IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20388

RUTHA CARROLL, Individually and as Heir of Herman Rochan Carroll (also 

known as Herman Rochan Barnes); HERMAN CARROLL, SR., Individually 

and as Heir of Herman Rochan Carroll (also known as Herman Rochan 

Barnes); CHASTITY RODGERS, As Next Friend of J. K. and M. B., Minor 

Children of Herman Rochan Barnes, Deceased, 

 Plaintiffs–Appellees,

v.

GEORGE W. ELLINGTON; ANDY VIRUETTE, JR., Harris County Sheriff’s 

Deputy, in his individual and official capacity; JUAN CELESTIAL, Harris 

County Sheriff’s Deputy, in his individual and official capacity; NICHOLAS 

CARTER, Harris County Sheriff’s Deputy, in his individual and official 

capacity; REX EVANS, Harris County Sheriff’s Deputy, in his individual and 

official capacity; KEVIN SIMS, Harris County Sheriff’s Deputy, in his 

individual and official capacity; ANDY HULSEY, Harris County Sheriff's 

Deputy, in his individual and official capacity, 

 Defendants–Appellants.

Appeals from the United States District Court

for the Southern District of Texas

United States Court of Appeals

Fifth Circuit

FILED

August 26, 2015

Lyle W. Cayce

Clerk

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Before SMITH, PRADO, and OWEN, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Herman Barnes was a diagnosed paranoid schizophrenic. He died in 

2006 after a confrontation in his home with Harris County sheriff’s deputies. 

His surviving family members (the Carrolls) sued the deputies involved in the 

confrontation, asserting that the deputies’ seizure of Barnes was unlawful, 

that the deputies’ warrantless entry into his home was unreasonable, and that 

the deputies’ use of force was excessive and deprived Barnes of his civil rights 

under the Fourth and Fourteenth Amendments in violation of 42 U.S.C. § 1983. 

The case proceeded to trial. After the jury deadlocked, the district court denied 

the deputies’ motion for a directed verdict and declared a mistrial. The deputies 

seek interlocutory appeal from the district court’s denial of their motion for a 

directed verdict. The deputies argue they are entitled to qualified immunity 

from § 1983 liability because their actions did not violate clearly established

law. We first conclude that we have interlocutory appellate jurisdiction. We 

then agree with the deputies that they are entitled to qualified immunity on 

the unlawful-search-and-seizure claims and on most of the excessive-force 

claims, but not as to the excessive-force claims for the deputies’ use of force

after Barnes was subdued and ceased resisting. Accordingly, we reverse in 

part, dismiss in part, and remand.

I. BACKGROUND

Herman Rochan Barnes (also known as Herman Rochan Carroll) was an 

African American male who suffered from paranoid schizophrenia. Paranoid 

schizophrenia is a severe psychotic disorder, and people with paranoid 

schizophrenia “often have more difficulty interfacing in society with others.”

The disorder may be treated with “a combination of therapy and medication,” 

and Barnes had antipsychotic medication in his system after the incident.

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On the afternoon of October 6, 2006, Barnes stood outside of his home 

beside the subdivision’s community mailboxes smoking a cigarette. Barnes’s 

neighbor testified that when Barnes was off of his medication, he would often 

walk up and down his street talking to himself out loud “kind of just pacing.” 

Because of the complicated trial testimony, a lengthy recitation of the facts is 

warranted before discussing the deputies’ qualified-immunity defenses.

A. The Initial Detention

The Carrolls challenge the initial detention as unsupported by 

reasonable suspicion in violation of the Fourth Amendment, so we begin by 

reviewing the facts pertaining to this claim. Harris County Deputy Sheriff 

Andy Viruette, Jr., was on patrol that afternoon driving his marked Harris 

County patrol car in the Sterling Green subdivision of Channelview, Texas,

when he spotted Barnes. Viruette testified that he had been made aware of 

complaints from the community’s home-owner’s association about “criminal 

mischief or vandalism in the neighborhood to the[] mailboxes” where Barnes 

was standing while smoking his cigarette. Viruette observed Barnes standing 

by the complained-about mailboxes and noticed that Barnes was “possibly 

fidgeting with the mail box.” Viruette decided to drive past Barnes “to continue 

to observe what the male’s intentions were by the mailbox. Deputy Viruette 

testified that he observed Barnes “stop[] doing” what he had been doing after 

Viruette’s car passed by and, instead, Barnes moved toward the side of the 

mailboxes.

At this point, Viruette turned his car around and drove toward Barnes.

As his car approached Barnes, Viruette and Barnes made eye contact, and then 

Barnes “immediately takes off walking . . . away from the mailbox . . . in a 

hurried manner.” Suspicious that Barnes was either vandalizing the mailboxes 

or selling narcotics or drugs, Viruette decided to stop and speak with Barnes 

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“to ascertain if he lived . . . in the neighborhood and . . . if he had any business[] 

with those mailboxes as well.”

Deputy Viruette followed Barnes to a nearby residence and stopped his 

patrol car in front. Viruette noticed that there was a different set of mailboxes 

in front of that house. Viruette wondered, “[W]hat [was Barnes’s] business . . . 

over by the mailboxes that were on [the other street], if there is a mailbox in 

front of the house there where I had stopped.”

Deputy Viruette rolled down his window and asked Barnes “what the

address” of the residence was and what Barnes “was doing beside the mailbox 

as well.” Barnes was unable to answer Deputy Viruette’s questions; instead, 

Barnes said he was from California. Later, Barnes mentioned to Viruette that 

“this is my house,” at which point Viruette “asked him what his address was.” 

Barnes was unable to answer. As Deputy Viruette explained: “[H]is answers to 

me were totally left of what I was asking him . . . . That’s what . . . raised my 

level of awareness.” According to Deputy Viruette, this interaction in front of 

Barnes’s home lasted about 45 seconds. Although Viruette testified that 

nothing “stood out” to him regarding mental illness, Viruette noticed 

“indicators that resembled possibly closely . . . that [Barnes] was possibly on

some kind of either medication or narcotics, on illegal drugs, by his responses

and also his body demeanor and his language.”

Based on this information, Deputy Viruette believed he had the 

reasonable suspicion necessary to conduct a legal detention. Still inside his 

patrol car, Viruette questioned Barnes about his name and address. At this 

point, Barnes turned and walked at a “steady walk pace” toward the house. ”

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Barnes then manually opened the garage door of his house, which surprised 

Deputy Viruette.1

At this point, Viruette testified that he did not think that Barnes lived 

at that residence. Accordingly, when Barnes got to the garage door, Deputy 

Viruette ordered Barnes to stop and walk back toward Viruette’s patrol car, 

but Barnes did not comply.

Barnes’s neighbor was watching from across the street. He described the 

conversation between Deputy Viruette and Barnes as “normal.” He testified 

that, when Deputy Viruette approached the door of the garage, Barnes 

repeatedly told the officer to “step away from his house” or to “please leave [his] 

home” perhaps as many as “three times.”

B. The Warrantless Entry into the Residence

The Carrolls also challenge the warrantless entry into Barnes’s home. 

