Marcus Hanks v. Randall Rogers ( 2017 )


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  •      Case: 15-11295       Document: 00513940670         Page: 1     Date Filed: 04/05/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 15-11295
    Fifth Circuit
    FILED
    April 5, 2017
    MARCUS HANKS,                                                                Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    OFFICER RANDALL ROGERS, Individually,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
    JAMES E. GRAVES, JR., Circuit Judge:
    Below, the district court dismissed Marcus Hanks’s Section 1983 claim
    against a police officer, Randall Rogers, at summary judgment on the basis of
    qualified immunity. We REVERSE and REMAND to the district court for
    further proceedings consistent with this opinion. 1
    1  This court has previously denied Hanks’s motion to file out of time a motion for
    reconsideration in his separate appeal of the district court’s dismissal of claims against the
    City of Grand Prairie, Texas. We therefore decline to consider arguments raised in Hanks’s
    initial brief regarding those claims.
    Case: 15-11295      Document: 00513940670         Page: 2    Date Filed: 04/05/2017
    No. 15-11295
    FACTUAL BACKGROUND 2
    On the evening of February 26, 2013, Hanks was driving slowly along
    Interstate 30 in Grand Prairie, Texas. Hanks hoped to find his cellular
    telephone on the shoulder of the road—Hanks accidentally left the phone on
    top of his car at the outset of his trip, and, upon realizing his mistake, aimed
    to find where the phone slid off along the roadway.
    Officer Rogers, a member of the Grand Prairie Police Department,
    observed Hanks driving with his vehicle’s hazard lights engaged and
    approximately 20 miles per hour under the interstate speed limit. Rogers
    turned on his patrol car’s emergency lights, and Hanks immediately pulled his
    car onto the shoulder of the interstate.
    Officer Rogers stopped his patrol car a short distance behind Hanks’s
    vehicle and walked to Hanks’s passenger-side front window. Once at the
    window, Officer Rogers stated that he had stopped Hanks because Hanks was
    driving 20 miles per hour below the speed limit. Hanks told Officer Rogers that
    he was searching for his phone.
    After a brief exchange regarding the phone, Officer Rogers asked Hanks
    to produce his driver’s license and insurance. Hanks immediately presented
    his driver’s license. Hanks could not, however, locate an insurance card for the
    vehicle, which he had borrowed with permission from a relative. After waiting
    silently at the window for almost one minute, Officer Rogers stated that he
    would “be right back.” Only a second or two later, Officer Rogers instructed
    Hanks to “step out of the vehicle and come to the back.”
    According to Officer Rogers, he ordered Hanks to exit the vehicle “[i]n an
    attempt to decrease . . . Hanks’ anger.” Officer Rogers states that when he
    2The record on appeal contains an audiovisual recording of the encounter captured by
    a camera in Officer Rogers’s police vehicle. The recording may be accessed via the following
    internet link: http://www.ca5.uscourts.gov/opinions/pub/15/15-11295.mp4.
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    asked Hanks for his driver’s license and insurance, “Hanks appeared upset and
    began to cuss at [Officer Rogers] for stopping him.” Hanks denies that he
    “cuss[ed] at or act[ed] aggressive to Officer Rogers” while sitting in the vehicle.
    Hanks did not immediately exit his vehicle. Instead, he questioned the
    basis for Officer Rogers’s instruction. Officer Rogers repeated his instruction
    six times during the approximately 45-second exchange, and also calmly told
    Hanks to “put his stuff up.” Hanks exited the vehicle after Officer Rogers
    adopted a more assertive tone and added “do it now” to his instruction. As
    Hanks exited the vehicle, Officer Rogers turned his back to Hanks’s car for
    about three seconds and walked towards his patrol car.
    Officer Rogers next pointed his flashlight at a spot on the ground
    between the two vehicles and instructed Hanks to stand there. Hanks silently
    complied with that instruction. While walking to the spot Officer Rogers
    indicated, Hanks pulled his shirt sleeves up to his elbows. Hanks also placed
    his right hand into his pants pocket for about three seconds.
    Officer Rogers instructed Hanks to take his hands out of his pockets, but
    by that time Hanks only had his thumbs tucked inside his pockets. In response
    to the instruction, Hanks said, “what?” Officer Rogers repeated his instruction,
    and Hanks lifted his hands to his waist, palms towards Officer Rogers, while
    saying “my hands aren’t in my pockets.” Officer Rogers then instructed Hanks
    to place his hands on the rear of Hanks’ vehicle.
