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Prior to the events giving rise to this case, Jacob Gorsky and Olesya Gorsky lived next door to the Koczman family for six years. Over these six years, the two families placed at least 19 complaint calls about one another to the local police. The events surrounding this appeal arose in the late evening of February 20, 2016, when the Koczmans called the police to complain that the Gorskys were throwing a loud pool party. Two deputies—Berry and Guajardo—responded around midnight and, after issuing a warning to the Gorskys to quiet down, left the home.
Shortly thereafter, the Koczman family reported to the police that that Mrs. Gorsky had egged their car. Deputies Berry and Guajardo, this time accompanied by Deputy Small and Corporal Rivaux, arrived at the Koczman’s home and, after viewing security camera footage of the egging, returned to the Gorsky residence. The officers rang the doorbell and Mr. Gorsky opened the door. The police informed him of the egging complaint and that they needed to speak to his wife. Mr. Gorsky told the officers that he would get his wife but attempted to close the door on the police officers who, at that time, were standing outside.
Rivaux and Berry refused to allow Mr. Gorsky to close the door by placing their feet in the threshold. After refusing to allow Mr. Gorsky to close the door multiple times, Rivaux told Mr. Gorsky that he was hindering an investigation and that they had every legal right to enter the house, put Mr. Gorsky in handcuffs, and take him to jail. Mr. Gorsky again agreed to go get his wife but asked the officers to leave his home, to which the officers replied, that is not an option. Guajardo handcuffed Mr. Gorsky and placed him in the police car where he remained for approximately one hour. Mr. Gorsky testified that, when placing him in handcuffs, Guajardo grabbed him, pushed him around, and twisted his arm enough to cause him a lot of pain.
Around this time, Mrs. Gorsky claims she heard a commotion in the front foyer and came to the front of the home where she found the officers standing inside her home. Mrs. Gorsky asserts that the officers then immediately put her in handcuffs and began aggressively accusing her of the egging. She stated that, while she was still in handcuffs, the officers pushed her into a chair, which caused bruising on her legs. Because Mrs. Gorsky had been sleeping, she was in some state of undress; and she testified that Rivaux pushed her as she attempted to cover herself and stuck his fingers in her breasts.
At some point during these events, Small went further into the house allegedly to check on Mrs. Gorsky’s son. The parties dispute whether Mrs. Gorsky consented to the officers’ entry into her home and whether she requested they check on her son. The officers then issued a criminal citation to Mrs. Gorsky, released Mr. Gorsky, and left the scene.
In their lawsuit, the Gorskys allege violations of their Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 based on the officers’ alleged unlawful arrest of Mr. Gorsky, illegal entry and search of the Gorsky home, and use of excessive force against the Gorskys. The officers moved for summary judgment rejecting these claims based, in part, on their assertions of qualified immunity. The district court denied the motions in their entirety, finding that factual disputes precluded it from granting the motions. The 5th affirmed.
A. Unlawful Entry
The district court granted the officers’ motion for summary judgment on the Gorskys’ illegal entry claim based on the officers’ placing their feet in the Gorskys’ doorframe. The officers thus solely appeal the denial of summary judgment on the illegal entry claim based on the officers’ entry in the Gorskys’ home after handcuffing and removing Mr. Gorsky from the front-door area.
The district court rejected the officers’ assertion of qualified immunity on the Gorskys’ illegal entry claim based on factual disputes material to Mrs. Gorsky’s consent to the officers’ entry into the Gorsky residence. Specifically, the district court found disputes of fact material to determining whether the officers were already inside the home when Mrs. Gorsky entered the foyer, and whether Mrs. Gorsky voluntarily consented to the officers’ entry into her home.
Viewing the facts in a light most favorable to Mrs. Gorsky, this court is deprived of jurisdiction to review the district court’s denial of summary judgment on the unlawful entry claim.
(The officers also argued for the first time in their reply brief that exigent circumstances warranted their entry into the Gorsky home. We will not consider this argument since it was raised for the first time in their reply brief.)
