United States Court of Appeals

for the Fifth Circuit ____________

No. 22-20028

____________

Corey Spiller, 

Plaintiff—Appellant,

versus

Harris County, Texas; Harris County Constable 

Precinct 7; Constable May Walker; Jared Lindsay,

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

No. 4:20-CV-3878

______________________________

Before Jones, Dennis, and Willett, Circuit Judges.

James L. Dennis, Circuit Judge:

At approximately 4:00 a.m. on December 21, 2019, Corey Spiller

drove to assist his girlfriend, Dashanelle Moore, after her minor single car 

accident on a Houston elevated expressway. Much of the episode forming the 

basis of this lawsuit was captured on police body-worn cameras. Both parties 

rely on those videos as accurately capturing and showing the facts in their 

conflicting versions of what happened.

At the scene, Spiller and Moore peaceably conversed with officers 

until a supervisor, Sergeant Jared Lindsay, arrived. Lindsay Video at 21:30–

United States Court of Appeals

Fifth Circuit

FILED

August 30, 2024

Lyle W. Cayce

Clerk

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2

40. Lindsay briefly questioned Moore and rebuked Spiller for attempting to 

answer for her. Lindsay Video at 22:10–23:20. He then directed Moore to go 

with an officer to a nearby truck stop for further police procedures and he

told Spiller to follow in his car. Lindsay Video at 23:21–23:32. Spiller 

attempted to ask Lindsay and other officers about what would happen to 

Moore. Lindsay Video at 23:28–23:33. Lindsay became enraged, seized 

Spiller at his neck, and slammed him on his back on the hood of a parked car. 

Lindsay Video at 23:40–50; Lane Video at 8:10–20. The two tumbled to the 

pavement and continued to scuffle as the other officers intervened and 

grasped Spiller. Lindsay Video at 23:50–56. One officer tased Spiller in his 

back. Lindsay Video at 23:57–24:03. Spiller was arrested and taken into 

custody, but charges against him were later dropped.

Spiller filed suit under 42 U.S.C. § 1983 against Lindsay in his 

individual and official capacities, Harris County, Harris County Constable 

Precinct 7, and Chief Constable May Walker in her individual and official 

capacities. Spiller brought claims for excessive force and false arrest, 

bystander liability, retaliation, and a violation of the Americans with 

Disabilities Act (ADA). The district court dismissed Harris County, Precinct 

7, and Chief Constable Walker for failure to state a claim and later granted

summary judgment for Lindsay on the basis of qualified immunity. Spiller

timely appealed,1 challenging the entry of summary judgment dismissing his 

_____________________

1 With respect to the district court’s dismissal of Spiller’s claims against Precinct 

7 and claims against Chief Constable Walker and Harris County for false arrest, First 

Amendment retaliation, bystander liability, and ADA violations, Spiller does not challenge 

these rulings in his briefing. A party forfeits an argument challenging the district court’s 

ruling by not raising it on appeal. Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397 (5th Cir. 

2021). Likewise, with respect to Spiller’s claims against Chief Constable Walker for 

supervisory liability, he does not even mention supervisory liability in his briefing. 

Accordingly, Spiller has forfeited those claims due to inadequate briefing. See DeVoss v. Sw. 

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Fourth Amendment excessive force, Fourth Amendment false arrest, First 

Amendment retaliation, and bystander liability claims against Lindsay; and 

the dismissal of his Monell2 claim against Harris County.

I

We review a grant of summary judgment on the basis of qualified 

immunity de novo. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019) 

(citing Vann v. City of Southaven, 884 F.3d 307, 309 (5th Cir. 2018)). When a 

public official makes “a good-faith assertion of qualified immunity,” that 

“alters the usual summary-judgment burden of proof, shifting it to the 

plaintiff to show that the defense is not available.” Joseph ex rel. Joseph v. 

Bartlett, 981 F.3d 319, 329-30 (5th Cir. 2020) (quoting Orr v. Copeland, 844 

F.3d 484, 490 (5th Cir. 2016)). As is normal for summary judgment, “[t]he 

plaintiff must show that there is a genuine dispute of material fact and that a 

jury could return a verdict entitling the plaintiff to relief for a constitutional 

injury.” Id. at 330. However, unique to the qualified immunity context, “to 

overcome qualified immunity, the plaintiff’s version of those disputed facts 

must also constitute a violation of clearly established law.” Id.

