Batyukova v. Doege

Case: 20-50425 Document: 00515830276 Page: 1 Date Filed: 04/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 21, 2021
No. 20-50425 Lyle W. Cayce
Clerk
Inessa G. Batyukova,
Plaintiff—Appellant,
versus
Brandon Lee Doege, #1282,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-391
Before Davis, Southwick, and Costa, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Inessa Batyukova appeals from the district court’s grant of qualified
immunity and summary judgment to an off-duty sheriff’s deputy on her
Section 1983 claims. The deputy had been driving his own vehicle when he
encountered another vehicle stopped in a traffic lane of a four-lane divided
highway. Batyukova emerged from the stopped vehicle and would not follow
the deputy’s commands. She brought suit for the deputy’s use of deadly
force when he perceived she might be reaching for a weapon, and for his
alleged failure to provide her medical assistance for the injuries she sustained.
We AFFIRM the grant of qualified immunity and summary judgment.
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FACTUAL AND PROCEDURAL BACKGROUND 1
Brandon Doege was a deputy of the Bexar County, Texas Sheriff’s
Office who worked in the county’s adult-detention center. He was not a
patrol officer and had not undergone the same training as patrol officers. He
was, though, commissioned as a peace officer and had received basic training
for that role.
Shortly before midnight on June 28, 2018, Deputy Doege was driving
westbound on U.S. Highway 90 on his way home from a shift. He was in his
uniform and driving his personal vehicle, which was equipped with red and
blue police-style lights. After he crossed the line from Bexar County into
Medina County, Deputy Doege encountered Batyukova’s vehicle stopped in
the left-hand lane of the highway. Deputy Doege activated his red and blue
lights and parked behind her so he could render aid. At that time, he called
911 and informed the Medina County dispatcher that he was an off-duty
deputy, that he had encountered a vehicle in the middle of the road with its
hazard lights on, that he was in his personal vehicle with red and blue lights,
and that he had not yet approached the vehicle.
Batyukova then began to exit her vehicle. Deputy Doege opened his
door and yelled out to Batyukova, “let me see your hands” and “get out of
the vehicle.” She stepped out of the vehicle, which prompted Deputy Doege
to yell “put your hands on the hood.” Instead of complying with the
commands, Batyukova gave Deputy Doege the middle finger, shouted “f**k
1
The summary-judgment record includes: (1) a composite of the audio from
Deputy Doege’s 911 call with video from a nearby security camera; (2) excerpts from
Deputy Doege’s deposition; (3) excerpts from Batyukova’s deposition; (4) an audio
recording of Batyukova’s interview with the Medina County Sheriff’s Office; (5) the
Medina County Sheriff’s Office Incident Report; (6) Batyukova’s deemed admissions;
(7) a news article; and (8) Batyukova’s medical records. The security-camera video is of
poor quality, revealing little that is helpful regarding the few disputed events.
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you,” and said that she hated America. Still on the line with 911, Deputy
Doege asked the dispatcher to send a police unit.
It is undisputed that, over the course of the short encounter,
Batyukova yelled “f**k you,” “f**k America,” and “I hate America.” The
parties dispute whether Batyukova also said “death to America” and
“you’re going to f**king die tonight.” Deputy Doege testified that
Batyukova made those statements and that they contributed to his fearing for
his life, but Batyukova denies doing so.
After requesting a police unit, Deputy Doege again yelled “put your
hands on the hood.” He also asked her “what is going on” as she continued
to shout expletives. After ignoring almost every command Deputy Doege
gave, Batyukova began to walk towards Deputy Doege’s vehicle. Deputy
Doege quickly put his vehicle in reverse and backed up to maintain distance.
Batyukova stopped her approach when Deputy Doege exited his
vehicle and drew his weapon. Standing behind his door, Deputy Doege yelled
“get down now” and “let me see your hands.” At that point, with a cigarette
in one hand, Batyukova reached her other hand towards the waistband of her
pants. Her hand went behind her back and disappeared from Deputy
Doege’s view. An instant later, Deputy Doege fired five shots. Bullets struck
her wrist, leg, and abdomen.
The video evidence shows that, immediately after shooting, Deputy
Doege told the dispatcher “shots fired, shots fired . . . she reached behind her
back.” In his deposition, he testified that it was the combination of her saying
“you’re going to f**king die tonight” and her hand reaching behind her back
towards her waistband that made him fear for his life. According to his
statement to the Medina County Sheriff’s Office, when Batyukova “reached
behind her towards her waistband,” Deputy Doege “thought she was
reaching for a weapon to kill [him]” and “was in fear for [his] life.”
