United States Court of Appeals

for the Fifth Circuit

No. 22-60349

Robert Chambers, 

Plaintiff—Appellee, 

versus

Officer Kenneth Short, individually and in his official capacity, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:20-CV-58

Before Higginbotham, Smith, and Engelhardt, Circuit Judges.

Per Curiam:*

Officer Kenneth Short brings an interlocutory appeal of the denial of 

his motion for summary judgment. He contends that qualified immunity

(“QI”) precludes Robert Chambers’s 42 U.S.C. § 1983 claims of excessive 

force arising from an incident in which Chambers’s femur was broken after a 

traffic stop. We dismiss the appeal in part for want of jurisdiction, affirm the 

denial of summary judgment to the extent it asks the legal question, and 

* This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2023

Lyle W. Cayce

Clerk

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remand for further proceedings.

I.

The parties provide disparate accountings of the facts. According to 

Chambers, who was then seventy years old, he and his friend, Anthony 

Thornton, were “hanging out” at a gas station when several police officers, 

including Short, approached them. Short told Chambers and Thornton that 

both needed to leave the premises. Without seeing Short, Chambers replied, 

“yes, ma’am,” alleging that he did not realize Short was a man and that he 

had a “higher-pitched, feminine sounding voice.” Thornton posits that 

Short became upset after this misunderstanding. Thornton and Chambers 

then left, and as Thornton was walking away, he saw Chambers driving from 

the gas station with a police car following him.

Shortly afterward, Thornton arrived at the block where he and Chambers lived, about half a mile from the gas station, and saw approximately five 

police cars near Chambers’s house. Multiple other neighbors came out of 

their homes to observe the fracas. Chambers was sitting in his car, parked in 

his carport. Short was standing next to the driver’s side door. Chambers 

made no moves to flee, assault an officer, or otherwise resist Short or the 

other nearby officers.

According to all the neighbors, Thornton, and Chambers, Short 

opened the car door, lifted Chambers, and slammed him into the concrete 

driveway, causing injury. Next, an officer handcuffed Chambers while he 

was on the ground. Several officers gathered for a brief discussion, after 

which one approached Chambers, who was still lying on the ground, and

according to Thornton, ordered Chambers to get up. Chambers could not do 

so because of his injury. The officers instead carried Chambers, placed him 

into a police car, and drove him to the police precinct. An ambulance then 

took him to a hospital, where he was diagnosed with a broken femur. 

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Chambers contends that he is now permanently handicapped and continues 

to experience extreme pain and difficulty walking.

In contrast to Chambers’s account, Short allegesthat he and the other 

officers noticed several persons drinking and smoking marihuana at the gas 

station, including a “heavily intoxicated” Chambers. Short avers that he 

instructed Chambers not to drive home, and Chambers agreed, got out of his 

vehicle, and locked his car before walking away. Short then continued his 

patrol and only minutes later witnessed Chambers driving. He then alleges 

that he turned on his lights and attempted to make a traffic stop. Chambers 

did not comply and drove off. 

Short followed Chambers to Chambers’s home. On arrival, Chambers 

exited his vehicle and attempted to flee. The officer ordered Chambers to 

stop, but Chambers ignored these orders. Unfortunately for Chambers, he 

fell while trying to escape and injured himself. Short then put Chambers, 

who smelled of alcohol, in handcuffs, informed him he was under arrest, and 

called for a DUI officer. While the DUI officer was en route, Chambers complained of pain but refused medical assistance. 

The DUI officer took Chambers into his custody, and eventually, after 

he was transported to the police precinct, Chambers was sent to the hospital. 

At the hospital, Short issued Chambers four traffic citations for “(1) Failure 

to Yield for blue lights and sirens; (2) Driving with an expired or no driver’s 

license; (3) Driving on the wrong side of the road; and (4) No Insurance.” 

As Short was leaving, Chambers apologized to him and said, “I’m sorry man

I should have listen [sic] to you. I shouldn’t have done that. I’m sorry.”

No breathalyzer test was performed on Chambers. According to 

Short, the DUI officer said no breathalyzer was performed because “the test 

is not performed when someone is in pain.” At the hospital, Chambers’s

alcohol level on arrival was “somewhat elevated at 136,” and the hospital 

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diagnosed him with a right femur fracture. 

Chambers sued Short under § 1983, alleging that the officer had violated his Fourth Amendment rights by using excessive force. Short moved 

for summary judgment based on QI. The district court denied Short’s 

motion, reasoning that Chambers had offered sufficient evidence to create a 

genuine fact dispute regarding whether Short’s conduct was objectively 

unreasonable. Short appeals the denial of summary judgment. 

II.

