In 2016, Officer Martin received a call dispatching him to a disturbance in the South Division of Fort Worth. The initial 9-1-1 call came from a middle-aged male, stating that several people were on his property arguing, had refused to leave, and were intentionally throwing trash in his yard. A subsequent 9-1-1 call came from the man’s neighbor, Jacqueline Craig, complaining that the man had grabbed her son by the neck because the boy had allegedly littered.
Martin responded to the call alone. He activated his body camera as soon as he arrived at the scene. One of Craig’s daughters, Brea Hymond, also recorded the event on her cell phone. As a result of the incident, Craig, individually and on behalf of her minor children J.H. and K.H., and Hymond (collectively plaintiffs) sued Martin for excessive use of force. The district court denied summary judgement for Martin. The 5th reversed.
A. Excessive force as to Craig
When Martin arrived at the scene, he spoke with the male complainant; Martin then approached Craig to obtain her version of the events. Craig told Martin that the man had grabbed her son, A.C., after A.C. had allegedly littered. In response, Martin asked: “Why don’t you teach your son not to litter?” Craig, visibly agitated, told Martin that it did not matter whether her son had littered, asserting that the man did not have the right to put his hands on her son. Martin replied: “Why not?”
Craig started to shout at Martin after this provocation. Martin asked why she was shouting at him, to which Craig responded: “Because you just pissed me off telling me what I teach my kids and what I don’t.” Martin replied in a calm voice: “If you keep yelling at me, you’re going to piss me off, and I’m going to take you to jail. Immediately after this exchange, J.H., Craig’s fifteen-year-old daughter, stepped between Craig and Martin and put her hands on Craig’s forearms. Martin grabbed J.H. and pulled her away from her mother.
Moments later, K.H., Craig’s fourteen-year-old daughter, began to walk around Martin’s right side; K.H. then pushed Martin in the left side of his back, using most—if not all—of her body weight. Martin pulled his taser and yelled, “Get on the ground!” Martin then allegedly shoved his taser into the middle of Craig’s back.
Although Craig initially pled that Martin then threw her to the ground, Craig’s affidavit states that Martin shoved her to the ground. Craig claims that, as she was going to the ground, her left arm and shoulder blade were still suspended in Martin’s grip—causing her severe pain. The video does not show any throwing or slamming motion; however, it does show Martin pushing Craig to the ground while maintaining a hold on Craig’s left arm and releasing it as she slowly descends to the ground.
Martin then handcuffed Craig. Under the circumstances, it was not objectively unreasonable for Martin to grab Craig and force her to the ground to effectuate her arrest. Martin was the only police officer at the scene, he had just been pushed from behind, and he was facing numerous people who were shouting and jostling as he attempted to separate Craig from the crowd and arrest her.
B. Excessive force as to J.H.
After Martin arrested Craig, he again shouted, “Get on the ground.” J.H., who was initially still standing, squatted to the ground as Martin moved closer to her. Martin approached her, grabbed her left arm and the back of her neck, and placed her on the ground. Martin repeatedly told her to get in the police cruiser, but she refused. He then allegedly “kicked” J.H.’s left leg into the vehicle. The plaintiffs argue that Martin violated J.H.’s Fourth Amendment rights when he took her to the ground and when he allegedly kicked her leg into the police vehicle.
In both instances, J.H. was not complying with Martin’s commands. Physical force may be necessary to ensure compliance when a suspect refuses to comply with instructions. See Deville. However, officers must assess not only the need for force, but also the relationship between the need and the amount of force used. A use of force is reasonable if an officer uses measured and ascending actions that correspond to a suspect’s escalating verbal and physical resistance. See Poole.
C. Excessive force as to K.H.
Fourteen-year- old K.H. had pushed Martin in his back using most—if not all—of her body weight before Martin arrested her mother, Craig. After Martin had handcuffed and arrested Craig, and just as Martin was attempting to place Craig and J.H. into his police cruiser, K.H. appeared from behind the vehicle and placed herself immediately in front of Martin, preventing Martin from placing Craig and J.H. in the vehicle.
