Subject does not get same level of fourth amendment protection from force when he does not promptly surrender in first place


In 2019, police officers Brad Hanks and Natausha Swavey attempted to pull over Mucio Ramirez for swerving in traffic and having a broken taillight. Instead of stopping, Ramirez led officers on a mile-and-a-half chase. Hanks and Swavey called for backup, informing dispatch they were in felony pursuit of a vehicle. Although Ramirez stopped for traffic lights, Hanks cautioned: “I don’t want to approach him because he may be trying to bait us.” Ramirez eventually stopped his vehicle on an unlit, residential street. Hanks and Swavey stepped out of their police cruiser, firearms and flashlights drawn, and Hanks began verbally engaging Ramirez.

Officer Christopher Martin, along with other officers, then arrived on the scene. Hanks instructed Ramirez to place his hands outside the car window, but Ramirez instead exited the vehicle and turned towards the officers. Hanks commanded Ramirez to turn away, slowly walk backwards, and drop to his knees. Ramirez initially complied but then abruptly stood up. The officers commanded Ramirez to get back on his knees, and he complied after several demands. At this point, Ramirez remained uncuffed, had not been searched, and officers had not yet checked his car for other passengers.

With Ramirez back in the kneeling position, Martin and Swavey were directed to secure Ramirez, so the other officers could safely approach and clear Ramirez’s vehicle. The plan was for Martin and Swavey to each grab one of Ramirez’s arms, and then take him to the ground and handcuff him. But as they approached Ramirez, Swavey paused to holster her weapon while Martin grabbed Ramirez’s arm and pushed him to the ground. Ramirez collapsed forward and his head hit the pavement, resulting in a significant cut above his right eye.

Ramirez was later charged with a felony for evading arrest and a misdemeanor for driving while intoxicated. Ramirez sued Martin under 42 U.S.C. § 1983, alleging Martin used excessive force in violation of the Fourth and Fourteenth Amendments. Martin invoked qualified immunity and moved for summary judgment. The district court granted the motion, finding that Martin’s use of force was not objectively unreasonable, and, alternatively, that Martin violated no clearly established law. Ramirez timely appealed. The 5th affirmed.


Qualified immunity protects law enforcement officers from suit and liability for damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. So, to strip Martin of qualified immunity, Ramirez must show that Martin (1) violated a constitutional right and (2) that the right at issue was clearly established at the time of the alleged misconduct. The district court concluded neither prong was satisfied. Because we agree that Martin’s use of force was not excessive, we do not proceed to the second prong.

Prong one asks whether Martin’s arrest of Ramirez violated the Fourth Amendment, which prohibits officers from using force that is clearly excessive and objectively unreasonable. The following factors guide this fact-intensive inquiry: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. See U.S. Supreme Court case Graham v. Connor, 490 U.S. 386 (1989).

We weigh the factors from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Carroll. That is because police officers are often forced to make split-second judgment in circumstances that are tense, uncertain, and rapidly evolving. Finally, we consider the relationship between the need for force and the amount of force used.

Applying the Graham factors here, we conclude that Martin’s use of force to affect the arrest was not unreasonable. First, as to the severity of the crime, Ramirez concedes he engaged in serious crimes by leading police on a car chase and driving while under the influence.. See Harrimon. We thus agree with the district court that the first Graham factor weighs against Ramirez.

Turning to the second Graham factor, Ramirez argues that no jury could reasonably believe he posed a threat to the officers’ safety, because, when Martin used force, he had already surrendered, was compliant, and was on his knees. But we cannot ignore a suspect’s actions that immediately preceded the surrender. See Salazar. Such actions are pertinent because an officer need not take a suspect’s compliance at face value after the suspect just tried evading custody. Thus, in Salazar, we granted qualified immunity to an officer who tased a suspect who was already lying prone on the ground, because the previously noncompliant suspect still posed a threat to officers. We stated that despite the appearance of an unambiguous surrender, the relevant inquiry is whether a reasonable officer would doubt the suspect’s compliance and still perceive a threat.

Here, Martin had reasons both to doubt Ramirez’s compliance and to view him as a threat. Ramirez’s purported surrender came mere seconds after he disobeyed commands to stay in his car and to drop to his knees, and only a few minutes after he led officers on a nighttime car chase before stopping on an unlit street. During the chase, another officer cautioned that Ramirez’s stop-and-go driving suggested he may be trying to “bait us.” Under such circumstances, a reasonable officer in Martin’s shoes could view Ramirez’s surrender with skepticism.

Moreover, Martin arrived at a nighttime scene where an already tense and potentially dangerous situation was playing out. Akin to the suspect in Salazar, Ramirez had just committed a dangerous felony, remained unrestrained, and had not yet been searched for a weapon. And because Ramirez had just disobeyed commands to remain in his vehicle, officers could not be sure of Ramirez’s next act. For these reasons, multiple officers on the scene had their service weapons drawn until Martin secured Ramirez and officers cleared his vehicle.

Other variables further heightened Ramirez’s threat risk to the officers. Ramirez was visibly intoxicated and erratically disobeyed officers’ commands, and consequently officers were unable to safely approach his car to check for other passengers until he was subdued. In light of those circumstances, Martin was reasonably on guard about what Ramirez might do next.

Of course, once a suspect surrenders, the degree of force an officer can employ is reduced. But even assuming Ramirez legitimately intended to surrender, he cannot expect the same Fourth Amendment protection from force he would have received had he promptly surrendered in the first place. What’s more, Martin ratcheted down his use of force to Ramirez’s then-current threat level. Rather than using even intermediate force, like a taser, Martin pushed Ramirez to the ground and then refrained from using additional force once Ramirez was subdued. Thus, the second Graham factor favors Martin.

Finally, the third Graham factor—whether an arrestee is actively fleeing or resisting arrest—also justifies Martin’s use of force. For the same reasons that Ramirez posed a threat, Martin could have been reasonably wary about whether Ramirez would remain compliant. Often, the signs a suspect is readying for a fight or preparing for flight are of the same stripe. For example, in Salazar, the suspect previously led police on a chase and disobeyed their commands to remain in his vehicle. We found that it was just as reasonable for the officer to fear that the suspect still sought to escape as it was for the officer to fear that the suspect was a threat. So too here. Ramirez led officers on a mile-and-a-half chase and disobeyed officer commands by exiting his vehicle and not staying stationary on his knees. These are both reasons for officers to believe that Ramirez either intended to flee or that he posed a threat. Under these circumstances, Martin’s use of force was justified.

In sum, all three Graham factors favor Martin. We therefore agree with the district court that Martin did not use excessive force and is entitled to qualified immunity.