IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50391

SHAVONDA BAILEY, as Next Friend of K.A. and P.A.; VIVIAN LAMPKINS, 

as Next Friend of J.L.; BELINDA CARRANCO, as Next Friend of Z.A.; 

BRANDIE OLIVER, as Next Friend of A.O.; CHRISTINE OWENS, as Next 

Friend of M.O., 

 Plaintiffs - Appellants

v.

NATHAN PRESTON, Individually; VIDAL DIAZ, Individually; MICHAEL 

FLETCHER, Individually; FRANCISCO GALVAN, Individually; MATTHEW 

FLORES, Individually; AUBREY PLAUCHE, Individually; MATTHEW 

QUINTANILLA, Individually; ROBERT TAMEZ, Individually; PAUL 

TRIGO, Individually, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:13-CV-700

Before WIENER, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Pierre Abernathy died after a struggle with several San Antonio police 

officers. The mothers of his children filed suit against the officers (1) under 42 

 

* 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

July 13, 2017

Lyle W. Cayce

Clerk

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U.S.C. § 1983 for excessive force and for failure to intervene to prevent the use 

of excessive force, and (2) under Texas state law for assault and battery. The 

district court granted the officers’ motion for summary judgment on the basis 

of qualified immunity and dismissed the claims against them. We affirm.

I.

FACTS AND PROCEEDINGS

In August 2011, after leading San Antonio police officers on a 14.4-mile 

pursuit by car, Abernathy pulled over in front of the house where his mother 

and sister lived. Abernathy, a 5’11”, 240-pound male with paranoid 

schizophrenia, initially complied with the officers’ directives to exit the car, put 

his hands in the air, and get on the ground, at which point the officers were 

able to place handcuffs on one of Abernathy’s hands.

Shortly thereafter, however, Abernathy began to resist and pushed 

himself up off the ground to a standing position. A struggle ensued, and 

Abernathy was tased at least five times, struck with “asp” batons four times, 

punched, kicked, and bitten by a K9 dog. Several officers reported that they 

repeatedly tried to handcuff Abernathy’s other hand but that he continued to 

resist. The uncontroverted evidence reflects that, once the officers were finally 

able to handcuff Abernathy, they no longer used any force against him.1

Abernathy, who officers said was initially breathing after the struggle, 

stopped breathing. Emergency Medical Services personnel transported 

Abernathy to a hospital, where staff pronounced him dead shortly after his 

arrival. The autopsy concluded that Abernathy’s “manner of death” was a 

 

1 One officer had a camera on his dashboard recording audio and video, but almost all 

of the struggle took place off-camera: Abernathy is seen on video only once after getting out 

of his car, running across the frame followed by a dog and six officers. The camera’s 

microphone shut off for nearly two minutes and thus failed to capture the audio of most of 

the struggle.

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homicide and that he “died as a result of the combined effects of intoxication 

with cocaine, a prolonged struggle, and a cardiomyopathy (an enlarged heart).”

The mothers of Abernathy’s children sued the officers on scene in their 

individual capacities, asserting claims under 42 U.S.C. § 1983 for excessive 

force and for failure to intervene to prevent the use of excessive force. They 

also brought claims under Texas state law for assault and battery. The officers 

moved for a summary judgment of dismissal of all claims, asserting, inter alia, 

that they were entitled to qualified immunity on the plaintiffs’ § 1983 claim for

use of excessive force. The district court granted the officers’ motion and 

dismissed the plaintiffs’ claims. The court concluded that “the defendants 

deployed force that was neither clearly excessive nor clearly unreasonable.” 

The plaintiffs timely appealed, claiming only that the district court erred in 

granting summary judgment on the plaintiffs’ § 1983 claim for use of 

excessive force.2

II.

STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment on the 

basis of qualified immunity and apply the same standards as the district 

court.3 “Summary judgment is proper when the pleadings and evidence 

demonstrate that no genuine issue of material fact exists and the movant is 

 

2 Because the appellants do not raise the failure-to-intervene claim and do not 

adequately address their assault-and-battery claim on appeal, the only issue before us is 

whether the district court erred in granting summary judgment on their § 1983 claim for use 

of excessive force. See Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007)

(“[F]ailure to advance arguments in the body of the appellant’s brief, even when those issues 

were referenced in the Statement of Issues section, resulted in waiver of those arguments.”); 

Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 561 (5th Cir. 1997); Yohey v. 

Collins, 985 F.2d 222, 225 (5th Cir. 1993); see also FED. R. APP. P. 28(a).

3 Curtis v. Anthony, 710 F.3d 587, 593 (5th Cir. 2013) (per curiam); Davila v. United 

States, 713 F.3d 248, 257 (5th Cir. 2013).

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entitled to judgment as a matter of law.”4 We construe all facts and inferences 

in the light most favorable to the nonmoving party.5 “In reviewing the 

evidence, the court must refrain from making credibility determinations or 

weighing the evidence.”6

III.

ANALYSIS

“To state a claim under § 1983, a plaintiff must first show a violation of 

the Constitution or of federal law, and then show that the violation was 

committed by someone acting under color of state law.”7 “The doctrine of 

qualified immunity protects government officials from civil damages liability 

when their actions could reasonably have been believed to be legal.”8 When a 

defendant raises the qualified-immunity defense, the plaintiff has the burden 

of demonstrating the inapplicability of that defense.9 In resolving questions of 

qualified immunity at summary judgment, we engage in a two-pronged 

inquiry: (1) whether the facts, taken in the light most favorable to the party 

asserting the injury, show that the officer’s conduct violated a federal right; 

and (2) “whether the right in question was ‘clearly established’ at the time of 

the violation.”10 Like the district court, we have the discretion to decide which 

prong of the qualified-immunity analysis to address first.11 “[Q]ualified 

 

4 Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004); see FED. R. CIV. P. 56.

5 Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

6 Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (per curiam) (internal 

quotation marks omitted).

7 Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).

8 Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).

9 Atteberry, 430 F.3d at 253.

10 Tolan v. Cotton, 134 S. Ct. 1861, 1865–66 (2014) (citing Saucier v. Katz, 533 U.S. 

194, 201 (2001); Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

11 Morgan, 659 F.3d at 371.

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immunity may be granted without deciding the first prong. Deciding the 

second prong first is often advisable[.]”12 We choose to begin with the second 

prong of the qualified-immunity analysis.

The instant defendants are entitled to qualified immunity if their use of 

force was “objectively reasonable in light of clearly established law at the time 

the challenged conduct occurred.”13 “[W]hile the right to be free from excessive 

force is clearly established in a general sense, the right to be free from the 

degree of force employed in a particular situation may not have been clear to a 

reasonable officer at the scene.”14 “The central concept is that of ‘fair warning’: 

The law can be clearly established ‘despite notable factual distinctions between 

the precedents relied on and the cases then before the Court, so long as the 

prior decisions gave reasonable warning that the conduct then at issue violated 

constitutional rights.’”15 There need not be a case directly on point, but 

“existing precedent must have placed the statutory or constitutional question 

beyond debate.”16 “If officers of reasonable competence could disagree as to 

whether the plaintiff’s rights were violated, the officer’s qualified immunity 

remains intact.”17

In their brief, the appellants failed to address whether the officers’ force 

was excessive in light of clearly established law.18 When pressed at oral 

 

12 Newman v. Guedry, 703 F.3d 757, 766 (5th Cir. 2012) (citation omitted).

13 Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008).

14 Id. at 502; see also Poole, 691 F.3d at 627–28; Deville, 567 F.3d at 169.

15 Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope, 536 

U.S. at 740).

16 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

17 Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005).

18 In an “obvious case,” the excessive-force factors outlined in Graham v. Connor, 490 

U.S. 386 (1989), “can ‘clearly establish’ the answer, even without a body of relevant case law.” 

Brousseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam); see also Hanks v. Rogers, 853 

F.3d 738, 747 (5th Cir. 2017); Newman, 703 F.3d at 764. This case, however, is not an obvious 

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argument, counsel for appellants cited Ramirez v. Martinez as demonstrating 

that in 2011 the law was clearly established that the force the officers used in 

this case was excessive.19 But Ramirez is distinguishable. The plaintiff in 

Ramirez alleged that he “posed no threat to the officers and yet was tased 

twice, including once after he was handcuffed and subdued while lying face 

down on the ground,” and the district court found that the plaintiff’s account 

was supported by the summary-judgment record.20 In Ramirez, this court 

emphasized that, although our circuit has “not addressed a fact pattern

precisely on point, . . . we have held the use of certain force after an arrestee 

has been restrained and handcuffed is excessive and unreasonable.”21

The Ramirez panel concluded that the officer’s alleged conduct violated 

clearly established law. It relied on (1) Newman v. Guedry, in which another 

panel of this court had explained in 2012 that the “[l]awfulness of force . . . does 

not depend on the precise instrument used to apply it,”22 and (2) Bush v. 

Strain, in which “we held an officer used excessive and unreasonable force 

when he forcefully slammed an arrestee’s face into a vehicle when the arrestee 

was handcuffed and subdued.”23 These cases are inapposite here because the 

 

one. In Graham, the Supreme Court instructed courts to consider a case’s facts and 

circumstances when determining whether the force used was objectively reasonable, 

“including [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 he is actively resisting arrest or 

attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Further, it is well established 

that “the need for force determines how much force is constitutionally permissible.” Bush, 

513 F.3d at 501. The parties dispute the extent to which Abernathy posed a threat and to 

which he was actively resisting arrest, and it is not obvious in light of Graham that the force 

the officers used was excessive to the force necessary to subdue Abernathy.

19 Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013).

20 Id. at 379.

21 Id. at 378 (emphasis added).

22 Id. at 379 (quoting Newman, 703 F.3d at 763–64).

23 Id. (citing Bush, 513 F.3d at 501).

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uncontroverted evidence reflects that the officers in the instant case stopped 

using force on Abernathy once he was handcuffed. 

The burden in this case is on the appellants to demonstrate the 

inapplicability of the qualified-immunity defense by showing, inter alia, that—

under the specific facts of this case—the officers’ use of force was objectively 

unreasonable in light of clearly established law.24 But the appellants have 

made no showing that, under these facts, Abernathy’s right to be free from 

excessive force was clearly established and thus have not satisfied their 

burden.25 Therefore, we need not—and do not—reach the first prong of the 

qualified-immunity analysis.26

IV.

CONCLUSION

The district court’s summary judgment dismissing this action with 

prejudice is AFFIRMED.27

 

24 Bush, 513 F.3d at 501; Atteberry, 430 F.3d at 253; McClendon v. City of Columbia, 

305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam).

25 See Cass v. City of Abilene, 814 F.3d 721, 732 (5th Cir. 2016) (per curiam) 

(“Appellants . . . have the burden to show that Smith violated Cass’s clearly established

rights. Appellants’ entire argument on this second prong of the qualified immunity test is 

that ‘it is clearly established in the law that citizens are protected against unjustified, 

excessive police force.’ This general statement is insufficient to meet Appellants’ burden.”); 

Thompson v. Mercer, 762 F.3d 433, 437 (5th Cir. 2014) (quoting Saucier, 533 U.S. at 201).

26 See Thompson, 762 F.3d at 437.

27 Our holding is limited to the circumstances of this case and is based solely on the 

appellants’ failure to demonstrate that Abernathy’s right to be free from the force used was 

clearly established. We note that an officer’s repeated tasing of a non-dangerous, even noncompliant suspect could constitute a violation of the suspect’s clearly established Fourth 

Amendment rights, especially given the advancing medical and scientific knowledge about 

the potential deadly effects of tasing.

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