Facts
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On the afternoon of June 20, 2016, Deputy James Killian responded to a domestic disturbance call reporting a big fight going on between Rubicela Ramirez and Francisco Gonzales at their home in Wellington, Texas. After arriving at the home, Killian told dispatch that he heard what sounded like someone getting beat and stated that he was about to enter the home. Two minutes after arriving, he turned on his body camera and entered the home through the living room, shouting “Polícia!” with his gun and pepper spray drawn.
The next thirty-eight seconds of video show what happened from there. From the living room, Killian entered the kitchen, where he encountered Ramirez entering from another door. Killian ordered her to “come here, get over here, get over here and face that wall.” Ramirez approached Killian. Killian then ordered: “get over there and face that g—d—n wall, b—h,” simultaneously pepper spraying Ramirez’s face. While this was happening, Gonzales entered the kitchen from the same door as had Ramirez. At the same time, a pit bull entered the kitchen from another door and walked up to Gonzales, wagging his tail. Killian ordered Gonzales to “get over here” and said “I’ll shoot your dog.” The dog—Bruno—began to walk towards Killian, and Killian shot him three times.
Killian then ordered Ramirez and Gonzales to get onto the ground and continued to pepper spray them. Neither Ramirez nor Gonzales immediately complied, but Gonzales put his hands onto his head. Then, a German Shepherd appeared in the kitchen and walked toward Killian, who immediately shot it four times as he backed into the living room. Killian briefly exited the house from the door that he had entered and radioed for help. He then returned to the living room and continued to order Ramirez and Gonzales to get onto the ground. Ramirez and Gonzales went to their knees. Killian continued to pepper spray them. For the next few minutes, the three shouted profanities at each other as Killian unsuccessfully tried to get Ramirez and Gonzales to lie down on the ground. About eleven minutes after Killian first entered the home, Ramirez and Gonzales agreed to be handcuffed and Killian seated them on a couch in the living room.
Soon thereafter, Sheriff Kent Riley arrived at the home. Upon his entry, Ramirez stood up from the couch and called out Riley’s first name, asking him to help her. Killian immediately grabbed her by the hair and wrestled her to the ground. As he did so, his body camera fell off briefly and went black. Ramirez and Gonzales maintain that immediately after Killian took Ramirez to the ground, he slammed her head against the floor, though the video was still black at this point and does not show it.
Ramirez and Gonzales filed a lawsuit under 42 U.S.C. § 1983 against Killian. The district court dismissed Ramirez’s and Gonzales’s claims for warrantless entry and excessive force at summary judgment. As to the excessive-force claims, we REVERSE and REMAND (Qualified Immunity denied). But as to the warrantless-entry claim, we AFFIRM (Qualified Immunity granted). (The seizure of the dog named Bruno went to trial and the jury found the officer liable. The district court judge had thrown the jury verdict out but the 5th circuit reinstated the jury verdict. That is not discussed below).
Analysis
A. Warrantless entry (Qualified Immunity granted for officer)
Ramirez and Gonzales first argue that the district court erroneously granted Killian’s motion for summary judgment as to their warrantless-entry claim. We disagree.
Although searches inside a home without a warrant are presumptively unreasonable, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. See SCOTUS Brigham City v. Stuart, 547 U.S. 398 (2006). Exigent circumstances were present when Killian first arrived at Ramirez’s and Gonzales’s home. He was responding to a tip from a neighbor that there was a domestic disturbance. And according to his affidavit, when Killian arrived at the home, he heard the sounds of a fight that corroborated this tip.
B. Excessive force (Qualified Immunity denied for officer)
Ramirez and Gonzales further argue that the district court erroneously granted Killian’s motion for summary judgment as to their excessive-force claim. Here, we agree with them. Ramirez and Gonzales point to two distinct uses of force: (1) Killian’s use of pepper spray; and (2) his taking Ramirez to the ground and banging her head against the floor. We examine each in turn.
B1. Pepper Spray
Killian pepper sprayed Ramirez as he told her to “get over there and face [the] wall,” and after he had already told her to “get over here.” Killian pepper sprayed Gonzales as soon as Gonzales walked into the room, while ordering him to “get over here.” A reasonable jury could find that Ramirez and Gonzales were attempting to comply with Killian’s orders, or that there were no consistent orders with which they could comply in the first place. Killian’s subsequent uses of pepper spray occurred as he tried to get Ramirez and Gonzales—who were kneeling—to fully lie down on the ground. A jury could likewise find that Ramirez and Gonzales were partially complying during these subsequent uses of pepper spray.
While it is true that Killian was investigating a possible assault—a serious crime – Ramirez and Gonzales were not actively resisting arrest. Killian’s contention that his first orders were not contradictory, and that Ramirez and Gonzales did not comply, are flatly refuted by the video evidence. Killian’s order to “come here” was the exact opposite of his order to “get over there.” Nor were there any indications that either Ramirez or Gonzales posed a threat to Killian.
Having found that the evidence would permit a reasonable jury to conclude that Killian violated Ramirez’s and Gonzales’s constitutional rights, we now proceed to the second step of the qualified immunity analysis. We conclude that such a violation would have been unlawful under clearly established law. An officer may not constitutionally use force on a non-threatening subject offering no resistance or merely “passive” resistance. Put differently, an officer may not use force against someone who has committed no crime, posed no threat to anyone’s safety, and did not resist the officers or fail to comply with a command. See Newmann.
B2. Head banging
Moving now to Ramirez’s and Gonzales’s head-banging claim, we likewise find that they have satisfied both steps of the qualified immunity inquiry at the summary judgment stage. This is an even easier determination. Ramirez and Gonzales allege that, after Killian took Ramirez to the ground and was firmly on top of her, he slammed her head against the floor. There was evidence that Ramirez suffered injury in the form of a black eye. And evaluating the evidence in Ramirez’s and Gonzales’s favor, Ramirez gave no indication that she was attempting to escape when she stood from the couch, as she was simply begging Sheriff Riley for help. Nor is it particularly plausible, especially once another officer arrived on-scene, that a handcuffed, pepper-sprayed subject could have posed much of a threat to Killian, either when she was standing or after Killian took her to the ground.
The use of force that Ramirez and Gonzales allege that Killian engaged in here was unlawful under clearly established law. The law was clearly established at the time of the deputies’ conduct that, once a suspect has been handcuffed and subdued, and is no longer resisting, an officer’s subsequent use of force is excessive. See Carroll. The excessive-force claims should not have been dismissed at summary judgment. They should have gone to trial.
https://www.ca5.uscourts.gov/opinions/pub/22/22-11060-CV0.pdf