### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30042

LON BROWN Plaintiff-Appellant
v. DANIEL LYNCH, HENRY WHITEHORN, SR., CITY OF SHREVEPORT Defendants-Appellees

Appeal from the United States District Court for the Western District of Louisiana

No. 5:10-CV-1283

Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges. PER CURIAM: * This is an appeal from a summary judgment di s missing plaintiff Lon Brown’s claims against police officer Daniel L ynch, t he c ity that employed him, and t h e chief of the city’s police department. Brown alleged that during an investigatory stop outside a convenience store, h e w a s s u bje c t e d t o a wrongful arrest and excessive f o r c e , in violation of state and federal law. Defendants moved for summary j udgment, which the d istrict c ourt granted. Taking Brown’s account o f the facts a s true, at least as to those not controverted by the available U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 16, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30042 Document: 00512209098 Page: 1 Date Filed: 04/16/2013No. 12-30042

audio and video evidence, we conclude t hat O fficer Lynch did not have probable

cause to arrest B rown f o r the crime of resisting an officer, t hat he applied clearly unreasonable and excessive force in effectuating t h at arrest, and that he did not have qualified immunity for either o f f e n s e
. W e t h e r e f

o r e REVERSE with respect to Brown’s claims against the officer. We AFFIRM the summary judgment for the C ity o f Shreveport and former Police Chief Whitehorn, finding no facts in the record to support a claim against either of them.

I. FACTS AND PROCEEDING A. Facts During a traffic stop on the evening o f August 13, 2009, Shreveport Police Department Officer Daniel Lynch discovered m arijuana i n the driver’s possession. The driver e xplained that she h ad bought the marijuana outside a convenience store on t he c orner of Pierre Avenue and Garden Street from a darkskinned black male with long dreadlocks and a s hort, stocky build. The driver added that she had purchased marijuana twice before from the same m an, whom

s h e knew as “Bam B am,” and that he drove a g old or tan Pontiac Sunfire. T o attend t o a call of h i gher priority, O fficer Lynch released the driver with a warning and left. The next d ay, O fficer Lynch advise d C p l

. J on Flores and Officer Leroy Bates of the traffic stop and asked that t hey remain on the lookout for a gold or tan Sunfire. At about 9:45 p.m. t hat n ight, Officer Lynch spotted a gold Pontiac Sunfire parked o utside a Fil-A-Sac convenience store on the corner of Pierre Avenue and Garden Street. 1 He observed plaintiff Lon Brown—who roughly fit the physical description o btained the night before—walk away from the general

1 A high crim e area, accord ing to O f f icer Lynch and C p l. Flores

. 2 Case: 12-30042 Document: 00512209098 Page: 2 Date Filed: 04/16/2013No. 12-30042

vicinity of the S u nfire. Officer Lynch requested backup from Cpl. Flores and Officer Bates before parking his patrol car. Audio and video recordings from that patrol car show the events as they transpired. Officer Lynch walked to the store with Office r B a t es, while Cpl. Flores followed just b e h i n d

. From the store’s threshold, Officer Lynch asked Brown, who w as standing inside t h e s t ore, how he had arrived there. Brown responded that he had driven the g old car parked outside. 2 Officer Lynch asked that Brown f

ollow him outside the store. Brown did so, a nd once outside, Officer Lynch r equested identification and instructed Brown to t urn around and place his hands against the wall. Brown obliged both requests, and the officer frisked him for weapons. At this point, the a ffia n t officers’ presentations of the facts differ substantially f

rom Brown’s a nd f

r om the objective audio and video evidence. By the officers’ accou n t , when Brown was informed during the p at-down that he was being s t o p p e d on s uspicion of selling d rugs, h e denied involvement a nd began “cussing loudly a nd reacting to [] questi o n s i n a hostile m anner.” Asked if he drove the g old Sunfire parked on t he side of the store, Brown answered in the negative and told Officer Lynch that he drove a gold L e x u s i n s t e a d

. Officer Lynch concluded the pat-down and instructed B rown to w alk toward the patrol

car. As the three officers and the suspect walked, Brown “became belligerent and turned towards [Officer Lynch] i n a n aggressive manner, shaking his finger in [Lynch’s] f

ace.” Officer L ynch g rabbed Brown’s arm and “ d i r e c t ed him” toward the outer wall of t h e convenience store, where Brown grabbed the store

w i n dow’s burglar bars and, despite orders to place his h ands b ehind h is back,

2 The m agis trate jud ge’s mem orand um ruling, on w hich the dis trict court’s s um m ary jud gm ent is bas ed , rep orts that Brow n p ointed to the Sunf ire. We cannot f

i n d t h i s i n t he record ; O f

f icer Lynch’s af

f id avit, f rom w hich the m agis trate jud ge obtained this “f act, ” s tates only that Brow n “ind icated that he had d riven the gold car p ark ed outs id e[

. ] ” 3 Case: 12-30042 Document: 00512209098 Page: 3 Date Filed: 04/16/2013No. 12-30042

continued to clench the bars. As the officers s truggled to p l a c e Brown’s right hand behind his back, Cpl. Flores saw Brown’s left hand move toward t he front waistband of his p ants. Fearing that he might be reaching for a weapon, Flores threw a “distraction strike” to Brown’s face. When B r o wn did not then release the bars and place his hands behind his back, Officer L ynch struck Brown in the face two more times, causing Brown to release the bars. Officers L y n c h and Bates brought B rown to t he ground immediately in front of the patrol c ar. B rown continued to resist, so Officer Lynch s truck Brown three more times to force Brown to submit and place his h ands behind his back. Once Officers Lynch and Bates were able to secure Brown’s hands, Cpl. Flores cuffed them. Brown was searched, placed in the back of Officer Lynch’s patrol
car, and taken to the Shreveport City Jail, where he w as booked for resisting an officer, in violation of La. R.S. § 14:108. 3 From t he time of the frisk, Brown’s version o f the events, supported in great part by the audio a nd video evidence, p resents a different story. 4 While frisking Brown, Officer Lynch informed the suspect: “Reason I stopped y ou today is we got numerous complaints that you’re selling drugs.” Brown respond ed: “You a in’t got no complaint; I ain’t s e lling no fucking drugs.” The volume of his voice was not unusual for a direct denial of crimin a l a c tivity. Officer Lynch replied: “You can lose the attitude: I’m stopping you now and letting you know why I’m stopping you, you understand?” Brown again responded: “You ain’t got

no comp l a i n t a b o ut me s elling n o drugs.” A loud police radio renders the next several seconds of discourse inaudible, but f rom what we can tell, B rown had not

3 Brow n w as releas ed on bond the next m o r n i n g
. T h e crim inal charges agains t him
w ere d is m is s ed

.

