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Qualified immunity found for officers making arrest while outnumbered in hostile setting

Facts

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In 2017, Officer Gary Tuli, Officer Jessica Osoria, and approximately six other officers of the San Antonio Police Department (SAPD) responded to an assault in progress between partygoers outside of a quinceañera. Upon arrival, they met a large, angry crowd of about fifty to sixty people. People were yelling at one another, and fights, brawls, and arguments broke out between different groups in multiple areas.

A’Mynae Roberts (then 14 years old) and her mother, April Johnson, were part of the crowd and allegedly engaged in the fighting. Despite there being only eight or nine officers present, the officers attempted to control the unruly crowd and separate fighting individuals. At some point amidst the chaos, Officer Tuli told Johnson to “shut up” in an aggressive way. What happened next is disputed.

According to Roberts, she yelled to Officer Tuli, “don’t talk to her like that!” and “made a gesture toward Officer Tuli” with her finger. Then Officer Tuli punched her in the face. The punch caused her to spin around and lose her balance. As a result, her strapless dress fell, exposing her breasts. She was handcuffed, placed in the back of an SAPD car, and taken to jail. She was charged with assaulting a police officer. Roberts states that she never hit Officer Tuli, made any movements with her arms in his proximity, or – as he says she did – called him a “white mother f***er.”

According to Officer Tuli, Roberts yelled at him and attempted to instigate a fight. He described Roberts as “being loud,” “not following orders,” and “an obvious threat based on her demeanor.” After Officer Tuli allegedly commanded Roberts to back away, Roberts moved closer to him, which provoked Officer Tuli to lightly push her back. Then, Roberts allegedly balled up her fists, took a bladed stance, struck the left side of Officer Tuli’s face with her right fist, and called him a “white mother f***er.” After being hit, Officer Tuli says that he punched Roberts in the face with a closed fist and pulled her arms behind her back. Despite Roberts’ continued fighting, pulling away, and struggling, Officer Tuli says that he and Officer Osoria effected the arrest and placed her in the police car.

According to Officer Osoria, Roberts was “definitely hostile.” Roberts was allegedly not listening to lawful orders, was interfering with police duties, and was being loud. She then took a “fighter stance,” says Officer Osoria, charged towards officer Tuli, and struck him on the left side of his face with a right closed fist. Officer Tuli then allegedly struck Roberts with a closed fist and attempted to arrest her. Officer Osoria’s police report states that Roberts was uncooperative, disobeyed lawful orders, and refused to place her hands behind her back. Officer Osoria assisted Officer Tuli in the arrest by grabbing Roberts’ arm, pulling it behind her back, and securing her up against a nearby vehicle. Because Roberts allegedly caused a struggle while the officers detained her, her top fell down and exposed her breasts. Officer Osoria says she attempted to cover Roberts by fixing Roberts’ top, but was not able to do so because of Roberts’ continuous struggling and failure to cooperate. Officer Osoria then allegedly walked Roberts over to a police vehicle and, once Roberts stopped struggling, deemed it was safe for her to adjust her top, which Officer Osoria did for Roberts in the back of the car.

This suit followed. Against Officer Osoria, Roberts brought claims for unlawful arrest and false imprisonment under § 1983. Against Officer Tuli, Roberts brought claims for unlawful arrest, false imprisonment, and excessive force all under § 1983.  The district court found genuine issues of material fact and denied summary judgement to Osoria and Tuli. The 5th reversed.

Analysis

A. Unlawful Arrest and False Imprisonment

A1. No constitutional violation as to Osoria or Tuli

To succeed on her unlawful arrest and false imprisonment claims, Roberts must show that there was not even arguably probable cause for her arrest. See Brown. This probable cause may be for any crime and is not limited to the crime that the officers subjectively considered at the time they perform an arrest. See Davidson.

The video footage tells a different story from Roberts – enough to blatantly contradict a significant portion of Roberts’ version of events so that we can assign greater weight to the facts evident from the video recordings. Contrary to Roberts’ version of events, the video does not show Roberts merely standing still, but rather shows her aggressively stepping in the direction of the area from which Officer Tuli comes into the video frame. It also shows Roberts fully extending her arm at an angle between 45 and 90 degrees. And it corroborates her yelling, “Don’t talk to her like that.” It then shows Officer Tuli approaching Roberts, the two struggling, and both Officer Tuli’s arms and Roberts’ arms flailing about.

Moreover, and importantly, footage from Officer Cavazos’s body camera shows that, at the moment Roberts extended her arm and yelled, she was in close proximity to Officer Tuli – so close that he was able to make contact with her within a split second.