We review the grant of a motion to dismiss for failure to state a Monell

claim de novo. Henderson v. Harris Cnty., 51 F.4th 125, 130 (5th Cir. 2022) 

(citing Groden v. City of Dall., 826 F.3d 280, 283 (5th Cir. 2016)). We take all 

factual allegations as true and construe the facts in the light most favorable to 

the plaintiff. See Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 

249 (5th Cir. 2017) (citing Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 

2017)). When considering the denial of a Rule 12(b)(6) motion, the pertinent 

_____________________

Airlines Co., 903 F.3d 487, 489 n.1 (5th Cir. 2018) (concluding that failure to adequately 

brief a claim on appeal forfeits it).

2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

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inquiry is whether the plaintiff has alleged facts that raise a facially plausible 

claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put differently, a Rule 

12(b)(6) motion should be denied if the facts in the complaint, when taken as 

true, “raise a right to relief above the speculative level.” Ruiz v. Brennan, 851 

F.3d 464, 468 (5th Cir. 2017) (quoting Taylor v. City of Shreveport, 798 F.3d 

276, 279 (5th Cir. 2015)).

II

A

Lindsay was not entitled to qualified immunity from Spiller’s 

excessive force claim on summary judgment. Because the videos of Sergeant 

Lindsay and Deputy Lane, and the record as a whole, do not blatantly 

contradict Spiller’s version of events so that no reasonable jury could believe 

it, this case does not fall within the exceptional holding of Scott v. Harris, 550 

U.S. 372, 380 (2007) (admonishing us to not adopt or advert to the plaintiff’s 

version of the facts for purposes of ruling on a motion for summary judgment

when the plaintiff’s version of events is utterly discredited by video

evidence). Instead, we apply Rule 56 of the Federal Rules of Civil Procedure 

unvarnished. Doing so, we conclude that Lindsay failed to show the absence 

of a genuine dispute of material fact as to both elements of qualified 

immunity: whether Lindsay violated Spiller’s Fourth Amendment right to be 

free from excessive force; and “whether the right at issue was clearly 

established at the time of [the] alleged misconduct.” Morrow, 917 F.3d at 974 

(alteration in original) (internal quotations omitted).

First, a violation of the Fourth Amendment “occurs 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 (citing 

Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)). “Determining 

whether force was excessive or unreasonable is a ‘necessarily fact-intensive’ 

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and case-specific inquiry.” Id. (quoting Poole, 691 F.3d at 628). Lindsay’s 

affidavit contends that he was justified in seizing and body slamming Spiller 

because Spiller (1) interfered with his investigation and (2) elbowed him in 

his stomach. 

To the first point, Lindsay and the dissent suggest that Lindsay’s force 

was justified because Spiller was “actively obstructing [an] investigation,” 

i.e., the severity of the crime—interfering with public duties—was great.

Post, at 19 (Jones, J., dissenting). But the Fifth Circuit has held that this 

offense is “minor,” a factor that weighs in favor of finding excessive force.

Westfall v. Luna, 903 F.3d 534, 547 (5th Cir. 2018) (holding that, as to 

Graham’s3 first factor, the severity of the crime, interference with public 

duties is a minor offense).

To the second point in Lindsay’s affidavit, Spiller’s declaration states

that Lindsay attacked him with excessive, unreasonable force, which was 

totally unjustified and unprovoked by any act by Spiller. Spiller’s declaration 

specifically asserts that he did not elbow Lindsay and that he was not actively 

resisting. Joseph, 981 F.3d at 336 (finding excessive force was used when 

officers beat and tased a man who—in the plaintiff’s version of the facts—

was not suspected of a crime and who, while not following instructions, was 

not actively resisting); see also Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 

2013) (holding that officers exerted excessive force by immediately tasing and 

forcing to the ground a person whose only resistance was merely failing to 

comply with orders to put his hands behind his back and pulling his arm away 

_____________________

3 Graham v. Connor, 490 U.S. 386, 396 (1989) (outlining a few considerations that 

inform the need for force: the severity of the crime at issue, whether the suspect posed an 

immediate threat to the safety of officers or others, and whether the suspect was actively 

resisting arrest or attempting to evade by flight).

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when an officer grabbed his hand). Lindsay and the dissent exaggerate4 the 

video evidence by arguing it “clearly shows that the first blow was struck by 

Spiller when he elbowed Sergeant Lindsay in the chest.” Post, at 20. The key 

moment in the footage is when Lindsay steps into Spiller’s face and Spiller 

moves his elbow. The video evidence does not show Spiller striking Lindsay. 

Instead, the bodycams show Spiller maneuvering to get a view of the officers 

he was addressing and creating space between himself and Lindsay. Lindsay 

Video at 23:40–50; Lane Video at 8:10–20. At that same time, Lindsay 

barreled toward Spiller, which caused Spiller’s elbow to rub up against 

Lindsay. 