Because Barnes did not comply with Viruette’s command to stop and walk over 

to his car, Deputy Viruette testified that he then believed that Barnes “had 

committed the offense of evading detention.” Viruette immediately exited his 

patrol car to pursue Barnes into the garage. Viruette entered the garage, and 

when Barnes attempted to open “the door that leads into the residence through 

the garage,” Viruette physically grabbed Barnes’s arm to prevent him from 

entering the residence. Viruette testified that he had been continually giving 

very loud verbal commands ordering Barnes to stop, but Barnes did not 

comply.

Barnes pulled away from Viruette and entered into his home; Viruette 

followed. They immediately entered a large living room, and Deputy Viruette

 

1 Deputy Viruette testified: “Barnes turn[ed] and start[ed] towards the house where 

the garage door is opened . . . . At that point in time I was not expecting the [garage] door to 

come up, because at that point . . . he hasn’t convinced me that he resides at that residence.”

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pulled out his Taser and ordered Barnes “to get on the ground.” Barnes then 

sat down in a chair. While entering the house, Viruette radioed for backup.

It is undisputed that Deputy Viruette did not observe any weapons or 

contraband, or any other evidence of illegal conduct, inside Barnes’s home.

C. The Use of Force

The Carrolls also challenge the deputies’ use of force in the confrontation, 

which is discussed in detail below.

1. Deputy Viruette’s Use of Force

In spite of Viruette’s commands for Barnes to get on the ground, Barnes 

remained seated and repeatedly said: “This is my house,” and “I’m from 

California.” Unsatisfied with Barnes’s decision to sit in a chair rather than

comply with Viruette’s order to get down onto the floor, Deputy Viruette 

deployed his Taser while Barnes was seated.

Barnes still did not comply; instead, in response to the Taser shots, 

Barnes “constantly holler[ed,] again, that he was from California.” A 

psychiatrist testified that those suffering from paranoid schizophrenia are 

prone to repeating themselves, clinically known as “perseveration,” often out 

of the belief that “they’re not being heard or understood.” Viruette continued 

“giving verbal task directions.”

After a second shot with the Taser, Barnes got up from the chair “and 

shift[ed] over to the kitchen area.” As Barnes moved toward the kitchen, he 

began “flinging his arms wildly in an attempt to keep [Deputy Viruette] from 

coming to him.” Barnes repeatedly yelled, “I’m from California.”

At this point, Viruette decided to try to gain Barnes’s compliance using 

a “drive stun” technique with his Taser. The drive stun technique involves

placing the end of the Taser directly on the person, without the cartridge 

containing the metal probes (which had already been deployed twice). Each 

application of the drive stun technique delivers a jolt of electricity for about 

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five seconds. Viruette “deployed a drive stun three times,” which he says had 

no effect. Barnes started swinging his arms, and he swung and knocked the 

Taser out of Viruette’s hand and onto the ground, damaging the Taser.

Viruette noticed the indicator light on the Taser “that lets you know that the 

Taser is still functional” was off. At some point in this altercation, Barnes 

struck Viruette on the shoulder—though, Viruette’s shoulder did not later 

require medical attention.

Deputy Viruette then radioed again “asking for an assist.” With his 

Taser damaged, Viruette believed the “only other tools . . . to gain compliance 

from Mr. Barnes” were his “OC Spray” (also commonly referred to as mace),

his hands, and his service weapon. Viruette “decided because of the close 

proximity and close quarter combat positions that [they] were in, the OC spray 

. . . was not going to be the tool of . . . choice.”

So Viruette drew his firearm “and maintained it in the low ready 

position” while he delivered snap kicks to Barnes and ordered Barnes to get on 

the ground. Barnes still refused to go to the ground.

2. Deputies Celestial, Sims, and Ellington Arrive at the Scene

Deputy Sims testified that, when he arrived at the residence, he 

immediately “heard two male voices yelling.”2 Sims and Celestial entered the 

residence, and Deputy Viruette told them that he needed help and “can’t get 

[Barnes] handcuffed.” Sims noticed that Viruette appeared “winded,” so he and 

Deputy Celestial stepped between Viruette and Barnes.

 

2 There is conflict in the testimony about whether Deputy Celestial and Deputy Sims 

arrived on the scene before or after Barnes stood up from the chair and entered the kitchen: 

Deputy Viruette testified that backup arrived after Barnes and he entered the kitchen; and 

Deputy Celestial testified that, when he arrived, Viruette and Barnes were struggling in the 

kitchen. Whereas, Sergeant Sims testified: “[Barnes] was sitting when I first got there and 

then he stood up.”

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Deputy Celestial swung a hickory baton and struck Barnes five to seven 

times in the thigh area, then twice on his right arm, and then once in the back.

After Celestial repeatedly struck Barnes with his baton, Deputy Sims kicked 

him in the stomach while, according to Sims, Barnes was still standing up.3

According to the deputies’ testimony, after withstanding multiple Taser 

shots, baton strikes, and a kick in the stomach, Barnes remained standing and 

refused to go to the ground: “He just . . . [took] a step back and that’s it.” Barnes 

was not saying anything, he just continued staring. Finally, Deputy Sims 

tackled Barnes by grabbing him around his neck and driving him to the ground 

with Sims’ body weight in the living room area.

Deputy Sims ended up on top of Barnes’s back after the tackle and then

moved to subdue his legs, and Deputy Viruette managed to get a handcuff on 

Barnes’s left wrist. In an effort to get handcuffs on Barnes’s right arm, which 

was under Barnes’s body at the time, Deputy Celestial punched Barnes’s 

brachial nerve (where the neck meets the shoulder) with a closed fist (called a 

“brachial stun”) five to eight times.

At this point, Deputy Ellington, arrived on the scene. With Barnes facedown, Deputy Sims on Barnes’s legs, and deputies Viruette and Celestial on 

either side, Deputy Ellington reached over Sims’s shoulder and applied his

Taser using a drive-stun technique first to Barnes’s right arm and then to 

Barnes’s brachial nerve.

Deputy Sims, who was on Barnes’s legs, testified that he himself weighed 

225 pounds at that time. Celestial and Viruette were on either side of the 160-

pound Barnes controlling his arms. Deputy Celestial weighed about 150 

pounds, and Deputy Viruette weighed about 160 pounds. Deputy Ellington, 

who applied the Taser shot, weighed about 260 pounds.

 

3 Sergeant Sims testified: “I [did] a forward thrust kick.”

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According to Deputy Sims, Barnes reacted to the Taser shot to his 

brachial nerve by “defecat[ing] on himself,” and then, according to the deputies, 

Barnes “completely pushe[d] up and thr[ew] all three of us off.”

Barnes was standing with stainless steel handcuffs around only one 

wrist, and Deputy Sims testified that the loose handcuff could be used as a 

weapon. Around this time, deputies Evans and Carter arrived on the scene. At 

least one Taser was then deployed when Barnes stood up. Deputies Evans and 

Ellington shot their Tasers conventionally, striking Barnes with the Taser 

probes. Deputy Hulsey then struck Barnes twice with a hickory stick. 