    In response to Officer Rogers’s command to place his hands on the car,
    Hanks moved towards the rear of his vehicle while saying, “for what? I . . . did
    nothing.” Hanks initially leaned back against the rear of his vehicle, but after
    about one or two seconds, and in response to Officer Rogers repeating his
    commands while drawing his taser, Hanks turned his back to Officer Rogers
    and placed his hands on the trunk of his car.
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    Within two or three seconds, Officer Rogers next instructed Hanks to put
    his hands behind his head. Hanks immediately raised his left hand to the back
    of his head, and placed his right hand behind his head moments later,
    simultaneously with Officer Rogers’ repetition of the command.
    As soon as Hanks’s hands reached the back of his head, Officer Rogers
    instructed Hanks to “go to [Hanks’s] knees.” In response, Hanks looked over
    his right shoulder and asked, “for what?” Hanks simultaneously moved his
    hands to his rear, so that they were folded behind his back with his empty
    palms facing Officer Rogers. Officer Rogers repeated his command twice more
    over the next five seconds, and, with his hands still plainly visible behind his
    back, Hanks looked over his left shoulder to ask whether he was under arrest.
    Officer Rogers responded by repeating his command, and Hanks said
    something inaudible on the recording before again asking whether he was
    under arrest. Officer Rogers only responded by repeating his command.
    About five seconds after Hanks asked whether he was under arrest for
    the second time, and immediately after Officer Rogers repeated his command
    for Hanks to “go to [his] knees,” Hanks made a small lateral step with his left
    foot. When Hanks took this small step, his empty hands remained surrendered
    behind his back. He continued to face away from Officer Rogers, so his hands
    stayed in Officer Rogers’s view. Officer Rogers still had his taser trained on
    Hanks.
    Almost simultaneously with Hanks’s small step, Officer Rogers rushed
    towards Hanks and administered a blow to Hanks’s upper back or neck (the
    parties refer to this as a “half spear”). The blow forced Hanks’s upper body onto
    the trunk of his vehicle. Officer Rogers maintained contact with Hanks as
    Hanks shifted onto the ground.
    Once on the ground, Hanks laid face-down and placed his hands behind
    his back. Hanks offered no resistance while Officer Rogers handcuffed him.
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    Later, while sitting in Officer Rogers’s patrol car, Hanks requested
    medical care. Officer Rogers issued Hanks a traffic citation, and medics
    transported Hanks to Baylor Medical Center. Hanks states that he received
    treatment for “Assault; Contusion; Strain; [and] Acute Myofascial Strain” and
    received prescriptions for pain medications. Hanks asserts that the blow
    administered by Officer Rogers has caused him “continuous pain in [his] upper
    back, neck, head, and ribs,” as well as psychological fear.
    The Grand Prairie Police Department subsequently conducted an
    investigation that led to Officer Rogers’s indefinite suspension. The
    department’s investigation concluded Officer Rogers’s “half spear . . . was not
    objectively reasonable to bring the incident under control . . . based on Mr.
    Hanks’ lack of resistance.” The department’s investigation noted Officer
    Rogers’s “fail[ure] to communicate to a citizen [i.e., Hanks] [that] he was under
    arrest.” Notably, the investigation report viewed Hanks as a “compliant
    subject.”
    PROCEDURAL HISTORY
    Several months after the incident, on December 16, 2013, Hanks filed a
    complaint against Officer Rogers and the City of Grand Prairie. Hanks’s
    complaint included a claim against Officer Rogers under 42 U.S.C. § 1983,
    alleging Officer Rogers used excessive force against him in violation of the
    Fourth Amendment. On August 6, 2015, the district court granted summary
    judgment in favor of Officer Rogers on the basis of his qualified immunity
    defense. In relevant part, the district court concluded that, “[e]ven drawing all
    inferences in light most favorable to [Hanks], [Hanks] has not shown that the
    force used was objectively unreasonable.” The district court entered a final
    judgment dismissing Hanks’s claims against Officer Rogers with prejudice on
    the same day.
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    On September 3, 2015, Hanks moved for a new trial, challenging the
    district court’s grant of summary judgment in favor of Officer Rogers.
    Considering the motion as a motion for reconsideration, the district court
    denied the requested relief on December 2, 2015.
    Hanks appealed from the final order denying his motion for a new trial
    on December 30, 2015.