Because the video evidence in the record does not completely refute 

Spiller’s declaration, we apply Rule 56, find there is a genuine dispute of 

material fact as to whether Spiller “elbowed” Lindsay, and assume that the 

jury will believe the non-moving party’s evidence at trial. Scott, 550 U.S. at 

380; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The 

evidence of the non-movant is to be believed, and all justifiable inferences are 

to be drawn in his favor.”).

Second, we conclude that the right to be free from excessive force was

clearly established at the time of the violation in this case. See Joseph, 981 

F.3d at 342 (relying on, inter alia, Newman v. Guedry, 703 F.3d 757, 764 (5th 

Cir. 2012) and Ramirez, 716 F.3d at 378–79, for the “long . . . established

[rule] in our circuit [that] [o]fficers engage in excessive force when they

_____________________

4 “Video is no magic bullet to end fierce conflicts in interpretation.” Mary D. Fan, 

Democratizing Proof: Pooling Public and Policy Body-Camera Videos, 96 N.C. L. Rev. 1639, 

1658 (2018). Legal scholars have commented that “[t]he allure of video’s seeming 

transparency into truth heightens the risk that viewers will miss the persuasion effects and 

even potential distortion caused by angle, framing, perspective, and the filter of one’s own 

preconceived notions.” Id. at 1662.

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physically strike a suspect who is not resisting arrest”).5 Newman involved 

excessive force against an individual who had only made off-hand remarks 

and stepped back into officers during a pat down. 703 F.3d at 760–64. Ramirez 

involved excessive force against an individual whose only resistance was 

merely failing to comply with orders to put his hands behind his back and 

pulling his arm away when an officer grabbed his hand. 716 F.3d at 378. These 

cases are factually similar to this case, in which Lindsay used force after the 

only things Spiller did was not immediately comply with instructions to leave 

the scene and maneuvered his elbow near Lindsay to maintain a line of sight 

to the officers he was speaking with and to create space between himself and 

Lindsay. These cases establish that officers engage in excessive force when 

they physically strike a suspect who is not resisting arrest. Joseph, 981 F.3d at 

342. Moreover, Newman, in which the force occurred against an individual 

not suspected of wrongdoing, 703 F.3d at 764, and Westfall, in which an 

individual was tackled even though she was not under arrest, 903 F.3d at 548, 

establish that less force is permissible against individuals not yet under arrest, 

like Spiller in this case. 

For its part, the dissent tries to distinguish Newman and Ramirez by 

improperly resolving two fact disputes in favor of the moving party. First, 

whether Spiller struck Lindsay, which, for the reasons already explained, is 

genuinely disputed. And second, whether Spiller was potentially intoxicated. 

_____________________

5 Joseph itself did not clearly establish the right at issue for the present case because 

it was decided after 2019, the year in which the events in this case took place. See Salazar 

v. Molina, 37 F.4th 278, 286 (5th Cir. 2022). Nevertheless, Joseph relied on Newman and 

Ramirez, cases decided in 2012 and 2013 respectively, to find that it has “long been 

established in our circuit [that] [o]fficers engage in excessive force when they physically 

strike a suspect who is not resisting arrest.” 981 F.3d at 342. Newman and Ramirez clearly 

establish the right at issue here because they were decided before 2019.

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Post, at 19–21. Putting aside materiality,6 there is a genuine dispute of fact as 

to whether Lindsay suspected Spiller (as opposed to Spiller’s then-girlfriend) 

of intoxication—after all, Lindsay directed Spiller to get into his vehicle and 

drive it away from the scene. That request does not jibe with a supposed 

contemporaneous belief that Spiller had been drinking.

Having found genuine fact disputes material to the existence of a 

constitutional violation and concluding that the right at issue was clearly 

established at the time Lindsay’s misconduct occurred, we reverse the

district court’s grant of summary judgment to Lindsay on Spiller’s excessive

force claim.

7 A jury may ultimately decide the facts against Spiller, but at this 

stage, he has made an adequate showing to “go to trial for damages.” Post, at 

17.

III

Next, the district court found that Lindsay was entitled to qualified 

immunity from Spiller’s Fourth Amendment false arrest claim on summary 

judgment because “[a] reasonably competent officer could have believed that 

probable cause existed for [Spiller’s] arrest.” “A false-arrest claim requires 

a showing of no probable cause.” Westfall, 903 F.3d at 542 (citing Brown v. 

