Facts
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In August 2020, San Antonio Police Officer Richard Serna responded to a domestic violence call at an apartment complex. As Serna approached, he saw Mathias Ometu, leaving that complex on foot. Ometu is a heavily-bearded black man, and he was wearing a green t-shirt, a hat, and a white pair of basketball shorts
with a black stripe down each side. Serna did not stop Ometu at the time. Instead, he went to the apartment to speak with the domestic violence victim, Kiara Davenport. Davenport described her assailant as a black male who “kind of” had a beard and was wearing green. Davenport also told Serna that her attacker had gone around the back of the apartment complex. Serna called for assistance and gave a description of the suspect as a “black male, probably about six foot, like a neon green t-shirt, full, black beard.” Serna stated that he passed the suspect as he was entering the complex, but did not know what he looked like at that time.
Officer Devin Day responded and saw Ometu jogging in the area. Day informed Serna of Ometu’s location, and both officers approached him. Serna arrived first and asked for Ometu’s name, explaining that Ometu resembled the suspect he was looking for. Ometu refused to provide that information. After several attempts to obtain his name, Ometu was handcuffed. Serna then called Davenport to obtain additional information about her attacker. She gave Serna the name and date of birth of her attacker, Darren Smith, and Serna pulled up a mugshot from 2017. Davenport also told Serna that her attacker was not wearing a hat. While Serna was speaking with Davenport, Day told Ometu: “Listen, man, the only reason we’re stopping you is because you match the description of the guy she said assaulted her.” Ometu responded: “Yeah, black. Yeah, great job.” Day
insisted to Ometu that he stopped him because of his clothing description, not his race.
Serna asked for identification and grabbed Ometu’s shorts pocket. Ometu told Serna to stop touching him and said, “I don’t consent to a search.” Serna explained to Ometu that he was responding to a domestic violence call and that Ometu seemed to fit the victim’s description of the perpetrator. The officers attempted to arrange for Davenport to come to them and tell them if Ometu was her attacker, but she could not leave her small children alone. Davenport described her attacker to a third officer as 5’10, black, medium build, with short hair and “just a little bit of scruff on his chin,” and wearing a green shirt with black basketball shorts. Serna informed
the third officer that Ometu matched most of the description, except his basketball shorts, which were white with a black stripe, and the size of his beard. Officer Serna decided he would transport Ometu to Davenport for
identification.
Ometu refused to enter the police vehicle on his own. The officers forced him into the vehicle by pushing and pulling him. Ometu yelled that the officers were choking him, and the officers denied they were doing so. Immediately after the struggle, Day can be heard telling the other officers that he was “kicked in the face” and “right in his eye.” Day later told officers Ometu also kicked him in the leg. Day and Serna explained that Day had grabbed Ometu under his chin when he pulled him into the car. After Ometu was in the vehicle, Davenport arrived and told officers that Ometu was not her attacker. An hour after he was moved into the police vehicle, Ometu was informed he would be arrested for “failure to ID” and “assault on a PO.” Those charges were brought, but it is not clear what happened to them.
Before Ometu was identified, Serna explained to other officers that he believed Ometu refused to identify himself because he was the attacker and had an outstanding robbery warrant. Serna told the other officers the
description “pretty much matches, except for the beard.” Another officer viewed the attacker’s out-of-date mugshot and said “that looks a lot like him kind of . . . it looks a lot like him. You just throw some facial hair on there, add a few years.”
Ometu filed suit against the police officers under 42 U.S.C. § 1983. The officers were granted qualified immunity. The 5th affirmed.
Analysis
A. Reasonable Suspicion
We first consider whether the officers had reasonable suspicion to stop and detain Ometu. A police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported
by articulable facts that criminal activity may be afoot. See Turner. A law enforcement officer acts with
reasonable suspicion if, based on the totality of the circumstances, he has a particularized and objective basis for suspecting the particular person stopped of criminal activity. See Rose. In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
Ometu argues there was no objective basis for believing he had committed a crime, and he was stopped simply because of the racism of the officers. The video tells a different story. Davenport gave Officer Serna a brief description of her attacker as a black man wearing green and with at least some semblance of a beard. Ometu is a black man with a beard who was wearing a bright green shirt, and he was leaving Davenport’s apartment
complex in the direction she indicated her attacker went. Those are clear, articulable facts that support reasonable suspicion for the purpose of a valid stop. The fact that Ometu had a large beard was not clearly contradictory to Davenport’s description at the time Ometu was stopped. We conclude the officers had reasonable suspicion to justify the stop at its inception.