    STANDARD OF REVIEW
    “This court reviews de novo the district court’s resolution of legal issues
    on a motion for summary judgment on the basis of qualified immunity.” Griggs
    v. Brewer, 
    841 F.3d 308
    , 311 (5th Cir. 2016). “Summary judgment is proper
    when there is no genuine dispute as to any material fact and the movant is
    entitled to judgment as a matter of law.” 
    Id. at 311–312.
          “In reviewing an appeal from summary judgment, we ‘view the facts in
    the light most favorable to the non-moving party and draw all reasonable
    inferences in its favor.’” 
    Id. at 312
    (quoting Deville v. Marcantel, 
    567 F.3d 156
    ,
    163–64 (5th Cir. 2009)). However, “[Scott v. Harris] instructs that a plaintiff’s
    version of the facts should not be accepted for purposes of qualified immunity
    when it is ‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.”
    Curran v. Aleshire, 
    800 F.3d 656
    , 664 (5th Cir. 2015) (quoting Scott v. Harris,
    
    550 U.S. 372
    , 380–81 (2007)).
    ANALYSIS
    “A qualified immunity defense alters the usual summary judgment
    burden of proof.” Brown v. Callahan, 
    623 F.3d 249
    , 253 (5th Cir. 2010). “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.” 
    Id. “In determining
    qualified immunity, courts engage in a two-step
    analysis.” Griggs v. Brewer, 
    841 F.3d 308
    , 312 (5th Cir. 2016). “First, they
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    assess whether a statutory or constitutional right would have been violated on
    the facts alleged.” 
    Id. “Second, they
    determine whether the defendant’s actions
    violated clearly established statutory or constitutional rights of which a
    reasonable person would have known.” 
    Id. at 312
    –13.
    “In excessive force cases, ‘the second prong of the analysis is better
    understood as two separate inquiries: whether the allegedly violated
    constitutional rights were clearly established at the time of the incident; and,
    if so, whether the conduct of the defendants was objectively unreasonable in
    light of that then clearly established law.’” 
    Id. at 313
    (quoting Tarver v. City of
    Edna, 
    410 F.3d 745
    , 750 (5th Cir. 2005). “If officers of reasonable competence
    could disagree as to whether the plaintiff's rights were violated, the officer's
    qualified immunity remains intact.” 
    Id. (quoting Tarver,
    410 F.3d at 750).
    At the first step, we conclude Hanks has alleged facts which, when
    viewed in the manner most favorable to him, would establish a violation of
    Hanks’s Fourth Amendment right to be free from excessive force during a
    seizure. Turning to the second step, we conclude the constitutional right at
    issue was clearly established at the time of the incident, and that Officer
    Rogers’s conduct was objectively unreasonable in light of then-existing clearly
    established law. We therefore hold that Hanks has met his burden of rebutting
    Officer Rogers’s qualified immunity defense.
    I.    Constitutional Violation
    “To prevail on an excessive-force claim, [a plaintiff] 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.’”
    Cooper v. Brown, 
    844 F.3d 517
    , 522 (5th Cir. 2016) (quoting Elizondo v. Green,
    
    671 F.3d 506
    , 510 (5th Cir. 2012) and Collier v. Montgomery, 
    569 F.3d 214
    , 218
    (5th Cir. 2009)). Our precedents recognize that inquiries regarding whether a
    use of force was “clearly excessive” or “clearly unreasonable . . . are often
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    intertwined,” Poole v. City of Shreveport, 
    691 F.3d 624
    , 628 (5th Cir. 2012), and
    we consider those questions together below. We conclude that Hanks has
    adduced sufficient evidence regarding each element of an excessive force claim
    to survive summary judgment.
    A. Injury
    “[W]e no longer require ‘significant injury’ for excessive force claims,”
    Tarver v. City of Edna, 
    410 F.3d 745
    , 752 (5th Cir. 2005) (citing Harper v.
    Harris County, Tex., 
    21 F.3d 597
    , 600 (5th Cir. 1994)), but “the injury must be
    more than de minimis,” 
    id. (citing Williams
    v. Bramer, 
    180 F.3d 699
    , 703 (5th
    Cir.1999)).
    Officer Rogers contends that Hanks’s injuries “are de minimis, and are
    thus insufficient to support a claim for excessive force.” Appellee’s Br. at 26.
    We disagree.