Lyford, 243 F.3d 185, 189 (5th Cir. 2001)). Lindsay had probable cause to 

arrest Spiller for interference with public duties. Section 38.15 of the Texas 

Penal Code provides: “A person commits an offense if the person with 

criminal negligence interrupts, disrupts, impedes, or otherwise interferes 

with . . . a peace officer while the peace officer is performing a duty or 

_____________________

6 See post, at 16 n.10 (Willett, J., concurring) (“I do not take the dissent to 

suggest that an officer can chokeslam someone based on the smell of alcohol.”).

7 The dissent includes a throw-away argument that Spiller “suffered no injury[.]” 

Post, at 21. That is wrong. Spiller submitted an affidavit saying Lindsay’s challenged acts 

caused him “pain” and to “fear for [his] life.” 

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exercising authority imposed or granted by law.” Tex. Penal Code § 

38.15(a)(1). Texas courts have affirmed convictions of defendants who failed 

to comply with an officer’s instruction to move away from a crime scene. See, 

e.g., Duncantell v. State, 230 S.W.3d 835, 842 (Tex. App.—Hous. [14th Dist.] 

2007, pet. ref’d) (finding that defendant violated Texas Penal Code § 38.15 

by repeatedly disregarding officers’ orders to stand away from crime scene 

during an investigation). Likewise, the Fifth Circuit has found probable cause 

when an individual fails to follow instructions necessary for an officer to 

perform their duties. See, e.g., Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 

2017).

In this case, during the investigation, Spiller at one point answered a 

question for Moore, prompting Lindsay to tell him to let Moore answer. 

Lindsay Video at 22:34–22:38. Spiller does not dispute this. Lindsay then 

asked Spiller to leave the scene multiple times while Moore went with the 

other officers to complete the investigation. Lindsay Video at 23:22–23:40. 

Like in the cases cited above, a reasonable officer could think Spiller was 

interfering with the investigation by refusing to leave while the investigation 

was being completed. See, e.g., Childers, 848 F.3d at 415; Westfall, 903 F.3d 

at 544; Duncantell, 230 S.W.3d at 842. Because there was probable cause for 

Spiller’s arrest for interference with public duties, Spiller has failed to show 

a constitutional violation, and Lindsay was entitled to qualified immunity on 

Spiller’s false arrest claim.8

IV

_____________________

8 Separately, the district court granted summary judgment as to Spiller’s bystander 

liability claim against Lindsay. Spiller inadequately uses a single sentence of analysis on this

claim in his briefing; it is forfeited. See DeVoss, 903 F.3d at 489 n.1. 

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The district court also found that Lindsay was entitled to qualified 

immunity for Spiller’s First Amendment retaliation claim on summary 

judgment “[b]ecause Lindsay had probable cause to arrest Spiller.”

Generally, “[i]f [probable cause] exists, any argument that the arrestee’s 

speech as opposed to her criminal conduct was the motivation for her arrest 

must fail, no matter how clearly that speech may be protected by the First 

Amendment.” Westfall, 903 F.3d at 550 (second alteration in original) 

(quoting Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008)). In this case, as 

already explained, Lindsay had probable cause to arrest Spiller for 

interference with public duties.

9 The district court’s grant of qualified 

immunity on Spiller’s First Amendment retaliation claim was proper.

V

Finally, the district court properly dismissed Spiller’s Monell claim 

against Harris County under Rule 12(b)(6) of the Federal Rules of Civil 

Procedure. Spiller failed to allege any specific facts from which it may be 

inferred that he was injured by any policy, custom, or practice of the County 

that was a moving force of his altercation with Lindsay. Gomez v. Galman, 18 

F.4th 769, 777 (5th Cir. 2021) (quoting Davidson v. City of Stafford, 848 F.3d 

384, 395 (5th Cir. 2017), as revised (Mar. 31, 2017)).

VI

For the foregoing reasons, we REVERSE the district court’s award

of summary judgment to Lindsay based on qualified immunity from Spiller’s 

_____________________

9 Spiller does not argue that the exception recognized in Nieves v. Bartlett, 587 U.S. 

391 (2019), to the no-probable-cause requirement applies. See Gonzalez v. Trevino, 144 S.

Ct. 1663, 1665–66 (2024) (noting that the no-probable-cause requirement does not apply 

“if [t]he [plaintiff] produces ‘objective evidence that he was arrested when otherwise 

similarly situated individuals not engaged in the same sort of protected speech had not 

been.’” (quoting Nieves, 587 U.S. at 407)).

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claim for excessive force, AFFIRM the district court in all other respects,

and REMAND this case for further proceedings not inconsistent with this 

opinion.

