0.pdf