Facts
(If you are new to 1983 actions, click here for help)
In the early morning of October 10, 2021, Kenneth Anderson, Jr., crashed a sedan in Harris County, Texas. Deputy Crystal Estrada was the first officer to arrive at the scene around 3:25 A.M. Her body camera shows
Anderson’s car against the curb near an intersection and angled toward oncoming traffic. Anderson was the only person inside the vehicle, where he was bleeding and initially unresponsive. He became responsive five minutes later, complied with orders to step out of the vehicle, and was handcuffed without incident. On-scene emergency medical technicians evaluated him.
Deputies Mercy Garcia, Victor Page, and Mohanad Alobaidi soon arrived at the scene. At 4:23 A.M., Alobaidi stated that they could take Anderson in for driving under the influence, and the officers directed Anderson to Estrada’s cruiser. They had some minor difficulty getting Anderson into the cruiser because he would not pull his own legs inside. Traveling in separate vehicles, the four officers arrived with Anderson at a nearby gas station around 4:30 A.M. They left Anderson in Estrada’s cruiser but noticed the vehicle shaking a few minutes later as Anderson thrashed inside. At 4:40 A.M., Alobaidi asked Anderson—still in the backseat—if he needed water. Anderson apparently replied affirmatively as Alobaidi brought his cup, opened the back door of the cruiser, and attempted to offer the cup to Anderson. Rather than drink, Anderson scooted toward the open door.
At first, Alobaidi told Anderson to stay inside, but then allowed him to stand beside the cruiser. Alobaidi directed Anderson toward his more capacious SUV. As they walked, Anderson was asked about potential drug or alcohol use and admitted he had consumed “sherm,” a street name for dried, PCP-dipped cigarettes. For no apparent reason, Anderson then asked if Alobaidi would tase him, to which Alobaidi replied that he would not.
Upon reaching the open, rear passenger-side door of Alobaidi’s SUV around 4:43 A.M., Alobaidi asked Anderson to sit. After being asked to sit nearly ten times, Anderson asked for water. Alobaidi commented that
Anderson did not drink any water when Alobaidi last offered some. Nevertheless, Alobaidi negotiated with Anderson, offering to bring water again if Anderson sat down in the SUV. Meanwhile, Garcia brought the
water. Anderson initially hesitated but leaned forward to drink after Alobaidi removed the lid. When the cup was empty, Anderson remarked that he was “good now.”
Alobaidi again asked Anderson to sit. Anderson turned as if to do so but then turned back around to face the officers and asked for more water. After about 20 seconds of back-and-forth, Garcia stepped in and offered to
get more water if Anderson would sit in the SUV. This time, Anderson sat on the bottom of the doorframe, not on the seat, but soon moved to the seat after more coaxing. For about 30 seconds, Garcia tried to negotiate by
encouraging Anderson to pull his feet inside the SUV while giving him more water. Anderson put his left foot into the SUV, and Garcia let him finish the water. But Anderson removed his foot from the SUV and asked for more. Garcia replied that he could only have more water if he pulled his feet inside. Anderson grew noticeably more insistent and began asking for milk instead.
Garcia announced that the officers would pull Anderson into the car from the other side. Page approached and put his hands on Anderson’s shoulders. Anderson attempted to stand up, but Page held him down and admonished him to stay seated. Page tried to push Anderson into the SUV, but Anderson prevented this by stiffening his legs and hooking his feet under the door. Page pried his feet from under the door, and Anderson kicked his legs in an apparent attempt to re-hook them. Together, Alobaidi and Page wrangled Anderson onto his back in the backseat while Garcia and Estrada opened the opposite door to pull Anderson in from the other side. Still, Page and Alobaidi could not fully close the passenger-side door.
