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officer working private security at restaurant and bar granted qualified immunity


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On the evening of February 16, 2020, Marcus Traylor and three of his friends attended Clutch Bar and Restaurant (“Clutch”) in Dallas, Texas. That night, Dallas Police Department (“DPD”) Officer Gideon Yorka and another DPD officer were working private security at Clutch. The officers were off duty but wearing their full DPD uniforms.

At the bar, Traylor’s group ordered “bottle service,” which included one bottle of champagne and two bottles of hard alcohol. Traylor consumed “two or three glasses” of champagne over the course of an hour. At some point, Clutch security asked the group to leave because Traylor’s friend had fallen asleep. When Traylor lingered to pay his tab, a Clutch bouncer grabbed him from behind and brought him to the ground. Yorka was outside during this altercation. However, Clutch security informed him that there had been a fight inside and sought his assistance. Yorka and his colleague then entered the bar to break up the commotion, where Yorka observed Traylor with a bloodied mouth being restrained on the floor by Clutch security.

Yorka picked Traylor up by the arm and escorted him out of the bar. During this encounter, Yorka detected the smell of alcohol on Traylor’s breath. The parties’ versions of the events outside of the bar vary significantly. According to Traylor, he cooperated as Yorka escorted him past a crowd outside of the bar and shoved him into the street. Yorka instructed Traylor to leave, but Traylor told Yorka that his wallet and belongings were still inside Clutch. Yorka, however, remained adamant that Traylor leave immediately. Traylor then walked towards the curb to find assistance from a security guard or another person to help get his wallet. As Traylor approached the curb, Yorka struck him in the face, causing him to fall to the ground.

According to Yorka, Traylor was uncooperative as he escorted him outside of the bar. Traylor repeatedly tried to turn around to go back inside, but Yorka was able to regain control and shove Traylor into the street. Once released, Traylor again tried to go back to the bar, saying “this sh** is not over; this motherf***er started it.” Yorka again pushed Traylor away towards the street. When Traylor continued to make his way back towards the bar, Yorka pushed him a second time. Traylor then used his forearm to shove Yorka in the chest and neck area, creating separation between the two. When Traylor again approached Yorka, Yorka punched him.

A bystander recorded a portion of the relevant events. The video shows a crowded scene both inside and outside of the bar. The camera then pans to the left and shows Traylor in a white hoodie standing in the street. Yorka is standing a few feet away facing Traylor. Traylor leans forward and walks in Yorka’s direction. Yorka then punches Traylor in the face, and Traylor falls to the ground. The interaction lasts only a few seconds before the video cuts to the officers helping Yorka and an ambulance arriving.

The parties agree on the events after Yorka struck Traylor. An ambulance took Traylor to the hospital. Traylor was then arrested and charged with felony assault against a peace officer. The jail supervisor, however, rejected the charge and reduced it to a class C misdemeanor for offensive contact. Officers issued Traylor a citation and released him that night. The misdemeanor was later dismissed.

On February 25, 2021, Traylor filed this suit against Yorka pursuant to 42 U.S.C. § 1983. Traylor alleges that Yorka (1) used excessive force in violation of the Fourth Amendment, (2) unlawfully arrested him in violation of the Fourth Amendment, and (3) fabricated evidence of assault in violation of Traylor’s Fourteenth Amendment substantive due process right. Upon Yorka’s motion for summary judgment, the district court granted qualified immunity (QI) to Yorka on the excessive force and unlawful arrest claims. However, the district court denied qualified immunity on Traylor’s fabrication-of-evidence claim. The 5th affirmed QI on excessive force and unlawful arrest and reversed district court on fabricated evidence, granting officer QI on that as well.


A. Excessive force

Traylor’s claim fails because Yorka’s use of force did not violate Traylor’s Fourth Amendment right.

The district court did not address whether Traylor suffered an injury, but undisputed evidence shows that he suffered a broken wrist from falling after Yorka’s punch. Thus, the only remaining issue is whether Yorka’s use of force was objectively unreasonable.

Construing all factual disputes in Traylor’s favor, Yorka’s use of force was not objectively unreasonable. Even under Traylor’s version of events, Yorka could have reasonably believed Traylor posed a threat. Clutch security had just informed Yorka that Traylor had been in a fight, and Yorka observed Traylor bloodied on the floor with a strong scent of alcohol. See Escobar (considering that an officer had been warned plaintiff was a threat). Most importantly, the video shows Traylor moving quickly towards Yorka. Even accepting Traylor’s version as true, and therefore interpreting his actions as walking towards a third party to ask about retrieving his wallet, the video still supports Yorka’s perception of a threat, which is the key question in such a quick and messy situation.