Barnes then “became rigid and fell” onto a glass table that broke into 

many pieces, and Barnes fell on the glass shards. Viruette left the room to go 

to the hospital for treatment of a hand injury (strained ligaments in his left 

hand). After Barnes fell to the ground, Deputy Celestial also left the room.

Around this time, Deputy Sims also testified that he left the house because he 

had Barnes’s feces on him.

While on the ground, Barnes started low crawling toward the kitchen.4

Deputy Hulsey then rushed Barnes and struck him around his legs and ankles 

with the hickory stick four times. A Taser was then deployed multiple times—

it is unclear by whom—and Barnes finally went limp in the kitchen.5 Deputy 

Hulsey observed “something white around [Barnes’s] lips.”

 

4 According to Deputy Carter, Barnes stood up and grabbed one of the brass legs of 

the table, and he momentarily raised it as a weapon. Deputy Carter testified that he then 

pulled out his gun, pointed it at Barnes, and commanded Barnes to drop the table leg—which 

he did. However, this testimony is contradicted by Deputy Hulsey’s trial and deposition 

testimony.

5 Deputy Evans testified hearing multiple Taser shots. There is some testimony that 

Barnes removed the Taser probes from his chest and pulled a Taser away from an officer. 

But that testimony is vague and contradicted. 

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Deputy Carter then placed handcuffs on Barnes. At some point while 

Barnes was handcuffed and limp on the floor in the kitchen, Deputy Carter 

delivered “side strikes” to Barnes’s left side.6

Although Deputy Sims testified that he was out of the room during the 

exchange with Barnes on the kitchen floor, Sims admitted at trial that he made 

a call to emergency medical services on the radio in which he stated that “the 

male appeared to be unresponsive as he laid on the floor.”

The Harris County Sheriff’s Department keeps a record of the 

downloaded information from the Taser guns. Each officer is assigned a specific 

Taser, but the “death in custody” incident report for Barnes includes the names 

of three officers (deputies Viruette, Sims, and Celestial) and four Tasers. Taser 

log records indicate that the Taser assigned to Deputy Evans was cycled two

times during the incident, the Taser assigned to Deputy Ellington was cycled 

twenty-four times, and the Taser assigned to Deputy Viruette was cycled seven 

times. The fourth Taser was deployed twice, but it is unclear who was 

responsible. In total, the log registered thirty-five Taser cycles delivering 

electricity bursts of between three and eleven seconds.

D. Barnes’s Death and Autopsy

At some point during the struggle, Deputy Sims called emergency 

medical services. A part-time firefighter and licensed paramedic was the first 

emergency medical responder to arrive at the scene. The paramedic entered 

the house and found evidence of a struggle: “There was . . . broken glass on the 

ground and like some furniture discombobulated around. And there was a male 

who was in the prone position with handcuffs behind his back.” Barnes was 

breathing but nonresponsive, and the paramedic asked the deputies to remove 

 

6 Carter testified that Barnes was kicking, but this testimony is inconsistent with 

Hulsey’s recollection that Barnes was limp on the kitchen floor.

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Barnes’s handcuffs so he could check for a pulse. Initially, Barnes had a pulse, 

but his breathing rate was inadequate so the paramedics administered 

supplemental breathing.

When an ambulance arrived to take Barnes to a hospital, Barnes 

suffered a full cardiac arrest. Barnes’s pulse stopped in the ambulance on the 

way to the hospital, and he was pronounced dead at Lyndon B. Johnson 

Hospital soon after he arrived.

A Harris County medical examiner performed an autopsy and ruled the 

manner of Barnes’s death a homicide. The cause of death was listed as 

“[s]udden death during schizophrenic psychotic delirium following physical 

restraint.” The toxicology findings revealed no alcohol or drugs in Barnes’s 

blood stream and faint traces of ziprasidone, an antipsychotic medication. The 

pathological findings indicated blunt- and sharp-force injuries including: 

multiple contusions, subcutaneous hemorrhages, abrasions, and “superficial 

lacerations/incisional wounds of the head, torso and extremities”; puncture 

wounds on the chest, neck, left flank, and upper extremities, suggesting a 

“history of ‘Taser’ probe applications”; intramuscular hemorrhage of the right 

tongue, focal hemorrhage of the strap muscles of the anterior neck; and a right 

frontal intrascalp hemorrhage.

The medical examiner’s “homicide” finding reflects a specific medical 

definition rather than the common, colloquial meaning of the word. In the 

comments section, the medical examiner explained the “mechanism of death 

. . . is likely related to autonomic stimulation during [a] psychotic episode. The 

manner of death derives from the events leading up to the death; the actions 

of others, regardless of intent, clearly exacerbated the psychotic delirium.”

“Therefore, but for the actions of others,” the examiner concluded, “it is 

unlikely this man would have died at the time he did. The manner of death 

will be listed as homicide.”

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* * *

After a trial on the merits, the jury was unable to reach a verdict, and 

after several days, the district court declared a mistrial. The deputies filed a 

renewed motion for judgment as a matter of law that the district court denied. 

It is this decision that the deputies now timely appeal. The case is currently 

stayed pending appeal.

II. JURISDICTION

There is a threshold dispute over our jurisdiction to hear this 

interlocutory appeal from the district court’s denial of judgment as a matter of 

law. Ordinarily, we lack jurisdiction in the absence of a final judgment, and 

this Court has not yet had occasion to address whether the interlocutory denial 

of a renewed motion for judgment as a matter of law under Federal Rule of 

Civil Procedure 50(b) rasied by public officials on the basis of qualified 

immunity is an appealable “final order” within the meaning of 28 U.S.C. 

§ 1291. With the benefit of supplemental briefing on this question, we hold that 

we have jurisdiction to review purely legal questions in an interlocutory appeal 

from the denial of a public official’s Rule 50(b) motion asserting qualified 

immunity after a mistrial is declared.

The Supreme Court has held that interlocutory appellate jurisdiction 

includes pretrial denials of qualified immunity, reasoning that qualified 

immunity includes immunity from suit—a right not to stand trial that would 

be “effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. 

Forsythe, 472 U.S. 511, 526–27 (1985). Accordingly, federal appellate courts

have limited jurisdiction to review pure questions of law arising from the

denial of motions to dismiss and motions for summary judgment in which 

public officials asserted qualified immunity as a defense. E.g., Behrens v. 

Pelletier, 516 U.S. 299, 305–11 (1996).

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The Second Circuit has applied this reasoning to authorize jurisdiction 

over purely legal questions arising from the denial of qualified immunity in 

Rule 50(b) motions for judgment as a matter of law after the jury has rendered 

a verdict and the district court has ordered a new trial on the issue of damages. 

Britt v. Garcia, 457 F.3d 264, 268, 271–72 (2d Cir. 2006). The court in Britt 

noted that interlocutory appeal of a pretrial denial of qualified immunity 

protects the right of public officials not to stand trial erroneously. Id. at 272. 

