IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30247

GREGORY V. TUCKER, 

 Plaintiff – Appellee

v.

CITY OF SHREVEPORT; C. B. CISCO; T. KOLB; W. MCINTIRE; 

Y. JOHNSON, 

 Defendants – Appellants

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 5:17-CV-1485

Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge.

Alleging that members of the Shreveport, Louisiana Police Department 

employed excessive force in effecting his November 30, 2016 arrest, Plaintiff–

Appellee Gregory V. Tucker (“Tucker”) filed suit under 42 U.S.C. § 1983

against Defendant–Appellants Chandler Cisco, William McIntire, Yondarius 

Johnson, Tyler Kolb (collectively, “Defendant Officers”), and the City of 

Shreveport. Specifically, Tucker maintains that the police officers’ conduct—

forcing him to the ground and then beating him in order to place him in 

handcuffs—violated his rights protected by federal and state constitutional 

law, as well as Louisiana tort law. Upon Defendant–Appellants’ motion, the 

district court granted summary judgment in favor of Defendant Officers in 

their official capacities on all claims. The district court denied summary 

United States Court of Appeals

Fifth Circuit

FILED

May 18, 2021

Lyle W. Cayce

Clerk

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No. 19-30247

2

judgment, however, as to all of Tucker’s claims against the City of Shreveport, 

as well as his § 1983 and Louisiana law claims against Defendant Officers in 

their individual capacities. Contending that the district court erred in 

concluding that fact issues preclude dismissal on qualified immunity grounds, 

Defendant Officers filed this interlocutory appeal. As stated herein, we 

REVERSE and REMAND.

I.

Given the interlocutory and limited nature of this appeal, we lack 

jurisdiction to review the district court’s “sufficiency of the evidence”

assessments of disputed facts. See, e.g., Cole v. Carson, 935 F.3d 444, 452 (5th 

Cir. 2019) (quotation omitted), as revised (Aug. 21, 2019), cert. denied sub nom. 

Hunter v. Cole, 141 S. Ct. 111 (2020). Rather, we focus solely on “examining 

the materiality of factual disputes the district court determined were genuine,” 

that is, our review is limited to determining “the legal significance of the 

conduct . . . deemed sufficiently supported for purposes of summary judgment.” 

Id. (internal quotations omitted). “An officer challenges materiality [by 

contending] that taking all the plaintiff’s factual allegations as true[,] no 

violation of a clearly established right was shown.” Arizmendi v. Gabbert, 919 

F.3d 891, 896 (5th Cir.), cert. denied, 140 S. Ct. 220 (2019) (quoting Winfrey v. 

Pikett, 872 F.3d 640, 643–44 (5th Cir. 2017)). Nevertheless, because there is 

video and audio recording of the event, we are not required to accept factual 

allegations that are “blatantly contradicted by the record.” Scott v. Harris, 550 

U.S. 372, 380 (2007). Rather, we should “view[ ] the facts in the light depicted 

by the videotape.” Id. at 381.

Our review of the district court’s rulings is greatly assisted by the 

lengthy “Memorandum Ruling” prepared by the district judge, reflecting a 

painstaking account of the encounter between Tucker and Defendant Officers, 

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as portrayed in the four video and audio recordings taken by the police officers’ 

vehicle cameras, Defendant Officers’ offense reports, Tucker’s complaint, and 

the parties’ deposition testimony.1 Indeed, for the most part, we agree with 

the district court’s factual account, including that there are “two distinct 

moments of force” that must be separately analyzed: (1) [Officers] McIntire 

and Cisco taking Tucker to the ground, and (2) Defendant Officers punching 

and kicking him while he was on the ground.2 It is only with respect to the

legal significance of those facts where we ultimately part ways with the district 

court. 

II.

For purposes of liability under 42 U.S.C. § 1983, excessive force claims 

arising from an arrest or investigatory stop invoke the protection provided by 

the Fourth Amendment of the United States Constitution against 

“unreasonable seizure.” Fourth Amendment jurisprudence, however, has long 

recognized that the right to make an arrest or investigatory stop necessarily 

carries with it the right to use some degree of physical coercion or threat 

1 See February 27, 2019 Mem. Ruling. Three of the four videos contain pertinent 

footage, which is available at:

https://www.ca5.uscourts.gov/opinions/pub/19/19-32047_OfcChandler-full.mp4 (“Chandler 

Video”); 

https://www.ca5.uscourts.gov/opinions/pub/19/19-30247_OfcMcIntire-full.mp4; (“McIntire 

Video”); and

https://www.ca5.uscourts.gov/opinions/pub/19/19-30247_OfcKolb-full.mp4 (“Kolb Video”).

2 Having the benefit of the district court’s detailed February 27, 2019 written ruling 

in the appeal record, we find it unnecessary to duplicate the work of the district court by 

embarking upon a lengthy and comprehensive recitation of facts in this opinion. Having 

ourselves viewed and listened to the video and audio recordings numerous times, struggling 

to ascertain the exact course of the often chaotic events as they unfolded, second by second, 

and frame by frame—despite the unfortunately unhelpful angles of the cameras and the 

blinding glare of the constantly flashing lights of the police vehicles—the substantial time 

and effort likewise expended by the district court is obvious from the detailed nature of its 

factual accounting. 

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thereof to effect it. Graham v. Connor, 490 U.S. 386, 396 (1989). Thus, 

determining whether the force used to effect a particular seizure is 

“reasonable” for purposes of the Fourth Amendment requires a careful 

balancing of the intrusion upon the individual’s interests with the 

countervailing governmental interests at stake. Regarding that analysis, the 

Supreme Court, in Graham, 490 U.S. at 396, provided the following guidance:

Because “[t]he test of reasonableness under the Fourth 

Amendment is not capable of precise definition or mechanical 

application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979), [] its proper 

application requires careful attention to the facts and 

circumstances of each particular case, including the severity of the 

crime at issue, whether the suspect poses an immediate threat to 

the safety of the officers or others, and whether he is actively 

resisting arrest or attempting to evade arrest by flight. 