Officer Osoria stated she had probable cause to arrest Roberts because she observed Roberts: (1) assaulting Officer Tuli; (2) not following orders; (3) interfering with officer duties; (4) resisting arrest; and (5) scuffling with officers. A reasonable officer in Officer Osoria’s position could have believed with fair probability that Roberts had assaulted Officer Tuli, was not following orders, and interfered with police duties.

Viewed from the standpoint of a reasonable police officer, the facts of this case support probable cause such that no constitutional violation occurred.

A2. Not Clearly Established as to Osoria or Tuli

Even had Officer Osoria or Tuli violated a statutory or constitutional right, the right was not clearly established at the time of the challenged conduct. Even if the officers were mistaken with regard to there being probable cause, law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity. See Mendenhall.

To show that the right was clearly established, Roberts must identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment by arresting someone without probable cause. But Roberts does not even attempt to identify a case in which a court found that an officer violated the Fourth Amendment in similar circumstances. Roberts has not carried her burden. Accordingly, Officer Osoria and Tuli are entitled to qualified immunity even if probable cause were wanting.

B. Excessive Force

B1. No constitutional violation as to Tuli

Whether a use of force is excessive and therefore a constitutional violation depends on whether there was (1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable. See Poole.

We first consider Roberts’ injury. According to Roberts, it is undisputed that she suffered an injury. She contends that she was taken to the hospital and diagnosed with a concussion and brain injuries. At this juncture, Officer Tuli does not challenge that Roberts suffered a sufficient injury.

Next, we consider the amount of force used and the reasonableness of resorting to such force. We apply the Graham {see SCOTUS Graham v. Connor, 490 U.S. 386 (1989)} factors to determine whether the force used is excessive or unreasonable. These factors include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Severity of Crime

This first factor weighs in favor of Officer Tuli. Roberts was charged with assaulting a police officer. Officer Tuli argues that assault of an officer is a severe crime, especially when considering the circumstances of the riot they encountered. We agree.

Immediate Threat

This second factor also weighs in favor of Officer Tuli. Roberts states that she did not pose an immediate threat to the safety of Officer Tuli or others and references the fact that she was only a child at the time, very small compared to Officer Tuli, and unarmed.

But Officer Tuli contends that Roberts was a violent, combative suspect who threw a punch at Officer Osoria and punched Officer Tuli during the melee in question. The video footage shows Roberts quickly walking through the group of people fighting, whereupon she: (1) jerks and flails her arm multiple times in close proximity to Officer Osoria; (2) shouts “Don’t touch me bitch! Don’t f***ing touch me!” at Officer Osoria as a nonuniformed person attempts to restrain her; (3) refuses to obey Officer Osoria’s commands to back up; and (4) shouts at and flails her arm in close proximity to Officer Tuli.

It is not unreasonable to think that Roberts posed an immediate threat, despite being a fourteen year old (a fact not known to Officer Tuli or any other SAPD officer at the time), especially considering the extensive fisticuffs breaking out amongst the large, angry crowd that surrounded and outnumbered the officers, and Roberts’ mad, confrontational behavior.

Resisting Arrest

This third factor also weighs in favor of Officer Tuli. Although Roberts summarily concludes that she did not resist arrest, the footage makes clear that, after Officer Tuli made physical contact with Roberts, a struggle ensued and arms flailed. A plaintiff’s struggling against an officer upon contact can reasonably be viewed as a form of resistance. Jerking motions, too, can be reasonably seen as an attempt to break free of an officer’s grasp.

Speed to Resort to Force

Although not listed as a Graham factor, this court also considers the speed with which the officer resorts to force. See Trammell.

The videos do not clearly show whether measured and ascending actions occurred. And Roberts neither claims nor refutes that such actions occurred. Thus, without any evidence that measured and ascending actions did or did not occur, this factor neither weighs in favor nor against Officer Tuli.

Taking these considerations together, Officer Tuli’s actions were not so objectively unreasonable as to violate Roberts’ constitutional rights.

B2. Not clearly established as to Tuli

As with the unlawful-arrest and false-imprisonment claims, Roberts has failed to provide controlling precedent – or any precedent at all – showing that Officer Tuli’s particular conduct violated a clearly established right.

Moreover, this court’s qualified immunity jurisprudence is filled with cases recognizing the need for officers to use reasonable force to subdue and handcuff suspects who strike them or are otherwise resisting. See Curran.

And the videos show Roberts’ arms flailing about in close proximity to Officer Tuli’s person, which an officer could reasonably interpret as an assault or attempt to strike. So, Roberts has not overcome Officer Tuli’s qualified-immunity defense. The district court must be reversed.

 

https://www.ca5.uscourts.gov/opinions/unpub/22/22-50196.0.pdf