A denial of summary judgment based on QI is “immediately appealable to the extent that the appeal turns on a question of law.”1

 Cooper v. Brown, 

844 F.3d 517, 522 (5th Cir. 2016). Such denials are reviewed de novo. See Orr 

v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016).

When considering an appeal of this nature, “we can review the materiality of any factual disputes, but not their genuineness.” Wagner v. Bay City, 

227 F.3d 316, 320 (5th Cir. 2000). “[W]e review the complaint and record 

to determine whether, assuming that all of [the plaintiff’s] factual assertions 

are true, those facts are materially sufficient to establish that defendants 

acted in an objectively unreasonable manner.” Id. “We have no jurisdiction 

to hear an interlocutory appeal . . . when a district court’s denial of qualified 

immunity rests on the basis that genuine [disputes] of material fact exist.”

Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir. 2005). In sum, our “review 

is limited to evaluating only the legal significance of the undisputed facts.” 

Mitchell v. Mills, 895 F.3d 365, 369 (5th Cir. 2018). 

1 The district court is required to draw facts and inferences in the light most 

favorable to the nonmoving party. Perez v. United States, 312 F.3d 191, 193–94 (5th Cir. 

2002) (per curiam). Here, that is Chambers.

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III.

Short purports that we have jurisdiction because of the district court’s 

characterization of Chambers’s alleged drunk driving. The officer contends 

that Chambers’s intoxication was indisputably established by “uncontradicted and unimpeached testimony.” Accordingly, he asks us to assess the 

district court’s determination that this fact was in dispute. 

The officer’s contention is colorable. Chambers never directly contradicts that he was intoxicated at any point in his sworn testimony or by

pointing to other evidence. Instead, Chambers primarily relies on the fact 

that neither Short nor the DUI officer performed a breathalyzer test as proof 

that he was not intoxicated. Furthermore, the hospital’s laboratory results 

showing that Chambers had an elevated alcohol level is some evidence that

he was indeed drunk.2 Still, when the facts and inferences are construed in 

the light most favorable to Chambers, the court was entitled to hold that there 

was a factual dispute over the issue of Chambers’s purported intoxication. 

Thus, because the district court expressly concluded that “Chambers 

offer[ed] summary judgment evidence sufficient to create a genuine fact [dispute] as to whether Short’s conduct . . . was objectively unreasonable in light 

of clearly established law,” we lack jurisdiction over Short’s arguments on 

this point. See Michalik, 422 F.3d at 257.3

2 That being said, no party submitted testimony or evidence explaining the lab 

results, the units of measurement, or any confounding variables the court should be aware 

of, so we put little weight on the results. 

3 In support of his theory that we do have jurisdiction, Short directs us to Orr, in 

which we addressed whether a video is required to determine a lack of a factual dispute. 

844 F.3d at 490–91. Orr did not address Wagner. In any case, even if Orr conflicts with 

Wagner, we must follow the earlier decision. See H&D Tire & Auto.-Hardware, Inc. v. Pitney 

Bowes Inc., 227 F.3d 326, 329 (5th Cir. 2000) (“When panel opinions appear to conflict, we 

are bound to follow the earlier opinion.”).

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Short also submits a legal question: Whether slamming an allegedly 

intoxicated driver to the ground to execute an arrest constitutes excessive 

force. Although Short’s contentions as to this point are predicated on disputed facts, we have jurisdiction to consider this legal question. See Cooper, 

844 F.3d at 522.

When a police officer invokes QI, the summary judgment burden of 

proof shifts to the plaintiff to show that the officeris not entitled to immunity. 

Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). Nevertheless, we still

“view the facts in the light most favorable to the non-moving party and draw 

all reasonable inferences in its favor.” Deville v. Marcantel, 567 F.3d 156, 164 

(5th Cir. 2009) (per curiam). When deciding whether the defendant is entitled to QI, we determine “whether the plaintiff has alleged a violation of a 

constitutional right” and “whether that right was clearly established at the 

time of the incident.” Orr, 844 F.3d at 492 (cleaned up). 

First, Chambers posits that Short used excessive force by slamming 

him into the ground. “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.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). The 

excessive-force calculus is fact-intensive, and our review is informed by the 

Graham factors: “[T]he 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).

Chambers has sufficiently demonstrated an excessive-force claim

when viewing the facts in the light most favorable to him. First, there is no 

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dispute that Chambers suffered a broken femur because of Short’s actions.

4

Second, there is little indication that Chambers could have reasonably been 

viewed as a threat to any officers or other persons, at least based on the facts 

as found in genuine dispute by the district court.

5

 Nor, according to those 

facts, did Chambers attempt to flee or resist Short. The use of force was 

clearly excessive and unreasonable. 

