Priest v. Grazier ( 2021 )

Case: 20-10652 Document: 00515915208 Page: 1 Date Filed: 06/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 25, 2021
No. 20-10652 Lyle W. Cayce
Clerk
John Priest,
Plaintiff—Appellant,
versus
Logan Grazier; Michael Fenwick,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:19-CV-4
Before Ho, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
John Priest sued Officers Logan Grazier and Michael Fenwick of the
Amarillo Police Department under 42 U.S.C. § 1983. Priest alleges that
when Grazier and Fenwick were arresting him, they used excessive force by
1) forcing him onto the ground and then holding him down in broken glass,
2) striking him three times in the back, and 3) kneeing him in the back. When
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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they encountered Priest, who was uncommunicative and behaving
erratically, Grazier and Fenwick did not know that he was experiencing a
diabetic emergency. The district court granted Grazier and Fenwick
summary judgment, concluding they were entitled to qualified immunity.
Priest appeals, contending that there are genuine disputes of material fact
about whether he resisted arrest and whether the officers used excessive
force. Finding no genuine dispute of material fact, we AFFIRM.
I.
Around 11:00 p.m. on January 9, 2017, Officer Grazier was on patrol
in Amarillo, Texas. Grazier saw Priest’s car stopped in the middle of the
road, straddling two lanes, impeding traffic, and with the engine running.
Grazier also observed two people walking away from Priest’s car. When
Grazier pulled his patrol car behind Priest’s car, Priest tapped his brakes.
Initially, Grazier thought Priest was about to flee. But Priest stopped when
Grazier turned on his emergency lights.
Much of what happened next was captured by Grazier’s dash cam,
which recorded the incident. Grazier exited his patrol car and approached
Priest’s car. Grazier saw Priest sitting in the driver’s seat, sweating
profusely, shaking his head, and behaving oddly. Grazier tapped Priest’s
window, telling Priest to roll down the window or open the door, which was
locked. Grazier also saw Priest reach towards his pockets and the gear shift
several times.
As Grazier was trying to speak with Priest, Officer Fenwick arrived on
the scene. Fenwick tried opening the front passenger’s side door, but it was
also locked. During this time, Priest did not respond to the officers’
entreaties, but he also did not try to flee.
After two minutes of trying to talk to Priest and get him to roll down
his window or open his door, Grazier broke the rear driver’s side window.
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The shattered glass fell onto the ground next to the car. And Priest started
rubbing his head and waving his arms even more frantically.
Through the shattered window, Fenwick opened the front driver’s
side door of Priest’s car, unbuckled Priest’s seatbelt, and pulled on Priest’s
right arm to remove him. One of the officers ordered Priest to “get out of
the car.” Priest’s left arm got caught in the seatbelt, and he fell to the ground
on top of the broken glass. Attempting to bring him under control, Grazier
and Fenwick then placed their weight on Priest, who was face down. As a
result, the broken glass on the pavement cut Priest’s face.
Fenwick later testified that, in the moment, he did not think about
Priest’s placement on the pavement. He was focused instead on preventing
Priest from “getting away from officers or pulling away from officers. And
the quickest and safest way to do that was to [go to] the ground immediately,
outside the vehicle.” Fenwick also testified that it would have been unsafe
to roll Priest away from the glass.
On the ground, Priest kicked his legs and screamed. Though Grazier
was able to handcuff Priest’s left hand, he had more difficulty controlling
Priest’s right hand, which for at least part of the time was under Priest (and
thus also under the officers’ weight). Fenwick struck Priest three times in
the back, after which Grazier was able to grasp and handcuff Priest’s right
hand. Even after being handcuffed, Priest continued to kick his legs and
scream. Grazier and Fenwick tried to sit Priest up, but Priest leaned away
from Grazier and fell to the right. Grazier then kneed Priest in the back.
Shortly thereafter, and for the rest of the encounter, Priest became more
subdued.
Grazier and Fenwick noticed that Priest’s head was bleeding, and
Grazier called for an ambulance. As they waited for the ambulance, Fenwick
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retrieved a first-aid kit, and Grazier applied pressure to the cuts on Priest’s
face. Then, Fenwick searched Priest and found marijuana in his pockets.