Importantly, “[t]he ‘reasonableness’ of a particular use of force must be judged 

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

20/20 vision of hindsight.” Id. Thus, “‘[n]ot every push or shove, even if it may 

later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth 

Amendment.” Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 

1973)). Instead, “the calculus of reasonableness must embody allowance for 

the fact that police officers are often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly evolving—about the 

amount of force that is necessary in a particular situation.” Id. at 396–97. 

Although all disputed facts are construed in favor of the non-movant in the 

summary judgment context, evaluating the reasonableness of an officer’s use 

of force requires consideration of how a reasonable officer would have perceived 

those facts. Griggs v. Brewer, 841 F.3d 308, 313–14 (5th Cir. 2016).

“As in other Fourth Amendment contexts, however, the ‘reasonableness’

inquiry in an excessive force case is an objective one: the question is whether 

the officers’ actions are ‘objectively reasonable’ in light of the facts and 

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circumstances confronting them, without regard to their underlying intent or 

motivation.” Graham, 490 U.S. at 397. “An officer’s evil intentions will not 

make a Fourth Amendment violation out of an objectively reasonable use of 

force; nor will an officer’s good intentions make an objectively unreasonable 

use of force constitutional.” Id.

III.

The doctrine of qualified immunity protects public officials from suit and 

liability for damages under § 1983 unless their conduct violates a clearly 

established constitutional right. Mace v. City of Palestine, 333 F.3d 621, 623 

(5th Cir. 2003). Thus, in determining qualified immunity, courts engage in a 

two-step analysis: (1) was a statutory or constitutional right violated on the 

facts alleged; and (2) did the defendant’s actions violate clearly established 

statutory or constitutional rights of which a reasonable person would have 

known. Id. at 623–24. The two steps of the qualified immunity inquiry may be 

performed in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

In excessive force cases, “[t]he second prong of the [qualified immunity]

analysis ‘is [itself] better understood as [encompassing] two separate inquiries: 

whether the allegedly violated constitutional rights were clearly established at 

the time of the incident; and, if so, whether the conduct of the defendants was 

objectively unreasonable in light of that then clearly established law.’” Tarver 

v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (quoting Felton v. Polles, 315 

F.3d 470, 477 (5th Cir. 2002)). An officer “cannot be said to have violated a 

clearly established right unless the right’s contours were sufficiently definite 

that any reasonable official in the defendant’s shoes would have understood 

that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). “If 

officers of reasonable competence could disagree as to whether the plaintiff’s 

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rights were violated, the officer's qualified immunity remains intact.” Tarver, 

410 F.3d at 750.3

“Whether an official's conduct was objectively reasonable [in light of the 

law that was clearly established at the time of the disputed action] is a question 

of law for the court, not a matter of fact for the jury.” Brown v. Callahan, 623 

F.3d 249, 253 (5th Cir. 2010). But, “in certain circumstances where ‘there 

remain disputed issues of material fact relative to immunity, the jury, properly 

instructed, may decide the question.’” Mesa v. Prejean, 543 F.3d 264, 269 (5th 

Cir. 2008) (quoting Presley v. City of Benbrook, 4 F.3d 405, 410 (5th Cir. 1993)); 

McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000) (if the court has not 

decided the issue prior to trial, “the jury . . . determine[s] the objective legal 

reasonableness of the officers’ conduct”).

“A qualified immunity defense alters the usual summary judgment 

burden of proof.” Brown, 623 F.3d at 253. Although nominally an affirmative 

defense, the plaintiff has the burden to negate the defense once it is properly 

raised. Garza v. Briones, 943 F.3d 740, 744 (5th Cir. 2019). The plaintiff has 

the burden to point out clearly established law. Clarkston v. White, 943 F.3d 

988, 993 (5th Cir. 2019). The plaintiff also bears the burden of “raising a fact 

issue as to its violation.” Delaughter v. Woodall, 909 F.3d 130, 139 (5th Cir. 

2018)). Thus, once the defense is invoked, “[t]he plaintiff must rebut the 

defense by establishing that the official’s allegedly wrongful conduct violated 

clearly established law and that genuine issues of material fact exist regarding 

the reasonableness of the official's conduct” according to that law. Gates v. 

Texas Dep’t of Protective & Regul. Servs., 537 F.3d 404, 419 (5th Cir. 2008).

3 Thus, in the excessive force context, “[t]he term ‘objective reasonableness’ pertains 

independently to the determination of a constitutional violation and also to the immunity 

issue.” Mason v. Faul, 929 F.3d 762, 765–66 (5th Cir. 2019), cert. denied, 141 S. Ct. 116 

(2020).

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At the summary judgment stage, however, all inferences are still drawn 

in the plaintiff’s favor. Brown, 623 F.3d at 253. This is true “even when . . . a 

court decides only the clearly-established prong of the [qualified immunity] 

standard.” Tolan v. Cotton, 572 U.S. 650, 657 (2014). Likewise, “under either 

[qualified immunity] prong, courts may not resolve genuine disputes of fact in 

favor of the party seeking summary judgment.” Id. at 656. “Accordingly, courts 

must take care not to define a case’s ‘context’ in a manner that imports 

genuinely disputed factual propositions.” Id. at 657; see, e.g., Tarver, 410 F.3d 

at 754 (dismissal at summary judgment phase inappropriate because 

determining whether officer’s conduct was objectively unreasonable in light of 

clearly established law required factfinding and credibility assessments).

When evaluating a qualified immunity defense, courts “consider[] only 

the facts that were knowable to the defendant officers.” White v. Pauly, 137 S. 

Ct. 548, 550 (2017) (per curiam); see also Cole, 935 F.3d at 456 (“[W]e consider 

only what the officers knew at the time of their challenged conduct.”). “Facts

[that] an officer learns after the incident ends—whether those facts would 

support granting immunity or denying it—are not relevant.” Hernandez v. 

Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam); Brown, 623 F.3d at 253 (“An 

official's actions must be judged in light of the circumstances that confronted 

him, without the benefit of hindsight.”).

“Because the focus is on whether the officer had fair notice that [his] 

conduct was unlawful, reasonableness is judged against the backdrop of the 

law at the time of the conduct.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). 