    On the night of his encounter with Officer Rogers, Hanks received
    medical treatment at the Baylor Medical Center at Irving. There, he received
    a diagnosis noting contusions, acute strains, and bruised ribs. Hanks received
    two prescriptions for pain medication and a form releasing him from work for
    two days. According to Hanks, he still experiences pain in his upper back, neck,
    head, and ribs as a result of the encounter. Hanks’s allegations, read in light
    of the contemporaneous medical documentation in the record, state more than
    a de minimis injury.
    B. Clearly excessive and clearly unreasonable use of force
    “Excessive force claims are necessarily fact-intensive; whether the force
    used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of
    each particular case.’” 
    Deville, 567 F.3d at 167
    (quoting Graham v. Connor, 
    490 U.S. 386
    , 396 (1989)). “Factors to consider include ‘the severity of the crime at
    issue, whether the suspect poses an immediate threat to the safety of the
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    officers or others, and whether he is actively resisting arrest or attempting to
    evade arrest by flight.’” 
    Id. (quoting Graham,
    490 U.S. at 396).
    “The calculus of reasonableness must embody allowance for the fact that
    police officers are often forced to make split-second judgments—in
    circumstances that are tense, uncertain, and rapidly evolving—about the
    amount of force that is necessary in a particular situation.” 
    Graham, 490 U.S. at 396
    –97. “We must adopt ‘the perspective of a reasonable officer on the scene,
    rather than judge with the 20/20 vision of hindsight.’” 
    Cooper, 844 F.3d at 522
    (brackets omitted) (quoting 
    Graham, 490 U.S. at 396
    ). “Our inquiry is ‘whether
    the officer’s actions were objectively reasonable in light of the facts and
    circumstances confronting him, without regard to his underlying intent or
    motivation.’” 
    Cooper, 844 F.3d at 522
    (brackets and internal quotations
    omitted) (quoting 
    Graham, 490 U.S. at 397
    ).
    We conclude that under the circumstances documented in the recording
    in this case, a reasonable officer on the scene would have known that suddenly
    resorting to physical force as Officer Rogers did would be clearly excessive and
    clearly unreasonable.
    1. Severity of violations
    Officer Rogers stopped Hanks for driving 20 miles per hour below the
    posted speed limit. Hanks was unable to produce proof of insurance for the
    vehicle he was driving in the time Officer Rogers allowed. 3 These “minor traffic
    violation[s] . . . ma[de] the need for force substantially lower than if [Hanks]
    had been suspected of a serious crime.” See 
    Deville, 567 F.3d at 167
    .
    The Grand Prairie Police Department’s investigation of this incident concluded that
    3
    “Mr. Hanks was not given sufficient time to attempt to locate his proof of insurance . . . .”
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    2. Immediate safety threat
    Mindful that “[w]e must adopt ‘the perspective of a reasonable officer on
    the scene, rather than judge with the 20/20 vision of hindsight,’” 
    Cooper, 844 F.3d at 522
    (brackets omitted) (quoting 
    Graham, 490 U.S. at 396
    ), we
    nonetheless perceive little basis in the recording from which Officer Rogers
    could have reasonably viewed Hanks as “an immediate threat to the safety of
    [Officer Rogers] or others,” 
    Graham, 490 U.S. at 396
    , at the moment Officer
    Rogers applied the “half spear.” We reach this conclusion even accepting, for
    the sake of argument, that Officer Rogers might reasonably have feared Hanks
    had a concealed weapon. 4
    The recording shows that for approximately the last thirty seconds
    before the blow—more than half of the total time between when Hanks exited
    his vehicle and when Officer Rogers took him to the ground—Hanks stood
    facing away from Officer Rogers. Throughout that time, Hanks displayed his
    empty hands on the trunk of his car, on the back of his head, and then behind
    his back. During those last thirty seconds, Officer Rogers kept his taser at the
    ready, trained on Hanks’ back. Hanks’s resistance “was, at most, passive,”
    
    Deville, 567 F.3d at 167
    , and consisted chiefly of remaining on his feet for about
    twenty seconds after Officer Rogers’ first order to kneel, during which time
    Hanks twice asked whether he was under arrest. We cannot conclude that a
    reasonable officer would have, under these circumstances, perceived an
    “immediate threat” warranting a physical takedown.
    3. Resistance or evasion
    As just discussed, Hanks displayed, at most, passive resistance and
    made no attempt to flee. In the moment before Officer Rogers administered the
    Officer Rogers later stated that he “intended to perform a Terry frisk for weapons,”
    4
    and Hanks briefly placed a hand into his pants pocket while walking to the back of his car.