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Don R. Willett, Circuit Judge, concurring:

Videos from police body and dashboard cameras and bystanders’ 

smartphones play a front-and-center role in many excessive-force cases. For 

police officers, body-worn video cameras, like badges and firearms, are 

becoming standard-issue equipment. Sometimes the captured footage 

convincingly shows an officer’s actions were justified (limiting police 

liability), sometimes the footage convincingly shows the opposite (enhancing 

police accountability)—and sometimes the footage is less convincing than 

confounding.

As this case shows, absolute truth is sometimes hard to pin down, even 

when captured by high-definition video. And visual storytelling in use-offorce cases usually involves the parties jousting over what is—and is not—

shown on screen. “When opposing parties tell two different stories,” we 

must assess the factual dispute in light of the video evidence.1 And while such 

evidence can sharpen our decision-making by leaving less room for 

speculation and guesswork, it can often raise as many questions as it 

answers—for example, what about what the footage doesn’t show . . . the 

events that took place during the run-up to the alleged misconduct? And even 

what the often-harrowing video does show can become a Rorschach test of 

sorts, as viewers filter objective evidence through subjective experience. 

Where some see damning digital proof, others see clear-cut exoneration.

Civil-rights lawsuits alleging police abuse are fact-intensive, and we 

must scrutinize every minute detail of these often-chaotic encounters. And 

make no mistake, the process is not glamorous. We painstakingly examine 

every frame: watching, re-watching, re-re-watching, pausing, rewinding, and 

sometimes squinting—and then comparing what we saw with our own eyes 

_____________________

1 See Scott v. Harris, 550 U.S. 372, 380 (2007). 

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to the parties’ competing descriptions of what we saw.2 Invariably, there will 

be incongruities—a gentle word for it—between what we see on the screen 

and what we read in the briefs. Advocates, after all, are hardwired for 

certitude, insisting the video “clearly” shows this or “indisputably” shows 

that. Sometimes that’s true—but just as often, not. 

As nonaligned observers, judges are not predisposed to 

overstate/understate based on personal involvement in the dispute or a stake 

in who wins. That said, we’re far from perfect. Even high-definition video 

footage can yield competing eye-of-the-beholder takeaways. And the most 

disinterested observer may not always appreciate the full picture. Indeed, the 

dissent believes just that, leveling the accusation that we have, apparently, 

omitted “[s]everal critical details” from the bodycam footage and 

consequently produced “an absurd result on the facts before” us.3 I, of 

course, disagree with both the accusation and the characterization. As best I 

can tell, the majority’s description is largely faithful to what the evidence 

shows in light of the allegations made. But after reading the dissent, one can 

only wonder how we can reach such polar-opposite conclusions from the 

same video. 

Describing video footage is tricky. But we must do our best. Just as the 

parties must explain themselves to us, we must explain ourselves to them—

and to the public.4 My colleagues have offered competing accounts of the 

video, and below I add mine.

_____________________

2 See Boyd v. McNamara, 74 F.4th 662, 665 (5th Cir. 2015) (“[W]e are required to 

view the facts in the light depicted by the videotape.” (internal quotations omitted)). 

3 Post, at 17 (Jones, J., dissenting). 

4 As former Supreme Court Justice Tom C. Clark once remarked, “You see, we 

don’t have an army to enforce our opinions, and we don’t have any money . . . to run an ad 

in the newspaper. The only way we have is logic and the force and common sense of the 

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* * *

After Sergeant Lindsay arrives at the scene and is quickly debriefed 

about the accident, he questions both Moore and Spiller. His questions were 

curt and direct. So were the answers from Moore and Spiller. While the other 

officers seem to have been preoccupied with the wrecker and removing 

Moore’s car from the tollway, Sergeant Lindsay asks the other officers if they 

smell something—which, he later says in his affidavit, was a “strong odor of 

alcohol.” 

Sergeant Lindsay then directs Moore to go with an officer to a nearby 

truck stop, telling Spiller that he can follow in his car. Spiller tried to ask 

follow-up questions, but Sergeant Lindsay cut him off twice. Visibly 

frustrated, Spiller insists on speaking with the officers who, up until Sergeant 

Lindsay arrived, had no issues with Spiller. Sergeant Lindsay, also frustrated, 

rapidly approaches Spiller, their bodies inches away, and informs Spiller that 

he (Sergeant Lindsay) is the supervisor. 