“Clearly established law is determined by controlling authority—or a robust 

consensus of persuasive authority—that defines the contours of the right in 

question with a high degree of particularity.” Clarkston, 943 F.3d at 993

(quoting Delaughter, 909 F.3d at 139). 

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With qualified immunity, the Supreme Court has repeatedly instructed 

that clearly established law is not to be defined at a high level of generality. 

This is particularly true in recent years. See, e.g., City of Escondido v. Emmons, 

139 S. Ct. 500, 503–04 (2019); Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 

(2018); Mullenix v. Luna, 577 U.S. 7, 12–14 (2015). For conduct to be objectively 

unreasonable in light of clearly established law, there need not be a case 

directly on point, but “existing precedent must have placed the statutory or 

constitutional question beyond debate.” White, 137 S. Ct. at 551 (per curiam) 

(internal quotation marks omitted); Mullenix, 577 U.S. at 14.4

“[S]pecificity is especially important in the Fourth Amendment context, 

where the [Supreme] Court has recognized that it is sometimes difficult for an 

officer to determine how the relevant legal doctrine, here excessive force, will 

apply to the factual situation the officer confronts.” Kisela, 138 S. Ct. at 1152–

53 (quoting Mullenix, 577 U.S. at 12). “Use of excessive force is an area of the 

law in which the result depends very much on the facts of each case, and thus 

police officers are entitled to qualified immunity unless existing precedent 

squarely governs the specific facts at issue.” Id. at 1153 (internal quotation

marks omitted). “Of course, general statements of the law are not inherently 

incapable of giving fair and clear warning to officers . . ., but in the light of preexisting law, the unlawfulness must be apparent.” White, 137 S. Ct. at 552 

(internal quotation marks omitted). Thus, the general rules set forth in 

“[Tennessee v. Garner, 471 U.S. 1 (1985)], and Graham do not by themselves 

4 “Where constitutional guidelines seem inapplicable or too remote, it does not suffice 

for a court simply to state that an officer may not use unreasonable and excessive force, deny 

qualified immunity, and then remit the case for a trial on the question of reasonableness.” 

Kisela, 138 S. Ct. at 1153. 

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create clearly established law outside ‘an obvious case.’” Id. (quoting Brosseau, 

543 U.S. at 199).

Sufficiently specific “[p]recedent involving similar facts can help move a 

case beyond the otherwise hazy border between excessive and acceptable force 

and thereby provide an officer notice that a specific use of force is unlawful.” 

Kisela, 138 S. Ct. at 1153 (internal quotation marks omitted). Otherwise, 

“qualified immunity protects actions in the hazy border between excessive and 

acceptable force.” Mullenix, 577 U.S. at 18 (internal quotation marks omitted). 

Thus, “[q]ualified immunity gives government officials breathing room to make 

reasonable but mistaken judgments about open legal questions.” Ashcroft v. alKidd, 563 U.S. 731, 743 (2011). It likewise “shields an officer from suit when 

[the officer] makes a decision that, even if constitutionally deficient, reasonably 

misapprehends the law governing the circumstances [the officer] confronted.” 

Brosseau, 543 U.S. at 198; see also Saucier v. Katz, 533 U.S. 194, 205 (2001) 

(“The concern of the immunity inquiry is to acknowledge that reasonable 

mistakes can be made as to the legal constraints on particular police conduct.”). 

In short, “[w]hen properly applied, [qualified immunity] protects all but the 

plainly incompetent or those who knowingly violate the law.” Id. (internal 

quotation marks omitted).

Consequently, “[q]ualified immunity is justified unless no reasonable 

officer could have acted as [the defendant officers] did here, or every reasonable 

officer faced with the same facts would not have [acted as the defendant officers

did].” Mason v. Faul, 929 F.3d 762, 764 (5th Cir. 2019), cert. denied, 141 S. Ct. 

116 (2020) (citing District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)

(“The precedent must be clear enough that every reasonable official would 

interpret it to establish the particular rule the plaintiff seeks to apply. [] 

Otherwise, the rule is not one that ‘every reasonable official’ would know.”)).

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IV.

As previously stated, we agree with the district court that “two distinct 

moments of force must be separately analyzed: [(1)] [Officers] McIntire and 

Cisco taking Tucker to the ground, and [(2)] Defendant Officers punching and 

kicking him as he lay on the ground.” With each, the district court concluded 

that a reasonable jury could find that Defendant Officers acted unreasonably 

such that Tucker’s Fourth Amendment rights were violated and, moreover, 

that Defendant Officers were not entitled to qualified immunity. Putting aside 

the question of whether Defendant Officers acted unreasonably for purposes of 

establishing a Fourth Amendment violation, we disagree with the district 

court’s determinations relative to qualified immunity.

A. Takedown 

Regarding the force utilized in the course of Tucker’s takedown, the 

district court concluded, in pertinent part:5

Here, Tucker had not been told that he was under arrest and 

had complied (in his version of the facts) with the request to place 

his hands behind his back. McIntire gave no verbal commands 

before, mere seconds after arriving on the scene, pulling Tucker 

down to the ground. In light of Tucker's verbal objections and the 

discovery of a knife in his pocket, McIntire and Cisco would have 

been justified in using some force to place Tucker in handcuffs had 

he refused to cooperate in allowing them to be placed. However, 

the immediate resort to a takedown maneuver was not necessarily 

a measured and ascending response to the need to place handcuffs 

on a non-struggling Tucker without first articulating that he was 

under arrest and giving him a reasonable opportunity to allow 

himself to be handcuffed. As a result, viewing the facts in the light 

5 See February 27, 2019 Mem. Ruling at 19–21. 

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most favorable to Tucker, a jury could find that Cisco and McIntire 

had acted unreasonably.

Although fact questions prevent granting summary 

judgment on the question of whether Cisco and McIntire violated 

Tucker’s Fourth Amendment rights, the two officers may still be 

released from suit on this claim if they are entitled to qualified 

immunity. To defeat qualified immunity, Tucker must point to a 

case holding that officers acting in similar ways under similar 

circumstances violated a suspect's right to be free from excessive 

force. White, 137 S. Ct. at 552. 

