United States Court of Appeals

for the Fifth Circuit

No. 19-30014

Katie Joseph, on behalf of The Estate of Kendole Joseph, 

Deceased; Sheresa Jackson, on behalf of her minor children, K.B.J.

and K.A.J., 

Plaintiffs—Appellees,

versus

Damond Bartlett, Officer; Eddie Martin, Officer; Arthur 

Morvant, Officer; Thomas Thompson, Officer; Brandon 

Leduff, Officer; Duston Costa, Officer; Shannon Dugas, 

Officer; Julius Rolland, Officer; Steven Verrett, Officer; 

Robert Faison, Officer, 

Defendants—Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:17-CV-5051

Before Elrod, Willett, and Oldham, Circuit Judges.

Don R. Willett, Circuit Judge:

“What is the virtue of a proportional response?” an exasperated

President Bartlet demands in a memorable scene from the first season of The 

United States Court of Appeals

Fifth Circuit

FILED

November 20, 2020

Lyle W. Cayce

Clerk

Case: 19-30014 Document: 00515647584 Page: 1 Date Filed: 11/20/2020
No. 19-30014

2

West Wing.1 Anything more, the Chairman of the Joint Chiefs of Staff coolly 

advises, would be a “staggering overreaction . . . you’ll have doled out a 

$5,000 punishment for a fifty-buck crime.”2

For those in positions of public trust—from Commanders in Chief 

(who must “take Care that the Laws be faithfully executed”3

) to City of 

Gretna Police Officers (who “vow to protect life and property while safe

guarding constitutional guarantees”4)—proportional responses are good 

policy. We expect those charged with executing and enforcing our laws to

take measured actions that ascend in severity only as circumstances require. 

A disproportionate response is unreasonable. And if it describes physical 

force inflicted by a police officer, it is unconstitutional.

That’s the issue here: Did Gretna police officers respond “with 

measured and ascending actions that corresponded to” Kendole Joseph’s 

behavior?5 The Plaintiffs, Joseph’s family, maintain that Joseph did not resist 

arrest, yet Officers Martin and Costa repeatedly tased and struck him, and

nine other officers—Officers Leduff, Morvant, Thompson, Dugas, Varisco, 

Rolland, Faison, Verrett, and Bartlett—did nothing to stop the abuse. The 

officers tell another story.

We must view the facts in the light most favorable to the nonmovants 

(here, Plaintiffs). Having done so, and based on the constitutional standard

and the clearly established law, we conclude that Officers Martin and Costa

1 The West Wing: A Proportional Response (NBC television broadcast Oct. 6, 1999).

2 Id.

3 U.S. Const. art. II, § 3.

4 Welcome Message from the Gretna PD, Gretna Police Dep’t, 

https://www.gretnapolice.com (last visited Nov. 20, 2020).

5 Pratt v. Harris Cty., 822 F.3d 174, 182 (5th Cir. 2016)(internal quotation omitted).

Case: 19-30014 Document: 00515647584 Page: 2 Date Filed: 11/20/2020
No. 19-30014

3

are not entitled to summary judgment. But on this record, the nine 

“bystander officers” are, given Plaintiffs’ failure to make any arguments, and 

identify any cases, regarding clearly established law.

I

A

We begin with a 10,000-foot overview of the uncontroversial facts. A

middle-school official saw Joseph near the school acting “strange” and asked 

school resource officers to check him out. When the school resource officers

approached, Joseph ran into a nearby convenience store and jumped behind 

the checkout counter. The school resource officers followed and made radio 

calls, stating they were pursuing a “suspicious person.” Twelve other 

officers joined them. About eight minutes after Joseph entered the store, the 

officers apprehended him and carried him to a police car, after which he 

became unresponsive and was taken to the hospital, where he died two days 

later. 

The parties dispute what Joseph did and said during the eight-minute 

encounter in the store and what the officers saw, heard, and knew. 

The evidence from surveillance video establishes when each officer 

entered the store and, to some degree, each officer’s location and conduct in 

the store.6 For the most part, Joseph cannot be seen in the video. 

B

We now proceed through the facts in detail, including the disputed 

6 The relevant videos are here: http://www.ca5.uscourtsgov/opinions/pub/19/19-

30014-chan3.mp4; http://www.ca5.uscourts.gov/opinions/pub/19/19-30014-chan4.mp4; 

https://www.ca5.uscourts.gov/opinions/pub/19/19-30014-chan6.mp4; https://www.ca5.

uscourts.gov/opinions/pub/19/19-30014-TaserCamVideo.mp4; http://www.ca5.uscourt

s.gov/opinions/pub/19/19-30014-chan9.mp4.

Case: 19-30014 Document: 00515647584 Page: 3 Date Filed: 11/20/2020
No. 19-30014

4

facts, considering each officer’s actions independently.

7 We draw these facts 

from the record, prioritizing the video evidence.

8 We view the facts and draw 

reasonable inferences in the light most favorable to Plaintiffs.9 “In qualified 

immunity cases,” which often involve competing versions of events, we take 

“the plaintiff’s version of the facts,” unless that version “is blatantly 

contradicted by the record, so that no reasonable jury could believe it.”10

7 Darden v. City of Fort Worth stated, “In cases where the defendants have not acted 

in unison, ‘qualified immunity claims should be addressed separately for each individual 

defendant.’” 880 F.3d 722, 731 (5th Cir. 2018). To the extent that this could be read as 

suggesting that collective analysis is appropriate for defendants acting in unison, we don’t 

read it that way. After all, Darden relies on authority explicitly stating that a district court 

erred by “consider[ing] the officers’ actions collectively because it found they acted in 

unison.” Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir. 2007). In any event, Plaintiffs do 

not argue that the officers acted in unison.

8 See Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016); Newman v. Guedry, 703 

F.3d 757, 761 (5th Cir. 2012).

9 Scott v. Harris, 550 U.S. 372, 378 (2007)

10 Id. at 378, 380; accord Orr, 844 F.3d at 490.

Case: 19-30014 Document: 00515647584 Page: 4 Date Filed: 11/20/2020
No. 19-30014

5

1

We begin with the events occurring before Joseph jumped behind the

convenience-store counter. Around lunchtime on February 7, 2017, the 

assistant principal of Gretna Middle School noticed a “strange guy” standing 

outside the gate of the school and contacted Officer Thompson, a Gretna 

police officer assigned as the school resource officer. The “strange guy” was 

later identified as Kendole Joseph, a man with paranoid schizophrenia who 

had not taken his medication. The assistant principal described Joseph as 

“nervous and shaky” and reported that he “was staring,” “not walking 

straight but rather weaving,” talking to himself, saying “stuff she couldn’t 

make out,” shaking his leg, and biting his nails. 

She asked Officer Thompson and Officer Morvant, another school 

resource officer, to check Joseph out. Officer Morvant approached Joseph 

and heard him yelling, “Help me from the police.” Before Officer Morvant 

said anything, Joseph began running away from the school and pulling on the 

locked door handles of nearby cars, pleading for “help [] from the police.” 

Officer Morvant found this behavior “odd” and “erratic” and knew that 

Joseph was possibly “emotionally disturbed.” He radioed other officers in 

the area to report “a suspicious person who was fleeing.” 

Officers Martin and Leduff heard this radio transmission and spotted 

Joseph near a convenience store. They parked their marked police car, exited, 

and gave loud verbal commands for Joseph to come to them. Despite these 

commands, Joseph entered the store, and the officers followed him.

11 Officer 

Martin saw no weapon in Joseph’s hands or any indication that he had one in 

11 For purposes of this appeal, Plaintiffs accept the district court’s determination 

that Joseph disobeyed verbal commands from Officers Martin and Leduff before entering 

the store. We observe that this fact came from Officer Leduff’s testimony. 

Case: 19-30014 Document: 00515647584 Page: 5 Date Filed: 11/20/2020
No. 19-30014

6

his waistband, nor did he make any threatening moves like he was reaching 

for a weapon. 

As Officer Martin entered the store, he trained his gun on Joseph, who 

was shouting, “Help me, help me somebody call the cops . . . . They’re trying 

to kill me.” When Officer Martin instructed Joseph to get on the ground, 

Joseph jumped over the checkout counter.12

2

The convenience-store manager, who was behind the counter at the 

time, testified that Joseph looked scared and immediately “went face down.”

Once on the ground, Joseph covered his face with his hands and assumed the 

fetal position. Seconds later, Officers Martin and Leduff followed Joseph 

over the counter. Officer Martin, weighing 300 pounds, immediately placed

his full weight onto Joseph, who was still lying on the floor with his legs bent 

toward his chest. Officer Leduff began holding Joseph’s upper body down. 

Officer Morvant entered the store next, briefly stopped to look over the 

counter, then walked behind the counter and began holding Joseph’s lower 

body down. Officer Thompson then entered, followed by Officer Dugas, and 

both observed Joseph and the officers from the front side of the counter. At 

that point, approximately thirty seconds after Officer Martin jumped over the 

counter, he ordered Joseph to put his hands behind his back and deployed his 

taser for eleven seconds. Meanwhile, Officers Thompson and Dugas walked

around the counter and continued observing from behind the counter. Officer 

Dugas handed a baton to Officer Martin, who jabbed it downward, striking 

Joseph at least twice with the pointed end. 

12 For purposes of this appeal, Plaintiffs accept the district court’s determination 

that Joseph disobeyed the command to get on the ground. We observe that this fact came 

from Officer Martin’s testimony.