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    “half spear,” the recording shows that Hanks took a small lateral step with his
    left foot. It is not clear from the recording whether Officer Rogers rushed
    towards and made contact with Hanks in response to, or merely
    simultaneously with, Hanks’s lateral step. It is clear, however, that Hanks’s
    step was not accompanied by any obvious signs of violence or flight: Hanks did
    not turn his body or move his hands, which remained folded behind his back
    and plainly visible to Officer Rogers. Under the circumstances reflected in the
    recording, we cannot conclude that a reasonable officer would have perceived
    active resistance or an attempt to flee.
    Having considered the Graham factors, as instructed by 
    Deville, 567 F.3d at 167
    , we conclude that Officer Rogers applied clearly excessive and
    unreasonable force when he employed the “half spear” takedown against
    Hanks.
    *               *        *
    In sum, we hold that Hanks adequately pled a constitutional violation
    and has offered sufficient evidence to survive summary judgment.
    II.     Clearly established law
    Because we conclude Hanks has sufficiently alleged an excessive force
    claim, we next consider “whether [Officer Rogers’s] use of force, though a
    violation of the Fourth Amendment, was nevertheless objectively reasonable
    in light of clearly established law at the time the challenged conduct occurred.”
    See Bush v. Strain, 
    513 F.3d 492
    , 501 (5th Cir. 2008). “Qualified immunity
    attaches when an official’s conduct ‘does not violate clearly established
    statutory or constitutional rights of which a reasonable person would have
    known.’” White v. Pauly, 
    137 S. Ct. 548
    , 551 (2017) (quoting Mullenix v. Luna,
    
    136 S. Ct. 305
    , 308 (2015)). A right may be clearly established without “a case
    directly on point,” but “existing precedent must have placed the statutory or
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    constitutional question beyond debate.” See 
    id. (quoting Mullenix,
    136 S.Ct. at
    308).
    “[C]learly established law must be ‘particularized’ to the facts of the
    case,” 
    id. at 552
    (quoting Anderson v. Creighton, 
    483 U.S. 635
    , 640 (1987)), and
    “should not be defined ‘at a high level of generality,’” 
    id. (quoting Ashcroft
    v.
    al–Kidd, 
    563 U.S. 731
    , 742 (2011)). In other words, outside of “an obvious case,”
    the law is only “clearly established” if a prior case exists “where an officer
    acting under similar circumstances . . . was held to have violated the Fourth
    Amendment.” 
    Id. In “an
    obvious case,” Graham and Garner 5 may supply the
    “clearly established law.” 
    Id. (quoting Brosseau
    v. Haugen, 
    543 U.S. 194
    , 199
    (2004) (per curiam)); see also 
    Cooper, 844 F.3d at 524
    .
    In this case, we conclude that on the night Officer Rogers stopped Hanks,
    clearly established law demonstrated that an officer violates the Fourth
    Amendment if he abruptly resorts to overwhelming physical force rather than
    continuing verbal negotiations with an individual who poses no immediate
    threat or flight risk, who engages in, at most, passive resistance, and whom
    the officer stopped for a minor traffic violation. See 
    Deville, 567 F.3d at 167
    –69
    (finding qualified immunity inappropriate where, taking the facts in the light
    most favorable to the plaintiff, an officer making a minor traffic stop
    overpowered an individual who displayed, at most, passive resistance, and
    presented no safety threat or flight risk); see also Doss v. Helpenstell, 626 Fed.
    App’x 453, 459–60 (5th Cir. 2015) (unpublished) (construing Deville as clearly
    establishing that an officer should receive no qualified immunity if he “quickly
    escalate[s]” an encounter with a non-threatening, passively-resisting driver
    who posed little risk of escape by employing overwhelming force “rather than
    continu[ing] to negotiate”); Brothers v. Zoss, 
    837 F.3d 513
    , 520 (5th Cir. 2016)
    5   Tennessee v. Garner, 
    471 U.S. 1
    (1985).
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    (“In denying qualified immunity, we have placed weight on the quickness with
    which law enforcement personnel have escalated from negotiation to force.”)
    (citing Newman v. Guedry, 
    703 F.3d 757
    , 763 (5th Cir. 2012) and 
    Deville, 567 F.3d at 167
    –68). This is, moreover, an “obvious case” in which the Graham’s
    standards independently and clearly establish the basis for our decision.