As of 2013, it was clearly established that “violently 

slam[ming] an arrestee who is not actively resisting arrest” is a 

constitutional violation. Darden [v. City of Fort Worth, 880 F.3d

722, 731 (5th Cir. 2017)] (citing [Ramirez v. Martinez, 716 F. 3d

369, 377–78 (5th Cir. 2013)]; Newman v. Guedry, 703 F.3d 757, 

762–63 (5th Cir. 2012); Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 

2008)). Passive resistance does not authorize violent force on an 

officer's part. [Deville v. Marcantel, 567 F.3d 156, 167–68 (5th Cir. 

2009)]. As a result, the Fifth Circuit has repeatedly denied 

qualified immunity in cases in which “officers face verbal 

resistance but no fleeing suspect.” Bone v. Dunnaway, 657 F. App’x 

258, 263 (5th Cir. 2016) (per curiam) (citing Deville, 567 F.3d at 

169; Bush, 513 F.3d at 502; Goodson v. City of Corpus Christi, 202 

F.3d 730, 734, 740 (5th Cir. 2000)). Even though Tucker was 

offering some degree of verbal resistance, in the absence of overt 

physical resistance to being handcuffed, flight or the prospect of 

flight, and instructions or warnings beyond one request to place 

his hands behind his back, forcefully pulling Tucker to the ground 

such that his face struck the concrete would have violated clearly 

established law. Therefore, McIntire and Cisco are not entitled to 

qualified immunity for the force used in the takedown. 

After watching the video footage of McIntire’s sudden takedown of 

Tucker and the struggle that followed on the ground, it is easy for us—having 

the benefit of hindsight and multiple angles of video to scrutinize, frame by 

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frame—to question whether Tucker might have been handcuffed without 

scuffle or injury if McIntire had immediately verbally consulted with Cisco 

upon arrival, told Tucker that he was under arrest, and/or repeated Cisco’s 

“put your hands behind your back” instruction to Tucker before forcefully 

pulling him to the ground.6 Importantly, however, the legal reasonableness of 

a police officer’s use of force—for purposes of the Fourth Amendment and 

qualified immunity—is not evaluated with the benefit of hindsight. Rather, 

our focus is on the officers’ reasonable perception of the events at issue, as they 

happened, without the aid of hindsight, multiple viewing angles, slow motion, 

or the ability to pause, rewind, and zoom. 

Considering the record in this manner, we find the district court erred in 

concluding that the conduct of Officers McIntire and Cisco—in taking Tucker 

to the ground—was objectively unreasonable in light of pertinent clearly 

established law in November 2016. For the most part, the cases cited by the 

district court and Tucker, including some not decided until after the November 

2016 incident here—simply acknowledge uncontroversial general principles. 

See, e.g., Hank v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017) (as of February 26, 

2013, “clearly established law demonstrated that an officer violates the Fourth 

Amendment if he abruptly resorts to overwhelming physical force rather than 

continuing verbal negotiations with an individual who poses no immediate 

threat or flight risk, who engages in, at most, passive resistance, and [was]

stopped for a minor traffic violation”). Moreover, none of these pronouncements

“squarely govern” the particular facts at issue here such that, in November 

6 McIntire explained, at his deposition, that he did not personally tell Tucker that 

Tucker was under arrest, or about to be cuffed, because “if another officer [has already gotten] 

to that, and it’s not working for the other officer, I don’t come in and try to do the same thing 

. . . because then you’ve got two people yelling at somebody. It’s just going to make them 

agitated even more.”

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2016, no reasonable officer would have thought that the Defendant Officers’ 

takedown of Tucker was legally permissible.

For instance, in Darden, which was decided in 2017, we denied summary 

judgment on qualified immunity grounds, where the arrestee’s active 

resistance was disputed, to an officer who, during a May 2013 drug raid at a 

private residence, choked, punched, kicked, twice tased, and forced the

asthmatic, obese arrestee (weighing 340 pounds) down onto his stomach, 

shoved his face to the floor, and pulled his hands behind his back for 

handcuffing, all while being told by others that the arrestee, who died during 

the arrest, could not breathe. Darden, 880 F.3d at 725–27, 730–33.

In Newman, decided in 2012, we concluded that an officer’s immediate 

use of his taser (sixteen times) and nightstick (fifteen strikes) during an August 

2007 traffic stop—without first attempting physical skill, negotiations, or even 

commands—was objectively unreasonable in light of clearly established law. 

Newman, 703 F.3d at 759–60, 763–64.

In Deville, decided in 2009, we found excessive force where, in August 

2005, an officer stopped Deville, a 45-year old woman, for a minor traffic 

violation. Initially denying any wrongdoing, and calling the traffic stop 

“bullshit,” Deville refused to exit the car, which she kept “running” but not “in 

gear,” or to roll down the window, until her husband could arrive to pick up 

their 2-year old grandchild, who also was in the vehicle. Having arrived in the 

interim, the police chief smashed the car window with his flashlight, pulled 

Deville out of her car and threw her against the vehicle, resulting in a blow to 

her abdomen. As a result of her arrest, Deville suffered multiple contusions, 

cuts from broken glass, and nerve damage to her hand and fingers, requiring 

four surgeries, multiple injections, and 13–15 weeks away from her work as a 

registered nurse. Deville, 567 F.3d at 167–68. 

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In Bone, which was decided on August 5, 2016, we determined that 

factual disputes precluded summary judgment on the basis of qualified 

immunity where, on December 14, 2013, Bone, who denied being told that she 

was under arrest (for a municipal code violation) and posed no safety threat,

turned to walk away from the officer, who then grabbed her wrist and 

“violently” slammed her face against a nearby car window. Bone, 657 F. App’x 

at 260, 263–64. 

In Goodson, decided in 2000, police officers broke Goodson’s shoulder by 

tackling him after he had pulled his arm away from one of the officers and 

moved (a disputed distance) away from police officers (at a disputed speed). 

Because factual disputes remained as to the existence of reasonable suspicion 

to detain Goodson, or probable cause to arrest, we declined, on summary 

judgment review, to extend qualified immunity to the defendant officers. 

Goodson, 202 F.3d at 733, 736–40.