4 B ecaus e w e cons true all f acts “in the light dep i c t e d b y the vid eotap e” and , w hen inconclus ive, in the light mos t f avorable to the nonm oving p arty, the f ollow ing is a d is tillation of B row n’s account, as corroborated ( or at leas t not challenged ) by the aud io and vid eo evid ence. 4 Case: 12-30042 Document: 00512209098 Page: 4 Date Filed: 04/16/2013No. 12-30042

raised his voice. T h e conversation again becomes audible with Officer Lynch, still frisking B rown, asking Brown w het h e r he drove a gold Sunfire. Brown denied doing so, insisting that he drove the gold Lexus parked in the lot. At that t i m e , O f

f i c e r L y n ch concluded the pat-down, w hich appears to have taken about 60 seconds and produced no weapons or evidence of illegal activity. Lynch instructed Brown to walk with the o fficers toward t he police c ar. Brown complied, re m o v i n g his h ands from the wall and walking a few steps ahead of the officers. While he walked, Brown mumbled something inaudible on the tape that ignited Officer Lynch, 5 who shouted: “Hey, let me tell you something, bro. Look at me. Look at me. You can lose that fucking attitude.” Brown then turne d to face the officer, a s he was instructed. Despite Officer Lynch’s contention that Brown was “aggress i v e ” a nd “belligerent,” Brown actually can be s een taking a step backwa r d w h en h e began to challenge the officer’s accusations, insisting “you don’t have to tell me about selling n o drugs.” What Officer Lynch described a s Brown’s “shaking his finger in m y face” was in fact Brown’s repeatedly pointing downward i n emphasis. His f inger appears to have b e e n n o closer than 18–24 inches from O fficer Lynch’s face, never a t eye level, and never pointed at the officer. At this point, the video depicts Officer Lynch grabbing Brown’s right arm and turning h im counterclockwise against the wall and, incidentally, o ut of view of the camera. T he o ther o fficers then closed in around Brown and, f or t he next twenty seconds, m o v e d in and out of the camera’s view. About ten seconds after Officer Lynch first grabbed B rown, a n d while Brown was allegedly g ripping the burglar bars , C p l. Flores can be seen t h rowing the first so-called “distraction strike.” Officer Lynch’s first t wo strikes—which a ppear as close-fisted blows to

5 A l t h o u gh Brow n d oes not d is cus s in his brief the content of thes e m utterings , h e tes tif ied in his d ep os ition that he w as accus ing O f f icer Lynch of routinely haras s ing innocent p eop le in the neighborhood

. 5 Case: 12-30042 Document: 00512209098 Page: 5 Date Filed: 04/16/2013No. 12-30042

Brown’s face—came 12 seconds after Flores’s. Lynch, along w ith Officer Bates, wrestled Brown to t h e g r o u n d i mmediately in front of the p atrol car. A few seconds after the takedown, Brown—on the ground and shiel d e d f rom the

camera b y t h e f

r ont of the patrol car—can be heard shouting “my hands are behind my back” just as O fficer Lynch began deploying wh a t Brown contends

were eight more blows to his head and upper body. Although one of the officers is h eard shouting “ put your h ands behind your back,” Brown contends that his hands were behind h i s back. The video neither confirms nor denies Brown’s account, but it does show Cpl. Flores casually standing by while Officer Lynch struck Brown repeatedly.

B. Proceeding Brown filed a complaint under 42 U.S.C. § 1983 against O f fice r Lynch, Police Chief Henry Whitehorn, and the C ity of Shreveport, in which he alleged that he was unlawfully detained, unlawfully arrested, and vi ctimized by

e xcessive force. He a lso asserted pendent state law tort claims based o n t h e

same c o nduct. Defendants moved for summary judgment on all claims, which the district court granted over Brown’s opposition. Specifically, the court found t h at t he officers’ “stop” of Brown did not v iolate the Fourth Ame n d m e n t ’ s p r o hibition of unreasonable searches a nd seizures; that Brown’s injuries wer e not of the constitutional significance required to survive summary judgment on

an excessive force claim; and that Officer Lynch was entitled t o qualified immunity on the unlawful arrest c lai m
. B rown’s pendent state law claims, analyz e d according the same standards as t he federal c laims, were likewise dismissed. As f

or his claims against Shreveport an d i t s p o l i c e chief, the court held that Brown h ad f ailed to present evidence demonstrating a pattern or practice of rights d eprivation, or any f a i l u r e in training by Chief Whitehorn. Thus, all claims were dismissed with prejudice.

6 Case: 12-30042 Document: 00512209098 Page: 6 Date Filed: 04/16/2013No. 12-30042

On appeal, Brown challenges the di s trict court’s determinations with respect to his excessive force and unlawful arrest claims against O fficer Lynch. He also contends that he p resented evidence o f t he City’s customs, policies, and practices a n d Chief Whitehorn’s failure to train t hat was sufficient to survive
summary judgment. He h a s n o t c hallenged the legality of the i nitial stop and frisk, nor the dismissal of his state law claims.

II. ANALYSIS A. Legal Standard We review de novo the district c ourt’s summary judgment, applying the

same standards a s that court. 6 Summary judgment is appropriate if the movant shows that there is no genuine dispute as to a ny material f act and t h at he is entitled to judgment as a matter of l aw. 7 A dispute is “genuine” if the evidence i s sufficient for a reasonable jury to return a verdict for the nonmoving party, and a f act issue is “material” if i t s resolution could affect t he o utcome of the action. 8 We construe all facts and inferences in the light most favorable to the nonmoving party, but when Brown’s version of the facts conflicts with the audio

a n d v i d e o evidence, we consider the f acts “in the light depicted by t he videotape.” 9

B. Claims Against Officer Lynch 1. Qualified Immunity

6 Pool e v. Ci ty of Shrev ep ort , 691 F. 3d 624, 627 ( 5th C ir. 2012)

.
7 F E D

. R. C I V

. P. 56( a)

.
8 Pool e , 691 F. 3d at 627 ( citing H am i l ton v
. Segue Sof

tw a re, Inc. , 232 F. 3d 473, 477 ( 5th Cir. 2000) )

.