Alobaidi stayed there to maintain their progress while Page ran to the driver-side door to help Garcia and
Estrada. While Anderson thrashed, Page pulled him far enough for Alobaidi to close the passenger-side door. Alobaidi circled around to the driver-side door. Anderson’s head stuck out and prevented the officers from closing that door. At this point, seven minutes after he first ordered Anderson into the SUV, Alobaidi threatened to tase Anderson verbally and by cycling his taser. Cycling his taser made electricity audibly crackle from it. In response, Anderson began asking to be tased. Alobaidi pulled Anderson out of the SUV and held him face-down on the ground as Garcia asked the other deputies whether they should try leg restraints.
Alobaidi again cycled his taser and asked Anderson whether he would comply, and Anderson said he would. Page and Alobaidi helped Anderson to his feet. But Anderson threw his weight away from the open SUV door, prompting the officers to propel him head-first into the backseat. As Anderson’s legs still remained outside
the car, Alobaidi drive-stunned Anderson several times. Nearly ten minutes after the altercation had begun, Page and Alobaidi were finally able to close the door with Anderson inside the SUV.
As they stepped away from the SUV, Page and Alobaidi remarked that Anderson grabbed at their fingers during the struggle. A moment later, Alobaidi returned to the SUV and noticed Anderson in an unsafe position
inside. Page went to the passenger-side door, opened it, and after two more minutes of struggling with Anderson, successfully repositioned him and closed the door. Alobaidi stated that the officers were lucky that Anderson did not resist when he was still “in the street,” presumably referring to the scene of the accident. Alobaidi also remarked: “He’s coming out of it, the PCP, so he’s not feeling anything.” Emergency medical personnel arrived at the gas station around 5:08 A.M. Anderson was unresponsive, but the EMTs did not transport Anderson, allegedly because Alobaidi warned that he was dangerous.
Around the same time, Sergeant Joseph Douglass arrived and reminded the officers about a recent warning about the dangers of drive-stunning. Alobaidi and Garcia drove Anderson to the Harris County Joint Processing Center, where they arrived around 5:45 A.M. As Anderson remained unresponsive, emergency medical services were called again and unsuccessfully attempted to resuscitate him. Anderson was transported to a hospital and pronounced dead.
Anderson’s relatives sued the officers. The district court dismissed all but the excessive force claim against Alobaidi and the corresponding bystander liability claims against Estrada, Garcia, and Page. The 5th reversed and granted qualified immunity to the officers.
Analysis
Here, we need only address the first prong, and we hold that Alobaidi did not violate Anderson’s constitutional rights.
A. Severity of crime
Applying the first Graham factor, the “crime at issue” was serious. The Plaintiffs concede that the officers stated they were bringing Anderson into custody for driving under the influence (“DUI”). Before the
drive-stunning took place, Anderson admitted that he was under the influence of sherm, and Alobaidi’s remarks about PCP after the incident reveal that he knew the effects of sherm. It follows that, from the reasonable officer’s perspective, DUI was the underlying offense.
B. Immediate Threat
Anderson posed an immediate risk to the officers’ safety. Anderson was, as this court put it in Griggs, “capable of and evinced erratic behavior.” That is enough to establish a threat because any of the officers could be injured by Anderson’s kicking, thrashing, and throwing himself around. He was a very large man compared to the male officers and especially the two female officers involved in subduing him. See Tucker (an arrestee’s relative size informs how a reasonable officer would understand and respond to an escalating situation).
Anderson’s initial compliance at the scene of his car accident cannot make his later actions at the gas station any less threatening to the officers’ safety. Second, the notion that Alobaidi precipitated a confrontation by
directing Anderson to exit Estrada’s cruiser is clearly contradicted by the video. Instead, Alobaidi opened the car door to offer Anderson water, and Anderson moved to step out of the cruiser while Alobaidi instructed him not to. Alobaidi relented and allowed Anderson to stand without attempting to physically detain Anderson in the car. We reject any argument that Alobaidi’s attempt to avoid escalation, by allowing Anderson to stand outside the cruiser, somehow incited Anderson’s increasingly erratic behavior over the following minutes or undermined Alobaidi’s reasonable perception of a growing physical threat.