    A. Prior cases clearly established the contours of the right at
    issue
    “Fourth Amendment jurisprudence has long recognized that the right to
    make an arrest or investigatory stop necessarily carries with it the right to use
    some degree of physical coercion or threat thereof to effect it.” 
    Graham, 490 U.S. at 396
    (1989). But even an officer who may lawfully use or threaten force
    must appropriately calibrate the amount of force he employs to the need for
    force he confronts. See 
    Deville, 567 F.3d at 167
    .
    Officer Rogers faced an individual who, at times, did not immediately
    comply with instructions. “Officers may consider a suspect’s refusal to comply
    with instructions during a traffic stop in assessing whether physical force is
    needed to effectuate the suspect’s compliance.” 
    Id. (citations omitted).
    “However, officers must assess not only the need for force, but also ‘the
    relationship between the need and the amount of force used.’” 
    Id. (quoting Gomez
    v. Chandler, 
    163 F.3d 921
    , 923 (5th Cir.1999)). Where, as here, an
    individual stopped for a minor traffic offense offers, at most, passive
    resistance 6 and presents no threat or flight risk, abrupt application of physical
    force rather than continued verbal negotiating (which may include threats of
    force) is clearly unreasonable and excessive. See 
    Deville, 567 F.3d at 167
    –69.
    In Deville, for example, the facts, taken in the manner most favorable to
    the plaintiff, showed: (1) the plaintiff was “stopped for a minor traffic
    6As previously noted, the Grand Prairie Police Department’s investigation viewed
    Hanks as a “compliant subject.”
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    violation—exceeding the 40 mph speed limit by 10 mph . . .;” (2) the plaintiff
    showed no signs of flight or threat, despite still sitting behind the wheel of a
    vehicle; and (3) the plaintiff’s “resistance was, at most, passive in that she
    merely refused to leave her grandchild and exit the vehicle until [her husband]
    came to get the child.” 
    Id. at 167.
    We identified sufficient evidence in the
    plaintiff’s deposition testimony from which “[a] reasonable jury could infer . . .
    that [the officer] engaged in very little, if any, negotiation with [the plaintiff]—
    and find that he instead quickly resorted to breaking her driver’s side window
    and dragging her out of the vehicle.” 
    Id. at 168.
    Both parties’ experts agreed
    “that continued negotiations are more appropriate than actual force where the
    suspect is only stopped for a minor traffic offense and is making no attempt to
    flee.” 
    Id. Similarly, in
    this case, Officer Rogers stopped Hanks for a minor traffic
    violation (driving 20 miles per hour under the speed limit), the recording does
    not suggest that Hanks posed a threat or flight risk, and Hanks’s resistance to
    instructions was, at most, passive. By actually exiting his car, Hanks offered
    more compliance than the Deville plaintiff. He also lowered the risk that he
    might flee in the vehicle or produce a concealed weapon from within it. 7 For
    the last thirty seconds before Officer Rogers administered the “half spear,”
    Hanks stood facing away from Officer Rogers, presenting his empty hands on
    the trunk of his car, the back of his head, and finally behind his back. Officer
    Rogers kept his taser at the ready and trained on Hanks’s back the entire time.
    Under such circumstances, which favor the plaintiff even more than those
    presented in Deville, our case law clearly establishes that Officer Rogers should
    7A vehicle may be a means of flight, see, e.g., Scott v. Harris, 
    550 U.S. 372
    , 374 (2007),
    a weapon, see, e.g., Brothers v. Zoss, 
    837 F.3d 513
    , 519 (5th Cir. 2016) (“A motor vehicle can
    be used as a dangerous weapon. . . .”), or may conceal weapons, see 
    id. (“[A] reasonable
    officer
    could have feared that [the arrestee] might have a weapon . . . in the pickup.”).
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    have continued to verbally negotiate—including by threatening force, if
    necessary—rather than abruptly resorting to “actual” physical force. 8 See
    
    Deville, 467 F.3d at 168
    .
    Our decision in Poole is not to the contrary. The Poole majority stated
    that the plaintiff had “in response to [one officer’s] command to turn around
    and [a second officer’s] attempt to handcuff him, back[ed] away from the
    officers and then actively resist[ed] their efforts to turn him 
    around.” 691 F.3d at 631
    (5th Cir. 2012). Hanks presented his hands behind his back, did not
    move away from Officer Rogers, and offered no active physical resistance even
    after Officer Rogers applied the “half spear.” The Poole majority concluded that
    the officers responded with “‘measured and ascending’ actions that
    corresponded to [the plaintiff’s] escalating verbal and physical resistance.” 