9 Ca rna by v
. C ity of H

ouston , 636 F. 3d 183, 187 ( 5th Cir. 2011) (quoting Scott v
. H a rri s , 550 U

. S. 372, 381 ( 2007) )

. 7 Case: 12-30042 Document: 00512209098 Page: 7 Date Filed: 04/16/2013No. 12-30042

As a public official, Officer L y n c h i s entitled to qualified immunity on Brown’s § 1983 unlawful arrest and excessive force claims unless (1) Brown has “adduced sufficient evidence t o raise a genuine issue of material f act suggesting [that Officer L ynch’s] conduct violated an a ctual constitutional right[,]” and (2) the officer’s “actions were objectively unreasonable in light of clearly established law at the time of the conduct in q u estion.” 1 0 Objective re a s o n a b l eness is a matter of law for the court to decide. 1 1 Although q ualified immunity i s n o minally an affirmative defense, the plaintiff bears a heightened burden t o negate the defense once properly raised. 1 2 The court may exercise i ts discretion in deciding which prong of the two-part qualified immunity inquiry to address first. 1 3

2. Unlawful Arrest i. Constitutional violation To establish h is claim o f unlawful arrest, Brown must show t h a t , a t the time of arrest, Officer Lynch lacked probable c a use to believe that he was guilty of the crime charged—in this case, resisting an officer in violation of L ouisiana l a w. 1 4 Determining whether Brown w as a rrested without probable c a u s e requires that we trace the progression of events to locate the c onstit u tionally significant point at w hich the stop escalated to an arrest; absent probable cause

1 0 Brum f iel d v
. H ol l i ns , 551 F. 3d 322, 326 ( 5th Cir. 2008)

.

1 1 G oodson v
. C i ty of Corp us Chri sti , 202 F .3d 730, 736 (5th Cir. 2000) ( citing Wi l l i a m s v
. Bra m er , 180 F. 3d 699, 702 ( 5th Cir. 1999) )

.

1 2 Brum f iel d , 551 F. 3d at 326.

1 3 Pea rson v. Ca l l aha n , 555 U

. S. 223, 242 (2009)

.

14 Becaus e neither Brow n nor the d ef end ants d is cus s ed in their brief s the p oin t a t
w hich the inves tigatory s top becam e an arre s t , w e reques ted and received s up p lem ental brief ing on the is s ue. 8 Case: 12-30042 Document: 00512209098 Page: 8 Date Filed: 04/16/2013No. 12-30042

as of the moment of arrest, no subs e q u e n t resistance would violate L ouisiana law, as the statute only prohibits resisting an officer who is making a “ lawful arrest,” 1 5 and a n individual in Louisiana “has a time-honored right t o resist an illegal arrest.” 1 6 E ven though the Fourth Amendment p r o t e c t s a s u s p e c t f r o m u n r e a s o n a b l e searches and seiz u r e s, u nder Terry v
. Ohio , 1 7 an officer m ay conduct a brief investigatory stop on “reasonable, articulable suspicion that criminal activity is

a foot.” 1 8 But a Terry s top that is justified at its inception may nevertheless violate the Fourth Amendment i f i t i s e xcessively intrusive in its s cope or

manner of execution. 1 9 Thus, in assessing the legality of a stop, c ourts are first to evaluate whether the stop was l awful at t he outset and second to determine whether the officers conducted the stop in a manner “reasonably r elated in scope to t he c i rcumstances which justified the interference i n the f irst place.” 2 0 Because Brown does not ch a l l e n g e t he legality of t he stop at its inception, we need not r eco n s i d e r the district court’s conclusion that it was supported by reasonable suspi c ion. We must focus instead on the second prong: At some point during the dispute, t he stop to i nvestigate B rown for su s p e c t e d d rug dealing escalated to an arrest for the crime o f resisting an officer, which arrest

1 5 La. R. S. § 14. 108 (em phas is ad ded ) ; see a l so Dev i l l e v
. M a rca ntel , 567 F. 3d 156, 165 ( 5 t h C i r
. 2009) ( “[ W] hether D eville w as law f ully arres ted dep end s on w hether T arver had p robable caus e to cond uct an arres t at all. If not, then any res is tance by D eville w as law ful and d id not cons titute ‘res is ting arres t. ’”)

.

1 6 Sta te v
. C

ea ser , 859 So. 2d 639, 643 (La. 2003) ( citing Ci ty of M onroe v. G ol dston , 661 So. 2d 428 ( L a. 1996) ; Whi t e v
. M orri s , 345 So. 2d 461, 465 ( La. 1977) )

.

1 7 392 U

. S. 1 ( 1968)

.

1 8 Il l i noi s v
. Wa rdl ow , 528 U. S. 119, 123 ( 2000) ( d is cus s ing Terry )

.

1 9 See, e. g. , U

ni ted Sta t es v
. Johnson , 592 F .3d 442, 451 ( 3d Cir. 2010)

.
2 0 Terry , 392 U

. S. at 19–20. 9 Case: 12-30042 Document: 00512209098 Page: 9 Date Filed: 04/16/2013No. 12-30042

must be supported by probable cause. 2 1 Defendants have not argued that the officers had probable cause to arrest B r o w n for a ny c r ime other than resisting an officer. There is no bright line p oint of distinction between an i n v estigatory stop and an arrest; indeed, the “endless variations i n f acts a nd circumstances” 2 2 preclude efforts to locate one. An o fficer may use some degree of physical force to effect an investigatory stop, w hich f o r c e might, in some situations, include restraining the suspect with handcuffs. 2 3 But such force must b e o b jectively reasonable under the c ir c u m stances, 2 4 and although an officer may resort to physical restraint in speci a l c i r c umstances, doing so is “not ordinarily proper” without probable cause. 2 5 Defendants cite a single case, T a r ver v. City of Edna , 2 6

21 See H a ggerty v
. Tex. S. U

ni v
. , 391 F. 3d 653, 655 ( 5th Cir. 2004)

. “Probable c a u s e exis ts w hen the totality of the f acts and circum s tances w ithin a p olice of f icer’s k now led ge at the m om ent of arres t are s uf ficient f or a reas onable pers on to conclud e that the s us p ect had
com m itted or w as com mitting an of f ens e. ” Resendi z v
. M i l l er , 203 F. 3 d 9 0 2 , 9 0 3 ( 5th Cir. 2000)

.
2 2 Fl ori da v
. Royer , 460 U

. S. 491, 506–07 (1983)

.