In Bush, decided in 2008, summary judgment premised on qualified 

immunity was denied where, considering Bush's account of the events, she was 

not resisting arrest or attempting to flee, but was instead restrained and 

subdued, having been handcuffed, when the defendant, placing his hand 

behind her neck and head, slammed her face into the rear window of a nearby 

vehicle, injuring her jaw and breaking two of her teeth. Bush, 513 F.3d at 486, 

502. 

In addition to the cases referenced by the district court, Tucker cites

Trammell v. Fruge, 868 F.3d 332, 343 (5th Cir. 2017), which was decided on

August 17, 2017, regarding Trammell’s January 21, 2013 arrest. Construing 

disputed facts in Trammell’s favor, and citing Goodson, the panel reversed the 

district court’s grant of summary judgment on the basis of qualified immunity, 

reasoning that the law at the time of the arrest clearly established that it was 

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objectively unreasonable for several officers to tackle an individual who was 

not fleeing, not violent, not aggressive, and resisted only by pulling his arm 

away from an officer’s grasp by a few inches (but never lost contact with the 

officer’s hand).

Tucker also cites Brown v. Lynch, 524 Fed. App’x 69, 80–81 (5th Cir. 

2013), an unpublished decision, in which summary judgment likewise was 

reversed. There, the panel determined that “[a] factfinder could reasonably 

conclude, based on Brown’s [contrary factual] account and the audio and video 

evidence, that Officer Lynch had struck an unresisting suspect eight times in 

the body and face with closed fists.” Id. at 81. Notably, Brown “denie[d] 

grabbing the burglar bars and likewise denie[d] struggling to resist the officers’ 

efforts to cuff him once he was on the ground.” Id. at 80. Further, “[t]he video 

appear[ed] 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!’” Id. at 81 (emphasis added).

Here, as compared to all of these cases, the facts and circumstances are 

materially distinguishable such that, at a minimum, reasonable officers would 

debate whether Defendant Officers’ takedown was excessive. For instance, 

the district court, endeavoring to construe disputed facts in Tucker’s favor, 

inferred that, prior to the takedown, Tucker had complied with Cisco’s order to 

put his hands behind his back and did not “jerk” his arm away from Cisco and 

McIntire. On the other hand, the district court likewise observed, the video 

footage undisputedly reflects slight movement in Tucker’s left arm as McIntire 

grabbed it. And both Cisco and McIntire testified, without contradiction, that 

they had felt tension in Tucker’s arms.7

7 Notably, in response to Defendants’ statement of facts, Tucker classifies an 

assessment of body posture (“very tense”) as “an opinion, not a fact.” 

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If this slight movement and tension were the only facts supporting 

Defendant Officers’ position, we likely would affirm the district court’s denial 

of summary judgment. As noted by the district court, we have concluded that 

“[p]ulling [one’s] arm out of [an officer’s] grasp, without more, is insufficient to 

[establish] an immediate threat to the safety of the officer[]” for purposes of the 

Graham factors. See Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013)

(emphasis added).

Importantly, however, the record here reflects the presence of the

essential “more” that was missing in Ramirez. See id. (“[A] reasonable officer 

could not have concluded Ramirez posed an immediate threat to the safety of 

the officers by questioning their presence at his place of business or [while] 

laying on the ground in handcuffs.”). For starters, as evidenced by the 

Shreveport Police Department’s dispatch of multiple police units, and “clearing 

the [police radio] channel” for communication with Cisco and outside 

monitoring of the situation, Tucker’s continued driving for a couple minutes, 

deep into a residential area, rather than promptly stopping in an adjacent 

empty parking lot in response to Cisco’s siren and flashing police lights, 

ostensibly raised logical concerns about possible resistance and officer safety. 

Additionally, McIntire, “from working in the area,” reportedly perceived 

the streets on which Tucker led Cisco, at 11:30 p.m., to be “a high-crime area.”8 

8 In response to Defendants’ statement of facts, Tucker disagreed with the assertion 

that the neighborhood in which he pulled over was “known for high crime activity.” Rather, 

he stated: “This is an opinion, not a fact.” On the other hand, though Tucker characterized 

the house where he ultimately stopped the car as being “like a little out of the drug area,” he 

also described one, if not two, of the streets on which he and Cisco traveled to get to that 

house as being “drug streets.” Although we do not fault the district court for inferring, from 

Tucker’s deposition testimony, that the particular location at which Tucker chose to stop was 

“not within an area known for drug activity,” we emphasize that only “the facts [known to 

Defendant Officers,] as a reasonable officer would perceive them”—including those 

conclusions drawn from their considered professional opinions—are material to this appeal. 

See Griggs, 841 F.3d at 313–14 (because the court must measure force used under the facts 

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And, he testified: “a lot of times if the police are involved in anything out there, 

crowds gather, and they’re a lot of times hostile towards police.” Also, from

McIntire’s perspective, seeing that Tucker’s car “had pulled into a driveway of 

a residence [was] already kind of a red flag, because you don’t know if 

somebody’s [] going to come out of the house on top of you-all or what the deal 

is, or if they called people.”9 Thus, he explained, his “initial intention[] when 

[he] got to the scene was . . . to go assist Cisco and take [Tucker] into custody.” 

Id.10

Furthermore, along with capturing the slight movement of Tucker’s arm, 

as Cisco and McIntire attempted to handcuff him, the police videos show 

Tucker to be at least a few inches taller than Cisco and several inches taller 

than McIntire.11 The video footage also reflects Tucker’s extreme and 

increasing anger and agitation—both verbal and physical—as he approached 

and then stood in front of Cisco’s vehicle, throughout the time that Cisco 

worked at patting down his baggy, sagging clothes, and, notably, at the point 

of McIntire’s arrival on the scene. Importantly, though Tucker’s hands always 

remained visible, and did not reach back toward Cisco, they never were still, 

and certainly may be described as “flailing about” in an erratic, unpredictable

as a reasonable officer would perceive them, though a jury might find plaintiff was not 

actually resisting arrest, the court, in the summary judgment context, must “first constr[ue] 

disputed historical facts in favor of the non-movant, [and] . . . then ask how a reasonable 

officer would have perceived those historical facts”). 

