Qualified immunity for officer who used knee strike to combat non compliant subject


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In mid-2017, Dwayne Walker was released on parole after serving approximately thirty years in prison for a variety of convictions ranging from drug crimes to burglaries. Just a few months after his release, on November 14, 2017, Walker agreed to sell crack cocaine to an undercover police officer. The two then drove to a nearby location to pick up the drugs, as well as another individual named Heather Asbury that Walker identified as his girlfriend. After Walker agreed to sell the undercover officer the drugs, he told him that he was going to “run” if he (the officer) was “the law” because he (Walker) was not going “back to prison.” The officer then drove Walker and Asbury to a Shell gas station and gave the signal to the other police officers that were waiting there to make the arrest.

Once the arrest signal was given, Officers Shane C. Privette and Dalton T. Webb approached Walker and Asbury. The following events were then captured on both officers’ bodycams and, to some extent, the gas station surveillance cameras. Webb approached first and told Asbury to exit the vehicle. She complied and was detained in handcuffs while the officers turned their focus to Walker. Privette approached Walker first and after a short discussion, told Walker to exit the vehicle. Walker complied by exiting the vehicle, and Privette instructed him to place his hands behind his back. Walker did not comply, however, and instead shut his vehicle door and turned sideways with his left side toward the officer.

Privette then grabbed Walker’s left hand, put the handcuff on, and instructed him again to put both hands behind his back. Again, Walker did not comply. Instead, he pulled his right arm away from Privette and began saying “my shoulder,” explaining that “it won’t go back,” presumably for purposes of being handcuffed, due to a past shotgun injury. Privette initially began to warn Walker that he was about to put him on the ground but then raised Walker’s shirt (at Walker’s request) and examined his shoulder injury. He then told Walker that he would cuff him in the front instead of the back due to his injury. Privette then instructed Walker to place his hands in front of him. Again, Walker did not comply. Instead, he started verbally protesting saying, “hold up,” “okay, alright,” and “look man,” and began visibly pulling away from Privette. Privette then seized both of Walker’s arms and took him to the ground as Walker was yelling “let me go man, let me go! I ain’t did nothing!” As Walker continued yelling, Webb and another officer ran to assist Privette in an effort to put the handcuff on Walker’s other hand.

At this point, one of the officers delivered three or four body shots to subdue Walker by kneeing him on his body but he did not react or acknowledge the strikes, and instead continued to struggle underneath the officers. Privette then backed up a few feet and delivered a knee strike to Walker’s face after which Walker began yelling over and over “He hit me in the eye! Record it! Record it!” In spite of the knee strike to his face, Walker continued to yell, writhe, and struggle as the officers attempted to restrain him.

About 30 seconds later, the officers successfully placed the handcuffs on Walker with both hands behind his back. Once Walker was cuffed, Privette backed up and walked over to Asbury, while three other officers remained with Walker. By this time, Walker was bleeding from his head but still screaming obscenities and demanding that someone “record it!” Officers then began to instruct Walker to “relax” and “breathe” so he could get off the concrete and go sit in the patrol car, stating that they were “tired of fighting” him. Walker responded that he wanted to continue fighting and then told the officers that he was suicidal and wanted to die. The officers responded that they did not want Walker to die after which he unleashed a tirade of obscenities against them. Officers subsequently searched Walker and found a pair of scissors on his person. Paramedics were called as Walker continued to scream profanities.

A few minutes later, the officers ran a background check on Walker and learned that he had a “blue warrant” for a parole violation. One of the officers indicated that he had spoken to Walker after he was cuffed and confirmed with him that he had resisted the arrest due to the outstanding warrant. Walker was later diagnosed with closed fractures to his face and head. He was ultimately charged with felony delivery of a controlled substance to which he entered a guilty plea.

The following month, in December 2017, Walked filed a complaint with the Houston Police Department (“HPD”) alleging that the force the officers used to detain him was unlawful. HPD Internal Affairs investigated the incident and issued a report exonerating Privette on grounds that his actions were lawful, proper, and appropriate in response to Mr. Walker’s active resistance. Not satisfied with that result, Walker filed suit against the officers and the City in federal district court in 2019. He alleged that the officers used excessive force against him during his arrest in violation of his constitutional rights. The district court granted summary judgment in favor of the officers. The 5th affirmed.


On appeal, Walker argues that summary judgment was improperly granted against him because (1) the severity of his crime did not warrant the amount of force used against him; (2) he was not an immediate safety threat to the officers; and (3) he was not resisting at the time of his arrest. His arguments, however, are entirely contradicted by the videotape footage in the record.

