In 2019 Officer Samuel Serrett pulled over driver Timothy Robinson and his girlfriend Jessica Solis for failing to properly signal and driving outside of his lane. Serrett believed that either Robinson or Solis (or both) may have been intoxicated so he requested backup. Robinson was eventually arrested after he refused a field sobriety test.
Solis began recording the encounter on her cell phone and stepped out of the vehicle herself. She objected to Robinson’s arrest, stepped closer to Serrett and Robinson and had to be told to step back, and began to narrate the events onto her camera. As Serrett approached her, Solis wasn’t filming but continued to hold her cell phone.
She twice requested Serrett’s badge number. Serrett reached out and said, “Can I see your phone for a second please?” Solis jerked the phone away from Serrett’s hand and responded, “No you can’t.” Serrett continued to reach for the phone stating, “Well I don’t want you to drop it when I arrest you.”
Solis let her left hand fall to her side and exclaimed, “Drop it? Excuse me!” Officer Teddy Sims came up behind Solis and quickly pulled her left arm behind her back. Serrett reached for Solis’s other arm. Solis fell to the ground, either from the officers forcing her down or from the momentum as she struggled. Sims then held his knee on Solis’s back as Serrett handcuffed her. Officer Serrett informed Solis that she was being arrested for public intoxication, stood her up, and walked her over to the police car.
Solis filed various §1983 claims against both Serrett and Sims. The district court granted summary judgement to the officers on all of Solis claims except her excessive force §1983 claim. The officers appealed and the 5th reversed, granting MSJ to both officers. Four videos of the incident are available in the opinion. Go to bottom of page two of opinion below for hyperlinks.
On appeal, the 5th can review whether any factual dispute found by the district court is material for summary judgment purposes.
A. Constitutional violation
To establish a claim of excessive force under the Fourth Amendment, plaintiffs must demonstrate: (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.
Solis testified that her back and her wrists were hurt and that she still has problems with her right wrist, which she said feels like a nerve thing and described as a pulled pain. Solis also claims that she suffered mental anguish because of the officers’ actions.
Generally, to maintain a claim for excessive force, a plaintiff need not demonstrate a significant injury, but the injury must be more than de minimis. Any force found to be objectively unreasonable necessarily exceeds the de minimis threshold, and, conversely, objectively reasonable force will result in de minimis injuries only.
Solis’s injuries are properly characterized as minor. Courts have found similar or worse injuries to be minor. Moreover, Solis never sought medical treatment. Nor do we place much weight on Solis’s supposed psychological injury, as we have rejected similar attempts by excessive force plaintiffs to parlay their minimal injuries into more serious ones by tacking on allegations of psychological suffering. Accordingly, the limited extent of Solis’s injuries tends to support a conclusion that the officers acted reasonably.
2 and 3. Use of force and reasonableness of resorting to force
In Graham v. Connor, 490 U.S. 386 (1989), the U.S. Supreme Court enumerated three non exclusive considerations for courts to examine when analyzing the reasonableness of the force used, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
The severity of the crime at issue here weighs against the officers as Robinson, not Solis, was pulled over for a traffic violation. The officers ultimately arrested Solis for public intoxication, a Class C misdemeanor in Texas.
Solis, who was wearing an evening dress with laced sandals and armed only with her cell phone, did not pose an immediate threat to the safety of the officers or others. This factor therefore also weighs against the officers.
The third factor—whether Solis was resisting arrest—cuts in favor of the officers. Here, Solis was generally hostile to the officers from the beginning of the traffic stop. She emphasized that she and Robinson were near their home, argued with the officers, repeatedly implied that Robinson was pulled over only because of his race, pulled away when Serrett asked for her phone, and stepped back and exclaimed “Drop it? Excuse me!” when Serrett told her she was being arrested.
This court has also acknowledged that a suspect who backs away from the arresting officers is actively resisting arrest—albeit mildly. Solis also seemed to struggle against the officers as they grabbed her arms, which viewed from the officers’ perspective could be another form of resistance. Accordingly, it may have been reasonable for the officers to perceive Solis as actively resisting arrest, and this factor weighs in the officers’ favor.
Although not listed in the Graham factors, courts also consider the speed with which officers resort to force. Here, Sims grabbed Solis’s arm seconds after Serrett told her that she would be arrested, and Serrett joined him immediately after. However, we are mindful that the “focus is on the officers’ reasonable perception of the events at issue, as they happened, without the aid of hindsight.”
Solis’s adverse course of conduct leading up to the arrest—including indignant remarks, asking for Serrett’s badge number, refusing to provide him her phone, and stepping back—may have indicated to the officers that she would not submit to arrest. Accordingly, to the extent this factor tilts against the officers, it does so only slightly.
Taking these considerations together, we conclude that the actions of Serrett and Sims were not so objectively unreasonable as to violate Solis’s constitutional rights. First, Solis’s essentially de minimis injuries weigh strongly in favor of a finding of qualified immunity. Second, while two of the Graham factors weigh against the officers, qualified immunity can apply even when only one factor weighs against the plaintiff. And we have held that the two Graham factors that favor Solis “are less salient.” Moreover, not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.
B. Clearly established
We further hold that even had Serrett and Sims violated Solis’s constitutional rights, such a right was not clearly established at the time of the supposed constitutional violation. Existing precedent must have placed the statutory or constitutional question beyond debate.
Solis cited Trammel, a case where a person who was suspected of DWI and refused to walk to officers or put his hands above his head had four officers performing knee strikes and putting him in a headlock that caused bone fractures significantly affecting his life. The degree of force used sets Trammell apart from the case at hand.
Solis also cited Hanks, who was stopped for going too slowly. When he questioned officers, a taser was pointed at Hanks. When he didn’t immediately go to his knees and took a small sidestep, the officer rushed forward and administered a blow to Hanks’s upper back or neck, which forced Hanks’s upper body onto the trunk of his vehicle. This caused continuous pain in his upper back, neck, head, and ribs. As with Trammell, the degree of force used sets Hanks apart from this case.
The remaining cases cited by the district court and Solis are even further afield from the facts here.