United States Court of Appeals

for the Fifth Circuit

No. 19-20429

J. W.; Lori Washington, a/n/f J.W., 

Plaintiffs—Appellees,

versus

Elvin Paley, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-1848

Before King, Jones, and Costa, Circuit Judges.

Per Curiam:*

This is a suit against a school resource officer for tasing a special 

education student who was trying to leave the school after engaging in 

disruptive behavior. The district court denied summary judgment based on 

its conclusion that the facts, taken in the light most favorable to the plaintiff, 

supported a finding of excessive force under a Fourth Amendment analysis. 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 23, 2021

Lyle W. Cayce

Clerk

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Although some of our cases have applied the Fourth Amendment to school 

official’s use of force, other cases have held that such claims cannot be 

brought. That divide in our authority is the antithesis of clearly established 

law supporting the existence of Fourth Amendment claims in this context. 

As a result, the defendant prevails on his qualified immunity defense. 

I.

When the events at issue in this case took place, J.W. was a 17-yearold special education student at Mayde Creek High.

1

 One day he got into an 

argument with another student over a card game. He cursed, yelled, and 

punched the other student before storming out of a classroom and into a 

hallway. J.W. went to a “chill out” classroom he would go to when he was 

upset, but another student was already there. He threw a desk across the 

room, kicked a door, and yelled that he hated the school. J.W. then headed 

toward doors leading out of the school.

School officials who saw J.W.’s outbursts notified Assistant Principal 

Denise Majewski, who in turn asked school resource officer Elvin Paley for 

help keeping J.W. inside the building. When Paley arrived at the exit, a 

security guard, another school resource officer, a school coach, and Majewski 

were already there. 

The district court summarized what happened next as revealed by 

Paley’s bodycam:

The recording shows J.W. pacing in front of the door leading 

outside the school building and complaining to the school staff 

member blocking the door that he wants to leave so he could 

walk home and calm down. He is not yelling at the staff 

1 Given the summary judgment posture, the facts that follow are taken in the light 

most favorable to the plaintiff. 

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members, but the video recording shows him looking agitated 

and occasionally raising his voice. The recording then shows 

J.W. starting to push the door open. The staff member pushes 

back on the door to keep J.W. inside, but it does not appear that 

J.W. pushes the staff member, as the Katy School District 

contends. Within about five seconds of J.W. pushing on the 

door, Officer Paley moves toward J.W. and the staff member. 

Officer Paley’s body camera then becomes dark as he pushes 

up against J.W.’s body. Both Officer Paley and the staff 

member tell J.W. to “calm down” several times. A male voice 

threatens J.W. with tasing. About 20 seconds later, the male 

voice says, “You are not going to get through this door, just 

relax.” J.W. then begins screaming.

The video becomes clear again as Officer Paley moves 

away from J.W. The recording shows two individuals holding 

J.W. Approximately 10 seconds after Officer Paley tells J.W. 

to relax, Officer Paley tells the individuals holding J.W. to “let 

him go,” and fires the taser. J.W. immediately screams and 

falls to his knees. About 5 seconds later, the video recording 

shows Officer Paley beginning to “drive stun” J.W. near his 

bottom right torso, and then on J.W.’s upper back. “Drive 

stun” means to hold the taser against the body without 

deploying the prongs. J.W., still on his knees, then falls to the 

ground completely. The taser is used on J.W. for 

approximately 15 seconds. This use of the taser on J.W.’s 

upper back continues after J.W. is lying face down on the 

ground and not struggling.

School officials called emergency medical services and the school 

nurse. Eventually, J.W. was taken to a hospital. J.W. missed several months 

of school after the incident. J.W. contends he suffers from severe anxiety and 

posttraumatic stress disorder as a result of the tasing. 

J.W. and his mother brought various claims against Paley and Katy 

Independent School District. The defendants moved for summary 

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judgment, which the district court granted on all claims except for a section 

1983 claim against Paley alleging excessive force under the Fourth 

Amendment right.

Paley filed this interlocutory appeal, which is allowed for denials of 

qualified immunity that turn “on an issue of law.” Kinney v. Weaver, 367 

F.3d 337, 346 (5th Cir. 2004) (en banc). 

II.

A plaintiff can overcome an official’s qualified immunity if he can 

show “(1) that the official violated a statutory or constitutional right, and (2) 

that the right was ‘clearly established’ at the time of the challenged 

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

(citation omitted). Courts can choose which of these elements to address 

first. Id. We resolve this case on the second ground because our law does not

clearly establish a student’s Fourth Amendment claim against school 

officials.

