Facts
(If you are new to 1983 actions, click here for help)
Jarvis Livingston testified to the following: On July 6, 2019, Livingston’s brother and cousin got into an argument while they were visiting an aunt’s residence in Yoakum, Texas. Someone placed a 911 call and reported that there was a fight. When the police arrived, Livingston told his brother that he wanted to go home once his brother finished talking with the police. Then Officer Sarah Mendoza proceeded to grab Livingston’s wrist, so he pulled his wrist back and asked why Mendoza was touching him when he had not done anything wrong.
Minutes later, two other male officers (Officers Lopez and Rhodehamel) arrived on the scene. Each officer grabbed one of Livingston’s arms, and one grabbed his neck, and told him to get on the ground, telling him he was not under arrest but that he was being detained. Livingston resisted getting on the ground because he had not done anything wrong. The officers then took him to the police car, told him he was going to jail, and then slammed the door and took him to the county jail.
Livingston was charged with resisting arrest and public intoxication. The district court largely relied on the patrol vehicle recordings of the incident which revealed the following: When Officer Mendoza arrived on the scene, Livingston was walking towards the area where Officer Rhodehamel was questioning Livingston’s brother about the 911 call. The manner in which Livingston was approaching the men was clearly troubling to Officer Mendoza because, after exiting her vehicle, she walked towards him, attempting to stop his movement and repeatedly instructed him to calm down.
The recordings further indicate that a scuffle then ensued between Livingston and the officers. During the scuffle, Livingston continued to resist officers efforts to calm him down by moving wildly and repeatedly yelling at them. After much effort, officers were able to handcuff him and move him near a patrol car. When he complained that the handcuffs were too tight, Officer Lopez loosened them, but he continued to be belligerent and noncompliant.
Although at one point, he appeared to calm down, his change in behavior was short lived. Officers Lopez and Mendoza ultimately informed him that he was being arrested for public intoxication. He challenged his arrest, stating that he had not been tested, but Officer Mendoza responded that he did not need to be tested under the circumstances because his behavior and the way he was talking to them supported his arrest for public intoxication. She additionally stated that she could smell alcohol during her interactions with him.
After being informed that he was being arrested for public intoxication, he continued to resist officers efforts to place him in the patrol car. But, after one officer called for use of the WRAP restraint system, he began to cooperate and entered the patrol car. However, after entering the car, he continued to resist by refusing to put his legs in the car. Officer Lopez had to grab his legs and push him into the patrol car. Because of his continued resistance, Officer Lopez subsequently filled out a probable cause affidavit for placing him in the Lavaca County Jail for resisting arrest or transport under Texas Penal Code § 38.03(a).
Livingston testified that he believed his arrest was unlawful and that the officers used excessive force during the incident in violation of his constitutional rights. The district court granted summary judgement to the officers. The 5th affirmed.
Analysis
A. False Arrest
The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. A warrantless arrest is a reasonable seizure if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence. Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.
Here, Livingston was arrested on charges of public intoxication and resisting arrest. Under Texas law, a person commits the offense of public intoxication if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another. Tex. Penal Code § 49.02(a). A person commits the offense of resisting arrest, search, or transportation under Texas law if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another. Tex. Penal Code § 38.03(a).
Based on the facts known to the officers on the night of the incident, they had probable cause to arrest Plaintiff for public intoxication and resisting arrest. Specifically, the patrol car recordings make clear that when Officer Mendoza arrived on the scene, the manner in which Livingston was approaching Officer Rhodehamel, who was questioning his brother, was clearly troubling to Officer Mendoza. When she exited her vehicle, she attempted to stop his movement and repeatedly instructed him to calm down.
During the subsequent scuffle between Livingston and the officers, he continued to resist their efforts to calm him down by moving wildly and repeatedly yelling at them. After being handcuffed (after much effort) and informed that he was being arrested for public intoxication, he resisted officers efforts to place him in the patrol car. Once he did enter the patrol car, he continued to resist by refusing to put his legs in the car.
We agree with the district court that based on his behavior and demeanor, he was a danger to himself or others as a result of intoxication and that the officers had probable cause to arrest him for public intoxication. See Tex. Penal Code § 49.02(a). We further conclude that after being informed of his arrest for public intoxication, he resisted getting into the patrol car and that probable cause existed to arrest him for resisting arrest and transport in violation of Texas Penal Code § 38.03(a).
Livingston contends he was only verbally resistant, that he was just trying to stop Officer Rhodehamel from being rude to his little brother, and that he was exercising his First Amendment right to speech. As set forth above, the patrol car recordings of the incident indicate otherwise. They make clear that he was more than verbally resistant. The video recording shows that he physically resisted the officer requests to calm down and that it took considerable physical effort for them to gain control of Livingston.
His behavior was irrational, belligerent, combative, and noncompliant. Although he contends that he did nothing wrong, we are not required to accept factual allegations that are blatantly contradicted by video and audio recordings taken at the scene. We conclude that the district court did not err in determining that Defendants are entitled to summary judgment under the first prong of the qualified immunity analysis because Livingston was unable to show his Fourth Amendment rights were violated when Defendants arrested him.
B. Excessive Force
To succeed on an excessive force claim, Plaintiff must demonstrate that he suffered (1) an injury (2) which resulted directly and only from the use of force that was excessive to the need and (3) the force used was objectively unreasonable. See Glenn. The district court determined that Plaintiff was unable to establish any of these elements.
Livingston makes no argument challenging the district court’s determination regarding the elements of his excessive force claim until his reply brief. And, even then, he does not challenge the district court’s determination that he was unable to show an injury for purposes of an excessive force claim. Although we liberally construe pro se briefs (self representation), even pro se litigants must brief arguments in order to preserve them. Therefore, he has waived the issue whether he established an injury by failing to brief it on appeal.
https://www.ca5.uscourts.gov/opinions/unpub/22/22-40719.0.pdf