Indeed, Traylor leans forward then walks in Yorka’s direction. Given Traylor’s insistence on retrieving his wallet and the information Yorka received about the fight, Yorka could have reasonably interpreted Traylor’s steps as a “charge” towards him. Further, the video shows that only a couple of seconds spanned between Traylor’s steps towards Yorka and Yorka’s strike. The tense environment and need for a split second decision indicate that Yorka’s use of force was not unreasonable. In looking back, it is always easy to think of other things that could have been done differently.

Yet, although Yorka’s escalation to a strike to the face may not have been as restrained as we would like to expect from model police conduct qualified immunity protects officers from the sometimes hazy border between excessive and acceptable force in the moment.

Traylor argues that the district court erred by determining Yorka acted reasonably based on Yorka’s version of events. Traylor claims that, under his version, Yorka would have had no reason to doubt that he was merely attempting to retrieve his wallet. But Traylor disregards that reasonability must be judged from the perspective of a reasonable officer on the scene. Although Traylor did submit evidence that his intent was to speak to a third party, he has not produced evidence showing that this intent manifested in any outward action. Even interpreting the video in Traylor’s favor, it clearly shows him, at the very least, quickly approaching Yorka.

Thus, the factual dispute of whether Traylor intended to charge at Yorka or speak to a third party is immaterial. Because of the tense situation and Yorka’s need to make a split-second decision, Yorka’s use of force did not violate Traylor’s Fourth Amendment right. Accordingly, we affirm the district court’s dismissal of Traylor’s excessive force claim.

B. Unlawful Arrest

A seizure is reasonable if it is based on probable cause. See Club Retro. Therefore, to defeat qualified immunity on an unlawful arrest claim, a plaintiff must prove (1) probable cause did not exist, and (2) the defendant official was objectively unreasonable in believing there was probable cause for the arrest. See Bey.

Here, the district court found that Yorka had probable cause to arrest Traylor for interference with a police officer’s performance of public duties in violation of Texas Penal Code § 38.15. Uncontested evidence shows that Traylor failed to comply with Yorka’s numerous orders to leave. This instruction was made in Yorka’s duty to maintain the peace at Clutch, as even an off-duty officer has a duty to preserve the peace within the officer’s jurisdiction. See Bustos. Thus, Yorka had probable cause to arrest Traylor for interfering with the performance of his public duties. See Buehler (Refusing to obey police officers’ repeated and unambiguous warnings to step back so as not to interfere with officers’ official duties establishes probable cause to arrest for a violation of Texas Penal Code § 38.15(a)(1)). Accordingly, we affirm the district court’s dismissal of Traylor’s unlawful arrest claim.

C. Fabrication of Evidence

In Cole, we recognized a substantive due process right not to have police deliberately fabricate evidence and use it to frame and bring false charges against a person. Here, Traylor claims that Yorka fabricated evidence of assault by making a false statement that Traylor pushed him. The district court denied qualified immunity because it concluded this case is similar to Cole and Traylor raised a fact issue as to whether Yorka’s statement was fabricated.

However, Traylor must establish both a violation of his constitutional right and that this right was clearly established. Because Cole did not clearly establish Traylor’s right as relevant here, we conclude that Yorka is entitled to qualified immunity. A right is clearly established only if relevant precedent has placed the constitutional question beyond debate. See SCOTUS Mullenix v. Luna, 577 U.S. 7 (2015). A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.

Traylor relies solely on Cole, in which we established a Fourteenth Amendment substantive due process claim for fabrication of evidence. But we may not define clearly established law with such a high level of generality. In Cole, three officers pursued the plaintiff and subsequently opened fire. After the shooting, the officers had time to confer before giving their statements, and they ultimately claimed that the plaintiff was given a prior warning and pointed his gun towards one of the officers. Indeed, Cole involved allegations of a conspiracy and the calculated fabrication of evidence to justify a shooting. This false evidence led to a felony charge for aggravated assault on a public servant, which in turn caused significant reputational injuries and legal expenses.

The facts of Cole are distinguishable from those presented here. This case involves a quick and chaotic incident in which the parties have different versions of events. Traylor has not shown that Yorka had the time or deliberation to fabricate evidence of assault. Further, Traylor did not face the extreme consequences as those of the plaintiff in Cole. Indeed, Traylor’s charge was reduced to a misdemeanor the same night of the incident. Given this significant divergence of facts, Cole did not clearly establish that every reasonable official in Yorka’s position would have understood that his conduct violated Traylor’s Fourteenth Amendment right. Yorka is thus entitled to qualified immunity on Traylor’s fabrication-of-evidence claim.

D. Conclusion

For the reasons set forth above, we AFFIRM the district court’s order granting qualified immunity to Yorka on the excessive force and unlawful arrest claims. However, we REVERSE the district court’s order as to the fabrication-of-evidence claim and REMAND for entry of summary judgement in favor of Yorka.