Third, that Anderson was handcuffed has no necessary bearing on whether he was a threat. Unpredictable aggressive behavior is often associated with PCP inebriation, as Alobaidi recognized.
C. Resisting officers
An arrestee who is “restrained and subdued” is not actively resisting. That a suspect is handcuffed does not end the inquiry. When an arrestee mouthes off or pulls a hand away from an officer, that does not quite cross the line into active resistance under most circumstances. Similarly, an arrestee’s merely tensing up when an officer grabs him is passive resistance.
As soon as resistance escalates into any physical action beyond non-threateningly pulling his hand back, the arrestee is actively resisting. Repeated attempts to withdraw from an officer or declining to follow an officer’s orders constitute active resistance. See Betts. Pulling, twisting, turning, or walking toward or away from an
officer amount to active resistance when those actions frustrate the officer’s objective or disobey an officer’s order. See Craig.
The video shows that Anderson actively resisted the officers in this case. Anderson kicked at them when attempting to hook his feet under the SUV door, thrashed as the officers struggled to secure him inside the SUV, used his weight to make the officers’ task more difficult, and failed to comply with countless orders by the officers to stop resisting and to sit in the vehicle with his legs inside. Anderson’s actions, which frustrated
for a lengthy period the officers’ attempts to secure him inside the SUV, constituted active resistance.
D. Was drive stunning reasonable response
Here, Alobaidi’s measured and ascending actions were proportional to the escalating situation. As the Plaintiffs concede, no force was used for approximately the first hour after Anderson was detained at the scene of the accident. Neither was any force used in moving Anderson from Estrada’s cruiser to approach Anderson’s SUV. When Anderson asked Alobaidi whether he would be tased, Alobaidi naturally responded in the negative. But then, as Anderson ignored dozens of orders by the officers to enter the SUV, the officers tried and tried again to negotiate with him. For minutes, they tried to reason with him, offering him water in exchange for his compliance, and even providing him with water when he failed to comply.
Only when Anderson suddenly tried to stand out of the SUV did the officers resort to pushing and pulling to get him into the vehicle. They did not strike, choke, tackle, drive-stun, tase, or apply any heightened force.
Rather, they continued to push and pull for nearly ten minutes as Anderson kicked at them, thrashed, and otherwise actively resisted. After minutes went by and the officers began to realize the futility of their approach, Alobaidi drew his taser. But instead of using it right away, he attempted to restart negotiations with Anderson. He cycled it, asked Anderson if he would comply, and said that he would be tased if he did not comply. Anderson still failed to comply, and even began asking to be tased.
As a last-ditch effort, Alobaidi pulled Anderson from the vehicle and onto the ground, once again cycled the taser and asked if Anderson would comply. When Anderson replied that he would, Alobaidi helped him to his feet. That is when Anderson threw his weight toward the officers, rather than into the vehicle. Once the officers managed to get Anderson inside, Alobaidi began drive-stunning Anderson as it became clear that the officers’ other attempts at securing compliance were futile. As soon as Anderson was subdued, and the officers were able to place him fully inside the SUV, Alobaidi stopped drive-stunning him. Moments later, when they
realized that Anderson was precariously positioned, Alobaidi did not resume drive-stunning, even though Anderson was still actively resisting, as the officers adjusted his body.
Alobaidi’s use of force, in drive-stunning Anderson after much time had elapsed and both negotiations and lesser force had proved fruitless, was reasonable under the circumstances and did not transgress constitutional
limits. Because the allegations of the complaint, graphically depicted in the video, fail to show a constitutional violation by Alobaidi, none of the other defendants can be liable under a bystander liability theory. The district court erred in denying Appellants’ motion to dismiss these claims.
The judgment of the district court is REVERSED.
https://www.ca5.uscourts.gov/opinions/pub/24/24-20142-CV0.pdf