Case: 19-30014 Document: 00515647584 Page: 6 Date Filed: 11/20/2020
No. 19-30014

7

A few seconds later, Officers Varisco, Costa, and Rolland entered the 

store, followed shortly by Officer Faison. Officers Varisco and Faison 

observed from the front side of the counter, and Officers Costa and Rolland 

walked behind the counter. Officer Varisco reached over to offer his taser to 

the officers behind the counter. Officer Costa briefly observed from behind 

the counter, then entered the scrum, holding Joseph’s lower body down. At 

that point, Officer Morvant left the scrum and made his way to the front side

of the counter, where he continued to observe. Officer Rolland continued to 

observe from behind the counter. 

Officer Verrett then entered the store. Two seconds later, Officer 

Martin deployed his taser again, for three seconds. A few seconds later, 

Officer Bartlett entered the store and began to observe from the front side of 

the counter. Officers Faison and Verrett walked behind the counter and 

observed from there. 

Officers Martin, Thompson, Dugas, and Costa began attempting to 

drag Joseph from the narrower area behind the counter to the wider area, on 

the path to the door. 

Officer Costa then kicked Joseph twelve to thirteen times while 

holding onto the counter. During this time, Officer Verrett entered the 

scrum. Officer Martin then punched Joseph in the head three times. Officers 

Martin, Thompson, Dugas, Costa, Faison, and Verrett resumed their efforts 

to drag Joseph toward the wider area, while Officer Leduff observed. Once in 

the wider area, Officer Martin punched Joseph in the face three times. Officer 

Bartlett then jumped over the counter and began holding Joseph down. 

Seconds later, Officer Costa punched Joseph in the head six times. 

Three-and-a-half minutes after Officer Costa’s last strike, Officers 

Martin, Costa, and Verrett placed Joseph in handcuffs and leg shackles. 

Officers Martin, Verrett, Rolland, and Varisco carried him, face down, to 

Case: 19-30014 Document: 00515647584 Page: 7 Date Filed: 11/20/2020
No. 19-30014

8

Officer Martin’s patrol car. There, all officers except Officer Thompson 

placed Joseph feet-first in the car and pulled him “across the seat from the 

other side, bent his legs up, and shut the doors with [Joseph] in a prone 

position on the seat facedown.” Joseph became unresponsive, at which point

medical personnel, who had arrived on the scene before Joseph was carried 

out of the store, examined him for the first time. They performed CPR and 

took Joseph to the hospital, where he died from his injuries two days later.

3

In total, Joseph endured twenty-six blunt-force injuries to his face, 

chest, back, extremities, scrotum, and testes. Throughout the eight-minute 

encounter, Joseph was on the ground, experiencing acute psychosis, and 

continuously yelling. Officer Bartlett recalled Joseph “yelling random 

things” and pleading for someone to “call the police.” Officer Faison and 

the store manager recalled him pleading for someone to “call the real

police.” Officer Leduff recalled Joseph calling for his mother and “saying all 

types of things,” including that he was “about to be killed.” The store 

manager recalled Joseph calling out for his mother and repeatedly yelling, 

“My name is Kendole Joseph,” and “I do not have a weapon.”

II

Joseph’s family sued for violations of Joseph’s Fourth Amendment 

rights, bringing excessive-force claims against Officers Martin and Costa and 

failure-to-intervene claims against Officers Leduff, Morvant, Thompson, 

Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett.

13 All officers moved 

for summary judgment, invoking qualified immunity. 

13 Not at issue in this appeal, Plaintiffs also brought state law claims and claims for 

unconstitutional deliberate indifference to medical needs.

Case: 19-30014 Document: 00515647584 Page: 8 Date Filed: 11/20/2020
No. 19-30014

9

The district court determined that genuine disputes of material fact 

exist as to whether Joseph actively resisted arrest during the encounter, and 

whether and when the officers became aware that Joseph was experiencing a 

mental-health crisis. Specifically, the parties dispute the points at which 

Joseph was on his stomach, back, and side. They also dispute the extent to 

which Joseph struggled against the officers, and the extent to which Joseph 

was physically able to comply with the officers’ orders about putting his 

hands behind his back and rolling over. They dispute what the officers saw, 

heard, and knew—about Joseph’s condition and about the actions of their 

fellow officers. And they dispute the cause of Joseph’s death. 

The district court concluded that, construing all facts and inferences 

in favor of Plaintiffs, the record supports the following account: Once behind 

the counter, Joseph immediately dropped into the fetal position, with his 

hands over his face. The officers then pinned him to the floor, rendering him 

incapable of complying with orders to put his hands behind his back and roll 

over. Joseph did not strike, kick, or threaten any officer, nor did he try. He 

squirmed, wiggled, and flailed at times, and he gave no struggle at other

times. No officer attempted to negotiate with Joseph or otherwise de-escalate 

the encounter. No officer attempted to intervene, despite seeing and hearing

Officers Martin and Costa tase, jab, punch, and kick Joseph, while he was 

pinned to the ground and experiencing a mental-health crisis. Joseph died 

from his injuries. 

The district court concluded that the officers violated Joseph’s 

Fourth Amendment rights in a manner prohibited by clearly established law,

and that the officers were not entitled to qualified immunity. The court thus 

denied summary judgment.14

14 Joseph v. Doe, No. 17-5051, 2019 WL 95467, at *16 (E.D. La. Jan. 3, 2019).

Case: 19-30014 Document: 00515647584 Page: 9 Date Filed: 11/20/2020
No. 19-30014

10

III

Our review involves multiple legal standards, corresponding to 

qualified immunity, summary judgment, interlocutory review of qualified 

immunity denials, and the Fourth Amendment. The intersection of these 

standards gets tricky, so we address each in turn, starting with qualified 

immunity. 

As a theoretical backdrop, the doctrine of qualified immunity attempts 

to balance two competing societal interests: “the need to hold public officials 

accountable when they exercise power irresponsibly and the need to shield 

officials from harassment, distraction, and liability when they perform their 

duties reasonably.”15 These interests are distilled into a legal standard, an 

affirmative defense, that shields public officials sued in their individual 

capacities “from liability for civil damages insofar as their conduct does not 

violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.”16

In practice, applying that standard involves significant departures

from the norms of civil litigation—particularly summary-judgment norms.

17

Qualified immunity changes the nature of the summary-judgment burden, 

how and when the burden shifts, and what it takes to satisfy the burden. 

A plaintiff suing for a constitutional violation has the ultimate burden 

to show that the defendant violated a constitutional right—that is, the 

plaintiff must make this showing whether or not qualified immunity is 

15 Pearson v. Callahan, 555 U.S. 223, 231 (2009).

16 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

17 See generally Alan K. Chen, The Burdens of Qualified Immunity: Summary 

Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1 (1997) 

(discussing theoretical and practical problems with synthesizing qualified immunity and 

summary judgment).

Case: 19-30014 Document: 00515647584 Page: 10 Date Filed: 11/20/2020
No. 19-30014

11

involved.

18 But when qualified immunity is involved, at least in this circuit, a

plaintiff has the additional burden to show that the violated right was “clearly 

established” at the time of the alleged violation.19

This expanded substantive burden isn’t the only special feature of 

qualified immunity. Burden shifting changes, too. Under the ordinary 

summary-judgment standard, the party who moves for summary judgment 

bears the initial burden to show “that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.”20

The movant satisfies this burden by showing that a reasonable jury could not

find for the nonmovant, based on the burdens that would apply at trial.21 For 

a defendant, this means showing that the record cannot support a win for the 

plaintiff—either because the plaintiff has a failure of proof on an essential 

element of its claim or because the defendant has insurmountable proof on 

its affirmative defense to that claim.

22 The defendant can show this by 

18 At the pleading stage, the plaintiff must allege facts that demonstrate unlawful 

conduct; at the judgment stage, the plaintiff must show proof of such facts. Pearson, 555 

U.S. at 232 (distinguishing the plaintiff’s burden under Rules 12(b)(6) and (c) versus Rules 

50 and 56).

19 See Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc).

The First, Second, Third, Fourth, Ninth, and D.C. Circuits place the burden on 

the defendant, while the Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits place it on the 

plaintiff. Kenneth Duvall, Burdens of Proof and Qualified Immunity, 37 S. Ill. U. L.J. 135, 

145 (2012). In the Fourth Circuit, the defendant has the burden to show that the law was 

clearly established, and the plaintiff has the burden to show violation of a constitutional 

right. Id. In the Eighth Circuit, the opposite rule applies. Id.

20 Fed. R. Civ. P. 56(a).

21 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

22 Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002) (“[I]f the 

movant bears the burden of proof on an issue because as a defendant he is asserting an 

affirmative defense, he must establish beyond peradventure all of the essential elements of 

the defense to warrant judgment in his favor.” (alterations omitted) (quotation omitted)). 

Case: 19-30014 Document: 00515647584 Page: 11 Date Filed: 11/20/2020
No. 19-30014

12

introducing undisputed evidence or by “pointing out . . . an absence of 

evidence to support the [plaintiff’s] case.”23 If the defendant succeeds on

that showing, the burden shifts to the plaintiff to demonstrate that there is a 

genuine issue of material fact and that the evidence favoring the plaintiff

permits a jury verdict in the plaintiff’s favor.24

But that changes with qualified immunity. 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.”25 In other words, to shift the burden to the 

plaintiff, the public official need not show (as other summary-judgment 

movants must) an absence of genuine disputes of material fact and 

entitlement to judgment as a matter of law.