Eventually, paramedics determined that Priest had Type 1 diabetes
and that his blood sugar had dropped to a dangerously low level, which
explained his odd behavior. But Grazier and Fenwick did not know any of
that when they were arresting Priest. Indeed, Priest testified that he does not
remember interacting with Grazier or Fenwick, or anything at all about the
encounter until he woke up in the ambulance.
Two years later, Priest sued Grazier, Fenwick, and the City of
Amarillo under 42 U.S.C. § 1983, the Americans with Disabilities Act, and
the Rehabilitation Act of 1973. The City of Amarillo moved to dismiss the
claims against it, and the district court granted this Rule 12(b)(6) motion,
leaving Grazier and Fenwick as the sole defendants.
In his remaining § 1983 claims, Priest alleged that Grazier and
Fenwick used excessive force by holding him down in broken glass, striking
him three times in the back, and kneeing him in the back. Grazier and
Fenwick interposed the defense of qualified immunity and moved for
summary judgment. The district court agreed that Grazier and Fenwick were
entitled to qualified immunity and granted their motion.
Priest appeals, challenging summary judgment in favor of Grazier and
Fenwick based on qualified immunity. Priest contends that there are genuine
disputes of material fact about whether he actively resisted arrest and
whether Grazier and Fenwick used excessive force. Accordingly, Priest asks
that we vacate the summary judgment and remand the case for further
proceedings.
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II.
We review a summary judgment de novo, “applying the same legal
standards as the district court.” Condrey v. SunTrust Bank of Ga., 429 F.3d
556, 562 (5th Cir. 2005). Summary judgment is appropriate when “the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Although we review evidence in the light most favorable to the nonmoving
party, we assign greater weight, even at the summary judgment stage, to the
facts evident from video recordings taken at the scene.” Carnaby v. City of
Houston, 636 F.3d 183, 187 (5th Cir. 2011) (citing Scott v. Harris, 550 U.S.
372, 380–81 (2007)).
Notably, a “qualified immunity defense alters the usual summary
judgment burden of proof. Once an official pleads the defense, the burden
then shifts to the plaintiff, who must rebut the defense by establishing a
genuine fact issue as to whether the official’s allegedly wrongful conduct
violated clearly established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th
Cir. 2010) (citation omitted).
III.
“Qualified immunity protects government officials from civil liability
in their individual capacity to the extent that their conduct does not violate
clearly established statutory or constitutional rights.” Cass v. City of Abilene,
814 F.3d 721, 728 (5th Cir. 2016) (per curiam). It protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475
U.S. 335, 341 (1986).
To avoid summary judgment based on qualified immunity, Priest
must rebut Grazier’s and Fenwick’s defense with evidence “(1) that the
officer[s] violated a federal statutory or constitutional right and (2) that the
unlawfulness of the conduct was ‘clearly established at the time.’” Rich v.
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Palko, 920 F.3d 288, 294 (5th Cir. 2019) (quoting District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018)). “We can analyze the prongs in either
order or resolve the case on a single prong.” Garcia v. Blevins, 957 F.3d 596,
600 (5th Cir. 2020) (citing Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir.
2019)), cert. denied, 141 S. Ct. 1058 (2021).
Priest contends that Grazier and Fenwick violated his Fourth
Amendment rights by using excessive force at three discrete points in their
encounter: by holding him down in broken glass, striking him three times,
and kneeing him in the back. Further, Priest asserts that in using force as
they did, Grazier and Fenwick violated clearly established law because Priest
was not resisting arrest when the force was used.
To determine whether force is reasonable, and thus not violative of
the Fourth Amendment, or excessive, such that it traverses the
Amendment’s protections, we consider “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “The
‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. “But an exercise of force that is reasonable at one
moment can become unreasonable in the next if the justification for the use
of force has ceased.” Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir.
2009).
An official violates clearly established law if “at the time of the
challenged conduct, . . . every reasonable official would [have understood]
that what he is doing violates [the asserted] right.” Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) (second alteration in original) (internal quotation marks
and citation omitted). It is not necessary to have “a case directly on point,
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but existing precedent must have placed the statutory or constitutional
question beyond debate.” Id.It is unnecessary for us to address Priest’s argument that the force
used by Grazier and Fenwick was excessive under the Fourth Amendment
because regardless, Priest fails to show that Grazier and Fenwick violated
clearly established law by using force as they did to bring him under control.