Even if we assume Chambers was intoxicated and modify our review 

to reflect the seriousness of a DUI offense, the answer does not change. In 

Cooper, we determined that it was objectively unreasonable for an officer to 

allow a police dog to attack a suspected drunk driver when the driver did not 

attempt to flee or resist, and the officer had no reason to believe the driver 

posed a threat. 844 F.3d at 522–24. The present case is quite similar. 

In Cooper, the court concluded that the first Graham factor—the 

severity of the crime—weighed in favor of the police because the offense 

involved a DUI. Id. at 522. Turning to the second factor, the court stated, 

“[n]o reasonable officer could conclude that Cooper posed an immediate 

threat.” Id. He “was not suspected of committing a violent offense,” and 

there was no indication he “might be violent.” Id. Moreover, the officers 

“could see [his] hands and knew he had no weapon.” Id. at 522–23. Only 

one officer was in pursuit of Cooper, and only that officer testified to being 

able to see Cooper’s hands. Finally, as to the third Graham factor, the court 

4 See Tarver, 410 F.3d at 752 (“Tarver’s summary judgment evidence adequately 

establishes that his injuries that day were caused solely by the conduct of Officer Bubela 

rather than from a preexisting condition or an action of a third party.”).

5 We disagree with the officer’s contention that Chambers was a risk to other 

motorists. Chambers was not resisting arrest or behaving aggressively, and his car was 

surrounded by approximately five police cars. See Cooper, 844 F.3d at 522–23. Moreover, 

Chambers was parked in his carport and could not have driven forward without crashing 

into his own home.

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noted that although “Cooper was not actively resisting arrest or attempting 

to flee or to strike [the police dog biting him],” the officer “subjected Cooper 

to a lengthy dog attack that inflicted serious injuries, even though [the officer]

had no reason to believe that Cooper posed a threat, and without first 

attempting to negotiate.” Id. at 523.

Though the first Graham factor favored the police officer in Cooper,

that court concluded that “the other factors push heavily for Cooper,” id. 

at 522, and, accordingly, determined that “[t]he undisputed facts establish 

that Brown’s use of force was objectively unreasonable,” id. at 524. The 

similarities between Cooper and the instant case support our conclusion. 

Therefore, even if we assume Chambers was intoxicated,the Graham 

factors as a whole weigh in his favor, such that if a jury found the facts as set 

out by Chambers’s side, the use of force was a constitutional violation.6

We therefore turn to the second prong and consider whether Chambers’s constitutional right was clearly established when he was injured. To 

establish this prong, “we must be able to point to controlling authority . . . 

that defines the contours of the right in question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc).

“We do 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).

Chambers’s right was clearly established. “Our caselaw makes certain that once an arrestee stops resisting, the degree of force an officer can 

6 It is worth noting that Chambers was not charged with DUI. Instead, he was 

issued citations for “(1) Failure to Yield for blue lights and sirens; (2) Driving with an 

expired or no driver’s license; (3) Driving on the wrong side of the road; and (4) No 

Insurance.” These citations were all dismissed or remanded.

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employ is reduced.”7 Cooper, 844 F.3d at 524. Like the plaintiff in Cooper, 

when construing the facts in Chambers’s favor, he was not attempting to 

resist arrest or flee at the time of the confrontation. And during the altercation in the driveway, Short had no reason to believe that Chambers posed 

an immediate threat. 

Short attempts to compare his case to Griggs v. Brewer, 841 F.3d 308 

(5th Cir. 2016). There, an officer conducted a traffic stop after Griggs ran a 

red light. The officer smelled alcohol and attempted to arrest Griggs midway 

through a field sobriety test. Griggs refused to comply with orders and 

lurched to the side, forcing the officer to place Griggs in a chokehold and 

body-slam him to the ground. On those facts, our court ruled that the officer’s conduct was not constitutionally unreasonable, and he was protected 

by QI. Id. at 313–14, 316. 

The comparison is inapt. Although Griggs concerned a motorist who 

was pulled over for suspected intoxication, the motorist displayed “erratic 

behavior” and overtly resisted during the arrest. Id. at 316. Additionally, the 

motorist was actually arrested for DUI, which is not the case here. 

So Griggs is not sufficiently similar: At no point do undisputed facts 

show that Chambers resisted arrest when pulled over. Nor do they indicate

that he was a threat to Short’s or others’ safety when in his carport. Finally, 

Short did not even arrest Chambers for DUI. 

Accordingly, the second prong is also satisfied, and, assessing solely 

the legal question and not the genuineness of the dispute, the district court 

did not err in denying QI.

7 See also Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (holding it was unreasonable for an arresting officer to slam the plaintiff’s head into a vehicle when the plaintiff 

was not resisting arrest or fleeing). 

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Based on the foregoing, we DISMISS Short’s appeal in part for lack 

of jurisdiction as to the factual issues and AFFIRM in part the order denying 

summary judgment on QI. The case is REMANDED for further proceedings as needed.

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