26

Once the burden is on the plaintiff, things briefly sound familiar again: 

The 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. That would be the same if the plaintiff did not face 

qualified immunity. But, to overcome qualified immunity, the plaintiff’s 

version of those disputed facts must also constitute a violation of clearly 

established law. This 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].”27 While 

23 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 325 (1986). 

24 Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 302 (5th Cir. 2020).

25 Orr, 844 F.3d at 490.

26 King v. Handorf, 821 F.3d 650, 653–54 (5th Cir. 2016).

27 District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (first quoting Mullenix v. 

Luna, 136 S. Ct. 305, 308 (2015), then quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)).

Case: 19-30014 Document: 00515647584 Page: 12 Date Filed: 11/20/2020
No. 19-30014

13

there need not be “a case directly on point,” the unlawfulness of the 

challenged conduct must be “beyond debate.”28 This leaves the “rare” 

possibility that, in an “obvious case,” analogous case law “is not needed” 

because “the unlawfulness of the [challenged] conduct is sufficiently clear 

even though existing precedent does not address similar circumstances.”29

Moving from the bar to the bench, qualified immunity similarly 

changes the court’s normal task on summary judgment. A court decides 

whether summary judgment is appropriate by “view[ing] the facts in the light 

most favorable to the nonmoving party and draw[ing] all reasonable 

inferences in its favor” (so far normal), then determining whether the 

plaintiff can prove a constitutional violation (still normal) that was clearly 

established (not normal).30

Things change for appellate courts, too—we review earlier than we 

otherwise would, and we review less than we otherwise would. An official 

who unsuccessfully moves for summary judgment on qualified-immunity 

grounds may immediately appeal the denial of qualified immunity, which 

would otherwise not be final and appealable.

31 An official can take multiple

immediate appeals because the official can raise qualified immunity at any 

stage in the litigation—from Rule 12(b)(6) motions to dismiss, to Rule 12(c) 

motions for judgment on the pleadings, to Rule 56 motions for summary 

28 Id. (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)).

29 Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)).

30 Deville v. Marcantel, 567 F.3d 156, 164 (2009) (per curiam); see also Tolan v. 

Cotton, 572 U.S. 650, 656–57 (2014) (instructing courts to rely on the plaintiff’s version of 

the facts when evaluating clearly established law). 

31 Mitchell v. Forsyth, 472 U.S. 511, 526, 530 (1985) (“The entitlement is an 

immunity from suit rather than a mere defense to liability; and like an absolute immunity, it 

is effectively lost if a case is erroneously permitted to go to trial.”).

Case: 19-30014 Document: 00515647584 Page: 13 Date Filed: 11/20/2020
No. 19-30014

14

judgment, to Rule 50(b) post-verdict motions for judgment as a matter of

law—and continue to raise it at each successive stage.

32

Our review is de novo, as summary-judgment review usually is.

33 But

we only review a denial of summary judgment based on qualified immunity 

“to the extent that it turns on an issue of law.”34 Both steps—the 

constitutional merits and the “clearly established law” inquiry—are 

questions of law. That means we do not second-guess the district court’s 

determination that there are genuine disputes of material fact, as we 

otherwise might.35 When the district court identifies a factual dispute, as it 

did here, we consider only whether the district court correctly assessed “the 

legal significance” of the facts it “deemed sufficiently supported for 

purposes of summary judgment.”36 But we do not evaluate whether the 

district court correctly deemed the facts to be “sufficiently supported”; that 

is, whether the “evidence in the record” would permit “a jury to conclude 

that certain facts are true.”37 In short, we may evaluate whether a factual 

dispute is material (i.e., legally significant), but we may not evaluate whether 

it is genuine (i.e., exists).38

32 See Behrens v. Pelletier, 516 U.S. 299, 309 (1996); Carroll v. Ellington, 800 F.3d 

154, 167 (5th Cir. 2015). 

33 Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004).

34 Mitchell, 472 U.S. at 530; Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en 

banc); King, 821 F.3d at 653; Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013).

35 E.g., Garcia v. Prof’l Contract Servs., Inc., 938 F.3d 236, 244 (5th Cir. 2019) 

(holding that there was a genuine issue of fact after evaluating the plaintiff’s evidence). 

36 Cole v. Carson, 935 F.3d 444, 452 (5th Cir. 2019) (en banc) (“We lack jurisdiction 

to resolve the genuineness of any factual disputes . . . .” (quoting Lytle v. Bexar Cty., 560 

F.3d 404, 408 (5th Cir. 2009))). 

37 Id.

38 Melton, 875 F.3d at 261. 

Case: 19-30014 Document: 00515647584 Page: 14 Date Filed: 11/20/2020
No. 19-30014

15

IV

While we have discretion to leapfrog the merits and go straight to 

whether the alleged violation offended clearly established law,39 we think it 

better to address both steps in order to provide clarity and guidance for

officers and courts.

40 We consider first the excessive-force claims against 

Officers Martin and Costa. We then address the claims against Officers 

Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and 

Bartlett. 

39 See Pearson, 555 U.S. at 236; Mullenix, 136 S. Ct. at 308.

40 For years, our court has found value in addressing the constitutional merits to 

develop robust case law on the scope of constitutional rights. For instance, shortly after 

Pearson was decided, our en banc court chose to address the First Amendment merits even 

though a majority of the court concluded that the defendants had not violated clearly 

established law. See Morgan, 659 F.3d at 395 (Elrod, J., writing for the majority in part and 

dissenting in part) (holding, for the majority, that discriminating against student speech on 

the basis of religious viewpoint violated the First Amendment and concluding, in dissent, 

that the right was clearly established). We have found the merits analysis particularly 

appropriate in Fourth Amendment cases, which frequently involve qualified immunity. See 

Trent v. Wade, 776 F.3d 368, 377 (5th Cir. 2015) (citing Plumhoff v. Rickard, 572 U.S. 765, 

774 (2014) (addressing the merits for the benefit of “developing constitutional precedent” 

in Fourth Amendment law, “an area that courts typically consider in cases in which the 

defendant asserts a qualified immunity defense”)). The big-picture takeaway:

Forgoing a knotty constitutional inquiry makes for easier sledding, no 

doubt. But the inexorable result is “constitutional stagnation”—fewer 

courts establishing law at all, much less clearly doing so. Section 1983 

meets Catch-22. Plaintiffs must produce precedent even as fewer courts 

are producing precedent. Important constitutional questions go 

unanswered precisely because no one’s answered them before. Courts 

then rely on that judicial silence to conclude there’s no equivalent case on 

the books. No precedent = no clearly established law = no liability. An 

Escherian Stairwell. Heads government wins, tails plaintiff loses.

Zadeh v. Robinson, 928 F.3d 457, 479–80 (5th Cir. 2019) (Willett, J., concurring in part and 

dissenting in part) (footnote omitted).

Case: 19-30014 Document: 00515647584 Page: 15 Date Filed: 11/20/2020
No. 19-30014

16

A

1

The constitutional provision governing the claims against Officers 

Martin and Costa is the Fourth Amendment, which protects the right to be 

free from excessive force during a seizure.41 A violation of this right occurs 

when a seized person suffers an injury that results directly and only from a

clearly excessive and objectively unreasonable use of force.

42 Determining 

whether force was excessive or unreasonable is a “necessarily fact-intensive” 

and case-specific inquiry.43 The test for reasonableness is “not capable of 

precise definition or mechanical application.”44 But in Graham v. Connor, the 

Supreme Court outlined a few considerations that inform the need for force: 

(1) the severity of the crime at issue, (2) whether the suspect posed an 

immediate threat to the safety of officers or others, and (3) whether the 

suspect was actively resisting arrest or attempting to evade arrest by flight.45

We review these considerations “from the perspective of a reasonable officer 

on the scene, rather than with the 20/20 vision of hindsight.”46

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

42 Id. at 628. The Fourth Amendment’s “objectively unreasonable” analysis does 

not collapse with clearly established law’s reasonableness inquiry, such that one 

reasonableness inquiry covers both bases. Saucier v. Katz, 533 U.S. 194, 205–06 (2001), 

overruled on other grounds by Pearson, 555 U.S. at 236. Reasonableness plays two distinct 

roles, informing the Fourth Amendment merits (was the use of force reasonable?) and the 

clearly established law (was the officer’s understanding of his authority to use force 

reasonable?). Id. 

43 Poole, 691 F.3d at 628 (quotation omitted).

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

45 Id.; see also Tennessee v. Garner, 471 U.S. 1, 8–9 (1985).

46 Graham, 490 U.S. at 396.

Case: 19-30014 Document: 00515647584 Page: 16 Date Filed: 11/20/2020
No. 19-30014

17

And we “must assess not only the need for force, but also ‘the 

relationship between the need and the amount of force used.’”47 The timing, 

amount, and form of a suspect’s resistance are key to determining whether 

the force used by an officer was appropriate or excessive.48 While “a 

suspect’s refusal to comply with instructions” may indicate that physical 

force is justified, officers must also select the appropriate “degree of force.”49

To stay within constitutional bounds, an officer must use force “with 

measured and ascending actions that correspond[] to [a suspect’s] escalating 

verbal and physical resistance.”50 Therefore, force may be less justified or 

unjustified when a suspect engages in “passive resistance,” as opposed to 

“active resistance.”51 As to a passively resisting suspect, an officer does not 

take measured and ascending action by “immediately resort[ing] to taser and 

nightstick without attempting to use physical skill, negotiation, or even 

commands.”52

47 Deville, 567 F.3d at 167 (quotation omitted).

48 See id.; accord Curran v. Aleshire, 800 F.3d 656, 661 (5th Cir. 2015) (“A suspect’s 

active resistance is a key factor in the Fourth Amendment’s ‘objective reasonableness’ 

test.”). See also Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 277 (5th Cir. 2015)

(“[A]n exercise of force that is reasonable at one moment can become unreasonable in the 

next if the justification for the use of force has ceased.” (quoting Lytle, 560 F.3d at 413)).