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After the incident, Batyukova told news reporters that she was
attempting to “moon” Deputy Doege. Similarly, she told Medina County
investigators that she was attempting to show Deputy Doege her “beautiful
a**.” In her deposition nearly two years later, she contradicted her previous
accounts and claimed that she never attempted to moon Deputy Doege.
Regardless, it is conclusively established by deemed admission that
Batyukova “reached toward[s] [her] waistband because [she] intended to
lower [her] pants in order to display [her] buttocks to Deputy Doege.”
Other undisputed facts are that after Deputy Doege shot Batyukova,
he immediately informed the dispatcher that shots had been fired, that
Batyukova was injured, and that he needed assistance. He told the dispatcher
“I need someone now” and “she is not moving.” The dispatcher responded
that “units are on their way.”
A few seconds later, Batyukova’s vehicle horn began to blare, which
caused Deputy Doege to believe someone else was in the vehicle. Deputy
Doege approached her vehicle to check for others but did not see anyone
inside the vehicle or in the nearby median.
Deputy Doege returned to his vehicle to search for a first aid kit but
soon remembered that he did not have one with him. While he was behind
his vehicle, Batyukova began to move slightly. Her movements prompted
Deputy Doege to order her again to show her hands. A few moments later,
officers from the Medina County Sheriff’s Office and the Castroville Police
Department arrived. Deputy Doege told them he had not fully cleared the
vehicle, the surrounding area, or Batyukova. Other officers apparently
handled traffic control, and Deputy Doege and a Medina County deputy
proceeded to check Batyukova’s vehicle again but found nobody else. The
Medina County deputy then approached Batyukova, determined that she was
breathing and responsive, and stayed with her until EMS arrived. EMS
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arrived about 15 minutes after she was shot. Batyukova had several gunshot
wounds, a fractured wrist, and an exposed bone. She had also lost
approximately 1,500 mL of blood. She survived her wounds.
Batyukova brought suit against Deputy Doege under 42 U.S.C.
§ 1983. She then amended her complaint to add several defendants —
including both Bexar and Medina Counties and their sheriff departments —
and new factual allegations and claims. The district court eventually
dismissed her claims against every other defendant, which left only Deputy
Doege. Her claims against Deputy Doege included: (1) Fourth Amendment
excessive force based on pointing his weapon at her; (2) Fourth Amendment
excessive force based on shooting her; (3) First Amendment retaliation for
shooting her in response to her engagement in protected activity; and
(4) Fourteenth Amendment deliberate indifference for failing to render
adequate medical assistance.
During discovery, Batyukova failed to respond to Deputy Doege’s
first set of requests for admission within the 30-day deadline set by Federal
Rule of Civil Procedure 36(a)(3). After discovery closed, Deputy Doege filed
a motion for summary judgment that asserted qualified immunity. His
motion relied on many of the facts deemed admitted by Batyukova’s failure
to respond to the admission requests in a timely manner. The next day,
Batyukova filed her own motion for summary judgment on one of her
excessive-force claims and finally produced responses to Deputy Doege’s
discovery requests. Two weeks later, Batyukova moved for leave to amend
her discovery responses, i.e., to withdraw her deemed admissions. The
magistrate denied the motion.
The district court granted Deputy Doege’s motion for summary
judgment. Relying in large part on the deemed-admitted facts, the court
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found no Fourth, First, or Fourteenth Amendment violations. 2 It did not
analyze whether the law was clearly established for any of her claims.
Batyukova timely appealed.
DISCUSSION
“We review a grant of summary judgment de novo, applying the same
standard as the district court.” Valderas v. City of Lubbock, 937 F.3d 384, 388
(5th Cir. 2019). Summary judgment is appropriate “if 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). “A dispute is
genuine if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Dyer v. Houston, 964 F.3d 374, 379 (5th Cir.
2020). “A fact is material if its resolution could affect the outcome of the
action.” Id. at 379 (quotation marks omitted).
On appeal from summary judgment, we view the facts in the light most
favorable to the nonmoving party and draw all reasonable inferences in that
party’s favor. Joseph v. Bartlett, 981 F.3d 319, 325 (5th Cir. 2020).
“Conclusory allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation” will not survive
summary judgment. Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016).
Whenever possible, we will “give greater weight . . . to the facts evident from
video recordings.” Valderas, 937 F.3d at 388. However, the facts deemed
admitted by Batyukova’s failure to respond in a timely manner “are
2
The district court combined Batyukova’s two Fourth Amendment claims. On
appeal, Batyukova does not contest summary judgment on her claim based on Deputy
Doege pointing his weapon at her. She therefore waives appellate review of that claim.
Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004).
