Antonio Buehler leads the Peaceful Streets Project (PSP), a watchdog organization with the stated mission of holding police accountable for official misconduct. In 2015, Buehler and several other PSP members were cop watching in downtown Austin. Buehler regularly filmed the Austin police, and many officers were familiar with him.
In footage taken by Buehler, Officer Randy Dear can be seen talking to a passerby while Buehler films the encounter. Afterwards, Dear turns away, at which point Buehler shouts at Dear to get his attention and then begins arguing with Dear about the extent of Buehler’s right to film the police. Buehler repeatedly interrupts Dear’s answers to questions, and Dear tries several times to walk away while Buehler follows with his camera.
Later that evening, Buehler is positioned extremely close to (though not physically touching) Dear, and the two can be heard arguing contentiously from time to time. Officers Garibay and DeVries also can be seen arguing with Buehler about whether he was maintaining a sufficient distance while filming.
In footage taken by Buehler, Dear can be seen turning to Buehler and telling him, “just going to let y’all know, the next time we go to a disturbance and y’all get in the way . . . . The next time you’re interfering, you’re going to be arrested.” As he walks away from Buehler, Dear then adds, “You’ve been warned, sir.”
Buehler follows him briefly before pointing his camera at the other officers and asking several times, “What does that mean? Can you explain that?” Officer Sebek responds, “arm’s length, please. Arm’s length, please.” Footage taken from another angle shows that Buehler continued to stand closer to the officers than an arm’s length away (certainly no more than two feet, and probably no more than one).
After nearly two minutes pass with little movement by the officers or Buehler, Dear turns to Buehler to give further orders, telling Buehler, “you’re interfering with my space here so I can monitor the crowd,” and, “I’m going to ask you one more time.” Buehler then takes several steps and pivots such that he is directly facing Dear, but standing about the same distance away.
A few seconds later, Dear tells Buehler, “Go ahead and turn around, sir. Go ahead and turn around,” and “You’re under arrest.” While Dear is giving these orders, Buehler begins taking steps backward away from the officers, even as Dear is walking forward towards Buehler. Buehler then turns his back on the officers and takes one or two additional steps away from them.
Officer Garibay grabs Buehler’s wrists from behind in an attempt to restrain him. Footage of the incident taken at ground level appears to show Buehler taking another step after being grabbed, lurching forward as Garibay attempts to make the arrest, though aerial (“x”) footage taken by an APD camera suggests that Buehler’s sudden motion was most likely an attempt to throw the device with which he was filming to someone else so as to preserve his footage.
At that point, Dear, Garibay, and DeVries take Buehler to the ground and hold him in a prone position while placing him in handcuffs. Officer McCoy also ran to assist after Buehler was taken down, holding Buehler’s legs still while the other officers carry out the arrest. Buehler remained on the ground for between 40 and 45 seconds.
Afterwards, the officers took him to the Travis County jail and booked him for misdemeanor interference with official duties and resisting arrest. Buehler claims to have suffered mental pain, bruises on his tricep and head, and abrasions to his face as a result of the arrest (though any facial injuries he suffered were apparently not serious enough to be visible in photographs of him taken soon after the incident).
In August 2017, Buehler sued the City of Austin and nine APD officers (Dear, Garibay, DeVries, McCoy, Sebek, Coffey, Adam, Hicks, and Parker1) under 42 U.S.C. § 1983, alleging false arrest and excessive force in violation of the Fourth Amendment, and retaliation for exercise of his First Amendment right to film police. Buehler also brought municipal liability claims against the City and bystander liability claims against the officers not directly involved in his arrest.
The district court granted Defendants’ motion to dismiss in part, holding that they were entitled to qualified immunity on the First Amendment claim; and that Buehler had failed to state claims for either bystander or municipal liability, or for excessive force against Defendants Coffey, Sebek, Hicks, or Adam.
But the district court denied summary judgement as to excessive force claims against the four officers who participated in his arrest (Dear, Garibay, DeVries, and McCoy, hereinafter “Officers”). The 5th reversed and granted summary judgement to the officers on excessive force.
We begin by considering whether Dear, Garibay, DeVries, and McCoy (the four APD officers involved in Buehler’s arrest) were entitled to summary judgment on his excessive force claim.
A plaintiff arguing that a public official has used excessive force in violation of the Fourth Amendment must show: (1) 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.
Among the considerations that inform the need for force are (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of officers or others, and (3) whether the suspect was actively resisting or attempting to evade arrest.