49 Deville, 567 F.3d at 167–68.

50 Poole, 691 F.3d at 629 (quotation omitted).

51 See Deville, 567 F.3d at 167 (concluding that officers unreasonably broke the 

driver’s side window to extract a driver whose “resistance was, at most, passive in that she 

merely refused to leave her grandchild and exit the vehicle until [her husband] came to get 

the child”). Compare Trammell v. Fruge, 868 F.3d 332, 341 (5th Cir. 2017) (stating that 

“force is not justified” for passive resistance), with Hanks v. Rogers, 853 F.3d 738, 743, 746 

(5th Cir. 2017) (concluding that “a blow to [the suspect’s] upper back or neck” was 

unreasonable when the suspect resisted only passively by not immediately obeying the 

officer’s order to kneel).

52 Newman, 703 F.3d at 763; accord Brothers v. Zoss, 837 F.3d 513, 520 (5th Cir. 2016)

(“[W]e have placed weight on the quickness with which law enforcement personnel have 

Case: 19-30014 Document: 00515647584 Page: 17 Date Filed: 11/20/2020
No. 19-30014

18

Here, the district court treated the excessive-force claims as brought 

against only Officers Martin and Costa. The court determined that the 

parties had agreed that only Officers Martin and Costa—and not the 

“bystander officers,” Officers Leduff, Morvant, Thompson, Dugas, Varisco, 

Rolland, Faison, Verrett, and Bartlett—had exerted constitutionally relevant 

force against Joseph. The court then analyzed each Graham factor. The first 

factor (the severity of the crime) weighed heavily in Joseph’s favor, the court 

concluded, because “it is undisputed that [Joseph] had not committed and 

was not committing any crime.” Specifically, the court recounted that the 

radio transmission by Officer Morvant, which Officers Martin and Costa 

both testified they heard, contained no indication that Joseph was suspected 

of criminal activity, was armed, or posed a threat to himself or others.53

For the second factor (whether the suspect posed an immediate 

threat) the court determined that, in the light most favorable to Plaintiffs, 

Joseph presented “no immediate threat to the safety of the officers or 

others.” Specifically, Officers Martin and Costa knew Joseph was 

experiencing a mental-health crisis because they could perceive that he was 

scared and they could hear him yelling unusual, irrational statements, like 

asking for his mother and for somebody to call the real police. Officers Martin 

and Costa knew Joseph was unarmed because he yelled that, too; plus, no 

officer observed a weapon or an indication of a weapon. Officers Martin and 

Costa saw Joseph on the floor, having “assumed a fetal, or defensive, 

position” and knew he presented no threat to the store manager behind the 

escalated from negotiation to force.” (citing Newman, 703 F.3d at 763; Deville, 567 F.3d at 

167–68)).

53 Officer Leduff, who heard the radio transmission, recalled Officer Morvant 

stating that the school official had reported “a subject,” “coming on and off the property” 

and that the subject “took off” down the street after Officer Morvant “tried to talk to the 

guy.”

Case: 19-30014 Document: 00515647584 Page: 18 Date Filed: 11/20/2020
No. 19-30014

19

counter. The court found this version of the facts consistent with the video 

evidence. So, the second factor weighed in Joseph’s favor, as Plaintiffs’ 

version of the facts showed that Joseph presented no more of a threat than 

the inherent threat posed by “virtually all arrestees.”54 

For the third factor (whether the suspect was actively resisting or 

evading arrest) the court concluded that, construing the facts and inferences 

in favor of Plaintiffs, Joseph did not try to flee and did not resist arrest, at 

least not actively. Specifically, although Joseph may have disobeyed officer 

commands by entering the store, Joseph did not attempt to leave the store. 

Rather, he immediately dropped onto the floor in the fetal position. Joseph 

did not attempt to strike any officer; he flailed his legs and wiggled his body 

but made no contact with any officer. This version of the facts, the district 

court ascertained, was consistent with the video evidence. What is more, the 

district court observed, the video suggested that Joseph was not struggling 

against the officers at all “[f]or substantial portions” of the encounter. 

Evaluating the relationship between the need for force and the amount 

of force used, the court determined that Officers Martin and Costa failed to 

employ measured and ascending action by “immediately resort[ing] to force, 

without any attempt to de-escalate the volatile situation” or “negotiate,”

“despite their knowledge that [Joseph] was mentally disturbed.” The court 

further determined that the degree of force was excessive because Officers 

Martin and Costa “pin[ned] him to the floor”; Officer Martin “tased him 

twice, beat him with a baton,” and “punched him in the head”; and Officer 

Costa punched him and “kicked him in the groin and elsewhere on the 

body.” The district court concluded that on Plaintiffs’ version of the facts, 

Officers Martin and Costa had violated Joseph’s Fourth Amendment rights 

54 See Poole, 691 F.3d at 639 (Elrod, J., concurring in part and dissenting in part). 

Case: 19-30014 Document: 00515647584 Page: 19 Date Filed: 11/20/2020
No. 19-30014

20

by applying excessive force. The district court then denied summary 

judgment as to all officers. 

On appeal, the officers argue first that the district court 

inappropriately relied on the complaint rather than on the evidence. A court 

may not rely on mere factual allegations in an unverified complaint to make 

summary-judgment rulings.

55 But the district court here relied on the parties’ 

statements of material facts and video footage, and the court’s record 

citations reflect that it also relied on depositions, exhibits, and other materials 

expressly allowed under Federal Rule of Civil Procedure 56(b)(1). The 

officers attempt to rebut the facts and inferences favorable to Plaintiffs with 

their own testimony, but that does not entitle them to summary judgment. 

Second, the officers argue that it is immaterial whether Joseph 

attempted to strike or kick an officer, resisted only passively, or was 

experiencing mental-health problems. They argue that they took measured 

and ascending actions corresponding to the threat that Joseph posed by 

fleeing, ignoring their commands, and struggling against them, while the 

store manager was nearby. To be sure, the legal significance of an officer’s 

awareness of a suspect’s mental health is murky.56 We need not enter that 

55 Fed. R. Civ. P. 56(c).

56 In 2015, the Supreme Court found that clearly established law as of 2008 did not 

require officers to accommodate a suspect’s mental illness: “If anything, the opposite may 

be true.” City & Cty.of S.F. v. Sheehan, 135 S. Ct. 1765, 1775, 1778 (2015) (first citing Bates 

v. Chesterfield Cty., 216 F.3d 367, 372 (4th Cir. 2000) (“Knowledge of a person’s disability 

simply cannot foreclose officers from protecting themselves, the disabled person, and the 

general public.”), then citing Sanders v. Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007) 

(same), and then citing Menuel v. Atlanta, 25 F.3d 990 (11th Cir. 1994) (upholding use of 

deadly force to try to apprehend a mentally ill man who had a knife and was hiding behind 

a door)). 

Not long ago, in Cole, we took “no position on the public policy issues of the day 

regarding policing and the mentally ill.” 935 F.3d at 457 (5th Cir. 2019) (Elrod, J., 

concurring). But see id. at 468 (Jones, J., dissenting) (evaluating the suspect’s mental 

Case: 19-30014 Document: 00515647584 Page: 20 Date Filed: 11/20/2020
No. 19-30014

21

thicket today, however, for two reasons. First, the parties did not cite any 

authority here or in the district court to explain how Joseph’s mental health 

affects the legal analysis. We will not decide the issue in the first instance 

without the benefit of briefing or the district court’s analysis. 

Second, resolving the issue would not change our conclusion in this 

case. If Joseph was not actively resisting, Officers Martin and Costa inflicted 

force beyond what the Fourth Amendment permits, regardless of whether 

they also knew about Joseph’s mental-health status. The district court found 

that genuine factual disputes exist as to whether, how, and when Joseph 

resisted or was subdued. We cannot second-guess the existence of those 

factual disputes. The video does not discredit Plaintiffs’ view of the facts:

Officer Martin saw Joseph jumping over the counter at a spot past the clerk’s 

location, immediately taking the fetal position, and giving no resistance other 

than flailing his arms and legs; and, having entered the store later, Officer 

Costa saw Joseph maintain that state. And the officers cite no authority to 

support their contention that disputed facts demonstrating a suspect’s 

distress among other threats to officer safety); id. at 475–76 (Ho & Oldham, JJ., dissenting) 

(similar).

The Tenth Circuit considers mental illness within the third Graham factor, as to 

resistance. See Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (“It is not reasonable for 

an officer to repeatedly use a taser against a subdued arrestee they know to be mentally ill, 

whose crime is minor, and who poses no threat to the officers or others.”). 

The Ninth Circuit says it diminishes the government’s interest in using force, 

making force less reasonable. See Vos v. City of Newport Beach, 892 F.3d 1024, 1034 (9th Cir. 

2018); accord Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010). 

The Fourth and Sixth Circuits say that “officers who encounter an unarmed and 

minimally threatening individual who is ‘exhibiting conspicuous signs that he is mentally 

unstable’ must ‘de-escalate the situation and adjust the application of force downward.’” 

Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 900 (4th Cir. 2016) 

(alterations omitted) (quoting Martin v. City of Broadview Heights, 712 F.3d 951, 962 (6th 

Cir. 2013)). 

Case: 19-30014 Document: 00515647584 Page: 21 Date Filed: 11/20/2020
No. 19-30014

22

resistance are legally irrelevant—indeed, the cases uniformly treat a

suspect’s resistance as material.57

Force must be reduced once a suspect has been subdued.58 Notably, 

“subdued” does not mean “handcuffed.” If the suspect lacks any means of 

evading custody—for example, by being pinned to the ground by multiple 

police officers—force is not justified.59 So even if Joseph failed to comply and 

struggled against the officers at certain points throughout the encounter, that 

resistance did not justify force indefinitely. 

And summary judgment is inappropriate when the timing of the

officer’s force may or may not have corresponded to the timing of the 

suspect’s resistance. For an officer’s force to be reasonable, it must be 

commensurate with the suspect’s level of contemporaneous, active 

resistance. In Curran, the district court determined that the suspect had in 

fact “battered” the officer before the officer “slammed” Curran’s head into 

a wall.60 However, because the district court concluded that there was a fact 

dispute over how much time passed between the suspect’s actions and the 

officer’s use of force, we declined to grant summary judgment for the 

officer.61 As we recognized in that case, if enough time had lapsed that it was 

57 E.g., Deville, 567 F.3d at 167; Poole, 691 F.3d at 629; Newman, 703 F.3d at 763.

58 See, e.g., Cooper v. Brown, 844 F.3d 517, 524 (5th Cir. 2016); Carroll, 800 F.3d at 

178. 

59 See Cooper, 844 F.3d at 524 (finding excessive force when officer did not release

his police dog’s bite until after handcuffing the suspect because the suspect was unarmed, 

in a trash bin, and physically unable to evade custody); Ramirez v. Martinez, 716 F.3d 369, 

378 (5th Cir. 2013) (finding that tasing was excessive force when a suspect pulled his arm 

away before the officer had finished handcuffing him).

60 800 F.3d at 660–61.

61 Id. at 663.

Case: 19-30014 Document: 00515647584 Page: 22 Date Filed: 11/20/2020
No. 19-30014

23

obvious that the suspect was no longer resisting, the officer’s force could not 

have been reasonable.62 The timing and amount of resistance are “key.”63

The remainder of the officers’ brief essentially asks us to reconsider 

the district court’s factual determinations, which we may not do.64

Viewing the facts in the light most favorable to Plaintiffs, we agree 

with the district court’s weighing of factors. We hold that, if a jury found 

those facts to be true, Officers Martin and Costa violated Joseph’s right to be 

free from excessive force during a seizure by failing to employ a measured 

and ascending response to the threat Joseph posed. Though Joseph was not 

suspected of committing any crime,65 was in the fetal position, and was not 

actively resisting, Officers Martin and Costa inflicted twenty-six blunt-force 

injuries on Joseph and tased him twice, all while he pleaded for help and 

reiterated that he was not armed. Officers Martin and Costa are not entitled 

to summary judgment on the constitutional merits. 

Here, Plaintiffs may not be able to prove their claims, and the officers 

may well prevail at trial. But our task at this stage is to ascertain whether, 

viewing all facts and drawing all reasonable inferences in Plaintiffs’ favor, 

there exist genuine disputes of material fact that a jury should suss out. Based 

on the record before us and our standard of review at this stage, there are 

genuine disputes of material fact, meaning that Plaintiffs are entitled to make 

62 Id. at 661; accord Mason, 806 F.3d at 277.

63 Curran, 800 F.3d at 661.

64 See Melton, 875 F.3d at 261.

65 Plaintiffs argue that any resistance Joseph exhibited was lawful because he was 

resisting an unlawful arrest. The district court did not address this argument. We decline 

to address it in the first instance because, whether or not Joseph had a legal justification for 

resisting, on Plaintiffs’ version of the facts, his resistance was at most passive. 

Case: 19-30014 Document: 00515647584 Page: 23 Date Filed: 11/20/2020
No. 19-30014

24

their best case to a jury. If, that is, they can also demonstrate these facts 

amount to a violation of clearly established law, which we confront next.

2

On Plaintiffs’ facts, Officers Martin and Costa violated Joseph’s 

Fourth Amendment rights. But that does not defeat qualified immunity. 

Plaintiffs must also demonstrate that the law was “clearly established”—

that, as of February 7, 2017, the date of their encounter with Joseph, any 

reasonable officer would have known that Officer Martin’s and Officer 

Costa’s behavior was unlawful.66

Decades ago, Graham clearly established that the use of force is 

contrary to the Fourth Amendment if it is excessive under objective 

standards of reasonableness.67 But aside from “rare,” “obvious” cases, the 

allegedly violated right cannot be defined at this level of generality to 

overcome a qualified-immunity defense. In theory, “[i]t could plausibly be 

asserted that any violation of the Fourth Amendment is ‘clearly established,’

since it is clearly established that the protections of the Fourth Amendment 

apply to the actions of police.”68 So instead, to protect the desired balance at 

which the qualified-immunity doctrine aims, “the right allegedly violated 

must be defined at the appropriate level of specificity.”69

The Supreme Court has explained that for a court to deny qualified 

immunity based on “clearly established” law, “existing precedent must have 

66 Saucier, 533 U.S. at 199.

67 Id. at 201–02.

68 Wilson v. Layne, 526 U.S. 603, 615 (1999).

69 Id.

Case: 19-30014 Document: 00515647584 Page: 24 Date Filed: 11/20/2020
No. 19-30014

25

placed the statutory or constitutional question beyond debate.”70 In other 

words, existing precedent must “squarely govern[]” the specific facts at 

issue, such that only someone who is “plainly incompetent” or who 

“knowingly violates the law” would have behaved as the official did.71

Because this “specificity” “is ‘especially important in the Fourth 

Amendment context,’” the Supreme Court has “stressed the need to 

‘identify a case where an officer acting under similar circumstances . . . was 

held to have violated the Fourth Amendment.’”72

In this case, the district court found that a genuine dispute exists such 

that, under Plaintiffs’ version of the facts, Officers Martin and Costa used 

force in a manner that violated clearly established law. The district court 

undertook the clearly established law analysis itself, as Plaintiffs had twice 

failed to identify a case putting the officers on notice that their conduct was

unconstitutional. The court had ordered supplemental briefing specifically 

identifying this failure, giving Plaintiffs a second chance. Plaintiffs urged that 

this was an obvious case, but the court did not adopt that reasoning. 

The officers ask us to reverse on grounds of clearly established law, 

again arguing that the officers’ actions were justified because Joseph was 

struggling and noncompliant. We have no more ability to review these factual 

disputes as to clearly established law than we did as to the constitutional 

merits—which is to say, none. 

The officers also ask us to reverse because the district court did not 

hold Plaintiffs to their burden to identify an analogous case, and this is not 

70 White, 137 S. Ct. at 551 (quoting Mullenix, 136 S. Ct. at 308).

71 Mullenix, 136 S. Ct. at 310 (quotation and alterations omitted).

72 Wesby, 138 S. Ct. at 590 (first quoting Mullenix, 136 S. Ct. at 308, then quoting 

White, 137 S. Ct. at 552).

Case: 19-30014 Document: 00515647584 Page: 25 Date Filed: 11/20/2020
No. 19-30014

26

the rare obvious case for which no similar case is needed. Plaintiffs now argue

that Newman, Deville, and Darden clearly established that “two taser strikes, 

baton strikes, punches to the head, and kicks to the groin and elsewhere” was 

excessive force because Joseph “engaged in no violence, committed no 

crime, caused no harm, surrendered into the fetal position behind a store 

counter, and . . . at all times presented with psychological disorientation.” 

The standard for obviousness is sky high, and this case does not meet 

it. We have nothing approaching the clarity we have perceived in other 

obvious cases. For example, we found that it was obviously unconstitutional 

for an officer to shoot—without warning, despite an opportunity to warn—a 

suspect who was pointing a gun to his own head and did not know the officer 

was there.73 We explained that it was an obvious case because Tennessee v. 

Garner prohibits the use of deadly force without an immediate threat and 

without a warning when one is feasible.74

In another case, we found that an officer obviously did not have 

reasonable suspicion to detain a man based on the following: The man briefly 

looked around a car in a well-lit parking lot, turned to get into another car, 

noticed the officer, got into that other car, and began to drive.

75 The man 

exhibited no headlong flight or evasive behavior, and the officer had no prior 

tip or other information providing a reason to suspect the man of criminal 

activity.76

73 Cole, 935 F.3d at 453. Though, for what it’s worth, that case was not obvious to 

the seven (of eighteen) members of our en banc court who wrote and joined the five

dissenting opinions. 

74 Id.

75 Alexander v. City of Round Rock, 854 F.3d 298, 305 (5th Cir. 2017).

76 Id.

Case: 19-30014 Document: 00515647584 Page: 26 Date Filed: 11/20/2020
No. 19-30014

27

Here, the parties agree that the officers became involved because the 

assistant middle-school principal expressed concerns about Joseph being 

near the school. The parties agree that Joseph ran from the officers and 

disobeyed commands. The parties dispute how, if, and when Joseph resisted 

during the encounter in the store. The district court declined to find this case 

was obvious, and we are not persuaded otherwise. 