B. Unlawful Search
The district court denied Small’s motion for summary judgment on the Gorskys’ unlawful search claim. In rejecting Small’s plea for qualified immunity, the district court again relied on factual disputes as to whether Mrs. Gorsky consented to the officers’ entry into her home and asked the officers to go check on her son further inside the house. On appeal, the officers contend that Mrs. Gorsky directed or requested that Small go further into the home to check on Mrs. Gorsky’s son. As Mrs. Gorsky denies having made that request, this argument similarly relies on a disputed fact material to assessing the reasonableness of Small’s conduct.
Because we are unable to review the illegal search claim due to a lack of jurisdiction, we DISMISS the officers’ appeal of the district court’s denial of summary judgment on this claim
C. Excessive Force
C1 – Excessive force as to Mr. Gorsky
The officers attack the sufficiency of Mr. Gorsky’s injury and argue that given the circumstances, their use of force against Mr. Gorsky was reasonable and they would have even been entitled to tackle Mr. Gorsky because he had been holding a pool rod during their first interaction of the evening.
Even if Mr. Gorsky’s injury is relatively insignificant, it is nonetheless cognizable if it resulted from an officer’s unreasonably excessive force. See Brown.
Mr. Gorsky never threatened the officers or resisted arrest, and the officers’ use of force caused him pain. We cannot conclude that the officers’ use of force was objectively reasonable given the minimal severity of the underlying crime, the lack of threat Mr. Gorsky posed to the officers, and his absence of resistance to them.
C2 – Excessive force as to Mrs. Gorsky
Mrs. Gorsky’s excessive force claim appears to be brought against Rivaux only based on his handcuffing her and pushing her into a chair, which caused her bruising.
Rivaux similarly challenges the severity of her injuries, once again arguing that Mrs. Gorsky was not subject to unreasonable force because the alleged force cannot be heard in a video recording of the interaction. Rivaux also appears to argue that he was threatened enough by the situation—an investigation into an alleged “egging” of a car—that use of force against Mrs. Gorsky was warranted. But these arguments rely on fact-based disputes regarding the extent of Mrs. Gorsky’s injuries and the level of threat to the officers, which the district court correctly found to be material to the question of reasonableness so as to preclude a finding that Rivaux was entitled to qualified immunity as a matter of law.
D. Unlawful Arrest
A warrantless arrest violates that Fourth Amendment right if the arresting officer lacks probable cause to believe that the suspect has committed a crime. See Bodzin v. City of Dallas, 768 F.2d 722 (5th Cir. 1985).
The district court determined that—when viewing the facts in the light most favorable to the Gorskys— Mr. Gorsky was arrested, and the officers lacked probable cause to effectuate that arrest.
Assuming all facts in his favor, he was arrested without probable cause for interfering with public duties because such an offense require more than merely speech and argument with officers conducting an investigation.
The officers argue that Mr. Gorsky did not have the right to leave their sight to go get his wife inside his own home, or to decline to get his wife from inside his home because the officers were in the midst of an investigation into the egging of the Koczman’s car.
Yet the cases the officers cite in support of their contention that they reasonably believed probable cause existed to arrest Mr. Gorsky all involved factual scenarios where the interference consisted of physical obstruction or commands to act in a way that interfered with instructions made with legal authority.
Here, in contrast, Mr. Gorsky’s failure to comply was limited to failing to immediately retrieve his wife from inside his home at the officers’ request because the officers did not have the authority to enter the Gorskys’ home to retrieve Mrs. Gorsky themselves. Because the officers did not have the legal authority to enter Mr. Gorsky’s home or to compel Mr. Gorsky to produce his wife—and in fact interfered with his ability to close his own front door—Mr. Gorsky’s noncompliance did not interfere with the exercise of any authority granted to the deputies by law.
The district court determined that Mr. Gorsky did not interfere with the exercise of lawful authority when he tried to close his front door, did not allow the officers into his home, and failed to immediately produce his wife.