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conclusive as to the matters admitted.” In re Carney, 258 F.3d 415, 420 (5th
Cir. 2001). Those facts “cannot be overcome” at the summary-judgment
stage by pointing to contradictory evidence. Id.The defense of qualified immunity “alters the usual summary
judgment burden of proof.” Valderas, 937 F.3d at 389. Once a defendant
properly raises the defense, the burden shifts to the plaintiff to demonstrate
that the defendant is not entitled to the defense’s protection. Garza v.
Briones, 943 F.3d 740, 744 (5th Cir. 2019). An officer is entitled to qualified
immunity if the officer’s conduct either did not violate a federal right of the
plaintiff or that right was not clearly established at the time of the relevant
events. Dyer, 964 F.3d at 380. We can base a decision to allow the immunity
on either part of the analysis alone. Morrow v. Meachum, 917 F.3d 870, 874
(5th Cir. 2019). The district court reached only the issue of whether any
constitutional violation occurred. Because we review the grant of a summary
judgment using the same standards as the district court, Valderas, 937 F.3d
at 388, we can and do resolve the appeal of Batyukova’s excessive-force claim
based on the other qualified-immunity consideration: whether the law was
clearly established that the deputy’s actions violated Batyukova’s Fourth
Amendment right to be free from excessive force. 3
I. Fourth Amendment excessive force
Batyukova’s excessive-force claim “is governed by the Fourth
Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 572 U.S.
765, 774 (2014). An officer violates the right to be free from excessive force
3
No questions have been raised in this case regarding the possible effect on the
usual analysis of qualified immunity of the fact that the deputy was off duty, was employed
at a detention facility, and may not have been trained to make traffic stops, to decide
whether to detain individuals, or to respond to firearms-based emergencies. In light of such
questions not being posed, we do not answer them today.
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“when a seized person suffers an injury that results directly and only from a
clearly excessive and objectively unreasonable use of force.” Joseph, 981 F.3d
at 332. We conduct a “‘necessarily fact-intensive’ and case-specific
inquiry.” Id. (quoting Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir.
2012)).
The reasonableness of an officer’s use of force “requires careful
attention to the facts and circumstances of each particular case.” Graham v.
Connor, 490 U.S. 386, 396 (1989). This usually includes consideration of
“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.” Id. In cases involving
the use of deadly force, though, “our ‘objective reasonableness’ balancing
test is constrained.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.
2004). “The use of deadly force violates the Fourth Amendment unless ‘the
officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others.’” Romero v. City of
Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (quoting Tennessee v. Garner, 471
U.S. 1, 11 (1985)). Stated differently, “[a]n officer’s use of deadly force is
not excessive, and thus no constitutional violation occurs, when the officer
reasonably believes that the suspect poses a threat of serious harm.” Manis
v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
“[W]e are careful to avoid ‘second-guessing a police officer’s
assessment, made on the scene, of the danger presented by a particular
situation.’” Garza, 943 F.3d at 745 (quoting Ryburn v. Huff, 565 U.S. 469,
477 (2012)). “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.
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In this case, Batyukova’s deemed admissions conclusively establish
the following facts. She ignored Deputy Doege’s commands to show her
hands and to place her hands on the hood of her vehicle. Instead, she gave
him the middle finger and shouted expletives at him. She then started
walking towards Deputy Doege, which prompted him to reverse his vehicle
to maintain distance. She failed to comply with his subsequent command to
“get down.” Then, Batyukova reached for her waistband.
Other uncontroverted summary-judgment evidence shows that
Deputy Doege observed Batyukova reach behind her back, that her hand
disappeared from view, and that Deputy Doege feared that she was reaching
for a weapon. 4
The district court determined that “a reasonable officer in Doege’s
position would have believed Batyukova posed an immediate threat to his
safety” and that his “decision to use deadly force was objectively reasonable
under the circumstances.” The court concluded that Batyukova failed to
demonstrate a Fourth Amendment violation, a conclusion that resulted in the
grant of qualified immunity without needing to consider whether the law
supporting a violation was clearly established.
We resolve the appeal of Batyukova’s excessive-force claim on
whether the right she claims was clearly established at the time of the alleged
misconduct. See Dyer, 964 F.3d at 380. Batyukova must show that the law
was “sufficiently clear” at that time “that every reasonable official would
4
Although Batyukova testified that she never attempted to moon Deputy Doege,
her deemed admissions and her own statements to investigators and reporters said
otherwise. Regardless, she has not argued in this appeal that her hand never went behind
her back or disappeared from view. Accordingly, she has not genuinely disputed Deputy
Doege’s testimony that she reached behind her back and that her hand disappeared from
his view. Her undisputed reach “towards her waistband” mandates the same result.