We must now consider whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop. Recall, the officers were required to diligently pursue a means of investigation that was likely to confirm or dispel their suspicions quickly. As the detention continued,
Officer Serna obtained additional information from Davenport and accessed a three-year-old mugshot of the attacker. He also received a more detailed description of Davenport’s attacker from another officer. As Officer Serna acknowledged, the color of Ometu’s shorts and his substantial beard did not fit with Davenport’s more detailed description. Ometu’s hat also did not fit the description. Perhaps this new information was sufficient to dispel the officers’ suspicion, such that the officers should have concluded the stop. Further, the officers may have acted unreasonably in failing to recognize or to pursue the alternative option of sending Davenport a photo of Ometu for identification to quickly dispel their suspicions.
Even if the officers violated Ometu’s constitutional rights, that would be sufficient to satisfy only one element of the analysis of qualified immunity. We would still be required to evaluate whether the allegedly violated
constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendants was objectively unreasonable in the light of that then clearly established law.
Though the beard and color of Ometu’s shorts did not match Davenport’s later description, other facts weighed in favor of continued reasonable suspicion that Ometu could be Davenport’s attacker. Based on these other facts, including the green shirt, Ometu leaving the apartment complex as Officer Serna entered to respond to Davenport’s call, and Ometu’s unwillingness to provide his name, the officers could have reasonably, even if mistakenly, believed they still had the requisite reasonable suspicion to continue the detention.
Throughout his detention, the officers took investigatory steps to identify Ometu, including the attempt to transport him to Davenport for identification. Though an alternative means of identification was available, the officers could have reasonably believed the detention was not too long because they continued to pursue investigatory steps. Moreover, the officers could have reasonably believed that transporting Ometu for identification was a reasonable investigatory step because it was unclear whether placing Ometu in the police car and transporting him back to the apartment complex would render the detention an arrest.
Ultimately, we find no precedent that clearly establishes the violative nature of the officers’ particular actions, and Ometu has not cited any. The officers are therefore entitled to qualified immunity for their stop of Ometu.
B. Probable Cause
We next consider Ometu’s claim that he was arrested without probable cause. Probable cause exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.
Under Texas law, it is an assault to intentionally, knowingly, or recklessly cause bodily injury to another.” Tex. Penal Code § 22.01(a)(1). It is a felony to assault a police officer lawfully discharging an official duty. § 22.01(b)(1). The video footage shows Ometu kicking Day as he resists being placed in the vehicle for transport. The video footage supports a reasonable officer’s conclusion that Ometu committed an offense when he kicked the officers. Thus, the officers had probable cause to arrest Ometu for assaulting the officers because they had just witnessed it.
No constitutional violation occurred, because the officers had probable cause to make the arrest. The officers are entitled to qualified immunity on Ometu’s unlawful-arrest claim.
C. Excessive Force
Finally, we consider Ometu’s claim that the officers used excessive force against him in violation of his Fourth Amendment rights.
The use of force is captured, in its entirety, on the video footage with various angles. Ometu repeatedly refused to identify himself despite the officers’ numerous requests and their explanation that they were looking for
a domestic violence suspect, so the officers decided to transport Ometu to Davenport for identification. At the time, the officers believed Ometu was likely Davenport’s attacker, who she claimed choked her. The officers
attempted to force Ometu into the car for approximately 2.5 minutes. At times, one officer pushed him while the other pulled him. At no point during the altercation did the officers kick, punch, or use a weapon against Ometu.
When additional officers arrived, they ceased pushing him into the car and several officers spoke with Ometu while he sat in the car. Considering the severity of the crime the officers believed Ometu committed and his active physical resistance, the officers did not use excessive force and are entitled to qualified immunity on that claim.
https://www.ca5.uscourts.gov/opinions/unpub/24/24-50152.0.pdf