Therefore, we must “identify a case where an officer acting under 

similar circumstances . . . was held to have violated the Fourth 

Amendment.’”77 While we needn’t limit our analysis to the cases cited by 

Plaintiffs,78 we must explain why the cases we identify prohibited the 

challenged conduct in this case.79

Surveying the state of the law as of February 7, 2017, we conclude that 

analogous facts from Newman v. Guedry, Ramirez v. Martinez, and Cooper v. 

Brown provided notice to any reasonable officer that it was unconstitutional 

to tase and strike Joseph as Officers Martin and Costa did here.

In Newman, we held that officers violated the Fourth Amendment by 

repeatedly striking and tasing an individual who “committed no crime, posed 

no threat to anyone’s safety, and did not resist the officers or fail to comply 

with a command.”80 There, officers had pulled over a car for a minor traffic

77 Wesby, 138 S. Ct. at 590 (quoting White, 137 S. Ct. at 552).

78 Inadequate briefing can cause parties to forfeit claims and arguments, but we 

must apply settled case law. See Elder v. Holloway, 510 U.S. 510, 516 (1994) (“A court 

engaging in review of a qualified immunity judgment should [] use its full knowledge of its 

own and other relevant precedents.” (internal quotation and alteration omitted)).

79 The Supreme Court recently reversed a denial of qualified immunity because the 

court “made no effort to explain how that case law prohibited [the defendant’s] actions in 

this case.” City of Escondido v. Emmons, 139 S. Ct. 500, 503–04 (2019). As the Court put it, 

“That is a problem under our precedents.” 

80 703 F.3d at 764.

Case: 19-30014 Document: 00515647584 Page: 27 Date Filed: 11/20/2020
No. 19-30014

28

violation and asked the driver to step out of the car.

81 As the officers 

attempted to handcuff the driver based on an outstanding warrant, 

Newman—a passenger, suspected of no wrongdoing himself—stepped out 

of the car. Although he did not follow the officers’ instructions to stay in the 

car, he turned his body toward the car, placed his hands flat on the roof of the 

car, and urged the driver to “chill out,” all the while his hands raised and 

palms open.82 Backup officers arrived, instructed Newman to move to the 

rear of the car, and conducted a protective pat-down search.

83 Newman 

claimed that during the pat down, the officer’s hand lingered on his crotch 

for “an uncomfortable length of time,” prompting Newman to make an offcolor remark.84 The officer pushed Newman forward onto the car and 

another officer came over to assist, pushing Newman further onto the car and 

striking him with his baton.85 When Newman stepped back after the blow, 

one officer struck him repeatedly on the arm and thigh with a baton and the 

other officer tased him three times.86

The officers claimed that their behavior was objectively reasonable 

because Newman had resisted search and arrest, had struggled, had been 

noncompliant, and had reached for his waistband.87 But Newman’s evidence 

contradicted all of this, and the video evidence did not prove or disprove 

either party’s version of the facts. And we noted that, even if Newman 

81 Id. at 759.

82 Id. 

83 Id. at 759–60.

84 Id. at 760.

85 Id.

86 Id.

87 Id. at 762.

Case: 19-30014 Document: 00515647584 Page: 28 Date Filed: 11/20/2020
No. 19-30014

29

“struggle[d]” by pushing himself off from the car and back into the officers, 

after being struck ten times, this type of “struggle” “did not rise to the level 

of ‘active resistance.’”88 We further explained that “the officers 

immediately resorted to taser and nightstick without attempting to use 

physical skill, negotiation, or even commands.”89 Therefore, we held, the 

officers responded disproportionately to the threat and applied excessive 

force in violation of the Fourth Amendment.

Here, as in Newman, Joseph was not suspected of committing a crime. 

He was not armed. Even if he disobeyed officer commands, on Plaintiffs’ 

version of the facts he offered no active resistance. And, according to 

Plaintiffs, Officer Martin immediately resorted to physical force, including

use of a taser and a baton, and he and Officer Costa resorted to punches and 

kicks without attempting negotiation. 

In Ramirez v. Martinez, construing the disputed facts in the plaintiff’s 

favor, we found that officers exerted force in violation of the Fourth 

Amendment 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 when an officer grabbed his hand.90

We concluded that he posed so little threat that tasing him before he was 

handcuffed was excessive; tasing him after he was “handcuffed and subdued 

while lying face down on the ground” was even more so.91

In this case, Plaintiffs’ view of the facts shows that Joseph resisted, at 

most, passively, by disobeying similar orders and pulling away from the 

88 Id. at 763.

89 Id.

90 716 F.3d at 378.

91 Id. at 379.

Case: 19-30014 Document: 00515647584 Page: 29 Date Filed: 11/20/2020
No. 19-30014

30

officers. Plus, the district court concluded that, at points, he was not resisting 

at all, meaning that, at points, he was subdued and no force was justified. Yet, 

Officer Martin immediately applied significant physical force by pinning him 

down, tasing him, and jabbing him with a baton, and Officers Martin and 

Costa continued applying force by punching and kicking him, even while he

was subdued and not resisting. While the officers maintain that Joseph was 

resisting, the video does not preclude the possibility that he wasn’t.

Construing all facts and inferences in the light most favorable to Plaintiffs, 

Joseph remained on the ground, in the fetal position, resisting intermittently 

and passively, if at all. 

And in Cooper v. Brown, we concluded that an officer inflicted 

excessive force by declining to release his police dog’s bite until after he had 

handcuffed the suspect.

92 True, the force in this case was non-canine. But as 

we have explained, the “[l]awfulness of force . . . does not depend on the 

precise instrument used to apply it.”93 The pertinent fact in Cooper is that the 

officer encountered the suspect cornered, in a small “cubbyhole” for storing 

trash bins. This location, combined with the dog physically keeping him from 

going anywhere, left the suspect with no meaningful way to evade police 

custody.

94

Similarly, here, Joseph was cornered behind the counter and would 

have had to get past as many as a dozen police officers in order to leave the

store. As in Cooper, Joseph was unarmed and the officers had no indication 

that he was. Yet, viewing the evidence in the light most favorable to Plaintiffs, 

92 844 F.3d at 526.

93 Newman, 703 F.3d at 763.

94 Cooper, 844 F.3d at 526 (citing Campbell v. City of Springboro, 700 F.3d 779, 789 

(6th Cir. 2012)).

Case: 19-30014 Document: 00515647584 Page: 30 Date Filed: 11/20/2020
No. 19-30014

31

Officers Martin and Costa “increased the force applied at the same time the 

threat presented by [the suspect] decreased” by the presence of additional 

officers in the store and Joseph’s waning resistance.95

Pratt v. Harris County provides a helpful counterexample.

96 In Pratt, 

officers came upon a car in a ditch and observed the suspect, Pratt, “running 

in circles, imitating a boxer.”97 Pratt then began approaching the officers, 

coming within five to seven feet of them. The officers’ initial response to the 

threat of an approaching suspect was unholstering their tasers and instructing 

Pratt to stop. Instead of stopping, Pratt ran away. So, as an escalated response 

to escalated resistance, one officer deployed his taser. But Pratt kept running. 

Because Pratt was still resisting, the officer deployed his taser two more 

times, to no avail. Pratt kept running. So another officer deployed his taser, 

this time successfully ending Pratt’s flight but not his resistance. 

Pratt struggled against the officers who attempted to handcuff him, 

such that they could only secure one of his arms in the cuffs. So Pratt was 

tased again. Eventually, Pratt claimed, “okay, okay, I’ll quit. . . . I’ll stop 

fighting.”98 Officers then successfully handcuffed Pratt and began walking 

him toward the patrol car. A few steps into the journey, Pratt reignited his 

resistance and broke free of the officer’s grip. Another officer “returned 

Pratt to the ground,” where Pratt began kicking the officers—one officer was 

struck twice in the groin.99 In response to Pratt’s escalating resistance, the 

officers handcuffed his ankles. Still, the officers were not able to control him, 

95 Id. at 525 (quoting Edwards v. Shanley, 666 F.3d 1289, 1296 (11th Cir. 2012)). 

96 822 F.3d 174 (5th Cir. 2016). 

97 Id. at 178 (alteration omitted).

98 Id.

99 Id.

Case: 19-30014 Document: 00515647584 Page: 31 Date Filed: 11/20/2020
No. 19-30014

32

so they tased Pratt once more. This time, the taser’s leads directly contacted 

Pratt’s body, and the officers were able to get control of Pratt’s legs and roll 

him onto his stomach. One officer also placed his knee on Pratt’s back to keep 

him under control, at which point Pratt responded, “Ok[ay] I quit. I’m 

done.”100 Pratt was then hog-tied (with Pratt still on his stomach, the 

handcuffs around his wrists were connected to the handcuffs around his 

ankles) until EMS arrived.101

We concluded that the officers’ actions did not amount to excessive 

force because “the officers responded with measured and ascending actions 

that corresponded to Pratt’s escalating verbal and physical resistance.”102

For instance, we highlighted that the officers did not deploy their tasers “as 

the first method to gain Pratt’s compliance.”103 Each escalating use of force 

was in direct response to Pratt’s escalating resistance. The officers asked

Pratt to comply and warned him multiple times, which Pratt ignored. Under 

these circumstances, the officers’ force was constitutional.104

100 Id.

101 Id. at 178–79. Tragically, Pratt died the next day. His autopsy concluded that the 

cause of death was “best classified as ‘UNDETERMINED’” as the effect of Pratt’s 

ingestion of cocaine and ethanol could not be “definitively separate[d]” from the other 

possible contributing factors, such as Pratt’s car accident, altercations, tasing, and hogtying. Id. at 179.