Then, in what appears to be an attempt to create space between him 

and Sergeant Lindsay, Spiller extends his elbow out, rubbing up against 

Sergeant Lindsay’s stomach. Sergeant Lindsay reacts by grabbing Spiller by 

his neck and throwing him down on the hood of a patrol car. A struggle 

ensues, with both Sergeant Lindsay and Spiller grabbing each other by the 

arms. Once Sergeant Lindsay has him pinned down, Spiller appears to swipe 

at Sergeant Lindsay’s nose with his hand, but it is unclear (at best) whether 

he ever makes contact. Spiller later falls to the ground, other officers 

pouncing on him to detain him, and ultimately ending with Spiller getting 

tased multiple times in the back. 

_____________________

opinion.” Mimi Clark Gronlund, Supreme Court Justice Tom C. Clark

189 (2010). 

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* * *

Those are the crucial details as I see them. Much can be said about the 

differences between the above description and the dissent’s, but I think there 

are at least three worth pinpointing. 

First, according to the dissent, “Spiller clenched his fist and elbowed 

Sergeant Lindsay in the chest.”5 With respect, I do not see either of those 

things. Up until Sergeant Lindsay grabbed Spiller by his neck, one of Spiller’s 

hands was in his jacket pocket, and the other was gesturing toward Moore. 

So it is unclear where the dissent spies a clenched fist. As far as I can tell, “it 

doesn’t register on the video at all.”6

Second, when the dissent says Spiller “elbowed Sergeant Lindsay in 

the chest,” I take that to be an overstated way of simply saying that Spiller 

moved his elbow in a way that created space between him and Sergeant 

Lindsay—a natural reaction when someone larger than you, officer or not, 

suddenly gets in your face for the purpose of intimidation.7

Third, and finally, it is unclear how the dissent so assuredly observes 

“Spiller punch[] Sergeant Lindsay in the upper lip and jaw, causing 

injuries.”8 There were, to be sure, hands and arms flailing around after 

Sergeant Lindsay chokeslammed Spiller onto the patrol car. And Spiller’s 

hand did indeed fly near Sergeant Lindsay’s face as they were both struggling 

atop the car, possibly showing an attempted punch or swipe—maybe, maybe 

_____________________

5 Post, at 18 (Jones, J., dissenting). 

6 Id.

7 Ironically, the dissent’s description of what Sergeant Lindsay might have done to 

Spiller—“not much of a nudge”—more aptly fits what we see Spiller do to Sergeant 

Lindsay. Id.

8 Id.

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not. But, from the point of view provided on Officer Lane’s bodycam, I am 

doubtful Spiller ever connected his attempted punch (if it was indeed an 

attempted punch9). Whatever happened, though, I certainly cannot describe 

it with anything close to the dissent’s unswerving conviction, and more 

importantly for the excessive-force claim before us, it was well after Sergeant 

Lindsay decided that the circumstances warranted a chokeslam.10

* * *

At bottom, while I see the video differently than the dissent, I think 

our disagreement is a reasonable one. The dissent insists Sergeant Lindsay 

merely reacted to an “assault,” while I believe that the video tends to 

corroborate Spiller’s allegation of excessive force—or at minimum confirms 

there is a material factual dispute. Given our disagreement—a sincere but 

significant one—I have no heartburn with the notion that the parties’ dispute 

“can go to trial,”11 a bedrock constitutional guarantee that the dissent seems 

to fear will materialize. There, in a solemn United States courtroom, the 

dissent’s view, if correct, can be vindicated by a jury of Spiller’s and Sergeant 

Lindsay’s peers—not by three appellate judges playing junior-varsity jury. 

_____________________

9 Whether Spiller attempted to punch Sergeant Lindsay is a disputed fact issue, 

and one that cannot be easily resolved by reference to Deputy Lane’s bodycam footage. I 

therefore cannot say, as the dissent seems to imply, that Spiller’s version of events is 

“blatantly contradicted by the record.” Scott, 550 U.S. at 380. 

10 In concluding that Sergeant Lindsay’s use of force was justified, the dissent also 

mentions that Spiller was “potentially intoxicated.” Post, at 19 (Jones J., dissenting). I do 

not take the dissent to suggest that an officer can chokeslam someone based on the smell of 

alcohol. 

11 Id. at 17. 

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Edith H. Jones, Circuit Judge, dissenting:

Sergeant Lindsay arrived at the scene of a traffic accident and got 

interrupted repeatedly by Spiller, who elbowed him in the ribs, fought with 

him, and eventually bloodied his lip—and Spiller can go to trial for damages? 