2 3 U ni ted Sta tes v
. Jorda n, 232 F. 3d 447, 450 ( 5th Cir. 2000) ( “H and cuf f ing a s us p ect d oes not autom atically convert an inves tigatory d etention into an arres t requiri n g p r o bable
caus e. ”) ; U

ni ted Sta tes v
. Sa nders , 994 F. 2d 200, 206 (5th Cir. 1993) ( s am e)

.
2 4 Sa nders , 994 F. 2d at 206; cf

. M uehl er v
. M

ena , 544 U

. S. 93, 103 ( 2005) ( K enned y, J. , concurring) ( noting that although pers ons d etained d uring a p olice s earch may be hand cuf f ed in s om e cas es , the “us e o f hand cuf f s is the us e of force, and s uch f orce m us t be objectively
reas onable und er the circum s tances ”)

.

2 5 4 W A

Y N E R. L A F A

V E , S EARCH A N D S E I Z U R E , § 9. 2( d ) (5th ed

. 2012) ; see a l so E l

- Gh a zza wy v
. B e r t h i a um e , 636 F. 3d 452, 457–59 ( 8th Cir. 2011) ( hand cuf f ing violated Fourt h Am end m ent w hen sus p ect w as s us p ected only of nonviolent thef t and circum s tances d id not otherw is e jus tif

y us e of res traints ) ; Lundstrom v
. Rom ero , 616 F. 3d 1108, 1123 ( 10th Cir. 2010) ( hand cuf

f ing violated Fourth Am end m ent becaus e s us p ect “d id not a c t in a threatening
m anner, nor d id she ref us e to coop erate w ith p olice”) ; U ni ted Sta tes v
. A ri a s, 344 F .3d 623, 628 ( 6th Cir. 2003) ( hand cuf f ing and trans p orting def end ants f

rom s cene m ad e a s eizure an arres t
w here def

end ants w ere sus p ected only of p os s es s ing ille g a l d rugs ) ; U ni ted Sta tes v
. A costa

- Col on , 157 F. 3d 9, 21 (1s t Cir. 1998) ( hand cuf f ing d rug courier s us pects at airp ort converted encounter to arres t w h e n g overnm ent could not p oint to a s p ecif ic f act or circum s tance to s up p ort a reas onable belief t h a t h a nd cuf f s w ere neces s ary to carry out the 10 Case: 12-30042 Document: 00512209098 Page: 10 Date Filed: 04/16/2013No. 12-30042

for the propositi o n t h at “[a]n officer m ay h andcuff a suspect when reasonably
necessary to maintain the status quo and protect o fficer sa f e t y during an investigative stop.” 2 7 T arver provides no support for t his position, however, and the quote that t he defendants attribute to Tarver does n ot ac t u a l l y appear in that case. We have held that the u se o f handcuffs to detain a suspect does not automatically convert an investigatory stop into an arrest requiri n g probable
cause, but we have never allowed the use of handcuffs on reasonable suspicion alone in circumstances like this when a person who is susp e c t e d o f having

c o m m i tted a nonviolent crime on some prior date posed o nly such a remote threat of either fight or flight. 2 8 On Brown’s v i ew of the evidence, as corroborated b y the v ideotape, Officer Lynch converted the stop into an arrest when he turned a verbal altercation into

a physical one. Brown w as s uspected of selling a small amount of marijuana on

some prior date—not th e v i o l e nt crime t ypically justifying an investigating officer’s resort to forceful r estraint absent additional cause f or cauti o n
. M ore

legitim ate p urp os e of the stop )

.

2 6 410 F. 3d 745 ( 5th Cir. 2005)

.
2 7 Sup p lem ental Brief of Ap p ellee, 3 ( internal quotation m ark s and brack ets om itted )

.
2 8 In the f

ollow ing c a s e s w ith inap p os ite f acts , this court held that hand cuf f ing a s us pect w ithout p robable caus e w as not a cons titutional violation: U ni ted Sta tes v
. Johnson , 445 F. 3d 793, 795 ( 5th Cir. 2006) ( of f icers s hot at while inves tigating d is turbance; anonym ous caller nam ed the s hooter and rep orted that he w as hid ing at a sp ecif ic ad d res s ; another of

f icer f o u n d s h e l l cas ings in the s treet im m ed iately in f ront of that ad d res s ; of f icers s p otted the
s us pect p acing in a back bed room of that hous e and learned that it w as not his hous e and that child re n w e r e ins id e) ; Uni t ed Sta t es v
. Lew i s , 208 F. A p p ’x 298, 299 ( 5th Cir. 2006) ( of f icers received rep ort of an arm ed m an m ak ing threats ; s us p e c t m ad e s tatem ent that of f icer
reas onably took as ad m is s ion t h a t h e had a gun; s us p ect had not yet been f ris k ed ) ; Jorda n, 232 F. 3d at 450 ( man s us p ect e d of robbery s top p ed by tw o of f icers ; ref

us ed ord er to p lace hand s on car; j erk ed arm aw ay f rom of f icer w ho had gras p ed it; w ould n’t ans w er ques tions ; ha d n o t been f

ris k ed ) ; U

ni ted Sta tes v
. Ca m

p bel l , 178 F. 3d 345, 349 ( 5th Cir. 1999) ( three of f icers attem p ting to control three arm ed bank robbery s us p ects ; s us p ect, although lying on the ground , had not been f ris k ed ).
11 Case: 12-30042 Document: 00512209098 Page: 11 Date Filed: 04/16/2013No. 12-30042

i m p o r t a ntly, Officer Lynch had already frisked B rown for weapo n s , f i n d i n g n o n e
. The o fficers characterize the f risk as “quick” and “ restricted,” but the videotape evidences a p a t