“[A]lthough it is too late to protect the appellants from standing trial,” the court 

explained, “it is not too late to vindicate their right, if they are entitled to 

immunity, not to undergo a second one on the issue of damages.” Id. at 272; 

accord Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013); Cassady v. Goering, 567 

F.3d 628, 634 (10th Cir. 2009).7

We find this reasoning persuasive. Because interlocutory appeal on 

qualified-immunity grounds would protect the right of public officials not to 

undergo a second trial erroneously, we agree with the Second Circuit that we 

have interlocutory appellate jurisdiction over the purely legal aspect of 

whether the officers in this case were entitled to qualified immunity. 

We also reject the Carrolls’ argument that this interlocutory appeal was 

untimely filed and therefore waived because the deputies did not file an 

interlocutory appeal from the district court’s pretrial summary-judgment 

 

7 But cf. Mercado v. Dart, 604 F.3d 360, 362–66 (7th Cir. 2010) (dismissing appeal 

after concluding that the court lacked interlocutory appellate jurisdiction over a Rule 50(a) 

motion asserting qualified immunity mid-trial after the plaintiffs’ case in chief). The court in 

Mercado reasoned that “both formal reasons (a mid-trial order is not ‘final’ and does not 

concern a ‘right not to be tried’) and practical ones (the need to prevent defendants from 

thwarting the completion of ongoing trials and disrupting the orderly management of 

litigation) [led the Mercado court] to conclude that a district judge’s oral statement denying 

a mid-trial Rule 50 motion is not appealable as a ‘collateral order’ under § 1291.” Id. at 364.

This situation is different from Mercado because, here, a mistrial has been declared 

after the trial—the district court did not deny a Rule 50 motion in the middle of trial. We 

express no opinion on whether interlocutory appeal may be taken except in these specific 

circumstances: officers moving for judgment as a matter of law after a mistrial is declared.

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ruling. In this case, the deputies have consistently asserted, and therefore have 

not waived, the defense of qualified immunity. They timely filed an

interlocutory appeal from the district court’s denial of their Rule 50 motions 

soon after the district court ruled. Therefore, we have interlocutory appellate 

jurisdiction. See Matherne v. Wilson, 851 F.2d 752, 755–56 (5th Cir. 1988)

(“Although Wilson was entitled to take an interlocutory appeal, . . . he was [not] 

obligated to do so.” (footnote omitted)).

Our jurisdiction to review this collateral order is limited. We have 

jurisdiction to review only the “purely legal question whether a given course of 

conduct would be objectively unreasonable in light of clearly established law.” 

See Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013) (footnote and 

internal quotation marks omitted); see also Taylor v. Rogich, 781 F.3d 647, 650 

(2d Cir. 2015) (“Because the appeal in this case is based on the sufficiency of 

the evidence, we hold only that such an appeal on qualified immunity grounds 

must be dismissed.”).

III. STANDARD OF REVIEW

We review the denial of a Rule 50 motion for judgment as a matter of law 

based on “all of the evidence in the record.” Reeves v. Sanderson Plumbing 

Prods., Inc., 530 U.S. 133, 150 (2000). “We credit the non-moving party’s 

evidence and disregard all evidence favorable to the moving party that the jury 

is not required to believe.” Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 

(5th Cir.), cert. denied, 134 S. Ct. 88 (2013) (internal alteration and quotation 

marks omitted). “That is, the court should give credence to the evidence 

favoring the nonmovant as well as that evidence supporting the moving party 

that is uncontradicted and unimpeached, at least to the extent that that 

evidence comes from disinterested witnesses.” Reeves, 530 U.S. at 151 (internal 

quotation marks omitted).

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“[T]he standard for granting summary judgment ‘mirrors’ the standard 

for judgment as a matter of law, such that the inquiry under each is the same,” 

id. (internal quotation marks omitted), so we use a similar standard of review 

to assess this interlocutory appeal from the denial of the officers’ renewed Rule 

50 motion as we would in an ordinary interlocutory appeal from a denial of 

summary judgment on qualified-immunity grounds. See Cassady, 567 F.3d at 

634. In the qualified-immunity context, we review only the “purely legal 

question whether a given course of conduct would be objectively unreasonable 

in light of clearly established law.” Hogan, 722 F.3d at 731 (footnote and 

internal quotation marks omitted). In other words, “[w]here, as here, the 

district court finds that genuinely disputed, material fact issues preclude a 

qualified immunity determination [as a matter of law], this court can review 

only their materiality, not their genuineness.” Manis v. Lawson, 585 F.3d 839, 

842 (5th Cir. 2009).

If a fact is not undisputed, we must “accept the plaintiffs’ version of the 

facts as true.” Hogan, 722 F.3d. at 731 (quoting Kinney v. Weaver, 367 F.3d 

337, 348 (5th Cir. 2004) (en banc)). A fact issue is material only if it is legally 

significant, in that its resolution could affect the disposition of the claim. 

Minter v. Great Am. Ins. Co., 423 F.3d 460, 465 (5th Cir. 2005). “In reviewing 

the district court’s conclusions concerning the legal consequences—the 

materiality—of the facts, our review is of course de novo.” Hogan, 722 F.3d at 

731 (footnotes and internal quotation marks omitted).

IV. DISCUSSION

The deputies appeal the district court’s denial of their motions for 

judgment as a matter of law based on qualified immunity. Qualified immunity 

protects governmental officials from liability so long as their conduct “does not 

violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.” Rockwell v. Brown, 664 F.3d 985, 990 

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(5th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “When 

a defendant invokes qualified immunity, the burden shifts to the plaintiff to 

demonstrate the inapplicability of the defense.” Club Retro, L.L.C. v. Hilton, 

568 F.3d 181, 194 (5th Cir. 2009). 

To evaluate whether a government official is entitled to qualified 

immunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed 

facts and the disputed facts, accepting the plaintiffs’ version of the disputed

facts as true, constitute a violation of a constitutional right, and (2) whether

the defendant’s conduct was “objectively reasonable in light of clearly 

established law.” Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir. 

2001).8 A government official’s acts are not objectively unreasonable unless all 

reasonable officials in the defendant’s circumstances would have then known 

that the defendant’s conduct violated the plaintiff’s rights. Id. We have 

discretion to address either prong first without necessarily addressing the 

other. Pearson, 555 U.S. at 236. With these principles in mind, we turn now to 

the Carrolls’ constitutional claims.

A. Illegal Search and Seizure Claims Against Deputy Viruette

The Carrolls allege that Deputy Viruette violated Barnes’s Fourth 

Amendment right to freedom from unreasonable searches and seizures by 

detaining him without reasonable suspicion, arresting him without probable 

cause, and entering his residence without a warrant. “[T]he ultimate 

touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City, Utah

v. Stuart, 547 U.S. 398, 403 (2006). As such, it is clearly established that law 

enforcement may temporarily stop an individual for investigation based on 

reasonable suspicion that criminal activity is afoot, see Terry v. Ohio, 392 U.S. 

 

8 Clearly established law is based on the state of the law in effect at the time of the 

alleged violation. Thompson, 245 F.3d at 457.