A. Severity of the crime

In support of his argument, he claims that he did not attempt to flee or disobey orders. His argument, however, is irrelevant to our analysis of this factor because it does not address the severity of his crime. As the district court concluded, Walker does not dispute that the officers had probable cause to arrest him for the delivery of a controlled substance, which is a serious offense. Accordingly, we agree with the district court that this factor weighs in favor of the officers.

B. Immediate threat to the safety of the officers and others

Walker next argues that a genuine factual dispute exists over whether he was an immediate threat to the safety of the officers and others because during the search, no weapons were found and the facts clearly show that he was compliant while placing his hands on the dashboard, exiting the vehicle, turning around to be handcuffed, and had one handcuff placed on. Again, the videotape footage in the record does not support these statements.

As an initial matter, the record indicates that the officers did recover a pair of scissors after they were finally able to cuff and search Walker so his statement that “no weapons were found” is inaccurate and contradicted by the record. Moreover, because Walker, a large man standing over six feet tall and weighing 200 pounds, backed away and refused to allow officers to place the handcuffs on both of his hands, he was in a significantly advantageous position over them because he could use the single cuff as a weapon and could also reach for any concealed weapons in his pockets. See Cadena (observing that a suspect who backed away from officers after being ordered to place his hands behind his back posed an immediate threat to officers) and Poole (explaining that the suspect posed an immediate threat to the safety of the officers because he refused to turn around and be handcuffed). For these reasons, we agree with the district court’s conclusion that this factor also weighs in favor of the officers.

C. Resisting arrest

Finally, Walker maintains he complied with all commands of Privette and at no point during this period did he resist arrest. Again, his argument is wholly belied by the videotape evidence in the record. Walker quite clearly resisted arrest from the moment Privette ordered him to exit the vehicle. First, he refused to allow Privette to cuff both of his hands by pulling away when the officer placed the handcuff on one hand and then attempted to cuff his other hand. Further, Walker continuously pulled his other hand away, claiming that he could not be cuffed in the back due to his injury, but the later videotape footage shows officers easily cuffing him from behind after he was restrained on the ground, indicating that his objections to being cuffed due to his injury were a ruse to avoid being detained.

Additionally, Walker continued to argue, scream, and curse at officers during the entire incident telling them to let him go and declaring that he “ain’t did nothing.” The videotape footage shows him physically fighting and resisting officers at every turn to the point where the officers actually told him to “quit fighting” and just “relax” and “breathe” so he could finally get off the concrete and sit in a patrol car. Indeed, Walker stated on the video that he wanted to keep fighting and that the officers should kill him because he was suicidal. And in subsequent conversations between Walker and one of the officers, Walker admitted that he fought the officers (i.e., resisted arrest) because he knew he had a blue warrant for a parole violation and did not want to return to prison. He likewise warned the undercover officer before selling him the drugs that he planned to run if that officer was “the law.”

Although it is undisputed that officers had to tackle and deliver three or four body shots to Walker in an attempt to restrain him, the videotape footage shows that Walker did not react to the “take-down” or the body shots and continued to actively struggle as several officers attempted to restrain him. Only after that point did Privette deliver a knee strike to Walker’s face, which finally resulted in subduing him to some extent, although not entirely. As the videotape footage shows, even after the knee strike was delivered, officers continued to wrestle with Walker another 30 seconds or so as he screamed profanities before finally placing the handcuffs on both of his hands. Significantly, during this time, officers continued to plead with Walker to “quit fighting” and “relax” so the altercation could end, and he could sit more comfortably in the patrol car. The officers’ actions as depicted on the videotape footage clearly align with this court’s precedent holding that an officer’s use of force is considered reasonable when it involves measured and ascending responses to the suspect’s escalating verbal and physical resistance. See Poole. For these reasons, we agree with the
district court’s conclusion that this factor weighs in favor of the officers.

In sum, our review of the videotape footage reveals that all three objective reasonableness factors support the officers’ use of force in this case. Because the videotape footage clearly reveals that Walker undoubtedly posed an immediate threat to officers and others, aggressively resisting arrest both verbally and physically, and the situation was tense, uncertain, and rapidly evolving, we hold that the officers’ use of force in this case was objectively reasonable and not clearly excessive.

In light of this analysis, we hold that the district court did not err in rendering summary judgment in favor of the officers.