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have understood that what he [was] doing violate[d] that right.” Mullenix v.
Luna, 577 U.S. 7, 11 (2015). There are two ways to demonstrate clearly
established law. Under the first approach, the plaintiff may “identify a case”
or “body of relevant case law” in which “an officer acting under similar
circumstances . . . was held to have violated the [Constitution].” Joseph, 981
F.3d at 330 (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)).
This approach “do[es] not require a case directly on point,” but “existing
precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In the excessive-force
context, “officers are entitled to qualified immunity unless existing
precedent ‘squarely governs’ the specific facts at issue.” Kisela v. Hughes,
138 S. Ct. 1148, 1153 (2018) (quoting Mullenix, 577 U.S. at 13).
Under the second approach, “there can be the rare ‘obvious case,’
where the unlawfulness of the officer’s conduct is sufficiently clear even
though existing precedent does not address similar circumstances.” Wesby,
138 S. Ct. at 590 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). As
for the potential for an obvious violation of rights, Batyukova argues that all
reasonable officers would have known they could not use deadly force against
someone who clearly posed no threat. Because that does not describe the
facts of this case, we will say no more about the category of an obvious
constitutional violation.
To overcome qualified immunity in this case, Batyukova must show
that clearly established law prohibited using deadly force against a person
who (1) repeatedly ignored commands, such as to show her hands, to place
her hands on the hood of her vehicle, or to get down; and then (2) reached
her hand behind her back towards her waistband, which the officer perceived
to be a reach for a weapon to use against him.
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Batyukova discusses quite a few precedents. We will discuss the
significant ones in groups of somewhat-similar fact patterns.
1. Force against suspects not resisting or attempting to flee
Our first group of precedents includes those in which this court
recognized that officers violate the Fourth Amendment when they tase, slam,
or strike suspects or arrestees who are not actively resisting arrest or
attempting to flee. In one, officers executing an arrest warrant threw a
suspect to the ground, tased him twice, choked him, punched and kicked him,
pressed his face into the ground, and pulled his hands behind his back to
handcuff him. Darden v. City of Fort Worth, 880 F.3d 722, 725 (5th Cir. 2018).
The evidence was that the suspect had complied with the officers’ orders and
never resisted arrest. Id. at 731. We held that “it was clearly established that
violently slamming or striking a suspect who is not actively resisting arrest
constitutes excessive use of force.” Id. at 733. Similarly, in the precedent on
which the Darden court relied, we held that it violated clearly established law
to “forcefully slam [an arrestee’s] face into a vehicle while she was restrained
and subdued.” Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008). The
evidence viewed in the light most favorable to the plaintiff in Bush showed
that “she was not resisting arrest or attempting to flee.” Id.Neither Darden nor Bush clearly establish a constitutional violation in
this case. Those cases did not involve, as this case does, an adversarial and
non-compliant person’s reach for what might have been a weapon.
2. Deadly force against someone not posing an imminent threat
Batyukova also asserts substantial similarity of the facts here with a
precedent in which, after a 12-minute encounter, deputies shot and killed a
knife-wielding suspect who was 30 feet away from everyone and standing in
a surrender pose. Amador v. Vasquez, 961 F.3d 721, 724–26 (5th Cir. 2020).
We held that at the time of the 2015 encounter, “[e]very reasonable officer
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would have understood that using deadly force on a man holding a knife, but
standing nearly thirty feet from the deputies, motionless, and with his hands
in the air for several seconds, would violate the Fourth Amendment.” Id. at
730.
Amador does not clearly establish a constitutional violation in this
case, either. It is distinguishable in two material respects. First, the suspect
was wielding a knife while standing too far away to be an immediate danger.
See id. Second, by the time the deputies in Amador shot, the suspect “had
his hands in the air in a surrender position; and stood stationary in the
officers’ line of sight.” Id. at 729. Surrender diminished, if not dispelled, the
threat the suspect posed. Those facts are not comparable to the situation of
Deputy Doege, who believed that Batyukova was reaching for a weapon that
could endanger him, and there was no evidence of surrender.