This is an absurd result on the facts before the panel. Sergeant Lindsay is 

entitled to qualified immunity on Spiller’s excessive force claim. I 

respectfully dissent from the majority’s denial of qualified immunity.1

Several critical details are omitted from the majority opinion, as the 

record and video evidence reveal. From the minute Sergeant Lindsay arrived 

on the scene, Spiller was interfering with Sergeant Lindsay’s investigation of 

the accident. Spiller spoke over Moore and attempted to answer questions 

directed at her; Spiller was immediately warned by Sergeant Lindsay not to 

do this. Lindsay Video at 22:36-38. Sergeant Lindsay detected a “strong 

odor of alcohol,” as he approached Moore and Spiller on the roadside. He 

mentioned this to the other officers, and asked Deputy Lane “Do you smell 

that?. . . You need to take a big whiff.” Lindsay Video at 23:10-15; Lane 

Video at 7:45-50. Lindsey also asked Deputy Lane if he had checked Moore 

and Spiller for driving while intoxicated (DWI).2 Lindsay Video at 23:08-

23:14. 

Unsure where the odor was coming from, Sergeant Lindsay told 

Deputy Lane to separate Moore and Spiller until the officers could move 

their investigation off the Tollway for safety reasons. Spiller was told that he 

could follow Moore and Deputy Lane off the Tollway, but that Moore needed 

_____________________

1 I concur in the remainder of the opinion, which affirms the dismissal of Spiller’s 

other “constitutional” claims. 

2 A search of Spiller’s car revealed a large, near-empty bottle of tequila and a red, 

disposable tumbler on the hood of the car. 

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to go with Deputy Lane. Lane Video at 7:54-8:07. But Spiller insisted on 

speaking over Sergeant Lindsay and demanded to speak with someone else. 

Lane Video at 8:07-8:11. Then, when Lindsay approached Spiller to say that 

he was a supervisor and to explain what was happening, Spiller clenched his 

fist and elbowed Sergeant Lindsay in the chest. Lane Video at 8:11-14. 

Sergeant Lindsay recognized this as an assault, and the physical 

confrontation between Spiller and Lindsay followed. Lane Video at 8:14-

8:49; Lindsay Video at 23:40-24:11. Contrary to the majority’s view, the 

video plainly shows Spiller’s aggressive elbowing of Sergeant Lindsay. But 

even if there were a fact issue as to whether the Sergeant nudged Spiller first, 

it obviously was not much of a nudge, because it doesn’t register on the video 

at all. That being the case, Spiller had no right to attack Sergeant Lindsay 

with his fists. Even worse, during the confrontation, Spiller punched 

Sergeant Lindsay in the upper lip and jaw, causing injuries. This punch left 

Sergeant Lindsay in pain and disoriented. As a result, he tumbled to the 

ground and bloodied his knuckles. Contrary to the implication in the majority 

and concurring opinions, Sergeant Lindsay did not tase Spiller; another 

officer had to do that when Spiller continued fighting a third officer. Lane 

Video at 8:28-8:37. 

After the melee, the deputies relocated to a nearby Shell station where 

Sergeant Lindsay was treated by the Houston Fire Department for his 

injuries: a swollen, bloody lip, a cut, swollen right hand, and pain in his right 

elbow. Spiller, for his part, denied being injured and refused treatment. 

To this more complete recitation of the facts, I apply the familiar twostep qualified immunity inquiry: “[t]he first question is whether the officer 

violated a constitutional right. The second question is whether the right at 

issue was clearly established at the time of the alleged misconduct . . . . We 

can decide one question or both.” Morrow v. Meachum, 917 F.3d 870, 874 

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(5th Cir. 2019) (quotation marks and citation omitted). Spiller bears a heavy 

burden under the second question, as precedent 

requires the plaintiff to identify a case—usually, a body of 

relevant case law—in which an officer acting under similar 

circumstances . . . was held to have violated the Constitution. 

While there need not be a case directly on point, the 

unlawfulness of the challenged conduct must be beyond 

debate.

Joseph ex rel. Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020) (quotation 

marks and footnotes omitted). The upshot is that “[q]ualified immunity is 

justified unless no reasonable officer could have acted as [Sergeant Lindsay]

did here, or every reasonable officer faced with the same facts would not have” 

acted as Sergeant Lindsay did. Mason v. Faul, 929 F.3d 762, 764 (5th Cir. 

2019) (emphases in original); see also Brown v. Callahan, 623 F.3d 249, 253 

(5th Cir. 2010) (“In essence, a plaintiff must allege facts sufficient to 

demonstrate that no reasonable officer could have believed his actions were 

proper”). 

The district court correctly concluded that Spiller failed to meet his 

burden to show it was “clearly established” that his use of force was 

excessive. The cases relied on by the majority to suggest that Spiller was 

subjected to excessive force are not on point. Lindsay acted lawfully in 

physically restraining Spiller, who was uncooperative, potentially 

intoxicated, and actively obstructing investigation, after Spiller elbowed him. 

