IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51349

EUGENE CADENA, 

 Plaintiff–Appellant,

v.

CHRISTOPHER RAY, San Antonio Police Officer; CRAIG RODRIGUEZ, San 

Antonio Police Officer; MICHAEL MAROTTA, San Antonio Police Officer,

 Defendants–Appellees.

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:15-CV-552

Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

San Antonio Police Officers Christopher Ray, Craig Rodriguez, and 

Michael Marotta, among others, arrested Eugene Cadena. Cadena claims they 

used excessive force in doing so. Cadena sued the officers under 42 U.S.C. 

§ 1983, alleging they violated his First, Fourth, and Fourteenth Amendment

rights. The district court granted summary judgment for the officers on all 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 29, 2018

Lyle W. Cayce

Clerk

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claims. Cadena appeals the ruling on his Fourth Amendment claim, and we 

affirm. 

I

The principal summary judgment evidence in this case consists of two 

videos, one recorded by Cadena on his cell phone and one taken by a nearby 

security camera. As Cadena filmed his wife’s arrest for public intoxication in 

a hotel lobby, an officer, who later gave an affidavit stating that “Cadena 

smelled of intoxicants, had bloodshot eyes, [and] was unsteady on his feet,” 

ordered Cadena to leave the lobby and wait outside. Cadena did not comply 

with this order but instead spoke to his wife, yelled to his brother-in-law, who

was also intoxicated and had approached the scene, and accused Officer 

Rodriguez of assault. 

Cadena started toward the lobby exit, but then proceeded around a 

column, returning to the scene of the arrest of his wife, and approached Officer 

Rodriguez from behind. Officer Rodriguez instructed Cadena to “put [his] 

hands behind [his] back.” Cadena said “No, I’m not” five times and began to 

backpedal. Officer Rodriguez pushed Cadena against a wall, and Officers 

Rodriguez and Ray attempted to subdue him by wrestling him face-down to 

the ground, but he refused to surrender his arms. 

Assisted by two other officers, Officers Rodriguez and Ray flipped 

Cadena onto his back. One of the officers kneeled on him as Officer Marotta 

entered the lobby from the street. Officer Marotta fired a taser round at 

Cadena, who responded by swiping at one of the officers standing over him. 

Cadena alleges that Officer Marotta fired a second taser round shortly 

thereafter. The officers then handcuffed Cadena and arrested him. 

Simultaneously, Cadena’s brother-in-law approached the arresting officers 

and was himself placed under arrest. 

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Cadena suffered a cut next to his right eye and taser marks on his 

buttocks. He also alleges numbness in his left hand and anxiety as a result of 

the incident. Cadena brought suit under 42 U.S.C. § 1983 against several of 

the officers, alleging that they violated his First Amendment “right to record 

the conduct of officers,” Fourth Amendment right against excessive force, and

various Fourteenth Amendment rights. 

The district court granted summary judgment in favor of Officers Ray, 

Rodriguez, and Marotta on all claims. In this appeal, Cadena challenges only 

the district court’s ruling that qualified immunity shields the officers from his

excessive force claim.

II

We review a district court’s grant of summary judgment de novo.1 When 

a party moving for summary judgment asserts qualified immunity, the nonmovant has the burden to rebut qualified immunity2 by “establish[ing] a 

genuine fact issue as to whether the [officers’] allegedly wrongful conduct 

violated clearly established law.”3 While we generally consider the facts in the 

light most favorable to the non-moving party, in a case involving video evidence 

taken at the scene we also view “the facts in the light depicted by the 

videotape.”4 We review “the scope of clearly established law and the objective 

reasonableness of the defendant government official[s’] actions” de novo.5

 

1 See, e.g., Royal Ins. Co. of Am. v. Hartford Underwriters Ins. Co., 391 F.3d 639, 641 

(5th Cir. 2004). 

2 See Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quoting Cousin v. Small, 

325 F.3d 627, 632 (5th Cir. 2003)).

3 Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011) (quoting Brown v. Callahan, 

623 F.3d 249, 253 (5th Cir. 2010)) (second alteration in original).

4 Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011). 

5 Flores v. City of Palacios, 381 F.3d 391, 394 (5th Cir. 2004). 

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III

Police officers are immune from suit under the doctrine of qualified 

immunity “insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person would have 

known.”6 To make out a Fourth Amendment excessive force claim, a plaintiff 

must establish “(1) an injury that (2) resulted directly and only from the use of 

force that was excessive to the need, and that (3) the force used was objectively 

unreasonable.”7 Whether force was excessive to the need and objectively 

unreasonable depends on the totality of the circumstances8 and “must be 

judged from the perspective of a reasonable officer on the scene.”9 In this 

analysis we pay particular attention to (1) “the severity of the crime at issue;” 

(2) “whether the suspect poses an immediate threat to the safety of the officers 

or others;” and (3) “whether [the suspect] is actively trying to resist arrest” or 

flee.10

Cadena challenges the propriety of the “take down,” arguing the Officers 

“thr[ew] [him] against the hotel wall, wrestled [him] to the ground . . . [and] 

pinned and kneed” him. He also takes issue with being tased twice. Because 

we conclude that neither the “take down” nor the tasing violated Cadena’s 

Fourth Amendment rights, qualified immunity applies. The district court 

properly granted summary judgment.