More factually comparable are two precedents in which the use of
deadly force was held to be reasonable because the officer had reason to
perceive a threat of serious harm. In one, it was reasonable to use deadly
force when the officer perceived a suspect’s sudden reach towards his
waistband “to be consistent with a suspect retrieving a weapon.” Salazar-
Limon v. City of Hous., 826 F.3d 272, 275, 278 (5th Cir. 2016). We have also
held that the use of deadly force is reasonable when a person, “in defiance of
the officers’ contrary orders, reached under the seat of his vehicle and
appeared to retrieve an object that [one officer] reasonably believed to be a
weapon.” Manis, 585 F.3d at 845. Similarly to the facts of this case, the
person in Manis was not suspected of criminal activity but, rather, was
approached because his vehicle was idling on railroad tracks at an
intersection. Id. at 841. Though there are factual distinctions to be made,
both Salazar-Limon and Manis involved the use of deadly force following a
person’s reach for what reasonably could have been a weapon. In both, the
use of deadly force was held to be reasonable.
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3. Sudden escalation without justification
Batyukova also cites several cases in which this court concluded that
police officers violated the Fourth Amendment by quickly resorting to force
without adequate justification or provocation.
In one precedent, officers struck, put in a headlock, and pulled to the
ground an apparently intoxicated person who pulled his arm away from
officers who were trying to grab his arm. Trammell v. Fruge, 868 F.3d 332,
337 (5th Cir. 2017). We held that that law was clearly established as of that
time “that it was objectively unreasonable for several officers to tackle an
individual who was not fleeing, not violent, not aggressive, and only resisted
by pulling his arm away from an officer’s grasp.” Id. at 343.
In another decision, an officer performed a physical takedown on a
motorist who had passively resisted the officer’s commands throughout the
encounter. Hanks v. Rogers, 853 F.3d 738, 742 (5th Cir. 2017). We held that
the law was clearly established “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.” Id. at 747.
Batyukova also relies on a precedent in which we held that clearly
established law prohibited striking and tasing a suspect who “committed no
crime, posed no threat to anyone’s safety, and did not resist the officers or
fail to comply with a command.” Newman v. Guedry, 703 F.3d 757, 764 (5th
Cir. 2012). Pivotal to the decision was the fact that “the officers immediately
resorted to [using a] taser and nightstick without attempting to use physical
skill, negotiation, or even commands.” Id. at 763.
The final precedent in this group is one in which a suspect refused to
exit her vehicle during a traffic stop. Deville v. Marcantel, 567 F.3d 156, 161
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(5th Cir. 2009). There was evidence that the officers “engaged in very little,
if any, negotiation with her — and . . . quickly resorted to breaking her
driver’s side window and dragging her out of the vehicle.” Id. at 168. We
held that “a jury could reasonably find that the degree of force the officers
used . . . was not justifiable under the circumstances.” Id.These decisions do not, individually or collectively, clearly establish a
constitutional violation here. None involved an officer using deadly force
against a non-compliant individual who reaches for what might have been a
weapon. There is little factual support to say that Deputy Doege abruptly
resorted to force. In fact, he did not use any force against Batyukova until
she initiated her reach behind her back towards her waistband, which Deputy
Doege perceived to be a reach for a weapon. “[W]e have never required
officers to wait until a defendant turns towards them, with weapon in hand,
before applying deadly force to ensure their safety.” Salazar-Limon, 826
F.3d at 279 n.6.
4. Deadly force against a suspect without sufficient warning
Batyukova describes the next group of precedents as ones that
prohibited the “use of deadly force without warning where the suspect posed
no immediate threat to the officer[] or others.”
In one of those precedents, officers were searching a wooded area for
a 17-year-old male reported to be walking around with a handgun. Cole v.
Carson, 935 F.3d 444, 448 (5th Cir. 2019) (en banc). The officers found the
teenager holding a gun to his head and shot him. Id. at 448–49. We held that
it violated the law clearly established at that time to shoot a suicidal teenager
who was armed but made no threatening or provocative gestures, posed no
immediate threat of harm to them, was facing away from the officers, and was
not warned even though it was feasible to do so. Id. at 455.
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That decision relied on a 1996 decision of this court. Baker v. Putnal,
75 F.3d 190 (5th Cir. 1996). There, after gunfire caused chaos on a crowded
beach, officers found and shot a suspect sitting inside a vehicle. Id. at 193.
We held that it violated the Fourth Amendment to shoot someone four times
who took no threatening action, was not holding a gun, was not warned, and
who “may have barely had an opportunity to see [the officer] before [the
officer] fired his gun.” Id. at 198. As the court explained, “[c]haos on the
beach and [the suspect’s] mere motion to turn and face [the officer] are not
compelling reasons” to justify deadly force. Id. The court also explained that
“[t]he number of shots and the nature of the wounds raise[d] a serious
question as to the reasonableness of [the officer’s] conduct.” Id. The
suspect received four gunshot wounds in areas of his body that indicated that
he was not facing the officer at the time he was shot. Id.Both Cole and Baker are distinguishable. Batyukova was undoubtedly
aware of Deputy Doege’s presence. She repeatedly ignored his commands,
walked towards him, was actually facing him, and then made a movement
towards her waistband as if she was reaching for a weapon to use against
Deputy Doege.
