applying violent force after being spit on against an unarmed person who is restrained and subdued violates the Constitution


(If you are new to 1983 actions, click here for help)

While on patrol around 1:00 a.m. on May 13, 2016, Officer Luis Zuniga noticed Aaron Soto driving the wrong way down a one-way street and pulled him over. Zuniga administered a field sobriety test, which Soto failed, and then used a portable breathalyzer to assess Soto’s blood alcohol concentration. After the test revealed that Soto was intoxicated, Zuniga arrested him. Zuniga then handcuffed Soto’s hands behind his back and escorted him to the police cruiser.

As Zuniga attempted to place Soto into the vehicle, a derogatory exchange ensued in which Soto insulted Zuniga’s girlfriend, and Zuniga criticized Soto’s mother. When Zuniga tried to secure Soto’s seatbelt, Soto leaned toward Zuniga and spit. Zuniga immediately reacted by wrapping his arms around Soto’s body, pulling him from his seated position, and thrusting him face first onto the ground. He then leaned over Soto and asked, “did you just spit on me?” as he forcefully dropped his knee onto Soto’s upper back. Officer Ulysses Bautista, who was standing nearby, then kicked Soto in his midsection, causing him to cry out. Zuniga continued to press his knee into Soto’s upper body for several additional minutes as Soto repeatedly groaned in pain, exclaiming at one point, “that hurt.”

Shortly thereafter, a sergeant arrived with a spit guard and RedMan helmet. Despite the fact that Soto’s face was plainly injured, Zuniga and the sergeant placed the spit guard over Soto’s mouth and the helmet on his head. After Soto refused medical care at the scene, he was transported to the McAllen Police Department jail. Later, Soto was treated at a hospital where doctors informed him that he had a hairline fracture on his cheekbone and an orbital injury. He was also diagnosed with possible nerve damage and a fractured tooth at other doctor’s visits.

Soto subsequently filed the instant § 1983 suit, alleging that Zuniga and Bautista (1)used excessive force in violation of his Fourth and Fourteenth Amendment rights, and (2) were each liable as a bystander to the other’s use of force. The Officers each moved for summary judgment based on qualified immunity. The district court orally denied both motions due to the existence of genuine issues of material fact (whether Soto was resisting arrest). The 5th denied summary judgement to officers based on excessive force but granted summary judgement as to bystander liability.


A. Violation of a Constitutional Right

We begin by addressing the first question—that is, if we assume Soto did not resist or evade arrest, did the Officers violate Soto’s constitutional right to be free from excessive force?

To establish an excessive force claim, Soto must show that he suffered an injury that resulted directly and only from a clearly excessive and objectively unreasonable use of force. See Joseph. In determining whether the use of force was clearly excessive and clearly unreasonable, we evaluate each officer’s actions separately, to the extent possible. Accordingly, we begin with Soto’s claim that Zuniga used excessive force when he forcefully thrust Soto face first onto the ground and dropped his knee onto his upper body.

Soto has submitted evidence showing that he suffered several injuries as a direct result of Zuniga’s conduct, including a hairline fracture, broken tooth, (possible) nerve damage, and an orbital injury. Therefore, the primary issue is whether, under Soto’s version of the disputed facts, Zuniga nonetheless acted reasonably. Several factors guide this inquiry, including (1) the severity of the crime at issue, (2) whether Soto posed an immediate threat to the safety of officers or others, and (3) whether Soto was actively resisting arrest or attempting to evade arrest by flight.

Our analysis of the first and third factors is straightforward. Soto was arrested for drunk driving, which is undoubtedly a serious crime. Therefore, the first factor weighs in favor of Zuniga’s reasonableness. However, we’ve already concluded that we must assume Soto was not resisting or evading arrest, so the third factor cuts strongly against Zuniga’s reasonableness.

The only remaining factor to assess, then, is whether Soto posed an immediate threat to Zuniga. We conclude that he did not. It’s undisputed that Soto was unarmed. Additionally, prior to Zuniga’s removing Soto from the car, he was seated in the backseat with his hands restrained behind his back. These facts strongly suggest Zuniga was not at risk of harm, and, therefore, his substantial use of force was unreasonable.

It is clear under our precedents that applying violent force to an unarmed person who is restrained and subdued violates the Constitution. See Bush (concluding officer was not entitled to qualified immunity when officer forcefully slammed the plaintiff’s face into a nearby vehicle during her arrest when she was handcuffed and subdued). This is true even when evidence establishes that the plaintiff acted disrespectfully toward the officer or engaged in passive resistance. See Newman (holding that officers were not entitled to qualified immunity when they used a taser and nightstick on individual who did not actively resist but made an off- color joke).