102 Id. at 182 (internal quotation and alteration omitted).

103 Id.

104 Id. at 184. Similarly, in Williams v. City of Cleveland, officers offered repeated 

warnings to the suspect that he would be tased if he continued resisting arrest. 736 F.3d 684 

(5th Cir. 2013) (per curiam). The suspect continued resisting, and he was tased. The 

suspect continued to resist, and even reached for one officer’s taser, so he was tased again. 

Id. at 686. The officers warned. The suspect disobeyed. Only then did the officers use force. 

The suspect increased his resistance. And only then did the officers use more force. A 

proportionate, constitutional response.

Case: 19-30014 Document: 00515647584 Page: 32 Date Filed: 11/20/2020
No. 19-30014

33

The stark contrast between the facts of Pratt and this case emphasize 

that the behavior of Officers Martin and Costa was clearly unconstitutional. 

On Plaintiffs’ facts, as Joseph lay on the floor behind the convenience-store 

counter in the fetal position, repeatedly asking for help and exclaiming that 

he was not armed, Officer Martin did not request compliance or warn Joseph 

before tasing him, using his baton on him, or punching him. Officer Costa did 

not command or warn Joseph before kicking or punching him. Officers 

Martin and Costa did not reserve their tasings, punches, and kicks as 

responses to active resistance. They put force first. The evidence here 

permits a finding that—unlike the proportionately responding officers in 

Pratt and, instead, like the disproportionately responding officers in Newman, 

Ramirez, and Cooper—Officers Martin and Costa violated clearly established 

law by failing to attempt less forceful alternatives and by continuing to inflict 

force despite Joseph committing no crime, posing no threat, and giving no 

active resistance.

As the district court did, we find further confirmation that we have 

correctly ascertained the clearly established law as of February 7, 2017, 

because a number of our opinions released after February 7, 2017, conclude 

that these principles were the clearly established law by 2013.105

105 The district court also discussed Hanks, a case that described the clearly 

established law as of February 26, 2013. 853 F.3d at 747–49 (citing Deville, 567 F.3d at 168; 

Poole, 691 F.3d at 631). Same for Trammell, which described clearly established law as of 

January 21, 2013. 868 F.3d at 341–43 (citing Goodson v. City of Corpus Christi, 202 F.3d 730, 

733–34, 740 (5th Cir. 2000); Newman, 703 F.3d at 763; Deville, 567 F.3d at 168; Poole, 691 

F.3d at 629).

The district court also considered some of our unpublished opinions, which cannot 

clearly establish the law but can illustrate or “guide us to such authority,” by “restating 

what was clearly established in precedents they cite or elsewhere.” Marks v. Hudson, 933 

F.3d 481, 486 (5th Cir. 2019); see also Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 

2018). The court reviewed Doss v. Helpenstell, 626 F. App’x 453 (5th Cir. 2015), Keele v. 

Case: 19-30014 Document: 00515647584 Page: 33 Date Filed: 11/20/2020
No. 19-30014

34

We encountered a scenario like this in Darden v. City of Fort Worth, 

requiring us to describe the law that was clearly established as of May 16, 

2013.

106 There, while executing a search warrant, one officer threw to the 

ground and twice tased a suspect who was not resisting arrest.107 And another 

officer kicked, punched, and choked the suspect, and then forced him into a 

prone position.108 We held that, viewing the facts in Darden’s favor, both 

officers violated clearly established law because any reasonable officer would 

know that “a constitutional violation occurs when an officer tases, strikes, or 

violently slams an arrestee who is not actively resisting arrest.”109 As the 

district court did in this case, we observed in Darden that a jury could 

ultimately determine that the suspect was in fact resisting arrest or 

disobeying commands.110 And under those alternative facts, the officers’ 

force may have been reasonable under the Fourth Amendment and 

reasonable under the clearly established law.

111 Yet, a genuine dispute of 

material fact existed, meaning that a jury could also find facts demonstrating 

the opposite. Therefore, the officers were not entitled to qualified immunity 

at the summary-judgment stage.112

Leyva, 69 F. App’x 659 (5th Cir. 2003), and Galvan v. City of San Antonio, 435 F. App’x 

309 (5th Cir. 2010).

106 880 F.3d at 731 (citing Ramirez, 716 F.3d at 377–78; Newman, 703 F.3d at 762–

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

107 Id.

108 Id. at 732.

109 Id. at 731 (citing Ramirez, 716 F.3d at 377–78; Newman, 703 F.3d at 762–63; and 

Bush, 513 F.3d at 501).

110 Id. at 732. 

111 See id. at 731.

112 Id. at 731–32.

Case: 19-30014 Document: 00515647584 Page: 34 Date Filed: 11/20/2020
No. 19-30014

35

Darden announced no new rule; it reaffirmed an already-existing one. 

Darden repeated what had long been established in our circuit: Officers 

engage in excessive force when they physically strike a suspect who is not 

resisting arrest. For us to say that the unlawfulness of such conduct wasn’t 

clearly established in 2017, despite the fact that Darden said it was clearly 

established in 2013, would flout precedent and our rule of orderliness.113

In sum, viewing the facts in Plaintiffs’ favor, Officer Martin struck, 

punched, and tased Joseph, while Officer Costa repeatedly kicked and 

punched him—twenty-six blunt-force strikes and two rounds of tasing in 

total. All the while, Joseph was facedown in the fetal position, not suspected 

of committing any crime, not posing a threat to officers or others, and not 

actively resisting arrest. Officers Martin and Costa did not respond to Joseph 

with measured and ascending force that corresponded to his resistance. If 

Plaintiffs’ facts are true, the actions of Officers Martin and Costa were

disproportionate to the situation, in violation of the Fourth Amendment and 

the clearly established law. And thus, Officers Martin and Costa are not 

entitled to qualified immunity at this stage.

B

1

Officers Costa and Martin were not the only officers at the scene. 

Roughly a dozen police officials stood around and behind the checkout 

counter observing the use of force against Joseph, and not one attempted to 

stop Officers Martin and Costa from applying the force they did. The officers 

113 See, e.g., Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) 

(“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not 

overturn another panel’s decision, absent an intervening change in the law, such as by a 

statutory amendment, or the Supreme Court, or our en banc court.”).

Case: 19-30014 Document: 00515647584 Page: 35 Date Filed: 11/20/2020
No. 19-30014

36

facing bystander liability claims are Officers Leduff, Morvant, Thompson, 

Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett.

114

An officer is liable for failure to intervene when that officer: (1) knew 

a fellow officer was violating an individual’s constitutional rights, (2) was 

present at the scene of the constitutional violation, (3) had a reasonable 

opportunity to prevent the harm but nevertheless, (4) chose not to act.115

Bystander liability requires more than mere presence in the vicinity of the 

violation; “we also consider whether an officer ‘acquiesced in’ the alleged 

constitutional violation.”116

The district court denied qualified immunity to the “bystander 

officers,” determining that the officers’ only argument against bystander

liability depended on whether Officers Martin and Costa committed an

underlying constitutional violation.117 The district court did not separately 

analyze the constitutional merits and the clearly established law. Before us, 

neither party engages in a separate analysis for each officer, as qualified 

immunity requires, and neither party briefed the clearly established law. As 

114 Again, we consider the actions of each officer individually. Darden, 880 F.3d at 

731.

115 Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013).

116 Id. at 647 (alteration omitted) (quoting Hale v. Townley, 45 F.3d 914, 919 (5th 

Cir. 1995)).

117 The district court also stated that Officers Leduff, Morvant, Thompson, Dugas, 

Varisco, Rolland, Faison, Verrett, and Bartlett were not entitled to summary judgment on 

the excessive-force claims, even though the court expressly analyzed excessive force only 

as to Officers Martin and Costa. We dispose of the claims against Officers Leduff, Morvant, 

Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett using only the 

framework of bystander liability. 

Case: 19-30014 Document: 00515647584 Page: 36 Date Filed: 11/20/2020
No. 19-30014

37

we did above, we will address the constitutional merits and then the clearly 

established law.

118

We start by discarding non-starter arguments, one on each side. The 

officers again argue that the district court inappropriately relied on the 

complaint. Asked and answered. And Plaintiffs contend that the officers

forfeited their argument that the record lacks evidence to support bystander 

liability. Plaintiffs note that the district court did not specifically address any 

no-evidence argument, but that does not conclusively show forfeiture. And 

at summary judgment, the officers argued that the “plaintiffs cannot prove 

any defendant failed to intervene because no defendant was aware that any 

other officer was violating JOSEPH’S constitutional rights.” We needn’t 

dwell on forfeiture further. 

Next, the officers argue that they could not have known a 

constitutional violation was occurring because the district court could not 

definitively answer whether Officers Costa and Martin had in fact violated 

Joseph’s constitutional rights. But the district court was not incapable of 

determining whether a constitutional violation occurred; at this stage in the 

118 Here, we part ways with the concurring opinion, which would avoid the 

constitutional merits on bystander liability because “it is plain that a constitutional right is 

not clearly established.” Post, at 1 (quoting Pearson, 555 U.S. at 237). But usually, courts 

rely on Pearson when the lack of clearly established law is plain upon an examination of 

cases that arguably clearly establish the law. That is not our decision here—there is no 

clearly established law because Plaintiffs fail to identify any case, not because we reach any 

conclusion on any cases that could arguably clearly establish the law. 

