Facts
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At approximately 4:00 a.m. on December 21, 2019, Corey Spiller drove to assist his girlfriend, Dashanelle Moore, after her minor single car accident on a Houston elevated expressway. Much of the episode forming the basis of this lawsuit was captured on police body-worn cameras. At the scene, Spiller and Moore peaceably conversed with officers until a supervisor, Sergeant Jared Lindsay, arrived. Lindsay briefly questioned Moore and rebuked Spiller for attempting to answer for her. He then directed Moore to go with an officer to a nearby truck stop for further police procedures and he told Spiller to follow in his car. Spiller attempted to ask Lindsay and other officers about what would happen to Moore. Lindsay became enraged, seized Spiller at his neck, and slammed him on his back on the hood of a parked car.
The two tumbled to the pavement and continued to scuffle as the other officers intervened and grasped Spiller. One officer tased Spiller in his back. Spiller was arrested and taken into custody, but charges against him were later dropped. Spiller filed suit under 42 U.S.C. § 1983 for excessive force, false arrest, first amendment retaliation (arrested for words spoken), and a Monell claim against the county. The district court granted summary judgment on all matters. The 5th affirmed on everything except excessive force.
Analysis
A. Excessive Force
Lindsay was not entitled to qualified immunity from Spiller’s excessive force claim on summary judgment. We conclude that Lindsay failed to show the absence of a genuine dispute of material fact as to both elements of qualified immunity: whether Lindsay violated Spiller’s Fourth Amendment right to be free from excessive force; and whether the right at issue was clearly established at the time of the alleged misconduct.
1. Constitutional violation
Lindsay’s affidavit contends that he was justified in seizing and body slamming Spiller because Spiller (1) interfered with his investigation and (2) elbowed him in his stomach.
To the first point, Lindsay suggests that Lindsay’s force was justified because Spiller was actively obstructing an investigation with which the severity of the crime—interfering with public duties—was great. But the Fifth Circuit has held that this offense is minor, a factor that weighs in favor of finding excessive force. See Westfall.
To the second point in Lindsay’s affidavit, Spiller’s declaration states that Lindsay attacked him with excessive, unreasonable force, which was totally unjustified and unprovoked by any act by Spiller. Spiller’s declaration specifically asserts that he did not elbow Lindsay and that he was not actively resisting. Lindsay exaggerates the video evidence by arguing it clearly shows that the first blow was struck by Spiller when he elbowed Sergeant Lindsay in the chest. The key moment in the footage is when Lindsay steps into Spiller’s face and Spiller moves his elbow. The video evidence does not show Spiller striking Lindsay. Instead, the bodycams show Spiller maneuvering to get a view of the officers he was addressing and creating space between himself and Lindsay. At that same time, Lindsay barreled toward Spiller, which caused Spiller’s elbow to rub up against Lindsay. Because the video evidence in the record does not completely refute Spiller’s declaration, we find there is a genuine dispute of material fact as to whether Spiller elbowed Lindsay.
2. Clearly established
Second, we conclude that the right to be free from excessive force was clearly established at the time of the violation in this case. See Newman and Ramirez for the long established rule in our circuit that officers engage in excessive force when they physically strike a suspect who is not resisting arrest.
Newman involved excessive force against an individual who had only made off-hand remarks and stepped back into officers during a pat down. Ramirez involved excessive force against an individual whose only resistance was merely failing to comply with orders to put his hands behind his back and pulling his arm away when an officer grabbed his hand. These cases are factually similar to this case, in which Lindsay used force after the only things Spiller did was not immediately comply with instructions to leave the scene and maneuvered his elbow near Lindsay to maintain a line of sight to the officers he was speaking with and to create space between himself and Lindsay. These cases establish that officers engage in excessive force when they physically strike a suspect who is not resisting arrest. Moreover, Newman, in which the force occurred against an individual not suspected of wrongdoing, and Westfall, in which an individual was tackled even though she was not under arrest, establish that less force is permissible against individuals not yet under arrest, like Spiller in this case.
Having found genuine fact disputes material to the existence of a constitutional violation and concluding that the right at issue was clearly established at the time Lindsay’s misconduct occurred, we reverse the district court’s grant of summary judgment to Lindsay on Spiller’s excessive force claim.
B. False Arrest
Next, the district court found that Lindsay was entitled to qualified immunity from Spiller’s Fourth Amendment false arrest claim on summary judgment because a reasonably competent officer could have believed that probable cause existed for Spiller’s arrest. A false-arrest claim requires a showing of no probable cause. Lindsay had probable cause to arrest Spiller for interference with public duties. Section 38.15 of the Texas Penal Code provides: A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with . . . a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law. Texas courts have affirmed convictions of defendants who failed to comply with an officer’s instruction to move away from a crime scene. Likewise, the Fifth Circuit has found probable cause when an individual fails to follow instructions necessary for an officer to perform their duties. See Childers.
In this case, during the investigation, Spiller at one point answered a question for Moore, prompting Lindsay to tell him to let Moore answer. Spiller does not dispute this. Lindsay then asked Spiller to leave the scene multiple times while Moore went with the other officers to complete the investigation. A reasonable officer could think Spiller was interfering with the investigation by refusing to leave while the investigation was being completed. Because there was probable cause for Spiller’s arrest for interference with public duties, Spiller has failed to show a constitutional violation, and Lindsay was entitled to qualified immunity on Spiller’s false arrest claim.
C. First Amendment retaliation (arrested for words spoken)
The district court also found that Lindsay was entitled to qualified immunity for Spiller’s First Amendment retaliation claim on summary judgment because Lindsay had probable cause to arrest Spiller. Generally, if probable cause exists, any argument that the arrestee’s speech as opposed to her criminal conduct was the motivation for her arrest must fail, no matter how clearly that speech may be protected by the First Amendment. In this case, as already explained, Lindsay had probable cause to arrest Spiller for interference with public duties.
D. Claim against Harris County (Monell claim)
Finally, the district court properly dismissed Spiller’s Monell claim against Harris County. Spiller failed to allege any specific facts from which it may be inferred that he was injured by any policy, custom, or practice of the County that was a moving force of his altercation with Lindsay
E. Conclusion
For the foregoing reasons, we REVERSE the district court’s award of summary judgment to Lindsay based on qualified immunity from Spiller’s claim for excessive force, AFFIRM the district court in all other respects, and REMAND this case for further proceedings not inconsistent with this opinion.
https://www.ca5.uscourts.gov/opinions/pub/22/22-20028-CV0.pdf