 

6 Thompson v. Mercer, 762 F.3d 433, 436-37 (5th Cir. 2014) (quoting Pearson v. 

Callahan, 555 U.S. 223, 231 (2009)). 

7 Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013) (quoting Flores, 381 F.3d 

at 396). 

8 See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).

9 Graham v. Connor, 490 U.S. 386, 396 (1989). 

10 Id.

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A

The Officers were justified in the “take down” because they had reason 

to believe Cadena posed a threat to their safety and resisted arrest. In Poole 

v. City of Shreveport, we held that a suspect who “refus[ed] to turn around and 

be handcuffed . . . posed an ‘immediate threat.’”11 Here, when ordered to place 

his hands behind his back, Cadena instead backed away from Officer 

Rodriguez. Cadena also “actively tr[ied] to resist arrest.”12 When the suspect 

in Poole “backed away from the [arresting] officers,” we said he had “actively 

resist[ed]” arrest.13 Similarly, Cadena backed away from Officer Rodriguez 

after being ordered to put his hands behind his back. 

Cadena’s intoxicated state and erratic behavior gave the Officers further 

reason to believe he was a threat, which makes this case unlike Trammell v. 

Fruge.14 In Trammell, we held that a reasonable jury could find that an officer 

used excessive force in tackling the plaintiff in the course of arresting him for 

public intoxication.15 Though the Trammell plaintiff similarly refused to 

submit his arms for handcuffing, the arresting officers had only a brief 

exchange with him16 and “used very little, if any, negotiation before resorting 

to physical violence.”17 Here, by contrast, the Officers spoke calmly to Cadena 

for several minutes despite his attempt to interfere with his wife’s arrest and 

his erratic behavior throughout the interaction. Furthermore, Cadena not only 

disobeyed the Officers’ order to submit to arrest, he had disobeyed their prior 

order to leave the lobby. His failure to comply twice, along with the potentially 

 

11 691 F.3d 624, 629 (5th Cir. 2012) (quoting Deville v. Marcantel, 567 F.3d 156, 167

(5th Cir. 2009) (per curiam)). 

12 Graham v. Connor, 490 U.S. 386, 396 (1989).

13 Poole, 691 F.3d at 629 (quoting Deville, 567 F.3d at 167). 14 868 F.3d 332 (5th Cir. 2017). 

15 Id. at 340, 342-43. 16 Id. at 336-37.

17 Id. at 342.

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threatening nature of his going around a column behind Officer Rodriguez

after appearing to leave the scene, distinguishes these facts from those of 

Trammell. Thus, it was reasonable for Officer Rodriguez to believe Cadena 

was resisting.

Furthermore, we have approved of “‘measured and ascending’ actions 

that correspond[] to [an arrestee’s] escalating verbal and physical resistance.”18 

Cadena continued to resist even after he was wrestled to the ground. The 

security camera footage shows that Officers “pinned and kneed” Cadena when 

he resisted while the Officers effected the arrest. Each element of the Officers’ 

“take down” corresponded to Cadena’s level of resistance, and was thus 

reasonable.19

B

Officer Marotta’s use of a taser also did not violate Cadena’s Fourth 

Amendment rights. Use of a taser is appropriate when a suspect continues to 

resist arrest. We have held that tasing is permissible “after [a suspect] 

continuously fail[s] to comply” and “resist[s] handcuffing,” particularly when it 

is not “the first method to gain . . . compliance.”20 But we have also said that 

tasing is inappropriate where either it is unclear that the plaintiff was 

resisting21 or the plaintiff was not resisting at all.22 Here, four officers helped

“take down” Cadena, and the video evidence clearly shows that he nonetheless 

continued to resist handcuffing. Only after the Officers tried conventional 

methods to subdue Cadena did Marotta intervene with the taser. 

 

18 Poole, 691 F.3d at 629 (quoting Galvan v. City of San Antonio, 435 F. App’x 309, 311 

(5th Cir. 2010) (per curiam) (unpublished)). 

19 See id.

20 Pratt v. Harris Cty., Tex., 822 F.3d 174, 182 (5th Cir. 2016) (emphasis omitted). 21 See Darden v. City of Fort Worth, 880 F.3d 722, 729-31 (5th Cir. 2018) (noting that 

police bodycam footage did not clearly contradict plaintiff’s claim that he was not resisting 

arrest, so Scott v. Harris, 550 U.S. 372 (2007) did not apply). 

22 See Pena v. Rio Grande City, 879 F.3d 613, 619-20 (5th Cir. 2018).

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In Poole, we also approved of the use of a taser as a response to escalating 

resistance.23 Though the video does not clearly show when Marotta fired the 

second taser round, it does show that immediately after the first taser shot

Cadena swiped at one of the arresting officers with his arm. Marotta could 

have reasonably interpreted Cadena’s swipe as an escalation of resistance, 

justifying the second taser shot as a proportional response.24 

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

 

23 Poole, 691 F.3d at 629 (quoting Galvan v. City of San Antonio, 435 F. App’x 309, 311 

(5th Cir. 2010)).

24 See Darden, 880 F.3d at 729 (“[O]fficers must assess not only the need for force, but 

also the relationship between the need and the amount of force used.” (internal quotation 

marks omitted) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam))).

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