Facts
At around 2:00 a.m. on January 15, 2023, Austin Police Department (APD) Officers Perez, Pierron, and Pastore were on patrol on Sixth Street following bar closures. Officer Perez believed he observed Louis Flores grab the reins of a police horse named Lucky, ridden by Corporal Kilgore. Whether Flores actually pulled Lucky’s reins is disputed. Body-worn camera footage shows Flores’s hand near the horse’s head but does not capture him making contact with the horse or pulling its reins.
Officer Perez ran toward Flores from approximately 60 feet away to effect an arrest for interference with a police service animal. Flores was facing away from Perez as he approached. Perez was wearing his standard-issue police uniform, but his badge was partially obscured by a red flower pinned to his chest. Officer Perez grabbed Flores’s wrist and ordered him to put his hands behind his back without identifying himself as a police officer. About four seconds later, Flores pulled his arm away. Officer Perez immediately performed a takedown.
Officers Pierron and Pastore joined to assist. While Flores was on the ground, Officer Perez placed his knee on Flores’s stomach, pressed Flores’s face onto the pavement, and pulled his arm nearly 90 degrees away from his body. Officer Pierron drove his knee into Flores’s upper back and neck and twisted his right arm beyond its normal range of motion. Officer Pastore held Flores’s legs and pressed his knee into Flores’s lower back. Flores testified that he felt that people were “striking,” “grabbing,” and “pulling” him while he was on the ground. Officer Perez and Pastore’s body-worn cameras cut out intermittently during this period.
Flores was charged with interference with a police service animal, resisting arrest, and resisting transport. The Travis County District Attorney’s office dismissed all charges after reviewing the body-worn camera footage. After his release from custody, Flores sought medical care from physicians at Ascension Seton Williamson Hospital, which diagnosed him with a traumatic brain injury, thoracic spinal fractures, cervical spine injuries, a dislocated right shoulder, a torn labrum, a torn bicep, and a broken humerus. He underwent complex spinal fusion surgery.
Flores sued Officers Perez, Pierron, and Pastore for excessive force under 42 U.S.C. § 1983. The Defendant Officers moved for summary judgment. The district court denied the Defendant Officers’ motion as to the excessive force claim, finding that genuine disputes of material fact precluded summary judgment. The 5th affirms.
Analysis
The Defendant Officers maintain that Officer Perez’s takedown was justified by Flores’s pulling away from his grasp. They contend that the disputed facts about the horse are immaterial because Officer “Perez did not perform the takedown because Flores [allegedly] pulled the reins of the horse.” The premise of that materiality argument is that the takedown turned on the arm-pulling alone.
The objective Graham inquiry is not so narrow. It assesses force in light of the facts and circumstances of each particular case,” judged “from the perspective of a reasonable officer on the scene. Those circumstances include the 2:00 A.M. setting, the crowded street, the proximity of police horses, and the events leading to the encounter. Whether Flores actually pulled Lucky’s reins bears on what a reasonable officer would have perceived. The dispute is material, and we conclude that the Graham factors weigh against the Defendant Officers.
The first factor is the severity of the crime. Interference with a police service animal and resisting arrest are both Class A misdemeanors under Texas law. Tex. Penal Code §§ 38.151(c)(3), 38.03(a). And misdemeanor offenses militate against the use of force. This factor therefore weighs against Officer Perez. The second factor concerns immediate threat. Flores was unarmed and bodycam footage reveals he made no threatening movement. The district court found a genuine dispute as to whether he in fact pulled Lucky’s reins or whether the horse turned in response to any contact. The horses had moved past Flores by the time of the takedown. And pulling an arm out of an officer’s grasp, without more, is insufficient to find an immediate threat to the safety of the officers. The second factor weighs in favor of Flores.