- d own lasting an entire minute and covering much of Brown’s body. The reasonableness of th e o f f i c er’s belief t h at Brown posed a threat depends on the scope of t h e pat-down and w h e ther a conce a l e d w e a pon might actually have gone undetected. Summary judgment is inappropriate in light of these disputed issues of material fact. F a c t i ssues likewise prevent us f rom concluding that Brown’s words, gesticulations, and demeanor were s o threatening t hat Officer Lynch was reasonable in forcing B rown to the wall and attempting, with the support of two

o t h er officers, to handcuff him. It is undisputed that B rown made no v e r b a l threats at any time, and that h e made no a ttempt to flee. The p arties a lso agree, generally, and the audio confirms, that Brown was firmly insistent t hat he had been misidentified, t hat he was not selling drugs, and t hat h e did n o t drive the suspected gold Sunfire. They a gree further t h at during his conversation with t he officers, Brown littered his defense with t he word “fucking,” used a djecti v a l l y in emphasis, but that Officer Lynch u sed the same word. In dispute, however, i s B r o w n’s overall demeanor. The officers describe Brown as “belligerent” duri n g the encounter, based largely on the purportedly “aggressive manner” in which Brown turned toward Officer Lynch and the way he p ointed his f inger, a llegedly in Officer Lynch’s face. T he v ideo supports Brown’s contention t hat he was not aggres s i v e w i t h t h e officers: After the pat-down concluded, and as h e walked with the three officers closely behind him, Brown mumbled a few words that prompted Officer Lynch to demand that Brown “lose the fucking attitude” and turn around to face him. Brown d id turn around, a s instructed, but in a way that the officers contend, without any explanation, w as threatening. Brown never stepped toward Lynch

or any of the other offic e r s , a n d in fact, can be seen taking a s ingle step

12 Case: 12-30042 Document: 00512209098 Page: 12 Date Filed: 04/16/2013No. 12-30042

backward when Lynch told him t o lose t he attitude. H is one gesture—characterized by the officers as f inger-shaking i n Officer Lynch’s face—can be interpreted instead as Brown’s merely emphasizing his innocence in a way that n o reasonable officer would perceive as threatening. Even if Lynch had f elt threatened, he could have asked the s uspect to place his hands behind his back or t o face the w all; Brown had, after all, complied with every order up to this point. Other elements of the encounter add l ittle to support Officer L ynch’s claim that he did n ot exceed t h e s cope of a lawful stop in s eeking t o restrain Brown: Three officers were present to manage the one suspect; Brown w as not evasive when t h e officers first approached him; h e had complied with all of the officers’ demands; the interaction took place in a well-lighted public p l ace where Brown would have no tactical advantage in fight or flight; and there was ample doubt whether Brown was even the man for whom the officers were l o oking. 2 9 Given the totality of the circumstances b ased o n Brown’s version of t h e f a cts, we conclude that Officer Lynch was unreasonab l e in seeking to restrain the suspect—unless, that is, he had probable cause to make an arrest. H a v ing reached this c onclusion, we m ust c o nsider w hether, at the t i m e that he pushed Brown against the wall and attempted to a p ply h andcuffs, Officer Lynch had probable cause t o make an arrest for the offense of resisting an officer—the only crime charged. La. R.S. § 14:108 defines that crime as: the i ntentional i nterference with, o pposition or resistance to, or obstruction of an individual acting in his official capacity a n d

2 9 Brow n arguably m et the ( rather vague) phy s i cal d es crip tion of the sup p os ed d rug d ealer, but he d enied d riving a gold Sunf ire, ins is ting ins tead that he d rove a gold Lexis

. H e w as never as k ed about the ni c k nam e “Bam Bam ” to w hich the alleged d ealer s up p os ed ly
ans w ered

. The f

ris k of his pers on d id not p rod uce w eap o n s o r c o n traband

. And , w hen inf orm ed by the inves tigating of f icer that he had received “num erous com p laints ” alleging that Brow n had been selling d rugs

— an untrue accus ation— Brow n reacted as w ould m any, if not
m os t, w rongf

ully accus ed s us p ects : H e d enied it, and d id s o vehem ently. 13 Case: 12-30042 Document: 00512209098 Page: 13 Date Filed: 04/16/2013No. 12-30042

authorized by law to make a lawful arrest, lawful detention, or s e i z u r e o f property or to serve any lawful p rocess o r court order
w h en the offender knows or has reason to know t hat the p e r s o n arresting, d etaining, s eizing property, or serving process is acting in his official capacity.
The s tatute further explains that the phrase “obstruction of” shall, in addition to its common meaning, include the following: ( a ) Flight by o ne sought to be arrested before the arresting office r can restrain him and after notice is given that he is under arrest. (b) Any v i olence t oward o r any resistance or opposition to t h e arresting officer af

t e r t he arrested party is actually placed under arrest and before he is incarcerated in jail. (c) Refusal by the arrested or detained p arty to give his n ame and make his identity known to the arresting or detaining officer or providing false information regarding the identity of such party to the officer. (d) Congregation with others on a public street and r efusal to move on when ordered by the officer.
Brown contends that, during the entire altercation, he did nothing to interfere with, oppose, r esist, or obstruct t he officers as they detained h im to investigate the suspected drug dealing. We agree. It i s undisputed that, until t he point of arrest, Brown had simply walked out of the convenience store, provided proper identification, submitted to a frisk, answered questions, walked toward the police car, and turned aro u nd to face Officer Lynch—all exactly as i nstructed. Perhaps h e failed to “ lose the attitude,”

as Officer L ynch had demanded, but any hostility in h is tone did not obstruct the officers’ investigatory stop—and defendants d o not contend otherwise. Taking t h e facts as depicted in the video and otherwise in t he light m ost f avorable to Brown, Officer Lynch w rongfully arrested Brown fo r t h e c r ime of r e sisting an officer.