9 Notably, the police offense report narrative completed by Johnson states that, by the 

time that Defendant Officers had contained Tucker, a “crowd [was] starting to form.” 

10 Cisco testified to similar intentions. That is, he explained, McIntire, having worked 

with Cisco “long enough,” would have known that Cisco, as soon as another officer arrived on 

the scene, would “place [Tucker] in handcuffs, especially with the way that [Tucker] was 

acting.”

11 The police offense report completed by Cisco declares Tucker’s height to be 6’4” and 

his weight to be 165 pounds. Tucker’s emergency room record identifies 6’3” as his height and 

170 pounds as his weight.

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manner. Indeed, as McIntire approached Cisco and Tucker, the video

undisputedly shows Tucker expressing his anger and frustration by repeatedly 

banging his fist on the vehicle, waving his pointed finger in the air, and 

vigorously clapping his hands several times in a manner surely sufficient to 

trigger some reasonable concerns about safety and Tucker’s mindset. This is 

particularly true when coupled with Defendant Officers’ assertion that Tucker 

smelled of marijuana, and Tucker’s loud, nonstop verbal tirade reflecting 

anger, frustration, and perceived racism, interspersed with cursing, and 

repeated, increasingly strident, complaints of being “tired of this shit.” 

Added to this, when McIntire started pulling Tucker’s left arm back to 

place him in handcuffs, Tucker (seeing McIntire to his left, and Johnson 

approaching on his right) already visibly overwrought, suddenly became even 

more upset, yelling: “What y’all, what y’all, what y’all fucking with me for?”12

Immediately thereafter, both McIntire and Cisco report feeling Tucker 

“tensing up” and the aforementioned “slight arm movement.” McIntire also

testified that, at that point, he felt like he was losing his grip on Tucker. Thus,

“due to [Tucker]’s height and agitated demeanor and everything,” McIntire 

reportedly thought the officers could “control this situation better on the 

ground” but had “[n]o intentions of getting physical.” Rather, he thought: 

“We’re just going to put him on the ground. That way, we [can] get some 

leverage on him and put him in cuffs since he’s already trying to pull away.”

Faced with this scenario, viewed in its entirety, an officer in McIntire’s 

position, having just arrived on the scene, could reasonably question whether 

Tucker might attempt to break away, fight being handcuffed, or even attempt 

to grab one of the officer’s weapons. At a minimum, he could reasonably 

12 See McIntire Video at 23:36:58.

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question whether Cisco had sufficient control over the scene or instead 

required immediate officer assistance. And, while consultation amongst the 

officers and Tucker might have quelled such concerns, hesitation for that 

purpose, absent an ability to predict the future with certainty, likewise could

well have operated to the officers’ detriment. This is evident, notwithstanding 

the district court’s inference that a reasonable officer, in Defendant Officers’ 

position, would have believed that Tucker was unarmed after Cisco removed 

the pocketknife from Tucker’s pocket. See, e.g., Renfroe v. Parker, 974 F.3d 594, 

600 (5th Cir. 2020) (recognizing an individual need not be armed for police 

officer to believe that he is in danger of serious physical harm and that an 

officer’s duty to warn a suspect before using force depends on time availability). 

Given these uncertainties, and Tucker’s superior height, particularly 

relative to McIntire, who apparently precipitated the officers’ efforts to get 

Tucker to the ground,13 we are convinced that the district court erred in its 

qualified immunity assessment of the “takedown” aspect of Tucker’s claim.14

Specifically, we are not convinced that applicable jurisprudence provided fair 

warning to Cisco and McIntire, as of November 30, 2016, that pulling Tucker 

to the ground under the circumstances and in the manner that occurred here 

13 Tucker testified that Cisco “was doing nothing but holding my right arm” when “the 

other officer . . . grabbed my left arm and yanked me down while it was behind my back.” 

Additionally, when asked how he was taken to the ground, he responded that he was “pulled.”

14 Although Officers Cisco, McIntire, and Johnson outnumbered Tucker by a ratio of 

3:1 at the time of the takedown, the police vehicle videos show Johnson lagging behind 

McIntire in approaching Cisco and Tucker. Furthermore, McIntire testified that he did not 

see Johnson approach and was unaware of Johnson’s actual whereabouts. That is, McIntire 

did not know whether Johnson had followed him from the police vehicle or instead had 

approached Tucker’s car, parked in the house’s driveway, wherein the passenger remained. 

McIntire’s focus reportedly was concentrated on Tucker and Cisco—“where the immediate 

possibility of a threat could be.” And, while Cisco knew that Johnson was “on the scene,” and 

thought that Johnson was “behind [McIntire],” Cisco likewise was “not sure” of Johnson’s 

exact proximity. 

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would necessarily violate his Fourth Amendment rights against unreasonable 

seizure.15

Rather, even construed in Tucker’s favor for summary judgment 

purposes, the foregoing facts and circumstances, when viewed in their entirety,

created a scenario sufficiently “tense, uncertain, and rapidly evolving” to place 

the officers’ takedown of Tucker, even if mistaken, within the protected “hazy 

border between excessive and acceptable force,” established by then-existing 

Fourth Amendment excessive force jurisprudence. Consequently, it is 

immaterial whether, as the dissent urges, the video footage “does not blatantly 

contradict” Tucker’s assertion that, immediately prior to the takedown, he was 

putting his hands behind his back in compliance with Cisco’s orders and did 

not pull away prior to being taken to the ground. Accordingly, we find the 

district court erred in not granting summary judgment in favor of Defendant 

Officers, on grounds of qualified immunity, relative to the takedown. 

B. Force On the Ground

Turning to Defendant Officers’ use of force against Tucker while he was 

on the ground, the district court concluded, in pertinent part:16

Once on the ground, Defendant Officers each punched 

Tucker at least once, and McIntire kicked him at least three times.