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1, 27 (1967), and may effect a warrantless arrest based on probable cause, 

Hogan, 722 F.3d at 731. Although a warrantless search of a home is 

presumptively unreasonable, “the warrant requirement is subject to certain 

exceptions.” Stuart, 547 U.S. at 398. We address each of the Carrolls’ Fourth 

Amendment claims against Deputy Viruette in turn below.

1. Deputy Viruette Is Entitled to Qualified Immunity for His

Seizure of Barnes

The Carrolls argue that Viruette’s initial detention of Barnes was 

unconstitutional because Viruette lacked objectively reasonable suspicion that 

Barnes had committed or was committing a crime. The Carrolls also contend 

that Deputy Viruette unlawfully arrested Barnes without a warrant and 

without probable cause. Viruette counters that he did not detain Barnes until 

Barnes started to walk away from him, and at that point Viruette reasonably 

suspected Barnes was engaged in drug dealing or vandalism. Viruette also 

argues that he never actually arrested Barnes. Even so, Viruette argues in the 

alternative that the warrantless arrest was supported by probable cause.

We must first decide whether and when Viruette seized Barnes within 

the meaning of the Fourth Amendment. A “person has been ‘seized’ within the 

meaning of the Fourth Amendment only if, in view of all of the circumstances 

surrounding the incident, a reasonable person would have believed that he was 

not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). In 

the absence of physical force to restrain a suspect, “[a] police officer may make 

a seizure by a show of authority . . . , but there is no seizure without actual 

submission; otherwise, there is at most an attempted seizure, so far as the 

Fourth Amendment is concerned.” Brendlin v. California, 551 U.S. 249, 254 

(2007).

We conclude that Barnes was not seized within the meaning of the 

Fourth Amendment until Viruette grabbed his arm. Contrary to the Carrolls’ 

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allegations, Barnes’s initial interaction with Deputy Viruette was not a seizure

because a reasonable person in his circumstances would have felt free to leave. 

See INS v. Delgado, 466 U.S. 210, 215 (1984) (holding that “an initially 

consensual encounter between a police officer and a citizen” transforms “into a 

seizure or detention within the meaning of the Fourth Amendment,[only] ‘if . . . 

a reasonable person would have believed that he was not free to leave.’”

(citation omitted)). Moreover, contrary to Deputy Viruette’s contention, the 

initially consensual encounter did not become a seizure when Viruette ordered 

Barnes to stop and return to the patrol car, because Barnes walked away into 

his garage and did not submit to Viruette’s show of authority. See California 

v. Hodari D., 499 U.S. 621, 626, 629 (1991) (“[Y]elling ‘Stop, in the name of the 

law!’ at a fleeing form that continues to flee . . . is no seizure. . . . [S]ince Hodari 

did not comply with that injunction he was not seized until he was tackled.”).

We conclude that Viruette’s initial seizure of Barnes by restraining his 

arm was a physical Terry stop, not an arrest. A seizure rises to the level of an 

arrest only if “a reasonable person in the suspect’s position would have 

understood the situation to constitute a restraint on freedom of movement of 

the degree which the law associates with formal arrest.” United States v. 

Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988). In United States v. Sokolow, 

the Supreme Court held that, when a police officer grabbed the suspect by the 

arm to “briefly detain a person for investigative purposes,” that temporary 

investigatory detention was lawful “if the officer has a reasonable suspicion 

supported by articulable facts that criminal activity ‘may be afoot.’” 490 U.S. 

5, 7 (1989). Here, Viruette grabbed Barnes’s arm to prevent him from entering 

the residence and to investigate whether Barnes in fact lived at that address. 

Because this physical restraint—grasping one arm—did not restrain Barnes’s

freedom to the degree of a formal arrest, we conclude that Viruette’s physical 

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restraint was a Terry stop, which would be lawful if based on reasonable 

suspicion, “even if [he] lack[ed] probable cause,” Sokolow, 490 U.S. 7.

Thus, we must next assess whether Barnes’s initial detention was 

supported by reasonable suspicion. “[P]olice officers may stop and briefly 

detain an individual for investigative purposes if they have reasonable 

suspicion that criminal activity is afoot.” Goodson v. City of Corpus Christi, 202 

F.3d 730, 736 (5th Cir. 2000). Reasonable suspicion requires “the police officer 

. . . to point to specific and articulable facts which, taken together with rational 

inferences from those facts, reasonably warrant that intrusion.” United States 

v. Rodriguez, 564 F.3d 735, 741 (5th Cir. 2009) (quoting Terry, 392 U.S. at 21). 

This standard “requires more than merely an unparticularized hunch, but 

considerably less than proof of wrongdoing by a preponderance of the 

evidence.” Id. (internal quotation marks omitted). We assess the reasonableness of the stop “by conducting a fact-intensive, totality-of-the circumstances 

inquiry,” id., and we consider only the “information available to the officer[s] 

at the time of the decision to stop a person,” United States v. Silva, 957 F.2d 

157, 160 (5th Cir. 1992).

We conclude that the Carrolls have not shown that Viruette was 

objectively unreasonable in light of clearly established law in initially 

attempting to detain Barnes for investigatory questioning. At the time that 

Barnes attempted to enter the residence, Viruette had the following 

information available to him: (1) complaints from the community’s homeowner’s association about criminal mischief or vandalism to the neighborhood 

communal mailboxes, (2) Barnes had been observed near those mailboxes, 

(3) when Deputy Viruette turned around his patrol car and made eye contact 

with Barnes, Barnes took off “away from the mailbox . . . in a hurried manner,” 

(4) Barnes walked to a residence in front of which there was a different set of 

mailboxes, and (5) when Deputy Viruette asked Barnes about his address, 

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Barnes replied that he was “from California.” Deputy Viruette had no 

knowledge of Barnes’s mental illness. Thus, based on the totality of the 

circumstances and the information available to the officer, Deputy Viruette 

was not objectively unreasonable, in light of clearly established law, in 

suspecting that criminal activity was afoot—namely, vandalism of the

mailboxes or that Barnes intended to enter a residence that was not his own. 

See Thompson, 245 F.3d at 457 (holding that an official is entitled to qualified 

immunity unless the plaintiff can demonstrate that his conduct was 

“objectively reasonable in light of clearly established law”).

The Carrolls point to no case roughly analogous in which this Court or 

any other has found a Fourth Amendment violation. On the contrary, the 

Supreme Court has held that a suspect’s presence in an area of known criminal 

activity—taken together with a suspect’s nervous, evasive behavior—may 

support an officer’s reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 

124–25 (2000). Here, Viruette had information that the community mailboxes 

had been vandalized, spotted Barnes near those mailboxes, and when he 

approached Barnes, Barnes turned and walked away. Although “Wardlow did 

not establish a bright-line test,” United States v. Jordan, 232 F.3d 447, 449 

(5th Cir. 2000), and there are facts that distinguish this case from the 

circumstances in Wardlow, we do not think that “all reasonable officials in the 

defendant’s circumstances would have then known that the defendant’s 

conduct violated” the plaintiff’s rights, Thompson 245 F.3d at 457. Thus, we 

conclude that the Carrolls have not shown—even accepting their version of the 

disputed facts—that Deputy Viruette’s seizure was objectively unreasonable in 

light of clearly established law. Therefore, Deputy Viruettte is entitled to 

qualified immunity on this claim.