The third factor asks whether the suspect was actively resisting arrest or attempting to flee. The district court found that Flores was at most passively resistant and that a jury could conclude no reasonable officer would have perceived him as actively resisting. We agree. Where conduct amounts to mere passive resistance, the use of injurious force is not justified. Flores was given approximately four seconds to comply with commands issued by an officer he may not have recognized as such. We have consistently held that the quickness with which the officers resort to force militates against a finding of reasonableness. The third factor too weighs in favor of Flores.
On these facts, we conclude that a reasonable jury could find Officer Perez’s takedown excessive and unreasonable under the Fourth Amendment.
A. Officer’s actions
A1. Officer Perez
While Flores was on the ground, Officer Perez placed his knee on Flores’s stomach, pushed the side of his face onto the concrete, and pulled his arm nearly 90 degrees away from his body. Flores was surrounded by three officers, unarmed, suspected only of a misdemeanor, and out of the path of pedestrians or horses. He posed no threat. The district court found that any physical resistance perceived was a result of the natural limited range of motion of Flores’s body and that overlapping officer commands made compliance difficult. Force exerted to control what at most amounted to a passively resisting suspect who was never aggressive or violent toward the officers prior to being tackled, is excessive.
A2. Officer Pierron
The Defendant Officers contend that Pierron only assisted in handcuffing Flores by holding his right hand on the ground. However, Officer Perez’s body camera footage shows that Pierron positioned his knee on Flores’s head and maintained a grip on his arm as he was wrestled and rolled onto his stomach by the Defendant Officers. Flores claims that extending his arm beyond its normal range of motion caused a tear in his labrum, a torn bicep, a broken upper arm, and a dislocated shoulder. The video footage, combined with the differing accounts of the Defendant Officers and Flores indicate that the district court was correct in concluding that material factual disputes predominate as to Officer Pierron’s conduct. We agree that these factual disputes are better suited for a jury.
A3. Officer Pastore
Officer Pastore’s role is also contested. The Defendant Officers contend that Officer Pastore did no more than hold and cross Flores’s legs while attempting to handcuff him. Flores maintains he was pummeled on the ground. The body-worn camera footage cuts out intermittently during the relevant period. The district court found that the videos do not blatantly contradict Flores’s account and we do not disturb that finding. The disputes about Officer Pastore’s conduct are material because, on Flores’s version, the conduct could violate the Fourth Amendment under Trammell. For Officer Pastore, as well, summary judgment was unwarranted.
B. Clearly established
Trammell squarely controls the on-ground force. There, officers tackled a non-violent, at-most-passively resisting suspect to the ground and pummeled him with knees and fists to subdue him. This court denied qualified immunity. Trammell gives fair notice that, once a non-threatening and at-most-passively resisting suspect is on the ground, officers may not deliver knee strikes or twist his limbs beyond their natural range to subdue him. The on-ground conduct of Officers Perez and Pierron falls within Trammell’s prohibition. Officer Pastore’s conduct, on Flores’s version, could too.
The takedown presents a closer question, but it is also controlled by clearly established law. Ramirez holds that pulling an arm out of an officer’s grasp, without more, does not establish an immediate threat. Hanks holds that suddenly resorting to physical force after brief noncompliance with verbal commands is clearly excessive and clearly unreasonable. The Defendant Officers urge that Sixth
Street at 2:00 a.m., with crowds and horses, supplies the “more” that Ramirez found lacking, relying on Tucker. The context cannot bear that weight on this record. Tucker involved a suspect who fled, led officers into a high-crime area, and displayed extreme agitation. Nothing comparable appears here. Trammell itself confirms that the quickness with which the officers resort to injurious force militates against a finding of reasonableness even where the suspect pulled his arm away. Officer Perez gave Flores roughly four seconds to comply with commands by an officer Flores may not have recognized as such.
The operative facts here disclose force that tore Flores’s bicep, dislocated his shoulder, broke his humerus, and fractured his spine while he was, at most, passively resisting. The cited cases placed the Defendant Officers on notice that immediate escalation to such force violates the Fourth Amendment.
https://www.ca5.uscourts.gov/opinions/unpub/25/25-50311.0.pdf