14 Case: 12-30042 Document: 00512209098 Page: 14 Date Filed: 04/16/2013No. 12-30042

ii. Clearly established law In August 2009, Louisiana law clearly r equired some form of resistence for

an officer to m ake an arrest under La. R.S. § 1 4:108. Defendants do not contend

on appeal t hat Officer Lynch reasonably, e ven if mistakenly, could have believed that he had p r obable cause to arrest before he f irst attempted t o r e strain Brown. The more difficult question is whether clearly establish e d law had put Officer Lynch on notice that forcefully cuffing Brown would, in fact, escalate the investigatory stop to a n a r r e s t when Brown: ( 1) had been stopped in a public place, alone and outmanned by three officers on suspicion of selling marijuana

on some earlier date; ( 2) had p rovided i dentification; (3) h ad submitted to a patdown and b een found not to be carrying weapons or contraband; (4) had c omplied with officers’ orders; ( 5) had not t hreatened officers o r anyone else; and (6) had, in the c ourse of protesting his i nnocence, used crass language and r a ised his voice. We conclude that Officer Lynch was indeed on such notice. In the qualified immunity analysis, “[t]he central c oncept is t h a t of ‘fair warning[.]’” 3 0 A lthough we h ave noted that handcuffing a suspect does not automatically convert an investigator y stop into an arrest r equiring probable

cause , we have cautioned t hat police are not authorized to e mploy these procedures a bsent some colorable justification for s o doing. 3 1 T he touchstone in this circuit r emains “reasonableness un d e r the circumstances,” 3 2 and the constitutional test requires that we ask “whether the police were unreasonable in f ailing to u se less intrusive procedures to safely conduct their i n vestigation.” 3 3

3 0 N ew m a n v
. G uedry , 703 F. 3d 757 ( 5th Cir. 2012) ( quoting A nderson v. Crei ghton , 483 U

. S. 635, 640 ( 1987) )

.

3 1 Sa nders , 994 F. 2d at 206.

3 2 Id.

3 3 Jorda n , 232 F. 3d at 450. 15 Case: 12-30042 Document: 00512209098 Page: 15 Date Filed: 04/16/2013No. 12-30042

Given this clearly established rule, d efendants have failed to offer a single case that might render ambiguous whether an officer may use handcuffs during an investigatory stop absent a ny special c ircumstances to j ustify that added degree of caution. Viewing the evidence in the light depicted by the videotape and o therwise i n t h e light most favorable t o Brown, w e conclude that Officer Lynch acted contrary to c l early established l aw when, without probable cause, h e pushed Brown against the w all a nd c uffed him. W e express n o opinion whether Officer Lynch will ultimately be entitled to q ualified immunity; we merely note that we are precluded from affirming the summary judgment on this record.

3. Excessive Force 3 4 i. Constitutional violation To establ i s h a n excessive force claim under the F ourth Amendment, Brown must demonstrate t hat he suffered: ( 1 ) a n injury, (2) which resulted d i r e c t l y and only from a use of f o rce that was c learly excessive, and (3) t h e excessiveness of which was clearly unreasonable. 3 5 The district c ourt considered only the first element of the excessive force test, r easoning t hat B rown suffered only de minimis injury and thus f a iled t o reach the requisite Fourth Amendment threshold. We begin by noting that al t h ough a de minimis injury is not cognizable, the extent o f injury necessary to satisfy the injury r e q u i r e m ent is “directly related t o the amount of force that i s constitutionally permissible under

3 4 Brow n’s “exces s ive f orce claim is s e p a r a t e and d is tinct f rom [ his ] unlaw f

ul arres t claim , and w e m us t theref ore analyze the exces s ive f orce claim w ithout regard to w hether the
arres t its elf w as jus tif ied

. ” Freem a n v
. G ore , 483 F. 3d 404, 417 ( 5th Cir. 2007) ; see a l so , e. g. , Cortez v
. M

cCa ul ey , 478 F. 3d 1108, 1126 ( 10th C ir. 2007) ( en banc) ( “[ I] n a cas e w here p olice ef f ect an arres t w it h o u t p r o b a b le caus e
. . . but us e no m ore f orce than w ould have been
reas onably neces s ary if the arres t or d etention w ere w arranted , the p laintif f has a claim f

or unlaw ful arres t or d etention but not an ad d itional claim for exces s ive force. ”)

.

3 5 Ta rv er , 410 F. 3d at 751. 16 Case: 12-30042 Document: 00512209098 Page: 16 Date Filed: 04/16/2013No. 12-30042

the circumstances.” 3 6 Any force found to be o bjectively unreasonable necessarily exceeds the de minimis threshold, 3 7 and, c onversely, objectively reasonable force will r esult in de minimis injuries only. T h us,“only one inquiry is required to determine w h e t h e r an officer used excessive force in violation of the Fourth Amendment.” 3 8 And as long as a plaintiff h as suffe r e d “some i njury,” 3 9 even

r e l atively insignificant injuries 4 0 and purely p sychological injuries 4 1 will prove cognizable when resulting from an officer’s unreasonably excessive force. Whether the amount of force u s e d is clearly “excessive” and “unreasonable” 4 2 depends on “ t h e facts and circumstances of e ach particular case.” 4 3 U n der Graham v
. Connor , relevant factors include “the severity of the crime at issue, w hether t he suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest o r attempting

3 6 Ikerd v
. Bl ai r , 101 F. 3d 430, 434–35 ( 5th Cir. 1996) ( citations om itted ) ; see al so Fl ores v
. Ci ty of Pa l a ci os, 381 F. 3d 391, 3 9 9 ( 5 t h C i r
. 2004) ( noting that the m inim um qualif ying injury “changes with the facts of each cas e”) ; Wi l l i a m s , 180 F. 3d at 704 ( “What cons titutes an i n j u r y i n a n e x c e s s ive f orce claim is

. . . s ubjective— it is d ef ined entirely by the context in
w hich the injury aris es
. ”)

.

3 7 Ikerd , 101 F. 3d at 434 n. 9.

3 8 Id. ; see a l so G of

f ney v
. Sa uceda , 340 F. Ap p ’x 181, 184 ( 5th Cir. 2009)

.
3 9 Ikerd , 101 F. 3d at 434.

4 0 See, e. g. , S chm i dt v
. G ra y , 399 F. Ap p’x 925, 928 ( 5th Cir. 2010) ( p ain, sorenes s , and bruis ing res u l t i n g f

rom an of

f icer’s s lam m ing a car’s trunk lid on a s us p ect’s f inger w as a legally cognizable injury)

. But see Freem a n , 483 F. 3d at 417 ( “[ M ] inor, incid ental injuries that
occur in connection w ith the us e of hand cuf fs to ef f e c tuate an arres t d o not g ive ris e to a cons titutional claim f

or exces s ive f

orce. ”)

.

4 1 Fl ores, 381 F. 3d at 398 ( p s ychological injur i e s alone may s us tain a Fourth Am end m ent exces s ive f orce claim )

.