Batyukova argues that no reasonable officer could have believed that
it was constitutional to “us[e] deadly force, five gunshots, against an
individual not suspected of a crime, who posed little to no threat to the officer
or others, was not fleeing or resisting arrest, and was holding a cigarette.”
That is not a fair characterization of the facts. Deputy Doege made a split-
second decision to use deadly force against a non-compliant person who
made a movement consistent with reaching for a weapon. We cannot say that
Batyukova posed “little to no threat” to Deputy Doege.
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We conclude that Batyukova failed to identify clearly established law
prohibiting Deputy Doege’s use of deadly force. The district court’s grant
of summary judgment on her excessive-force claim is affirmed.
II. First Amendment retaliation
Batyukova claims that Deputy Doege shot her in retaliation for her
engagement in activity protected by the First Amendment. The district court
determined that Batyukova failed to show a constitutional violation.
“‘[A]s a general matter the First Amendment prohibits government
officials from subjecting an individual to retaliatory actions’ for engaging in
protected speech.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting
Hartman v. Moore, 547 U.S. 250, 256 (2006)). “If an official takes adverse
action against someone based on that forbidden motive, and ‘non-retaliatory
grounds are in fact insufficient to provoke the adverse consequences,’ the
injured person may generally seek relief by bringing a First Amendment
claim.” Id. (quoting Hartman, 547 U.S. at 256).
There is some uncertainty as to whether Graham v. Connor, 490 U.S.
386 (1989), precludes a First Amendment retaliation claim based on an
officer’s use of excessive force during a seizure. 5 In Graham, the Supreme
5
District courts in our circuit have reached competing conclusions. Compare
Ybarra v. Davis, 489 F. Supp. 3d 624, 632 (W.D. Tex. 2020) (holding that a plaintiff may
bring a First Amendment claim for post-arrest retaliation that is “[s]eparate from the
Fourth Amendment excessive force claim”), with Price v. Elder, 175 F. Supp. 3d 676, 679
(N.D. Miss. 2016) (holding “that the Fourth Amendment functions as the exclusive
remedy”).
We do not find clarity in out-of-circuit precedents, either. The Eighth Circuit held
in one case that force applied after a plaintiff asked an officer if he had a warrant
“implicate[d] the protections of the Fourth Amendment and that no cognizable § 1983
First Amendment claim ha[d] been asserted.” Anderson v. Franklin Cnty., 192 F.3d 1125,
1132 (8th Cir. 1999). Since then, it has allowed a First Amendment claim for retaliatory use
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Court rejected the argument that excessive force could be asserted “under a
‘substantive due process’ approach.” Id. at 395. In doing so, the Court
explicitly held “that all claims that law enforcement officers have used
excessive force — deadly or not — in the course of an arrest, investigatory
stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard.” Id. In this case, neither
party has addressed whether Graham forecloses a First Amendment claim for
retaliatory use of force. The district court did not address that possibility.
We leave the question for another day because it is not necessary to our
resolution of this appeal.
For a First Amendment retaliation claim, a plaintiff must
demonstrate: (1) she was engaged in constitutionally protected activity;
(2) the officer’s action caused her to suffer an injury that would chill a person
of ordinary firmness from continuing to engage in that activity; and (3) the
officer’s adverse actions were substantially motivated against her exercise of
constitutionally protected activity. Alexander v. City of Round Rock, 854 F.3d
298, 308 (5th Cir. 2017).
“To prevail on such a claim, a plaintiff must establish a ‘causal
connection’ between the government defendant’s ‘retaliatory animus’ and
the plaintiff’s ‘subsequent injury.’” Nieves, 139 S. Ct. at 1722 (quoting
Hartman, 547 U.S. at 259). The officer’s retaliatory motive “must cause the
injury.” Id. “Specifically, it must be a ‘but-for’ cause, meaning that the
adverse action against the plaintiff would not have been taken absent the
of force to proceed where an officer pepper sprayed a plaintiff in response to asking for the
officer’s badge number. See Peterson v. Kopp, 754 F.3d 594, 603 (8th Cir. 2014).
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retaliatory motive.” Id. A First Amendment retaliation claim fails if the
“action would have been taken anyway.” Hartman, 547 U.S. at 260.
The first two elements are not in dispute. Batyukova was engaged in
protected activity during her encounter with Deputy Doege and being shot
would chill a person of ordinary firmness from engaging in protected activity.