Further, when Barnes pulled away, Viruette was not objectively 

unreasonable in believing that there then existed probable cause to arrest 

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Barnes with additional physical force. “Probable cause exists when the totality 

of facts and circumstances within a police officer’s knowledge at the moment of 

arrest are sufficient for a reasonable person to conclude that the suspect had 

committed or was committing an offense.” Id. (internal quotation marks 

omitted). “If an officer reasonably but mistakenly believes that probable cause 

exists, he is entitled to qualified immunity.” Ramirez v. Martinez, 716 F.3d 369, 

375 (5th Cir. 2013) (citing Club Retro, LLC, 568 F.3d at 206).

When Viruette attempted to enter the residence despite Viruette’s 

commands to stop, the record establishes that Barnes pulled his arm out of 

Deputy Viruette’s grasp. As we have previously held, “[t]he great weight of 

Texas authority indicates that pulling out of an officer’s grasp is sufficient to 

constitute resisting arrest,” and “the act of resisting [arrest] can supply 

probable cause for the arrest itself.” Ramirez, 716 F.3d at 376 (collecting cases). 

We decline to reach the constitutional question on the illegal arrest claim,

however. Because Viruette’s initial detention was not objectively unreasonable 

in light of clearly established law, Viruette’s belief there was probable cause to 

arrest Barnes when Barnes pulled away from his attempt to prevent entry into 

the dwelling was also not objectively unreasonable in light of clearly 

established law.

Therefore, Viruette is entitled to qualified immunity on the Carrolls’ 

illegal-arrest claim. See Ramirez, 716 F.3d at 375 (“If an officer reasonably but 

mistakenly believes that probable cause [to arrest] exists, he is entitled to 

qualified immunity.”).

2. Deputy Viruette Is Entitled to Qualified Immunity for the 

Warrantless Entry into Barnes’s Home

The Carrolls also challenge Deputy Viruette’s warrantless entry into the 

residence in pursuit of Barnes. The Fourth Amendment prohibits 

unreasonable searches, and a warrantless entry into a person’s home is 

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presumptively unreasonable. United States v. Aguirre, 664 F.3d 606, 610 (5th

Cir. 2011). “[T]he warrant requirement is subject to certain exceptions.” 

Stuart, 547 U.S. at 403. Because a warrantless entry into a home “is presumed 

to be unreasonable,” the officer “has the burden of proving that the warrantless 

search was conducted pursuant to an exception.” United States v. Riley, 968 

F.2d 422, 424–25 (5th Cir. 1992).

Deputy Viruette justifies his warrantless entry into Barnes’s home under

the exigent-circumstances exception to the warrant requirement. Viruette 

contends that he was in hot pursuit of Barnes for evading detention and arrest. 

Specifically, Viruette contends that, under Texas law, “an officer may enter a 

residence to make a warrantless arrest” of a suspect seeking to avoid detention 

or arrest—which is a misdemeanor offense—and that federal law is not clearly 

established. In their response brief, the Carrolls do not specifically elaborate 

on their warrantless-home-entry claim, except to reiterate, generally, that the 

initial detention and subsequent arrest violated Barnes’s Fourth Amendment 

rights, as discussed above.

The Supreme Court recently held that, as of 2013, “federal and state 

courts nationwide are sharply divided on the question whether an officer with 

probable cause to arrest a suspect for a misdemeanor may enter a home 

without a warrant while in hot pursuit of that suspect.” Stanton v. Sims, 134 

S. Ct. 3, 5 (2013) (per curiam). The Court held that an officer who entered a 

home in 2008 in hot pursuit of a suspected misdemeanant was therefore 

entitled to qualified immunity because the law was not clearly established at 

the time of the officer’s conduct. Id. at 3, 5–7. The Court specifically noted that 

“[i]t is especially troubling that the Ninth Circuit would conclude that Stanton 

was plainly incompetent—and subject to personal liability for damages—based 

on actions that were lawful according to courts in the jurisdiction where he 

acted,” referring to state courts in California. Id. at 7.

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Here, like the California courts mentioned in Stanton, Texas courts have 

upheld warrantless entries in hot pursuit of persons suspected of committing 

the misdemeanor offense of evading detention or arrest.9 The Carrolls do not

point to authority that the law on hot pursuit of misdemeanor suspects was 

any clearer in 2006, when Viruette entered the residence, than in 2008, when 

the Supreme Court ruled the law was not then clearly established. Id. at 5–7.

Therefore, the Carrolls have not met their burden, see Club Retro, 568 F.3d at

194, and Viruette is entitled to qualified immunity—though we express no view 

on whether Viruette’s entry into Barnes’s home was constitutional.

B. Excessive-Force Claims

The Carrolls allege that Deputy Viruette, Deputy Celestial, Deputy 

Ellington, Deputy Carter, Deputy Evans, and Deputy Hulsey used excessive 

force in repeatedly applying their Tasers to Barnes and striking Barnes with 

batons, kicks, and punches to subdue and arrest Barnes. The Carrolls also 

allege Deputy Sims unconstitutionally stood by the scene and neglected to 

intervene under a “bystander liability theory.” To establish a Fourth 

Amendment excessive-force claim, “a plaintiff must first show that she was 

seized. Next she must show that she suffered (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.” Flores, 381 F.3d at 396 

(citation omitted).

In this case, it is undisputed for purposes of this interlocutory appeal 

that Barnes died as a result of the deputies’ use of force to attempt to subdue 

 

9 See, e.g., Rue v. State, 958 S.W.2d 915, 918 (Tex. App.—Houston [14th Dist.], 1997, 

no pet.) (“An officer’s hot pursuit of an offender seeking to avoid arrest is an exigent 

circumstance justifying nonconsensual entry into the offender’s residence.”); LaHaye v. State, 

1 S.W.3d 149, 151–52 (Tex. App.—Texarkana 1999, pet. ref’d) (“We conclude that the arrest 

of LaHaye was [lawful because Officer] Martin was in hot pursuit of LaHaye” for evading 

arrest, “a Class B misdemeanor”).

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and arrest Barnes, so the only issue is whether each deputy’s use of force was

clearly excessive to the need and objectively unreasonable. In assessing the 

reasonableness of the use of force, we give “careful attention to the facts and 

circumstances of each particular case, including the severity of the crime at 

issue, whether the suspect poses an immediate threat to the safety of the 

officers or others, and whether he is actively resisting arrest or attempting to 

evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “The 

‘reasonableness’ of a particular use of force must be judged from the 

perspective of a reasonable officer on the scene, rather than with the 20/20 

vision of hindsight.” Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)

(quoting Graham, 490 U.S. at 396) (internal quotation marks omitted). “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.

In accordance with our case law, we “examine each individual’s 

entitlement to qualified immunity separately” below, Meadours v. Ermel, 483 

F.3d 417, 422 (5th Cir. 2007) (holding that “the district court erred in

considering the officers’ actions together”).