We start with an issue on which our law is quite clear even if it is at 

odds with the law in in other circuits: students cannot assert substantive due 

process claims against school officials based on disciplinary actions. See Fee 

v. Herndon, 900 F.2d 804 (5th Cir. 1990). Although recognizing that corporal 

punishment “is a deprivation of substantive due process when it is arbitrary, 

capricious, or wholly unrelated to the legitimate state goal of maintaining an 

atmosphere conducive to learning,’” id. at 808 (citation omitted), we held 

that such punishment does “not implicate the due process clause if the forum 

state affords adequate post-punishment civil or criminal remedies for the 

student to vindicate legal transgressions,” id. Because we concluded that 

Texas does provide remedies for excessive corporal punishment, we 

dismissed a student’s substantive due process claim challenging a principals’ 

paddling. Id. at 810. Fee has been criticized, Moore v. Willis Indep. Sch. Dist., 

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233 F.3d 871, 876–80 (5th Cir. 2000) (Wiener, J., specially concurring); Neal 

ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1075 n.2 (11th Cir. 

2000) but remans binding in our circuit, T.O. v. Fort Bend Ind. Sch. Dist., --

F.3d --, 2021 WL 2461233, at *2-3 (June 17, 2021). 

What about the Fourth Amendment right J.W. asserts? Perhaps the 

rejection of a substantive due process right does not also doom the more 

specific right to be free from unreasonable seizures. After all, the Supreme 

Court has emphasized that courts should ground claims in textually specific 

constitutional rights rather than in the “the more generalized notion of 

substantive due process.” See Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 

(1998); see also Graham v. Connor, 490 U.S. 386, 395 (1989) (“Because the 

Fourth Amendment provides an explicit textual source of constitutional 

protection against this sort of physically intrusive governmental conduct, 

that Amendment, not the more generalized notion of ‘substantive due 

process,’ must be the guide for analyzing these claims.”). And the Fourth 

Amendment’s companion right to be free from unreasonable searches 

applies in schools, though its protections are lessened to account for 

pedagogical interests. See Veronia Sch. Dist. 47 v. Acton, 515 U.S. 646 (1995).2 

J.W. can find some support in our caselaw for his Fourth Amendment 

claim. In a case dealing with a student’s claim of excessive detention (though 

not excessive force), we said that the Fourth Amendment “right extends to 

seizures by or at the direction of school officials.” Hassan v. Lubbock Indep. 

Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995). An unpublished, and thus 

nonbinding, opinion later held that a claim of excessive force brought against 

2 At least two courts of appeals allow Fourth Amendment claims challenging 

excessive discipline of students. See Preschooler II v. Clark Cnty. Sch. Bd. of Tr., 479 F.3d 

1175, 1182 (9th Cir. 2007); Wallace by Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1016 

(7th Cir. 1995).

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two school security guards was “properly analyzed under the Fourth 

Amendment.” Keim v. City of El Paso, 162 F.3d 1159, 1998 WL 792699, at *1, 

*4 n.4 (5th Cir. 1998) (per curiam) (unpublished); see also Campbell v. 

McAlister, 162 F.3d 94, 1998 WL 770706, at *3 (5th Cir. 1998) (per curiam) 

(unpublished) (not deciding whether the Fourth or Fourteenth Amendment 

applied but noting that Graham v. Connor indicates that claims challenging 

governmental forces should “be confined to the Fourth Amendment 

alone”). Most recently, a published decision held that factual disputes 

required trial of a Fourth Amendment excessive force claim brought against 

a school resource officer who slammed a student into a wall. Curran v. 

Aleshire, 800 F.3d 656 (5th Cir. 2015). 

The problem for J.W. is that at least one decision from our court, albeit 

an unpublished one, rejected the notion of Fourth Amendment claims based 

on school discipline. We reasoned that allowing a Fourth Amendment 

challenge to a teacher’s choking a student would “eviscerate this circuit’s 

rule against prohibiting substantive due process claims” based on the same 

conduct. Flores v. Sch. Bd. of DeSoto Par., 116 F. App’x 504, 510 (5th Cir. 

2004) (unpublished). The even bigger obstacle to J.W.’s claim may be Fee’s 

comment, though the case did not involve a Fourth Amendment claim, that 

“the paddling of recalcitrant students does not constitute a [F]ourth 

[A]mendment search or seizure.” 900 F.2d at 810. 

The upshot is that our law is, at best for Paley, inconsistent on whether 

a student has a Fourth Amendment right to be free of excessive disciplinary 

force applied by school officials. That does not make for either the 

“controlling authority” or “consensus of cases of persuasive authority” 

needed to show a right is clearly established. Wilson v. Layne, 526 U.S. 603, 

617 (1999). The best case for J.W., and the one the district court 

understandably relied on, is Curran. Although that case did allow a Fourth 

Amendment claim against a school resource officer to get past summary 

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judgment, the defendant had not argued that a student’s Fourth Amendment 

claim was at odds with Fee. As qualified immunity is an affirmative defense,

Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009), the officer’s 

failure to assert immunity on the grounds that students cannot bring Fourth 

Amendment excessive force claims meant the question was not squarely 

before the court. 

Citing many of the cases we have just discussed, our court recently 

held that a plaintiff could not identify a clearly established Fourth 

Amendment right against school officials’ use of excessive force. See T.O., 

2021 WL 2461233, at * 4. That conclusion renders Paley immune from the 

Fourth Amendment claim asserted in this case.

* * *

The denial of summary judgment is REVERSED and judgment is 

RENDERED in favor of Paley.

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