4 2 Thes e inquiries “are of ten intertw ined .” Pool e , 691 F. 3d at 628; see a lso Dev i l l e , 567 F. 3d at 167 (ad d res sing s im ultaneous ly the ques tions w hether the f orce w as “exces s ive” and “unreas onable”)

.

4 3 D ev i l l e , 567 F. 3d at 167 ( quoting Gra ha m v
. Connor , 490 U

. S. 386, 396 ( 1989) ) ; Brossea u v
. H

a ugen , 543 U

. S. 194, 201 ( 2004)

. 17 Case: 12-30042 Document: 00512209098 Page: 17 Date Filed: 04/16/2013No. 12-30042

to evade a rr e s t by flight.” 4 4 Because law enforcement officers must make

s p l it-second decisions in d ifficult and potentially d angerous situations, w e evaluate the r easonableness of the officer’s actions “ from the perspective of a reasonable officer on t he s cene, rather t han with the 20/20 v ision of h indsight.” 4 5 Applying the Graham factors t o this case, w e a r e s atisfied that genuine issues of material fact prevent u s from deter m i n i n g whether O fficer Lynch’s many closed-fisted strikes to Brown’s face and body w ere clearly excessive and unreasonable. Brown was being detained on Officer Lynch’s suspicion that he had sold marijuana on s ome prior date—not a trivial offense, b ut also not one to put any person in real or immediate danger. Even if the o fficer’s t r a ining and experience had led him to be concerned that Brown—like other suspected drug dealers—might be armed, those suspicions should have d i ssipated after he extensively frisked t he suspect. Although Officer Lynch c ontends that the patdown was “quick” a nd “restricted,” the video depicts a minute-long frisk that at least creates a factu a l i s s u e whether a weapon might reasonably have gone undetected. No other facts support a belief that Brown posed an immediate threat to the three officers or to bystanders: Brown was unaccompanied on h is trip to the Fil-a-Sac convenience store, and the o fficers do not s u ggest that they b elieved others might j oin i n defending him. A t n o point did Brown make t hreats, show physical aggression, or give any other i ndication that he posed a safety risk or a flight risk. Rather, he had complied with every order up until the point that Officer Lynch escalated the altercation from verbal to physical. As for w hether a nd to what extent Brown resisted ar r e s t , the parties’ factual accounts differ. The officers contend that Brown refused to release his

4 4 G ra ha m , 490 U. S. at 396.

4 5 Id. 18 Case: 12-30042 Document: 00512209098 Page: 18 Date Filed: 04/16/2013No. 12-30042

grip on the b urglar bars and allow himself to be cuffed, and t h a t , a f t e r he was taken to the ground, he continued to struggle to keep his hands from becoming joined behind his back. Brown denies gra b b i ng the b urglar bars and likewise denies struggling to r esist the officers’ e fforts to cuff him o nce he was on the ground. Although some degree of resistence is evident, 4 6 whether that resistence continued after Brown was t aken to the ground and before Officer Lynch began striking him again i s unclear from the v i d e o
. I n any case, the o nly resistence confirmed by the vi d e o w a s not the “active resistence” to which the Graham Court was referring. 4 7 Also in dispute is the nature of the f orce used—specifically, where on the body O fficer Lynch struck Brown, the number of b lows, and whether the strikes continued after the officers had neutralized whatever threat Brown conceivably could have posed. Defendants c ontend t hat Officer L y n c h struck Brown three times o n the upper body a fter Brown was on the ground and continuing to resist. Brown counters that, after h e was taken t o the ground, Lynch struck him eight times in t he upper body and t he face d e spite no resistence on Brown’s part. The video appears to show Officer Lynch throwing eight punches while Brown was lying on his stomach, all of which came after Brown first yelled “my hands are behind my back!” Brown continued t o declare “my hands are behind my back”

as he was being s truck, although an officer i s heard deman d ing at that same time that Brown c o m p l y and place his hands behind his b ack. T he part of Brown’s body absorbing the blows is unclear from the video.

4 6 The vid eo conf

irm s , for exam p le, that Brow n d id not im m ed iately co l l a ps e w hen d ragged to the ground by several of f icers , and that he struggled to p revent an of f i c e r f r o m p lacing his lef

t hand behind his back on the w ay to the g round

.

4 7 See, e. g. , New m a n , 703 F. 3d 757 ( s us p ect’s pus hing him s elf of f car and f

ailing to fall to the ground w ere not “active res is tence”)

. 19 Case: 12-30042 Document: 00512209098 Page: 19 Date Filed: 04/16/2013No. 12-30042

A factfinder could r easonably conclude, based o n Brown’s account and the audio and video evidence, that Officer Lynch had struck an unresisting suspect eight times in t he body a nd face w i t h closed f ists. Further, a factfinder could conclude that the initial pat-down was thorough enough to eliminate any doubt about whether a weapon remained undetected in Brown’s possession. Under the totality of these summary judgment facts, Officer L ynch’s use of force would be clearly excessive and unreasonable as a matter of law. 4 8 In concluding that, o n B rown’s and the c amera’s v ersions o f the facts, the forc e used clearly exceeded that which a reasonable officer w ould deem warranted, we a l s o c onclude that Brown’s injuries, although minor, were constitutionally significant. 4 9

ii. Clearly established law At the time of the incident, the law was clearly e stablished in this circuit that repeatedly striking a n on-resisting suspect is excessive and unreasonable force. 5 0 Because facts bearing on Brown’s resistence, the force used, and Officer

4 8 See, e. g
. , S t a t e n v
. Ta tom , 465 F. Ap p’x 353, 359 ( 5th Cir. 2012) ( f ind ing s um m ary jud gm ent inap p rop riate w hen the p arties “p res ent[ ed ] a num ber of d is p utes of m aterial f act, includ ing, objectively, w hether or how m uch Plaintif f w as res i s t i n g , the am ount of f orce D ef end ant actually us ed at each s tage of t h e e n c ounter, and w hether that f orce w as reas onable”)

.

4 9 See Ikerd , 101 F. 3d at 434 n. 9.