The majority relies on Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 

2012) and Ramirez v. Martinez, 716 F.3d 369, 378–79 (5th Cir. 2013) to show 

that, as of 2019, relevant caselaw in this circuit “clearly established” the right 

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at issue for the present case.3 Both are thin reeds, and are applied by the 

majority at an inappropriately high level of generality.4 Principally, neither 

one involved an injurious assault by the subject of arrest on the law 

enforcement officer. 5

Newman is thus distinguishable for three reasons. First, the 

videotapes in Newman did not clearly demonstrate the plaintiff’s noncompliance with an officer’s commands. 703 F.3d at 762. Here, the 

unambiguous video evidence fully “discredit[s]” Spiller’s allegations. Id. 

Spiller disobeyed instructions from Lindsey, despite repeated warnings. 

Second, unlike Newman, Deputy Lane’s body camera footage clearly shows 

that the first blow was struck by Spiller when he elbowed Sergeant Lindsay 

in the chest. Lane Video at 8:11-14. In Newman, however, the video evidence 

neither “contradict[ed] nor confirm[ed]” competing accounts of whether 

Newman had grabbed an officer’s hand and refused to let go before being 

struck with a baton, or whether Newman had been struck with a baton despite 

never resisting or failing to comply with the officers’ commands. 703 F.3d at

_____________________

3 The Supreme Court, of course, has repeatedly reserved the question whether 

circuit courts can rely on their own precedents, as opposed to those of the Supreme Court 

itself, to demonstrate “clearly established law.” See D.C. v. Wesby, 583 U.S. 48 , 66 n.8, 

138 S. Ct. 577, 591(2018); Reichle v. Howards, 566 U.S. 658, 665–66, 132 S. Ct. 2088, 2094 

(2012). 

4 Notably, in Wesby, the Supreme Court noted that it has “repeatedly stressed that 

courts must not define clearly established law at a high level of generality, since doing so 

avoids the crucial question whether the official acted reasonably in the particular 

circumstances that he or she faced.” 583 U.S. at 63–64, 137 S. Ct. at 590 (quotation marks 

omitted). 

5 Nor, for that matter, does Westfall v. Luna, 903 F.3d 534 (5th Cir. 2018), which 

the majority cites for the proposition that “less force is permissible against individuals not 

yet under arrest.” In that case, the plaintiff was not suspected of being intoxicated, and the 

plaintiff did not make initial physical contact with the officer. Id. at 539–41. Thus, that 

case is readily distinguishable from the facts at issue here as well. 

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760. Third, this case features an element completely absent in Newman: the 

presence of a strong smell of alcohol coming from Spiller and Moore. There 

is no basis in Newman for finding that Spiller had a “clearly established right” 

not to be physically restrained by Sergeant Lindsay after Spiller elbowed him. 

Morrow, 917 F.3d at 874. 

The Ramirez case, like Newman, involved no strong smell of alcohol 

as was present here. See 716 F.3d at 372–73 (reciting facts). Second, plaintiff 

Ramirez was shot with a taser right after he became noncompliant and pulled 

his arm away. In contrast, Sergeant Lindsay engaged Spiller’s throat after 

Spiller had elbowed him. The taser was not deployed by other deputies until 

substantially later in the incident. 

Moreover, the majority agree that “actions such as ma[king] physical 

contact with any of the officers or physically obstruct[ing] them from 

performing their legally authorized duties could constitute interference.” 

Voss v. Goode, 954 F.3d 234, 239 (5th Cir. 2020)(citation and quotation marks 

omitted). Spiller “did more than just argue with police officers; he failed to 

comply with an officer’s instruction, made within the scope of the officer’s 

official duty and pertaining to physical conduct rather than speech.” Childers 

v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017). The video evidence shows that 

Spiller’s conduct established probable cause for arrest—before the scuffle 

commenced. The question here is simply whether Sergeant Lindsay used 

excessive force to consummate the arrest. Neither this court nor the 

Supreme Court has authored any case that I know of, or the parties have 

cited, where the law enforcement officer got injured when confronting a 

suspect and the suspect himself suffered no injury, yet qualified immunity 

was denied so that the suspect could sue for damages. 

Spiller’s claims should not survive the stringent test of “clearly 

established law,” which is intended to protect law enforcement officers from 

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strike suits, especially where insult is piled on injury as happened here. 

Morrow, 917 F.3d at 874. The summary judgment should have been affirmed. 

I dissent. 

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