(If you are new to 1983 actions, click here for help)
This appeal stems from a series of encounters between Akeem Bagley and members of the Harris County Constable’s Office on May 30, 2019.
The first encounter took place during a police effort to cite drivers for parking too close to a county railroad. Bagley received one of those citations. Officer Rudy Guillen, the sole defendant in this appeal, did not give Bagley his ticket, but participated in the ticketing effort.
The second encounter took place at a nearby gas station. Shortly after receiving his parking ticket, Bagley drove to the gas station. Several officers, including Guillen, were there when Bagley arrived. The parties dispute whether Bagley followed the officers or happened to go to the same gas station. Either way, after Bagley arrived at the station, he and Guillen entered a heated exchange about his ticket. Bagley began filming the exchange on his cell phone. He can be heard shouting at Guillen and questioning the legitimacy of his ticket. The officers eventually left the station. Bagley continued to film as he got into his car. “This is what we doing,” he said to himself, before he pulled out of the gas station and drove in the same direction as the officers.
Bagley continued to record while driving, occasionally muttering to himself about the officers’ driving behavior. After approximately three minutes, the police cars turned left. Bagley also turned left. Still recording, he commented on the officers’ failure to use a turn signal. At the same time, his car emitted a noise that sounds like a turn signal. Following the turn, one of the police cars activated its sirens. Bagley stated to himself, “I gotta go this way, so you can pull me over all you want to.” He then pulled to the side of the road and rolled down his window.
What transpired at this traffic stop is the core dispute in this case. Led by Guillen, the officers approached Bagley, who remained in his car with the window rolled down. All events are captured on video by Bagley, who continued recording, and they are corroborated by the video taken by Guillen’s body-worn camera. The following exchange between Guillen and Bagley took place:
Guillen: “Put your hands on the steering wheel.”
Bagley moves his left hand onto the steering wheel.
Guillen: “Let me see your driver’s license. Let me see your driver’s license.”
Bagley: “For—could I ask what’s the reason?”
Guillen: “Let me see your driver’s license, sir, that’s all I’m asking you. You better comply with me.”
Bagley: “I’m asking what’s the reason.”
Guillen: “If you [do] not, I’m gonna arrest you. Let me see your driver’s license.” At this point on Guillen’s video, Bagley can be seen moving his left hand toward his pocket.
Bagley: “What do you need to see my driver’s license for?”
Guillen: “Let me see your driver’s license, sir.”
Bagley: “If there’s not—what’s the traffic stop that you pulled me over for?”
Guillen: “Let me see your driver’s license, sir.”
Bagley: “If there’s no reason, then—I didn’t break any laws right now. I used every turn signal. I do not have to give you my driver’s license.”
Guillen: “You did not use the turn signal.”
Bagley: “Yes I did. You not—”
This exchange lasted approximately thirty seconds. At that point, Guillen opened Bagley’s car door and instructed him multiple times in quick succession to “get out the car. Get out the car. Get out the car.” Bagley unbuckled his seatbelt, muttering “man,” and exited the car. While Bagley was retracting his seatbelt and before he was fully out of the car, Guillen deployed a taser in Bagley’s direction but did not injure him. Once Bagley had exited the car, Guillen, still pointing the taser at him, instructed him: “Turn around. Put your hands behind you.” Bagley turned to face his car but moved his hands in front of himself. Guillen knocked Bagley’s phone from his hands over Bagley’s protests. He then pressed the taser into Bagley’s back and deployed it.
Bagley’s video ends following the tasing, but Guillen’s bodycam footage shows what happened next. Guillen continued commanding Bagley to put his hands behind his back. Bagley fell to the ground, where he was handcuffed by another officer. All told, fifteen seconds elapsed between Guillen’s first order to leave the car and the successful tasing, and eight seconds between Bagley leaving the car and that tasing. After the tasing and Bagley’s arrest, a magistrate judge found probable cause that Bagley had committed the misdemeanor offense of interference with public duties. The State of Texas later requested that the court dismiss the action for lack of probable cause. No further criminal proceedings are reflected in the record.
Bagley then sued Guillen under 42 U.S.C. § 1983, alleging excessive force, unlawful arrest, and illegal detention in violation of the Fourth Amendment. Guillen moved for summary judgment on all claims. The district court granted qualified immunity with respect to the unlawful arrest and illegal detention claims. But the court denied qualified immunity as to Bagley’s excessive force claim. Guillen timely appealed the denial of qualified immunity. The 5th affirmed.
We agree with the district court that Bagley has presented sufficient evidence of excessive force to defeat qualified immunity at the summary judgment stage. At the time of the conduct in question, it was clearly established that an officer may not use force on a suspect who is complying with his commands. See Darden. As we have long held, claims of excessive force are fact-intensive and depend on the facts and circumstances of each particular case. Relevant considerations include the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether he was actively resisting arrest or attempting to evade arrest by flight. See Newman.
Naturally, officers may use force in ways that corresponded to a suspect’s escalating verbal and physical resistance. See Poole. But where a suspect initially resists, force must be reduced once he has been subdued. Once a suspect is subdued and no longer resisting, an officer’s subsequent use of force is excessive. See Carroll.
Bagley has presented sufficient evidence of excessive force to warrant denial of qualified immunity at the summary judgment stage. To begin with, he was pulled over for failing to use a turn signal. At most, this is a minor traffic violation. And the car noise heard on video when Bagley made the turn could permit a jury to infer that he did use a turn signal. Moreover, Bagley unambiguously complied with Guillen’s command to exit and turn toward his vehicle. Yet Guillen tased him anyway—at first unsuccessfully while Bagley’s seatbelt was retracting, and again successfully as Bagley was turned toward the car.
For his part, Guillen maintains that Bagley had not placed his hands behind him as directed. But the video evidence permits the inference that Guillen had already begun tasing him well before he gave Bagley a reasonable opportunity to comply.
Guillen also contends that tasing alone is insufficient to constitute excessive force, at least in the absence of some lasting physical injury. But the video evidence permits a jury to conclude that the tasing caused Bagley significant pain. And that’s sufficient to state a claim of excessive force. As our court has repeatedly observed, as long as a plaintiff has suffered some injury, even relatively insignificant injuries and purely psychological injuries will prove cognizable when resulting from an officer’s unreasonably excessive force. See Solis.
In sum, the video evidence permits (if not compels) a jury to conclude that Bagley was attempting to comply with Guillen’s commands at the time he was tased. That’s sufficient to overcome qualified immunity at the summary judgment stage. Accordingly, we dismiss the appeal for want of jurisdiction.