In 2018, three police officers went to Houston’s Ingrando Park to investigate drug activity. One of the officers was Arthur Garduno, a deputy constable for Harris County Constable Precinct. The officers approached the park separately in marked patrol cars and saw three men at a picnic table. Garduno claims he smelled marijuana and saw one of the men “breaking up marijuana” into a shoebox. Another one of the men was Christopher Henderson. Garduno claims Henderson had a blunt tucked behind his ear and that Henderson threw a plastic bag containing a leafy green substance onto the ground.
When Henderson saw the officers, he ran. Garduno radioed about a person evading arrest, activated his siren, and followed. As Henderson entered an apartment complex, Garduno jumped out of the car and continued the chase on foot. Eventually, Garduno caught up to Henderson in the complex parking lot and ordered Henderson to stop running. Garduno warned, “I’m going to tase you.” What happened next is disputed. Garduno says Henderson stopped, turned to face him, and reached toward his waistband with both hands. Henderson claims he stopped running, “turned his head slightly toward the deputy, and raised his hands in the air as if to surrender.”
Garduno feared Henderson was reaching for a weapon, so Garduno deployed his taser. But because only one of the taser’s prongs reached Henderson—one lodged in his face, and the other went over his head—the circuit didn’t complete, and the taser didn’t shock Henderson. So one second later, Garduno deployed his taser a second time. This time both prongs lodged in Henderson’s back. He fell backward and hit his head.
The other officers arrived at the scene. Garduno claims Henderson continued to struggle while on the ground and resisted being placed in handcuffs. So Garduno “dry” tased him a final time. The officers searched Henderson and found marijuana in his pocket but no weapon. Henderson was charged with possession of marijuana of less than 2 oz. in a drug-free zone, but that charge was later dismissed on the prosecution’s motion.
Christopher Henderson sued Deputy Garduno and Harris County under 42 U.S.C. § 1983 for violations of Henderson’s Fourth Amendment rights. As to the County, the District Court held Henderson (1) failed to allege an “official policy” to state a plausible § 1983 claim against Harris County and (2) failed to allege a pattern of constitutional violations sufficient to show deliberate indifference or establish deliberate indifference through the single-incident exception to failure-to-train liability. As to Garduno, the district court held that Henderson alleged facts sufficient to establish a Fourth Amendment violation but failed at the second step of the qualified-immunity analysis because Garduno’s “conduct was not objectively unreasonable in light of clearly established law at the time the violation occurred.” The 5th affirmed.
A failure-to-train action is a type of Monell claim. See Hutcheson. To establish Monell liability on a failure-to-train theory, a plaintiff must prove that: (1) the city failed to train or supervise the officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff’s rights; and (3) the failure to train or supervise constituted deliberate indifference to the plaintiff’s constitutional rights. Henderson must plausibly allege each element, but he flunks all three.
First, Henderson has not plausibly alleged that the County failed to train the officers involved on the constitutional use of tasers. Henderson contends Harris County was placing officers on the street without any training as to when they may constitutionally use a taser. Her only support for that contention: The County failed to produce any written policies or procedures governing the conduct of deputy constables in performing law enforcement. The district court rightly rejected these allegations as “conclusory,” holding that the complaint contained “no ‘specific facts’ as to whether Trevino or Harris County had a custom or practice of not creating or implementing policies governing Precinct 6 deputies.
Second, Henderson has not plausibly alleged a causal connection between any failure to train officers and the alleged violation here. That is because it was Deputy Garduno who allegedly violated the Constitution by deploying his taser. Indeed, Henderson herself conceded that Garduno received taser training from TCOLE, the Texas Commission on Law Enforcement.
Third, Henderson has not plausibly alleged that any failure to train constituted deliberate indifference. To show deliberate indifference, a plaintiff normally must allege a pattern of similar constitutional violations by untrained employees. If a plaintiff cannot allege a pattern, it is still possible to establish deliberate indifference through the single-incident exception. But that exception is extremely narrow. Indeed, the single-incident exception is generally reserved for those cases in which the government actor was provided no training whatsoever.