And there are cases in this circuit holding that officers who fail to intervene in the 

unconstitutional force of other officers can be liable in certain circumstances. E.g., Hale, 45 

F.3d at 919 (affirming denial of summary judgment because of a factual dispute over 

whether bystander officers should have intervened instead of laughing and yelling

encouragements); Carroll, 800 F.3d at 178–79 (denying qualified immunity because of a 

factual dispute over whether the bystander officer was present while other officers 

continued to inflict force on a subject who was already subdued). 

Case: 19-30014 Document: 00515647584 Page: 37 Date Filed: 11/20/2020
No. 19-30014

38

litigation, that was not the district court’s job. Rather, the district court 

properly declined to resolve genuine, material factual disputes—that is the 

jury’s job. When the jury has decided these factual disputes, then and only 

then can it be determined whether Officers Martin and Costa violated the 

Constitution. 

The fact that there are competing narratives means only that, at this 

stage in the litigation, either narrative is possible. It does not mean that the

officers saw nothing. If the jury agrees with Plaintiffs, then Officers Martin 

and Costa inflicted unconstitutional force, so Officers Leduff, Morvant, 

Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett saw 

conduct that violated the Constitution. If the jury agrees with the officers, 

then Officers Martin and Costa did not inflict unconstitutional force, so

Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, 

Verrett, and Bartlett saw conduct that did not violate the Constitution.

Finally, the officers argue that there was no time or opportunity for 

them to intervene and that they could not perceive what Officers Martin and 

Costa were doing. But these arguments fall into the category of factual 

disputes that a jury must decide. The parties tell vastly different stories of 

what happened, and the video evidence exposes, rather than expunges, the 

disputed facts.

The video shows Officer Leduff positioned near Joseph’s head for 

most of the encounter, at times holding Joseph down. It shows Officer 

Morvant observing the encounter from behind and in front of the counter, 

also holding Joseph down at times. It shows Officer Dugas observing from 

both sides of the counter and handing Officer Martin the baton. It shows 

Officer Varisco observing from both sides and on top of the counter, at one 

point offering his taser to Officer Martin. It shows Officers Thompson, 

Faison, Rolland, and Verrett observing the encounter from behind and in 

Case: 19-30014 Document: 00515647584 Page: 38 Date Filed: 11/20/2020
No. 19-30014

39

front of the counter, assisting with holding Joseph down or dragging Joseph 

toward the more open area behind the counter. It shows Officer Bartlett 

observing from in front of the counter, then jumping over the counter to hold 

Joseph down. 

As reflected in the following table, not every officer could have 

observed every infliction of force but, viewing the video in the light most 

favorable to Plaintiffs, every officer could have observed some of it:

We may not disregard Plaintiffs’ version of the facts unless it is 

“blatantly contradicted by the record, so that no reasonable jury could 

believe it.”119 And there is no such contradiction here. The video evidence 

does not eliminate Plaintiffs’ narrative that the officers knew excessive force 

was being applied, had the opportunity to try to stop it, and did not. If the 

jury found those facts to be true, then Officers Leduff, Morvant, Thompson, 

Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett: (1) knew Officers 

Martin and Costa were violating Joseph’s constitutional rights, (2) were 

119 Scott, 550 U.S. at 380.

Force Martin Leduff Morvant Thompson Dugas Varisco Costa Rolland Faison Verrett Bartlett

Tase 1 MA OHD OHD O NP NP NP NP NP NP NP

Baton MA OHD OHD O Supply

baton

O O O NP NP NP

Tase 2 MA OHD O OHD OHD Offer 

taser

OHD O O OHD O

Costa 

kicks

OHD OHD O OHD OHD O MA O O O O

Martin 

punches 

1

MA O O OHD OHD O OHD O OHD OHD O

Martin 

punches 

2

MA O O OHD OHD O OHD O OHD OHD O

Costa 

punches

OHD O O OHD OHD O MA O OHD OHD OHD

KEY: MA = main actor; O = observed; OHD = observed, held down; NP = not present

Case: 19-30014 Document: 00515647584 Page: 39 Date Filed: 11/20/2020
No. 19-30014

40

present at the scene of that constitutional violation, (3) had a reasonable 

opportunity to prevent the harm, but (4) chose not to act.120

Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, 

Faison, Verrett, and Bartlett have raised no argument that defeats Plaintiffs’ 

claim that they violated Joseph’s Fourth Amendment rights by failing to 

intervene. They are not entitled to summary judgment on the constitutional 

merits. 

2

But, again, that does not defeat qualified immunity. Plaintiffs have the 

burden to demonstrate that the law was “clearly established”—that, as of 

February 7, 2017, the date of their encounter with Joseph, any reasonable 

officer would have known that the Constitution required them to 

intervene.121 And we cannot deny qualified immunity without identifying a 

case in which an officer acting under similar circumstances was held to have 

violated the Fourth Amendment, and without explaining why the case clearly 

proscribed the conduct of that individual officer. 

Plaintiffs do not identify a single case to support the argument that any 

reasonable officer would have known to intervene under these 

circumstances. We make no comment on whether Plaintiffs could have done 

so—the record in this case simply shows that they have not done so. In fact, 

they do not make any arguments as to the clearly established law. Nor do they 

argue that this case is obvious as to these nine officers. The officers don’t

identify cases or make arguments either, but that is not their burden. 

120 Whitley, 726 F.3d at 646.

121 Saucier, 533 U.S. at 199.

Case: 19-30014 Document: 00515647584 Page: 40 Date Filed: 11/20/2020
No. 19-30014

41

As we noted, Plaintiffs made the same mistake for the clearly 

established law proscribing the conduct of Officers Martin and Costa. The 

district court pointed out this shortcoming and gave Plaintiffs a second 

chance in supplemental briefing. Plaintiffs did not fix it; the district court 

fixed it for them. 

But the district court did not fix it here. The court did not assess the 

clearly established law applicable to the nine other officers. The Supreme 

Court strictly enforces the requirement to identify an analogous case and 

explain the analogy.122 With no briefing and no district-court analysis to 

review, we cannot justify a denial of qualified immunity on the grounds that 

clearly established law shows that every officer acted unconstitutionally in 

this case. Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, 

Faison, Verrett, and Bartlett are entitled to qualified immunity and summary 

judgment. 

V

We are entitled to count on law enforcement to use no more force than 

necessary. And we are entitled to enforce that standard as a matter of 

constitutional law when officers fail to honor it. 

The factual disputes that remain in this case are not just genuine, they 

are material, meaning that Plaintiffs are entitled to put their evidence against 

Officers Martin and Costa before a jury. Viewing the facts in Plaintiffs’ favor, 

a reasonable jury could find that Joseph was not actively resisting arrest, and 

that Officers Martin and Costa immediately, repeatedly inflicted significant 

physical force. This permits a finding that Officers Martin and Costa failed 

122 See Cole, 935 F.3d at 473 (Ho & Oldham, JJ., dissenting) (noting thirteen cases 

in the last sixteen years in which the Supreme Court applied the “extraordinary remedy of 

a summary reversal” to correct failures to identify clearly established law with specificity).

Case: 19-30014 Document: 00515647584 Page: 41 Date Filed: 11/20/2020
No. 19-30014

42

to use measured and ascending force commensurate with Joseph’s 

resistance, and therefore used excessive force in violation of the Fourth 

Amendment and in violation of the clearly established law. 

And, while Plaintiffs meet half their burden to prove that genuine 

disputes of material fact exist as to whether Officers Leduff, Morvant, 

Thompson, Dugas, Varisco, Rolland, Faison, Verrett, and Bartlett violated 

Joseph’s constitutional rights, halfway is not good enough. Plaintiffs fail to 

meet their burden to show that Officers Leduff, Morvant, Thompson, Dugas, 

Varisco, Rolland, Faison, Verrett, and Bartlett violated clearly established 

law. 

We DISMISS the appeal to the extent it challenges the district 

court’s factfinding. We AFFIRM the denial of summary judgment as to 

Officers Martin and Costa. We REVERSE the denial of summary judgment 

as to Officers Leduff, Morvant, Thompson, Dugas, Varisco, Rolland, Faison, 

Verrett, and Bartlett.

Case: 19-30014 Document: 00515647584 Page: 42 Date Filed: 11/20/2020
No. 19-30014

43

Andrew S. Oldham, Circuit Judge, concurring in the judgment.

I agree with the majority that police officers cannot beat an unresisting 

man. See Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012). Under circuit precedent, that’s enough to send Officer Costa and Officer Martin to trial.

I also agree with the majority that an absence of clearly established law 

entitles the “bystander officers” to qualified immunity. Where “it is plain 

that a constitutional right is not clearly established,” the Supreme Court permits us not to reach the underlying constitutional merits. Pearson v. Callahan, 

555 U.S. 223, 237 (2009). I would accept that invitation in this case. Doing so 

seems particularly wise here because the district court did not fully resolve 

the constitutionality of each bystander officer’s conduct. And while I agree 

that “Plaintiffs fail to identify any case” to support their constitutional claims 

against the bystander officers, ante at 37 n.118, I think that militates in favor 

of avoiding those claims rather than adjudicating them. See Pearson, 555 U.S. 

at 239 (noting it makes sense to skip the constitutional merits where “the 

briefing of constitutional questions is woefully inadequate”).

Case: 19-30014 Document: 00515647584 Page: 43 Date Filed: 11/20/2020