See Griggs v. Brewer, 841 F.3d 308, 315 (5th Cir. 2016) (affirming grant of
qualified immunity because “no authority establish[ed] that it was
unreasonable for an officer to use non-deadly punches to gain control of the
arms of a . . . resisting suspect”). This is so because Priest offers no evidence
genuinely to dispute the officers’ evidence that they perceived Priest to be
resisting arrest when they employed the force at issue. We examine each use
of force in turn.
A.
First, Priest contends that Grazier and Fenwick used excessive force
in violation of clearly established law by forcing him onto the pavement and
then holding him down in broken glass. When Grazier broke Priest’s car
window, the shattered glass fell onto the ground next to the car. After being
removed from his car, Priest fell to the adjacent ground (and on top of the
shattered glass). In their effort to subdue him, Grazier and Fenwick kept
Priest on the ground by placing their body weight on him. This caused the
broken glass to cut Priest’s face.
As regrettable as Priest’s injuries are, Grazier and Fenwick are
entitled to qualified immunity. In a series of non-precedential but analogous
cases, we have held that qualified immunity protects officers who force non-
compliant suspects to the ground for handcuffing. See, e.g., Tennyson v.
Villarreal, 801 F. App’x 295, 296 (5th Cir. 2020) (holding that officers were
entitled to qualified immunity as to excessive force claim where they “had to
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take [plaintiff] to the ground to handcuff him because of his noncompliance”)
(per curiam); Ibarra v. Harris County, 243 F. App’x 830, 835 (5th Cir. 2007)
(holding that officer was entitled to qualified immunity for “forc[ing]
[plaintiff] to the ground to handcuff him because he was noncompliant”) (per
curiam). Here, the dash cam video substantiates Grazier’s and Fenwick’s
testimony that Priest did not comply with their repeated instructions to roll
down his window, open his door, and get out of his car. In the face of this
non-compliance, Grazier and Fenwick did not violate clearly established law
by forcing Priest to the ground to handcuff him.
Priest counters that although Grazier and Fenwick may have been
justified in removing him from his car, they were not justified in holding him
down in broken glass. Indeed, Grazier and Fenwick both testified that they
knew the broken glass was on the ground next to the car. But “[t]he
‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene,” Graham, 490 U.S. at 396,
and Priest offers no evidence that contradicts the record in support of the
officers on this score. Fenwick testified that, in the moment, he did not think
about Priest’s placement on the pavement, focusing instead on preventing
Priest from “getting away from officers or pulling away from officers. And
the quickest and safest way to do that was to [go to] the ground immediately,
outside the vehicle.” Moving Priest away from the glass might have allowed
him to “break free or injure [himself] or injure any of the officers.” Given
the dangers involved in moving Priest away from the glass, it was not
objectively unreasonable for Grazier and Fenwick to keep Priest on the
ground next to the car while they tried to bring him under control.
Priest also counters that because Grazier and Fenwick never felt the
need for deadly force, there is a genuine dispute of material fact about
whether they needed to hold him down in broken glass. It is true that the
officers did not use deadly force; Grazier and Fenwick first verbally
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instructed Priest, then broke his window, and then forced him to the ground.
By “not immediately resort[ing] to overwhelming force,” Grazier and
Fenwick used “the type of ‘measured and ascending’ force . . . that this court
has approved.” Defrates v. Podany, 789 F. App’x 427, 433 (5th Cir. 2019)
(quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)). If
anything, far from creating a genuine dispute of material fact, the lack of
deadly force further supports Grazier’s and Fenwick’s qualified immunity.
Accordingly, the district court properly determined that Grazier and
Fenwick were entitled to qualified immunity for putting Priest on the ground
and holding him there.
B.
Next, Priest contends that Fenwick used excessive force by striking
Priest three times with his hands as the officers continued to try to bring
Priest under control. After Grazier and Fenwick pinned Priest to the ground,
Grazier handcuffed Priest’s left hand “fairly quickly.” But Grazier had more
difficulty handcuffing Priest’s right hand. To free Priest’s right hand,
Fenwick struck Priest three times in the back. Grazier handcuffed Priest’s
right hand thereafter.