Zuniga, however, urges that Soto’s conduct wasn’t merely disrespectful. Rather, per Zuniga, Soto’s spitting threatened his safety by putting him at risk of contracting a communicable disease. Yet, we are unconvinced that spitting a single time poses more than a de minimis risk to an officer’s safety. To be sure, it’s possible that Zuniga could’ve caught a virus from Soto. But given that Soto showed no signs of sickness, and this incident predated the COVID-19 pandemic, that risk seems very low. Moreover, Zuniga’s own behavior belies his contention that he was afraid of catching an illness. After Soto spit, Zuniga wrapped himself around Soto, thrust him to the ground, and later leaned over and wiped Soto’s face with his arm. This seems like an excellent way to contract a virus—not avoid one.

But even if Soto’s spitting had posed a non-negligible threat to his safety, it still wouldn’t have warranted Zuniga’s response. While our precedents recognize that sometimes officers may need to use physical force to effectuate a suspect’s compliance, they nonetheless require officers to assess the relationship between the need and the amount of force used. Zuniga’s actions suggest he made no such calculation. Slamming an arrestee to the ground hard enough to break his bones is simply not a proportional response to being spit at. Neither, for that matter, is repeatedly dropping one’s knees on a prone suspect’s spine when he is handcuffed and compliant.

Moreover, Zuniga’s use of force was not only inappropriately violent—it was also too immediate. Zuniga did not implement any other strategy to address Soto’s spitting before employing physical force. See Deville. Indeed, he immediately resorted to force without any attempt to de-escalate the situation. Such conduct does not amount to the measured and ascending actions required by our caselaw. Rather, it reflects an impulsive, violent response to perceived disrespect. Therefore, we conclude that on these facts, Zuniga’s use of force was clearly excessive.

Based on the prior analysis, it’s also clear that Bautista acted unreasonably by kicking Soto in the side. The district court concluded that it was undisputed that this conduct contributed to Soto’s injuries. Additionally, as explained above, our precedents are clear that using objectively unreasonable force on a restrained, compliant individual violates the Fourth Amendment. Therefore, given the assumption that Soto wasn’t resisting arrest, we conclude that Bautista also violated Soto’s right to be free from excessive force.

B. Clearly Established Law

We now turn to the second prong of the qualified immunity inquiry. Notwithstanding the prior analysis, Zuniga and Bautista are still entitled to qualified immunity unless Soto demonstrated that the right in question was clearly established at the time of the challenged conduct.

Our survey of the law indicates that as of May 13, 2016, Ramirez and Deville provided fair warning to any reasonable officer that it was unconstitutional to thrust Soto to the ground (after already arresting and handcuffing him), drop a knee on his upper spine, and kick him.

In Ramirez, we held that a reasonable jury could conclude that the officer violated clearly established law by tasing a handcuffed individual who had merely passively resisted arrest. We noted that the fact that the plaintiff had pulled his arm away when officers initially attempted to restrain him was insufficient to show that he posed an immediate threat to the safety of the officers.

In Deville, we similarly concluded that an officer was not entitled to qualified immunity when he used substantial force in response to the plaintiff’s mere passive resistance. We emphasized that the officer engaged in very little, if any negotiation before quickly resorting to force. We also highlighted the paucity of evidence suggesting that the plaintiff planned to flee or otherwise resist arrest.

In sum, the Officers’ use of force was disproportionate to the situation, in violation of the Fourth Amendment and the clearly established law.

C. Bystander Liability

To establish bystander liability, a plaintiff must show that (1) another officer was engaged in the use of excessive force, and (2) the observing officer had a reasonable opportunity to realize the excessive nature of the force and to intervene to stop it. See Hale. We’ve already concluded that Soto has produced sufficient evidence to preclude summary judgment for the Officers as to the first prong.

However, we conclude that the video evidence conclusively demonstrates that (1) Bautista could not have reacted quickly enough to prevent Zuniga from thrusting Soto to the ground or dropping his knee on Soto’s neck, and, in turn, (2) Zuniga could not have prevented Bautista from kicking Soto. Thus, even assuming that both Zuniga and Bautista used excessive force, they each lacked a reasonable opportunity to prevent each other’s unconstitutional conduct. Therefore, the district court erred in denying the Officers’ motions for summary judgment on these claims.