5 0 B ush v
. S t r a i n , 513 F. 3d at 502 ( 5th Cir. 2008) (hold ing that an of ficer had us ed
exces s ive f

orce w hen he s lam m ed a s us p ect’s f ace into a vehicle af

ter s he had ceas ed res is ting
arres t) ; G oodson , 202 F. 3d at 740 ( of f icers violated clearly es tablis hed right when they tack led
as s ault sus p ect, break ing his s hould er, af ter he p ulled his arm aw ay f rom grabbing of

f icer and took f ew s tep s back w ard ) ; see a lso A nderson v
. McCa l eb, 480 F. Ap p ’x 768, 773 ( 5th Cir. 2012) ( conclud ing that, w hile a “reas onable us e of f orce f or p urp os es of the Fourth Am end m ent is not cap able of p recis e d ef

inition or m echanical ap p lication[ , ] ” in D ecem ber 2008, a p olice of f icer “s hould have k now n that he could not beat [ t h e s u s pect] af ter he s top p ed res is ting arres t”) ( internal quotation m ark s om itted )

. 20 Case: 12-30042 Document: 00512209098 Page: 20 Date Filed: 04/16/2013No. 12-30042

Lynch’s reasonable b eliefs about the threat posed remain g enuinely in dispute, summary judgment is not appropriate.

C. Claims Against the City and Police Chief Whitehorn Brown also contends that his injures resulted from the unlawful policies, practices, a nd customs of t he City of Shreveport a nd i ts police department, and from Chief Whitehorn’s failure to train his officers adequately. A municipality is not liable u nder § 1983 on the theory of respondeat superior. Only t hose acts directly attributable to it “through s ome official action

or imprimatur” m ay impart such liability. 5 1 To establish munici p a l l iability under § 1983, a plaintiff must identify: “(1) an o fficial policy (or custom), o f which (2) a policymaker can be charged with a ctual or c onstructive knowledge, and (3)

a constitutional violation whose ‘ moving force’ is that p olicy or custom.” 5 2 In his

o p p o s i t i o n to the d efendants’ motion for summary judgment, Brown def e n d e d h i s claim against the City by asserting conclusionally that his “ injuries were caused by the unlawful p olicies and practices of the Sh r e v e p o r t Police Department.” B r o w n n e ver identified any p olicy or custom, a nd, failing t hat first step, al s o failed to show a policymaker’s actual or constructive knowledge of the same and to link the constitutional violation to that policy or custom. His appellate brief is likewise deficient. The district court properly granted summary judgment. To support his claim that Chief W hitehorn failed t o t rain h is subordinate officers adequately, Brown had to show t hat: (1) the training po licies were inadequate; (2) Chief Whitehorn was d eliberately indifferent to t he i nadequacy;

5 1 P i otrow ski v
. Ci ty of H ouston , 237 F. 3d 567, 578 ( 5th Cir. 2001) (citing M onel l v
. D ep ' t of Soc. Serv s. , 436 U

. S. 658, 694 ( 1978) )

.

5 2 Pi neda v
. Ci ty of

H ouston , 291 F. 3d 325, 328 ( 5th Cir. 2002)

.

21 Case: 12-30042 Document: 00512209098 Page: 21 Date Filed: 04/16/2013No. 12-30042

a n d ( 3 ) t h e i n a d e q u a t e policy d irectly caused Brown’s constitutional i njury. 5 3 Y e t Brown sought to survive summary judgment with more conclusional allegations that fail to raise a g e n u i n e i ssue of material f act as to these elements. He claimed only that “ Chief Whitehorn failed to train and sup e r v i s e employees of the Shreveport P olice Department and plaintiff has suffered a deprivation of his constitutional rights[] as a result of it.” As regards the s econd required element, for example, the S u preme Court has i ndi c ated that proving deliberate indifference usually requires a plaintiff to i d entify a pattern of similar constitutional v iolations, 5 4 but Brown did not point to any similar i n cidents,

muc h less a pattern of them. For this reason alone, summary j udgment was appropriate. 5 5

III. CONCLUSION Because g enuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district c o u r t as to these claims and REMAND for

5 3 Ca rna by , 636 F. 3d at 189; Sa nders- Burns v. Ci ty of Pl a no , 594 F. 3d 366, 381 ( 5th Cir. 2010)

.
5 4 S ee Conni ck v. T h o m p son , 131 S. Ct. 1350, 1361 ( 2011) ( hold ing that a d is trict attorney’s of

f ice cannot be held l i a ble f or f ailing to train its p ros ecutors w hen the p laintif f p roves only a s ingle v iolation aris ing f rom the inad equate training)

.
5 5 O n ap p eal, Brow n p oints f or the f i r s t tim e to O f

ficer Lynch’s d ep os ition tes tim ony as evid ence of Chief Whitehorn’s f ailure t o t r ain. In that tes tim ony, Lynch s how ed him s elf unk now led geable about a citizen’s right to res is t an unlaw f ul arres t und er Louis iana law

. T he tes tim ony d oes not ind icate any d eliberate ind if f erence on Chief Whitehorn’s p art, how ever, nor does it d em ons trate caus ation: Lynch believed h i s a rres t to be la w f ul , s o this f

aulty und ers tand ing of Louis iana law w ould not have changed his res p ons e to Brow n’s alle g ed behavior. In any event, Brow n has w aived the argum ent on ap p eal by f ailing to rais e it in the d i s t r i c t court. See, e. g. , Stokes v
. Em erson E l ec. Co. , 217 F. 3d 353, 358 n. 19 (5th Cir. 2 0 0 0 ) ( “Argum ents not rais ed in the dis trict court cannot be as s erted f or the f irs t tim e on ap p eal. ”) ; S T E P H E N A L

A N C H I L DR E SS & M A R T H A S. D A

V I S , 1 F E DE R

A L S T A N DA

R DS OF R E V I E W § 6. 03 ( 4th ed

. 2010) (“[ C] ourts have d evelop ed the general rule that ap p li c a n ts m ay not as sert f acts or theories to the court of ap p eals that w ere not urged bef ore the dis trict court. ”)

. 22 Case: 12-30042 Document: 00512209098 Page: 22 Date Filed: 04/16/2013No. 12-30042

further proceedings consistent w i t h t his opinion. We AFFIRM the court’s
summary judgment with respect t o Brown’s claims against Chief Whitehorn and the City of Shreveport.

23 Case: 12-30042 Document: 00512209098 Page: 23 Date Filed: 04/16/2013