Martin yelled, “Get back, or you’re going to jail, too!” K.H. stood her ground, responding, “I don’t care.” After this response, Martin allegedly struck K.H. in the throat. Martin’s use of force moved K.H. out of his way, but otherwise had limited visible effect on her. On these facts, Martin’s use of force was not objectively unreasonable.
K.H. had assaulted Martin—pushing him in the back—earlier in the altercation, and she was interfering with the lawful arrests of Craig and J.H. at the time Martin made physical contact with her. K.H. refused to move, and Martin used a relatively minimal amount of force to move her out of the way. Such conduct does not violate the Fourth Amendment.
D. Excessive force as to Hymond
Throughout Martin’s encounters with and arrests of Craig and J.H., Hymond shouted at him while photographing what was transpiring from a close range. After placing Craig and J.H. in the back of his police car, Martin turned to Hymond to arrest her for interfering. He grabbed her by the wrist, put her up against the side of the police vehicle, and attempted to wrangle her cell phone out of her hands, which he eventually did.
As he attempted to restrain her, Hymond tried to raise her hands and continued to scream at him. He handcuffed her and then put her up against the vehicle a second time. Although Hymond was in handcuffs, she continued to resist. Hymond shouted for someone to “come here” and then “come around here.” Martin began to try to control her by applying leverage and slightly raising her arms. “If I had had to apply much force to raise her arms it would have forced her to bend forward at the waist, which never happened.”
Taken in totality, Hymond’s actions—twisting her body, walking away, screaming, jumping up and down, turning her head, and calling for others to “come around here”—reflect that Hymond was resisting arrest. The use of force was objectively reasonable as a means of restraining an arrestee.
Nothing in our opinion should be construed as suggesting, much less holding, that officers may use pain maneuvers to force non-resisting individuals to respond to questioning. We hold only that, consistent with our precedent, an officer may use reasonable force on someone “actively” resisting arrest. See Bartlett.
E. Clearly established
Even assuming the plaintiffs could show that Martin committed a constitutional violation, Martin is nonetheless entitled to qualified immunity under the second prong of the qualified immunity analysis.
The plaintiffs have failed to provide controlling precedent showing that Martin’s particular conduct violated a clearly established right. Instead, they have pointed to several cases that discuss the excessive force at a “high level of generality”—precisely what the Supreme Court has repeatedly advised courts they cannot do in analyzing qualified immunity claims.
The first case the plaintiffs identify is Sam v. Richard. In Sam, the plaintiff presented evidence that he was on the ground with his hands behind his head when the officer slapped him across the face, kneed him in the hip, and then pushed him against a patrol car. The court concluded such a use of force on a compliant suspect was “excessive and unreasonable,” noting that “it was clearly established at the time of the incident that pushing, kneeing, and slapping a suspect who is neither fleeing nor resisting is excessive.”
The second case the plaintiffs rely on is Darden v. City of Fort Worth. In Darden, an officer threw a suspect to the ground after the suspect had placed his hands into the air in surrender. Officers tased the man multiple times. They choked him and repeatedly punched and kicked him in the face. Not long after these actions, the man’s body fell limp. He had suffered a heart attack and died. The court concluded that it was clearly established at the time of the incident that “a police officer uses excessive force when the officer strikes, punches, or violently slams a suspect who is not resisting arrest.”
The plaintiffs also cite Joseph ex rel. Estate of Joseph v. Bartlett. In Bartlett, multiple police officers physically struck Joseph twenty-six times. The officers also tased him twice. During the incident, Joseph was lying in the fetal position, was not actively resisting, and was continuously calling out for help. Joseph eventually became unresponsive and died in the hospital two days later.
In all three cases, the plaintiffs had either signaled their surrender by placing their hands in the air and ceasing further movements or were lying on the ground before the alleged unlawful conduct occurred. In contrast, the plaintiffs in this case—except for Craig—were still resisting when the alleged unlawful conduct occurred.
Martin’s use of force in this case is also far less severe than the use of force in any of the cases the plaintiffs have identified.