If the officers reasonably perceived that Priest was resisting being
handcuffed at this juncture, Fenwick did not violate clearly established law
by striking Priest in the back. See Griggs, 841 F.3d at 315. In his deposition,
Fenwick testified that Priest “was pulling his hands away from us and
refusing to surrender control of his hands.” Fenwick further testified that
Priest was “resisting . . . and actively preventing us from securing him in
handcuffs.” Grazier’s incident report corroborates Fenwick’s account,
stating that “Priest continued to roll around on the ground” as the officers
“attempted to gain control of his hands.” Thus, Fenwick’s testimony and
Grazier’s incident report indicate that Priest was resisting handcuffing.
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Priest has no independent recollection of the events. But he contends
that “Grazier’s dash camera video and Grazier’s deposition testimony
establish that Priest was not refusing to surrender his hand but was physically
unable to move it from underneath his body because the officers were holding
him down on top of it.” He reasons that this evidence at least gives rise to a
fact dispute about whether he continued to resist the officers, such that
summary judgment on this particular use of force was improper. But the dash
cam video at this instance does not establish anything of the sort; the video
only shows Grazier and Fenwick on top of Priest, and they block a clear view
of what Priest was doing. Because the dash cam video is at best inconclusive,
it does not suffice to create a genuine dispute of material fact regarding
Priest’s resistance.
Neither does Grazier’s deposition testimony. In it, Grazier simply
agreed that Priest’s right arm “was pinned underneath the body weight of
Mr. Priest, [Grazier himself], and Officer Fenwick.” Again, this statement
does not indicate whether Priest continued to resist handcuffing—something
about which Grazier was not asked regarding this specific use of force. And,
the statement does not contradict Fenwick’s testimony and Grazier’s
incident report, which both indicate that Priest resisted handcuffing while on
the ground. In the absence of competent summary judgment evidence to the
contrary, there is no genuine dispute that a reasonable officer could have
perceived Priest as resisting at the moment Fenwick struck him three times.
And if Priest was resisting, Fenwick’s hand strikes did not violate clearly
established law. Griggs, 841 F.3d at 315. It follows that the district court
properly granted Fenwick qualified immunity for striking Priest in the back.
C.
Finally, Priest contends that Grazier used excessive force by kneeing
him in the back after he was handcuffed. Priest asserts that even though he
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was cuffed and bleeding profusely, Grazier nonetheless rolled him onto his
side and kneed him in the back. But the record clearly, and without any
genuine dispute of fact, belies Priest’s version of events.
Grazier testified that Priest rolled to his side on his own after Grazier
tried sitting Priest up. The dash cam video in fact shows Priest leaning away
from Grazier and falling to the right. Grazier also testified that Priest
continued to resist arrest even after being handcuffed. Again, the dash cam
video shows a handcuffed Priest yelling and kicking his legs. A reasonable
officer could have perceived this behavior as resisting arrest. Cf. Griggs, 841
F.3d at 314 (“Here, we must conclude that, under the totality of the
circumstances—that is, a late-night traffic stop involving a clearly drunk and
obstinate individual, lurching to the side . . . would, to a reasonable police
officer, amount to resistance to arrest.”); see also Omokaro v. Whitemyer, 205
F.3d 1338 (5th Cir. 1999) (unpublished) (finding that “a reasonable officer
could have perceived his . . . rolling around, screaming and yelling . . . as
threatening or resisting arrest in such a way as to demand physical force”).
Priest counters that when Grazier kneed him, he was already in
handcuffs, on the ground, and blocked in by the car door, Grazier and
Fenwick. Priest asserts that, in this position, he did not pose a serious risk of
resistance or flight. But as explained above, Priest’s contention is based on
hindsight logic, not on evidence competent to create a genuine fact dispute.
The actual evidence—the dash cam video and Grazier’s corresponding
testimony—shows Priest behaving in ways a reasonable officer could
perceive as resistance. See Carnaby, 636 F.3d at 187. In response to this
reasonably perceived resistance, Grazier did not violate clearly established
law by kneeing Priest in the back. See Defrates, 789 F. App’x at 434–35
(affirming qualified immunity for officer who kneed resistant plaintiff). The
district court therefore properly granted Grazier summary judgment as to
this claim.
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IV.
The record demonstrates that Grazier and Fenwick did not violate
clearly established law. And by failing to produce evidence sufficient to
create a genuine dispute of material fact, Priest did not meet his burden of
showing that qualified immunity is inapplicable. Accordingly, we affirm
summary judgment in favor of Grazier and Fenwick.
AFFIRMED.
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