As discussed above, the reasonableness of the officers' use of 

repeated strikes and kicks must be measured in light of the 

Graham factors. The misdemeanor and traffic violations of which 

he was suspected did not of themselves warrant a particularly high 

degree of force. [As reflected in the video recording taken from 

McIntire’s police vehicle], [once Tucker] landed on the ground, four 

15 See, e.g., Carroll v. Ellington, 800 F.3d 154, 175 (5th Cir. 2015) (noting that “a police 

officer who is standing over a suspect who is on the ground has a ‘position of advantage over 

that subject,’ meaning the officer ‘can control [the subject’s] body movement,’ and that ‘the 

subject will offer less resistance’”).

16 See February 27, 2019 Mem. Ruling at 21–24. (Emphasis added.).

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officers surrounded him and were able to handcuff him in less than 

a minute;[17] the fact that there were four officers and that Tucker 

was on the ground where he had less room to maneuver suggests 

a reduced threat to officer safety. On the other hand, Defendant 

Officers have testified that Tucker was pulling his arms from their 

grasp and failing to put them behind his back, facts that Tucker 

has not disputed.

Although the Court infers for summary judgment purposes that a 

reasonable officer with the knowledge of Cisco, McIntire, and 

Johnson would not have believed that Tucker was armed, [Officer]

Kolb did not witness the patdown and so could reasonably have 

believed that Tucker was armed. While Tucker was not attempting 

to flee, he was kicking his legs while on the ground and was not 

laying still in order to allow himself to be handcuffed. As discussed 

above, the Court infers for summary judgment purposes that he 

was not intentionally kicking at the officers. Nevertheless, these 

kicks were a form of physical resistance. On these facts, Defendant 

Officers were entitled to use heightened force in order to gain 

control of Tucker's hands and place him in handcuffs. See Mathews 

v. Davidson, 674 F. App’x 394, 396 (5th Cir. 2017) (per curiam); 

Carroll v. Ellington, 800 F.3d 154, 176 (5th Cir. 2015).

The question then becomes whether the particular force 

used was reasonable in light of the heightened force that 

Defendant Officers could lawfully use at this point. Deville, 562 

F.3d at 167 (quoting [Gomez v. Chandler, 163 F.3d 921, 923 (5th 

Cir. 1999)]). Distraction strikes and even kicks designed to gain 

compliance to being handcuffed are “measured or ascending”

responses to an actively resisting suspect. [Poole v. City of 

Shreveport, 691 F.3d 624, 629 (5th Cir. 2012) (quoting Galvan v. 

City of Antonio, 435 F. App'x 309, 311 (5th Cir. 2010)]; Carroll, 800 

F.3d at 176. While on the ground, Tucker was struggling.[18]

17 See McIntire Video at 23:37:01-:58.

18 See Cisco Video at 23:37:10–26; McIntire Video at 23:37:10, 23:37:22; and Kolb 

Video at 23:37:05–07.

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Defendant Officers struck Tucker repeatedly but without using []

all their strength. And so, their resort to controlled strikes in order 

to cause Tucker to cease moving about and submit to being 

handcuffed would not necessarily violate the Fourth Amendment.

A difficulty arises here because a use of force that may begin 

as reasonably necessary in order to obtain compliance may cease 

to be so as a suspect becomes more compliant. See Carroll, 800 

F.3d at 177 (citing Bush, 513 F.3d at 501–02; Gomez, 163 F.3d at 

922, 924–25) (“[O]nce a suspect has been handcuffed and subdued, 

and is no longer resisting, an officer’s subsequent use of force is 

excessive.”). The videos do not show most of Tucker's body. Given 

the inability to know if Tucker had stopped resisting and placed 

his hands behind his back before the blows ceased, the Court 

cannot determine as a matter of law that the sheer number of 

blows and kicks that he received was reasonable. Hence, the Court 

denies summary judgment on the issue of whether Defendant 

Officers violated Tucker's Fourth Amendment rights.

However, this claim may still be put to rest if Defendant 

Officers are entitled to qualified immunity. They are immune from 

suit unless caselaw has established, on similar facts, that their 

conduct violated the Fourth Amendment. See White, 137 S. Ct. at 

552. Tucker points the Court to Bush v. Strain in which the 

plaintiff was handcuffed and subdued at the time the defendant 

officer slammed her face into a nearby vehicle. 513 F.3d at 501. As 

Tucker was neither restrained nor subdued when Defendant 

Officers began to strike him, Bush does not clearly establish that 

Defendant Officers should have known that they could not strike 

Tucker in order to gain his compliance. However, Bush does clearly 

establish that once Tucker ceased kicking his legs and was 

handcuffed, the violent striking of him needed to stop. See id. 

Because the video does not clearly show the precise point at which

Tucker ceased moving and was finally handcuffed, this factual

uncertainty prevents the Court from concluding that all of the 

force used by Defendant Officers as Tucker lay on the ground 

complied with the clearly established principle that officers cannot 

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strike a subdued and restrained suspect. Because Defendant 

Officers are not entitled to qualified immunity for the force used 

against Tucker as he lay on the ground, summary judgment is 

denied.

Accordingly, regarding the force used against Tucker while he was on 

the ground, the district court determined that Defendant Officers were not 

entitled to qualified immunity solely for the reason that Tucker’s position was 

such that the video footage did not show whether Defendant Officers ceased 

striking him, as required by Bush v. Strain, as soon as he became still enough 

to be handcuffed. The fatal flaw in this determination, however, is that Tucker 

never alleged that Defendant Officers continued to strike or kick him after he

was subdued, i.e., no longer kicking his legs or otherwise actively resisting 

Defendant Officers’ efforts to restrain and handcuff him. Specifically, neither

the complaint, the statement of facts, nor the opposition memorandum that 

Tucker submitted in the district court clearly states that assertion.19

Additionally, when asked about such force during his deposition, Tucker 

testified that he did not recall any force being used after he was handcuffed.

In their own depositions, Defendant Officers denied using such force. Thus, the

factual uncertainty regarding the use of force on the ground that was identified

as an obstacle to qualified immunity by the district court actually is immaterial 

to the claims asserted in this proceeding as Tucker never asserted a claim 

involving use of force after he was subdued.20

19 Tucker’s attempts, on appeal, to fill this void at oral argument and in the appellee 

brief that he filed following the court’s appointment of appellate counsel must be rejected as 

too little, too late. To support the substance of this contention, Tucker’s only record citations 

are to the district court’s opinion and a single inconclusive paragraph of the complaint that 

was not referenced (much less clarified) until the November 19, 2020 oral argument before 

this court. 