1. Deputy Viruette’s Use of Force

Because it was not clearly established as of 2006 whether an officer could 

use this level of nonlethal force on a noncompliant suspect resisting arrest for 

refusing commands to get on the floor, Deputy Viruette is entitled to qualified 

immunity on this claim.

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The evidence from Viruette’s Taser log establishes that Deputy Viruette 

successfully deployed10 his Taser seven times: four times for five seconds, once 

for six seconds, once for nine seconds, and once for eleven seconds. Deputy 

Viruette first fired Taser probes at Barnes when Barnes was sitting in a wicker 

chair in his living room—and it is undisputed that Barnes’s arms were in full 

view and that he was not brandishing any weapons. Viruette deployed his 

Taser because Barnes, who entered the home to avoid detention and arrest,

would not comply with Viruette’s order that Barnes get on the floor. The 

ensuing struggle in the kitchen between Barnes and Viruette followed directly 

from the initial application of the Taser to the seated Barnes, and Barnes’s 

active resistance at that point rendered Viruette’s escalation of force—to 

include additional Taser applications and hand-to-hand strikes—objectively 

reasonable in the circumstances. See Graham, 490 U.S. at 396 (instructing 

courts to evaluate “whether the suspect poses an immediate threat to the 

safety of the officers” and “whether he is actively resisting arrest or attempting 

to evade arrest by flight”); Poole v. City of Shreveport, 691 F.3d 624, 629 (5th 

Cir. 2012) (holding that officers who “responded with ‘measured and ascending’

actions that corresponded to Poole’s escalating verbal and physical resistance” 

were entitled to qualified immunity). However, the initial application of the 

Taser to the seated and unarmed Barnes on suspicion of vandalism and 

trespass presents a difficult question whether a reasonable jury could find this

first use of force to be clearly and objectively excessive. We decline to reach the 

close constitutional question and instead decide the case on the second prong 

of qualified immunity. See Pearson, 555 U.S. at 236.

 

10 Deputy Viruette maintains that the Taser did not deploy properly and make contact 

with Barnes, and there is certainly a fact dispute whether this is so; however, a jury would 

not be required to accept Viruette’s testimony, because it is contradicted by the duration of 

the Taser applications and the reasonable inferences a jury could draw therefrom, in the light 

most favorable to the Carrolls.

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The issue, then, is whether an officer’s application of a Taser to an 

unarmed, seated suspect who fails to comply with an order to get on the ground 

is “objectively unreasonable in light of clearly established law.” Hogan, 722 

F.3d at 731. We conclude that it is not. Testimony at trial and case law 

establish that officers are trained to use nonlethal force to gain compliance if 

a subject actively resists arrest and does not comply with verbal task directions

to get on the ground. See, e.g., Poole, 691 F.3d at 629; Galvan v. City of San 

Antonio, 435 F. App’x 309, 311 (5th Cir. 2010) (per curiam); Deville v. 

Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (“Officers may 

consider a suspect’s refusal to comply with instructions . . . in assessing 

whether physical force is needed to effectuate the suspect’s compliance.”). 

Officers are trained in this manner because a police officer who is standing 

over a suspect who is on the ground has a “position of advantage over that 

subject,” meaning the officer “can control [the subject’s] body movement,” and 

that “the subject will offer less resistance.”

Whether a Taser could be used to gain compliance in this circumstance 

was not clearly established in 2006. The en banc Ninth Circuit confronted a 

similar situation in Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011). There, as 

here, the officers applied a Taser to a suspect who refused to comply with 

verbal task directions. The plaintiff in Mattos was a pregnant woman who had 

refused to sign a traffic citation for driving thirty-two miles per hour in a 

twenty-mile-per-hour school zone. Id. at 436–37. The officers were then 

required to arrest her, and when she refused to exit the vehicle, the officers 

threatened to apply a Taser. Id. at 437. Even though the plaintiff informed the 

officers that she was “less than 60 days from having my baby,” they applied 

the Taser to her three times in about one minute because she continued to 

refuse to exit the vehicle, clutching the steering wheel. Id. The court surveyed 

circuit case law that existed before the traffic stop in November 2004. Id. at 

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446–47. The court held that the use of force was excessive, but concluded that, 

as of 2004, the law was not clearly established and granted qualified immunity. 

Id. at 448. The court followed its prior decision in which the Ninth Circuit held 

that, in a “tasing [that] took place in 2005,” “in that year ‘there was no Supreme 

Court decision or decision of our court addressing’ the use of a taser” in those 

circumstances. Id. at 448 (quoting Bryan v. MacPherson, 630 F.3d 805, 833

(9th Cir. 2010)). Similarly, the Sixth Circuit held that “it was [not] clearly 

established in May 2007 that using a taser repeatedly on a suspect actively 

resisting arrest and refusing to be handcuffed amounted to excessive force.” 

Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012).

We agree with the Ninth Circuit’s and the Sixth Circuit’s conclusion that, 

as of October 2006, the law was not clearly established that using a Taser to 

gain compliance of a unarmed, seated suspect for resisting arrest and failing 

to follow verbal commands was clearly excessive and objectively 

unreasonable.11 The Carrolls point to no case clarifying the law between 2005 

(when the Ninth Circuit found the law to be unclear) and the tasing in this 

case in October 2006,12 and we are aware of none. Therefore, we conclude that 

Deputy Viruette is entitled to qualified immunity on the Carrolls’ excessiveforce claim.

 

11 See, e.g., Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (rejecting claims 

that the use of a taser constituted excessive force); Hinton v. City of Elwood, Kan., 997 F.2d 

774, 781–82 (10th Cir. 1993) (same); Russo v. City of Cincinnati, 953 F.2d 1036, 1044–45 (6th 

Cir. 1992) (same); see also Mattos, 661 F.3d at 448 (“[W]hen the defendant officers tased 

Brooks [in 2004], there were three circuit courts of appeals cases rejecting claims that the 

use of a taser constituted excessive force; there were no circuit taser cases finding a Fourth 

Amendment violation.”).

12 The Carrolls cite Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012), but that case is 

distinguishable. There, “the officers immediately resorted to taser and nightstick without 

attempting to use . . . commands,” id. at 763, whereas, here, Deputy Viruette only resorted 

to force after verbal commands were ignored. Corroborated testimony relied on by the district 

court and not disputed by the Carrolls establishes that the deputies continually delivered 

verbal task instructions before resorting to force and throughout the encounter.

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2. Deputies Celestial’s and Ellington’s Use of Force to Get Barnes 

on the Ground and Handcuffed

Deputies Celestial and Sims13 responded to Viruette’s call for backup 

from about a mile away and arrived soon after Viruette applied the Taser to 

Barnes, as the struggle moved from the living room into the kitchen. Viruette 

was continually giving Barnes verbal commands to get on the ground. At this 

point, neither Celestial nor Sims had knowledge of the offense for which 

Viruette was attempting to make an arrest, just that Viruette could not get 

Barnes restrained and handcuffed. Viruette appeared winded from the 

struggle, so Deputy Celestial and Deputy Sims stepped between Barnes and 

Viruette. Because Barnes was actively resisting Deputy Viruette, deputies 

Celestial and Sims delivered nonlethal force: Deputy Celestial repeatedly 

struck Barnes in the leg and thigh area with a hickory stick, and Deputy Sims 

kicked Barnes in the stomach area. Finally, Sims tackled Barnes to the ground.