Focusing on causation, the district court concluded that “Batyukova did not
present evidence that her speech and expressive conduct was a but-for cause
of the shooting.”
The undisputed evidence shows that, during the encounter,
Batyukova said “f**k you,” “f**k America,” and “I hate America.” She
also engaged in the expressive conduct of displaying her middle finger to the
deputy.
The parties dispute whether Batyukova also said “death to America”
and “you’re going to f**king die tonight.” In her deposition and in her
motion for summary judgment, Batyukova denied saying either. At oral
argument in this appeal, Batyukova’s counsel denied any reliance on these
statements for her First Amendment claim. Her counsel expressly conceded
that her First Amendment claim only asserts that she was shot because she
said “f**k you,” “f**k America,” and “I hate America,” and because she
gave Deputy Doege the middle finger.
On appeal from summary judgment, we are required to view the facts
in the light most favorable to the nonmovant; here, Batyukova. See Joseph,
981 F.3d at 325. We are to analyze whether the facts alleged or shown by the
plaintiff make out a claim for First Amendment retaliation. See Pasco v.
Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009). Accordingly, the question
before us is whether any of the speech or expressive conduct that Batyukova
alleges to have engaged in was a but-for cause of being shot.
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In his deposition, Deputy Doege testified that he shot Batyukova
because he feared for his life on account of her saying “you’re going to
f**king die tonight” and reaching her hand behind her back towards her
waistband. At another point in his deposition, he testified that the two
statements that contributed to his fears were “you’re going to f**king die
tonight” and “death to America.” Batyukova has repeatedly denied making
these statements and rejected any reliance on them during oral argument.
Thus, these statements are not a component of her First Amendment claim.
There is no record evidence to support the conclusion that the
protected activity Batyukova alleges she engaged in was a but-for cause of
being shot. Deputy Doege testified that Batyukova saying “f**k America”
did not cause him to fear. Nor did her saying “f**k you.” Further, there is
nothing in the record to suggest that her saying “I hate America” or giving
Deputy Doege the middle finger caused him to fear for his life. As a result,
Batyukova has not presented any summary-judgment evidence that her
engagement in protected speech caused Deputy Doege to shoot her. She
therefore cannot show that she would not have been shot absent her
engagement in protected activity.
The timeline of events also supports this conclusion. Deputy Doege
did not discharge his firearm at Batyukova when she began shouting
expletives at him. He did not fire at Batyukova as she was walking towards
him. Rather, he shot her when she reached her hand behind her back towards
the waistband of her pants. The temporal gap between the protected activity
on which Batyukova relies and being shot, as well as the intervening reach
towards her waistband, supports the conclusion that her protected activity
was not a but-for cause of being shot. Her First Amendment claim therefore
fails. Nieves, 139 S. Ct. at 1722; Alexander, 854 F.3d at 308.
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The district court’s grant of summary judgment on Batyukova’s First
Amendment claim is affirmed.
III. Fourteenth Amendment deliberate indifference
Batyukova also challenges summary judgment on her Fourteenth
Amendment claim for deliberate indifference to her medical needs. The
district court granted summary judgment because it found no evidence that
Deputy Doege was deliberately indifferent and no evidence that she suffered
harm as a result of any delay in receiving medical care.
The Due Process Clause of the Fourteenth Amendment guarantees
detainees the right “not to have their serious medical needs met with
deliberate indifference on the part of the confining officials.” Thompson v.
Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001). This guarantee “require[s]
the responsible government or governmental agency to provide medical care
to persons . . . who have been injured while being apprehended by the police.”
Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 279 (5th Cir. 2015).
These protections usually apply to pretrial detainees who have been
apprehended on account of criminal activity. See Dyer, 964 F.3d at 380.
Deputy Doege was in his uniform, in a vehicle displaying red and blue police-
style lights, identified himself to the dispatcher as an off-duty deputy, and
restrained Batyukova’s liberty by shooting her. That is enough to conclude
that the Fourteenth Amendment required the “confining officials” to
provide reasonable medical care. Thompson, 245 F.3d at 457–58; see also
Hernandez v. Tex. Dep’t of Prot. & Regul. Servs., 380 F.3d 872, 880 & n.1 (5th
Cir. 2004) (explaining that these duties fall on “state actors”).
To prevail on a claim of deliberate indifference under the Fourteenth
Amendment, “[t]he plaintiff must show that an officer acted with subjective
knowledge of a substantial risk of serious medical harm, followed by a
response of deliberate indifference.” Mason, 806 F.3d at 279 (quoting Hill v.