    Id. at 629
    (quoting Galvan v. City of San Antonio, 435 Fed. App’x 309, 311 (5th
    Cir.2010)). Officer Rogers, in contrast, escalated his actions at a point where
    Hanks’s verbal and passive physical resistance was on the decline. 9
    8 Officer Rogers escalated this encounter from his first verbal command to kneel to
    the application of overwhelming physical force in the space of just twenty seconds. During
    those twenty seconds, Hanks twice asked, to no avail, whether he was under arrest. The fact
    that our law clearly establishes the unreasonableness of such a sudden escalation does not,
    of course, suggest that police may never employ some degree of force against a
    nonthreatening, passively-resisting individual who presents no flight risk. This case merely
    requires us to recognize that if police cannot abruptly resort to actual force where such an
    individual has refused instructions to exit her vehicle for a long enough period of time for the
    officer who initiated the traffic stop to call for and obtain backup, see 
    Deville, 567 F.3d at 161
    –62, Officer Rogers could not suddenly deploy actual force in response to Hanks’s briefer
    reluctance to kneel.
    9 Immediately before Officer Rogers produced a taser, Hanks was leaning back against
    the trunk of his car with his hands near his pockets, despite Officer Rogers’s repeated
    commands for Hanks to place his hands on the car. After Officer Rogers produced the taser,
    Hanks complied with the instruction. Seconds later, Hanks complied with Officer Rogers’s
    directive to place his hands behind his head. When Officer Rogers told Hanks to “go to [his]
    knees,” Hanks folded his hands behind his back (Officer Rogers stood behind Hanks) and
    asked whether he was under arrest. Though Hanks did not immediately drop to his knees,
    the recording shows that Hanks had assumed a more compliant, unthreatening position than
    had been displayed before Officer Rogers produced his taser.
    15
    Case: 15-11295       Document: 00513940670          Page: 16     Date Filed: 04/05/2017
    No. 15-11295
    B. Graham clearly establishes the violation in this obvious case
    Though we conclude Deville clearly proscribed Officer Rogers’s actions,
    we also view this as an “obvious” instance of excessive force in light of the
    factors set forth in Graham. Graham directs us to consider the “facts and
    circumstances of each particular case, including 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.” 
    Cooper, 844 F.3d at 522
    (quoting 
    Graham, 490 U.S. at 396
    ). As noted above, all of these factors strongly favor Hanks. No reasonable
    officer who is aiming a taser at the back of an individual such as Hanks—i.e.,
    an individual who (1) was stopped for a minor traffic violation; (2) exited his
    car and has his hands displayed behind his back, thus presenting no immediate
    threat or flight risk; and (3) has displayed, at most, passive resistance,
    including asking whether he was under arrest—would escalate the situation
    via a physical takedown only seconds after ordering that individual to kneel. 10
    *             *              *
    We hold that on Feb. 26, 2013, clearly established law demonstrated, and
    Graham makes obvious, that it was clearly unreasonable and excessive for
    Officer Rogers to abruptly escalate the encounter via a physical takedown
    where (1) Officer Rogers stopped Hanks for a minor traffic offense; (2)
    immediately before the takedown, Officer Rogers had his taser aimed at
    Hanks’s back while Hanks stood against his vehicle, facing away from Officer
    Rogers, with his empty hands displayed behind his back, presenting no
    10 Officer Rogers notes that the record contains a letter from a Grand Prairie personnel
    and training officer that states Officer Rogers “would have been ok with a Taser Deployment”
    during the encounter. That letter does not trump our analysis of the objective reasonableness
    of Officer Roger’s actions for the same reasons that the district court correctly acknowledged
    its prerogative to reject the Grand Prairie Police Department’s conclusion that Officer
    Rogers’s use of force was “not objectively reasonable.”
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    Case: 15-11295    Document: 00513940670     Page: 17   Date Filed: 04/05/2017
    No. 15-11295
    immediate threat or flight risk; and (3) Hanks offered, at most, passive
    resistance, including asking whether he was under arrest.
    CONCLUSION
    Accordingly, we REVERSE and REMAND to the district court for further
    proceedings consistent with this opinion.
    17