Deputy Sims climbed on top of Barnes, and Deputy Viruette handcuffed 

Barnes’s left wrist. Deputy Celestial struck Barnes with his fists in an effort to 

gain access to his right wrist. At this point, Deputy Ellington arrived on the 

scene. Ellington applied his Taser several times in an effort to get Barnes to 

comply so that he could be detained and arrested. Deputy Viruette then left 

the room to go to the hospital for treatment of a hand injury.

Having considered the entire record and each individual’s use of force, 

we conclude that the deputies’ use of force in getting Barnes onto the ground 

was not unreasonable under the circumstances. By all accounts, after the 

initial Taser discharge, Barnes failed to comply with verbal task directions and 

actively resisted all attempts to subdue and detain him. We find it significant 

that only nonlethal force was used throughout this portion of the encounter.

 

13 The district court granted summary judgment to Deputy Sims, and the Carrolls do 

not appeal this judgment.

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We judge the officers’ conduct “from the perspective of a reasonable officer on 

the scene, rather than with the 20/20 vision of hindsight.” Rockwell, 664 F.3d 

at 991. Deputies Celestial and Ellington “responded with ‘measured and 

ascending’ actions that corresponded” to Barnes’s “escalating . . . physical 

resistance.” Poole, 691 F.3d at 629. Thus, they are each entitled to qualified 

immunity for this portion of the encounter.

3. Deputies Celestial’s, Ellington’s, Carter’s, Evans’s, and 

Hulsey’s Use of Force Once Barnes Was Restrained

At some point after Barnes was tackled to the ground, handcuffed, and 

held down and surrounded by several deputies, the district court found that 

the sheriff’s deputies “deliver[ed] strikes” to Barnes. Deputies Celestial, 

Ellington, Carter, Evans, and Hulsey argue that they are entitled to judgment 

as a matter of law because their use of force was reasonable in the 

circumstances. They argue their use of force was justified because they “were 

dealing with an actively resisting suspect,” and they discontinued their use of 

force when “he stopped resisting.”

Because we lack jurisdiction to review the genuineness of a fact issue 

precluding judgment as a matter of law, we cannot accept the deputies’ 

interpretation of the record that the use of force discontinued when Barnes 

stopped resisting. At least one deputy admitted that he delivered “side strikes” 

after Barnes had been handcuffed. Deputy Carter testified that Barnes 

continued to resist while he was placed in handcuffs, but this testimony is 

contradicted by testimony that Barnes was limp on the kitchen floor when he 

was handcuffed. 

The issue, then, is whether a reasonable jury could conclude that

continued force applied after a suspect has been restrained and after the 

suspect stops resisting may be clearly excessive and objectively unreasonable. 

The law was clearly established at the time of the deputies’ conduct that, once 

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a suspect has been handcuffed and subdued, and is no longer resisting, an 

officer’s subsequent use of force is excessive. See, e.g., Bush v. Strain, 513 F.3d 

492, 501–02 (5th Cir. 2008); Gomez v. Chandler, 163 F.3d 921, 922, 924–25 (5th 

Cir. 1999) (concluding that use of force “while [a prisoner’s] hands were 

handcuffed behind his back” could be considered excessive, precluding 

summary judgment). This includes repeated applications of a Taser after a 

suspect is arrested, subdued, and “no longer resisting arrest.” Anderson v. 

McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam); Autin v. City of 

Baytown, 174 F. App’x 183, 185 (5th Cir. 2005). Thus, the deputies are not 

entitled to qualified immunity as a matter of law for injuries Barnes sustained 

after he was handcuffed and restrained and after he stopped resisting arrest.

Because we lack jurisdiction to review the district court’s fact 

determinations, we cannot say on this record—rife with inconsistencies and 

contradictions—at which point Barnes was restrained and subdued after he 

had been tackled to the ground. Accordingly, we dismiss this portion of 

deputies Celestial’s, Ellington’s, Carter’s, Evans’s, and Hulsey’s interlocutory 

appeal for lack of jurisdiction.

4. Deputy Sims’s Bystander Liability for Failing to Intervene

The Carrolls allege that Deputy Sims violated Barnes’s Fourth 

Amendment right to be free from unreasonable and excessive force by failing 

to intervene to stop the other deputies. Deputy Sims argues that he is entitled 

to judgment as a matter of law because he “was not present in the house during 

this entire incident,” explaining that he had “exited the house after Barnes 

fell.” Sims elaborates that, after he returned to the scene, Barnes had been 

“detained and the event ended.”

The law as of 2006 was clearly established that “an officer who is present 

at the scene and does not take reasonable measures to protect a suspect from 

another officer’s use of excessive force may be liable under section 1983.” Hale 

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v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). To establish this claim, the 

Carrolls must show that Sims “(1) kn[ew] that a fellow officer [was] violating 

an individual’s constitutional rights; (2) ha[d] a reasonable opportunity to 

prevent the harm; and (3) cho[se] not to act.” Kitchen v. Dallas Cnty., Tex., 759

F.3d 468, 480 (5th Cir. 2014).

Deputy Sims’s principal argument is that he did not have a reasonable 

opportunity to prevent the harm because he was not present when his fellow 

deputies continued to strike Barnes—he had left the house. If this is true, then 

Deputy Sims would be entitled to qualified immunity on this claim. But the 

record is unclear on this point. The only testimony comes from Deputy Sims, 

and it is possibly inconsistent with Sims’s admission at trial that he made the 

call to emergency medical services in which he stated “the male appeared to be 

unresponsive as he laid on the floor,” which suggests Sims observed Barnes “go 

limp” in response to Taser strikes after he had been handcuffed. Additionally, 

it is unclear whether Barnes had been subdued before Sims claims to have left 

the room for the reasons stated above.

Because Deputy Sims’s qualified-immunity interlocutory appeal turns 

on questions of fact that the district court found disputed, we lack jurisdiction. 

Therefore, we dismiss Deputy Sims’s interlocutory appeal for lack of 

jurisdiction. 

V. CONCLUSION

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

denying qualified immunity to Deputy Viruette. We also REVERSE and hold 

that Deputy Celestial and Deputy Ellington are entitled to qualified immunity 

for their efforts to get Barnes restrained and on the ground. Because we 

conclude that deputies Celestial’s, Ellington’s, Carter’s, Evans’s, Hulsey’s, and 

Sims’s qualified-immunity appeals—arising from their use of force after 

Barnes had been restrained and handcuffed—turn on questions of fact the 

 Case: 13-20388 Document: 00513171159 Page: 31 Date Filed: 08/26/2015
No. 13-20388

32

district court found disputed, we DISMISS these interlocutory appeals for lack 

of jurisdiction and REMAND for proceedings consistent with this opinion.

 Case: 13-20388 Document: 00513171159 Page: 32 Date Filed: 08/26/2015