Here, Henderson concedes that she does not allege a pattern of similar constitutional violations and instead contends that her claim falls within the single-incident exception. There are at least two problems with that. First, as already noted, this is not a case where the government actor was provided no training whatsoever, because everyone agrees Garduno was trained in proper taser use. Second, Henderson again relies only on the County’s “failure to produce certain policies and procedures” in response to public information requests. She suggests the only possible conclusion to be drawn from the County’s failure to respond to those requests is that the County had no policies and offered its officers no training on proper taser use. As the district court rightly concluded, these vague allegations are insufficient to establish deliberate indifference through the single-incident exception.
B. Officer Garduno
To show clearly established law, Henderson has two paths: (A) he can identify an on-point case, or (B) he can satisfy the obvious-case exception. See Salazar. Henderson does neither.
B1. On point case
Henderson points to a slew of cases. But many of the cases he relies on are irrelevant to the clearly-established-law inquiry—either because they issued too late or because they do not bind us (and hence do not give officers in our circuit fair notice of the law). And the cases he cites that could clearly establish law do not do so with the requisite specificity.
First, several of Henderson’s cases came too late to supply clearly established law. Garduno tased Henderson on April 26, 2018. Any cases after that date cannot show clearly established law at the time of the violation. Second, various other cases Henderson cites are unpublished. But unpublished opinions do not establish any binding law for the circuit, so they cannot be the source of clearly established law for the qualified immunity analysis.
That leaves only two published Fifth Circuit cases involving tasings: Newman and Darden. These cases are cited by every tasing plaintiff who sues under § 1983 in our circuit. But these cases are extreme examples that do nothing to clearly establish the law for less-extreme tasings like Henderson’s.
Start with Newman. In that case, Derrick Newman was a passenger in a vehicle that was pulled over for failing to yield. An officer discovered an outstanding warrant for a different passenger and began to arrest him. Newman got out of the car and consented to a protective pat-down search. In his telling, Newman complied with all commands, but after he made an off- color joke, the officers beat him with a baton and tased him three times. This court denied the officer qualified immunity. (concluding none of the Graham factors justified the tasing because on Newman’s account, he committed no crime, posed no threat to anyone’s safety, and did not resist the officers or fail to comply with a command). Because Newman involved a plaintiff who committed no crime and obeyed all commands, that case cannot clearly establish that using a taser was unlawful in the circumstances Garduno confronted here.
Henderson’s reliance on Darden fares no better. While executing a no- knock warrant at a private residence, officers allegedly threw Darden to the ground, tased him twice, choked him, punched and kicked him in the face, pushed him into a face-down position, pressed his face into the ground, and pulled his hands behind his back to handcuff him, ultimately causing him to suffer a heart attack and die during the arrest. The force used in Darden—causing the death of the arrestee—is obviously much more extreme than the tasing at issue here.
In short, Newman and Darden are nothing like this case. Both involved far more force than was deployed here. And neither involved a suspect fleeing from police. Even on Henderson’s own version of the facts, this case is radically different: Henderson concededly ran from police, then stopped suddenly and turned toward the pursuing officer. Thus, neither Newman nor Darden involves materially similar facts and hence cannot clearly establish the law.
B2. Obvious case exception
Henderson cites U.S. Supreme Court cases Hope v. Pelzer, 536 U.S. 730 (2002), and Taylor for the proposition that there can be notable factual distinctions between the precedents relied on so long as the prior decision gave reasonable warning that the conduct then at issue violated constitutional rights. Hope and Taylor are Eighth Amendment cases that predated City of Tahlequah. So it is unclear how much if any weight we should place on obvious Eighth Amendment cases in the face of Supreme Court direction in Fourth Amendment cases not to define clearly established law at too high a level of generality. And even if Hope and Taylor could apply here, “obvious” cases are exceedingly “rare.”
Even accepting Henderson’s versions of the facts, this case is not obvious. Garduno made the split-second decision to deploy his taser after Henderson had led him on a long chase by car and by foot and was still unrestrained. Henderson admits he suddenly stopped running, turned toward Garduno, and moved his arms in a manner that suggested to Garduno that Henderson was reaching for a weapon. This is a far cry from the handful of instances where we have recognized an “obvious case.” If anything, the obviousness of this case points in the other direction: As illustrated in Escobar and as we explained in Salazar, a suspect cannot refuse to surrender and instead lead police on a dangerous hot pursuit—and then turn around, appear to surrender, and receive the same Fourth Amendment protection from intermediate force he would have received had he promptly surrendered in the first place.