The Officers first argue that Buehler’s excessive force theory fails as a matter of law because his injuries were too minor. It is true that, to state a claim for excessive use of force, the plaintiff’s asserted injury must be more than de minimis.
However, we said in Alexander that 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.
Here, Buehler suffered abrasions to his face, as well as bruises on his tricep and head, as a result of the arrest. He also alleges that the incident caused him mental trauma. We therefore conclude that Buehler’s injuries, while minor, are not so minor that his excessive force claim necessarily fails as a matter of law.
The Officers and Buehler further dispute whether interfering with officers’ public duties is a severe offense. But we have already spoken to this issue in a precedential case—holding that, for excessive force analysis purposes, interference with public duties under Texas law is a minor offense.
The Officers and Buehler also disagree as to whether Buehler’s actions can be characterized as resisting arrest. Footage of the incident depicts Buehler taking several steps backwards away from officers immediately after Dear tells Buehler to turn around and informs him that he is under arrest. Buehler turns his back on the Officers and begins to walk away.
Based on the video evidence, we conclude that, at the very least, the Officers could reasonably have believed that Buehler was turning to walk away rather than complying with their orders. We must measure the force used under the facts as a reasonable officer would perceive them, not necessarily against the historical facts. And we have acknowledged in Ray that, as the Officers in this case duly point out, a suspect who backs away from the arresting officers is actively resisting arrest.
The Officers further contend that when Garibay grabbed Buehler’s wrists from behind in an effort to restrain him, Buehler lurched forward in an attempt to get away—a maneuver the Officers characterize as another form of resistance by Buehler.
Again, the street level video tends to support this account. And the great weight of Texas authority indicates that pulling out of an officer’s grasp is sufficient to constitute resisting arrest for purposes of Texas Penal Code § 38.03(a)43—and, it stands to reason, for purposes of excessive force analysis.
Finally, yet another consideration bearing upon the reasonableness of an arresting officer’s use of force is whether it involved measured and ascending responses to a suspect’s noncompliance. Buehler relentlessly followed around officers for hours, disobeying their repeated and unambiguous commands that he step back at least arm’s length away so as not to block the Officers’ field of vision. We believe their conduct in dealing with Buehler can accurately be described as measured and ascending.
In our view, it is beyond reasonable debate that McCoy did not violate the Fourth Amendment, let alone clearly established Fourth Amendment caselaw. She explains in her affidavit that, consistent with what footage of the arrest appears to show, she merely placed her knee on Buehler’s legs to hold them still while he was handcuffed, (or, in his words, “grabbed one of my legs”) and, as he admits, did not cause him any injury.
As for the other three arresting Officers (Dear, Garibay, and DeVries), the excessive force analysis is slightly closer. On the one hand, working in Buehler’s favor is the fact he was not being arrested for a serious offense, nor did he pose an obvious danger to the Officers or to passersby.
On the other hand, however, the Officers rightly point out that Buehler’s conduct amounted to active resistance to arrest, that they used gradually ascending means of attempting to gain control of the situation before resorting to force, and that Buehler’s injuries were extremely minor.
Buehler cites Ramirez, where we held that it was objectively unreasonable for several officers to force a misdemeanor arrestee to the ground and tase him twice (including once after he was already handcuffed), resulting in burns—particularly given the absence of resistance on the arrestee’s part, except for pulling his arm out of an officer’s grasp.
He also points to our decision in Sam, where we held that an arresting officer’s use of force was objectively unreasonable. In that case, the suspect initially ran but was lying face down on the ground with his hands on his head when the officer kneed him in the hip and pushed him against a patrol car.
In our view, of the five cases relied upon by Buehler, only Ramirez and Sam are similar enough to this case to lend any support to his claim that the Officers (or at least Dear, DeVries, and Garibay) violated clearly established law, and still Ramirez and Sam involved more severe and less appropriate uses of force than that used by the Officers here.
There is ample circuit authority supporting the Officers’ position that their use of force did not violate the Fourth Amendment, or at least not clearly established Fourth Amendment law. We have frequently held (Griggs, Grazier, and many more cases) that officers were either constitutionally justified or entitled to qualified immunity for taking suspects to the ground in response to forms of physical resistance similar to those in which Buehler engaged.
We conclude that none of the four Officers involved in arresting Buehler (Officers Dear, Garibay, DeVries, and McCoy) used excessive force in violation of the Fourth Amendment. The district court thus erred in denying their motion for summary judgment on the excessive force claims.