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Carroll Cnty., 587 F.3d 230, 238 (5th Cir. 2009)). “[The] plaintiff must show
that the officials refused to treat [her], ignored [her] complaints, intentionally
treated [her] incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs.” Id. (quotation
marks omitted) (quoting Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752,
756 (5th Cir. 2001)). If the plaintiff relies on delay as the basis of the claim,
then the plaintiff must show that the delay “results in substantial harm.”
Westfall v. Luna, 903 F.3d 534, 551 (5th Cir. 2018). Pain suffered during that
delay, though, can constitute substantial harm. Id.Deputy Doege had “subjective knowledge of a substantial risk of
serious medical harm.” See Mason, 806 F.3d at 279. Deputy Doege shot
Batyukova several times. Batyukova fell to the ground and lay motionless.
Deputy Doege immediately requested assistance, which evinces his
awareness of Batyukova’s need for medical care. At issue is whether Deputy
Doege responded with deliberate indifference. See id.
Viewing the facts in the light most favorable to Batyukova, even
though Deputy Doege did not personally render medical treatment to
Batyukova, he immediately informed emergency dispatch that shots had been
fired, that Batyukova was injured, and that she needed assistance. We cannot
say he ignored Batyukova, refused to treat her, or displayed wanton disregard
for her medical needs. See Mason, 806 F.3d at 279.
In contrast is one of our decisions in which deliberate-indifference
claims arose from officers’ failure to inform jail personnel of a pretrial
detainee’s injuries when they delivered him to the jail. Dyer, 964 F.3d at 381–
82. We held that a reasonable jury could find that the officers “acted with
deliberate indifference by failing to seek medical attention, by failing to
inform jail personnel about [the detainee’s] injuries, and by informing jail
personnel only that [the detainee] had been ‘medically cleared’ before
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arriving at the jail.” Id. at 382. Here, Deputy Doege immediately sought
medical attention.
Batyukova relies on the fact that Deputy Doege did not “individually”
provide medical care. Although that is true, a Medina County deputy did
render aid. That deputy approached Batyukova, determined that she was
breathing and responsive, and stayed with her until EMS arrived. In Mason,
the fact that one officer “did not personally participate” in the rendering of
medical care did not constitute deliberate indifference. 806 F.3d at 279.
There, three officers responded to a reported armed robbery at an apartment,
and one of the officers shot the person suspected of the robbery. Id. at 272–
73. After the shooting, the defendant–officer called an ambulance, left the
apartment to return a police canine to the patrol vehicle, and returned to find
other officers addressing the suspect’s wounds. Id. at 279. We consider the
facts of Mason to be closely analogous. Accordingly, that Deputy Doege was
not the officer personally to approach Batyukova does not amount to
deliberate indifference.
The only possibly meaningful difference between Mason and this case
is the delay between the shooting and the moment the Medina County deputy
approached Batyukova. At most, the delay was 15 minutes, which is the
amount of time between Batyukova being shot and EMS arriving. We
acknowledge that 15 minutes appears to be a long time to be left on the ground
while bleeding from gunshot wounds. It does not, however, amount to a
legally cognizable claim for deliberate indifference because Batyukova has not
presented any evidence that the delay resulted in “substantial harm.”
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
There is no indication that the delay between being shot and being
approached, either by the Medina County deputy or EMS, increased
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Batyukova’s risk of bodily harm or death. 6 Nor is there any indication that
the delay caused pain that would have been alleviated had she been
approached by an on-scene deputy at an earlier time. Further, the time taken
to clear the scene, both initially and subsequently, is a “legitimate
governmental objective” preventing that delay from being a basis for
deliberate indifference. Baldwin v. Dorsey, 964 F.3d 320, 327 (5th Cir. 2020)
(“Pre-trial detainees must be provided with reasonable medical care, unless
the failure to supply it is reasonably related to a legitimate government
objective.” (quotation marks omitted)). Finally, EMS arrived within 15
minutes of the shooting, and there is no indication that it could have arrived
any sooner.
Batyukova has not shown that Deputy Doege responded to her
medical needs with deliberate indifference.
AFFIRMED.
6
Batyukova cites Estate of Baker ex rel. Baker v. Castro, No. H-15-3495, 2018 WL
4762984 (S.D. Tex. Aug. 31, 2018). It is distinguishable as well as non-binding. There,
after shooting a suspect, the officer did not provide any medical care, but he did handcuff
the suspect after he was shot and as he was lying on his face. Id. at *13. The suspect died
due to blood loss a few minutes later. Id. The court held that jury issues existed as to
whether the officer was deliberately indifferent. Id. Here, though, there is no evidence that
the delay between being shot and being treated by the Medina County sheriff or EMS
resulted in substantial harm. Mendoza, 989 F.2d at 195.
23