20 The available video and audio footage, though alone not determinative, does not 

suggest the opposite to be true. The videos appear to reflect all Defendant Officers, except 

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Focusing instead on the amount of force that Defendant Officers used on 

the ground in order to subdue and restrain Tucker, who undisputedly struggled 

against the officers,21 the district court concluded that Defendant Officers’ 

resort to multiple controlled strikes, i.e., strikes without using all of the 

officers’ strength and limited wind-up, would not necessarily violate the Fourth 

Amendment. And referencing Bush v. Strain, the district court concluded: “As 

Tucker was neither restrained nor subdued when Defendant Officers began to 

strike him, Bush does not clearly establish that Defendant Officers should have 

known that they could not strike Tucker in order to gain his compliance.”

Considering the record before us, as summarized by the district court, supra, 

Cisco, suddenly stilling and then, as soon as Cisco is able to handcuff Tucker, standing and 

moving away. See McIntire Video at 23:37:44-59. Similarly, during the time that Defendant 

Officers are seen struggling with Tucker on the ground, the officers and Tucker’s female 

companion repeatedly yell to Tucker: “Put your hands behind your back” and “Stop resisting.” 

See McIntire/Kolb Video, 23:37:00–01; McIntire Video, 23:37:13–23 and 23:37:30–52. 

Notably, these verbal directives cease less than 20 seconds before Officers Kolb and McIntire 

stand and move away from Tucker and less than 40 seconds before Tucker, now handcuffed, 

and Cisco rise and walk toward Cisco’s police vehicle. See McIntire/Kolb Video, 23:37:37–40;

McIntire Video, 23:37:57–59; and McIntire/Kolb Video, 23:38:00–04. The return of Tucker’s 

voice to its normal state (as opposed to muffled) likewise coincides with the apparent 

cessation of the fracas and footage reflecting Kolb rising to a standing position—no longer 

touching Tucker. See McIntire Video, 23:37:57–58.

21 See Cisco Video at 23:37:10-26; McIntire Video at 23:37:1; 23:37:22; Kolb Video at 23:37:05-

07))]. To the extent that Tucker denied he was resisting before the district court, he did so 

only in blanket terms (claiming not to have resisted at all) or specifically in reference to the 

moments leading up to the takedown. As an example of the former, in his statement of 

material disputed facts to the district court he claimed he “did not resist arrest at any time.” 

As to the latter, in his Opposition, for example, he consistently framed his alleged compliance 

in terms of the moments before “McIntire approached and immediately grabbed him and 

threw him to the ground.” Compliance prior to the takedown is discussed at length in Section 

IV.A, so we need not retread that ground here. In any event, video evidence clearly shows 

resistance on the ground, as well as arm movements that could reasonably cause officers to 

believe Tucker was resisting while standing. Thus, the allegation that Tucker was compliant 

at all times, is “blatantly contradicted by the record,” such that Tucker’s allegations to the 

contrary constitute the “visible fiction” on which the Supreme Court has counselled against 

“rel[ying].” Scott, 550 U.S. at 380–81.

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we agree.22 Given this determination, we additionally find that the district 

court erred in not granting summary judgment in Defendant Officers’ favor, on 

qualified immunity grounds, relative to the force used against Tucker while he 

was “on the ground.” 

Most important to this conclusion is Tucker’s failure to dispute the 

Defendant Officer’s testimony that Tucker was pulling his arms from their 

grasp and failing to put them behind his back.23 On this point, McIntire

testified that Tucker had freed his arms from the officers’ grasps and, whilst 

on the ground, had them underneath his body, not giving his hands to the 

officers for cuffing. Then, Tucker had “rolled halfway over, still not giving his 

hands.” The narratives completed by the officers report the same. And, though

not attempting to flee, Tucker was kicking his legs and not lying still in order 

to allow himself to be handcuffed. Even if Tucker was not intentionally kicking 

at the officers, the kicks, on the instant record, were reasonably perceived by 

22 Construing factual uncertainties in Tucker’s favor, the district court characterized 

McIntire’s leg movements, reflected in the video, as “three kicks.” Although the notion of law 

enforcement officers kicking arrestees is unsettling, Tucker has not presented authority 

establishing a complete prohibition of such conduct. Furthermore, in the context of a scenario 

such as that presented here, combining numerous persons and their quickly moving and 

shifting limbs in a relatively small area, it is not inconceivable that officers sometimes 

reasonably resort to strikes accomplished by foot or knee, as was done here. Indeed, McIntire 

explained that, at one point, with the “weird” positioning, and Kolb’s addition to the group, 

McIntire was kind of “wedge[d] out” and “unable to put his hands on Tucker.” In any event, 

the video does not show, and Tucker has not asserted, that McIntire’s kicks were conducted 

in a manner to deliver the maximum power possible. Furthermore, as the district court 

reasoned, the relatively mild nature of Tucker's injuries prevents a reasonable inference that 

he was struck with the maximum amount of force that Defendant Officers could employ. 

Thus, in this context, we are comfortable granting summary judgment on the basis of 

qualified immunity with respect to the strikes delivered by Defendant Officers’ hands and

feet. 

23 Although Tucker has not specifically denied this conduct, the only movement to 

which he admits is jerking his head “from side to side,” when the officers were “like trying to 

push[his] face to the ground” so that his faced would not hit the concrete a second time, noting 

that he “used to model” and “so [he] care[s] about [him]self.” 

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Defendant Officers to be a form of physical resistance.24 On these facts, given 

Tucker’s refusal to comply with their verbal directives to put his hands behind 

his back and quit moving, it would not have been evident to Defendant Officers, 

based on clearly established law, that they were not entitled to use heightened 

force in order to gain control of Tucker's hands and place him in handcuffs.

Poole, 691 F.3d at 632 (use of force was reasonable when it involved “measured 

and ascending responses” to an actively resisting suspect). At a minimum, 

officers of reasonable competence could disagree as to whether Tucker’s rights 

were violated. 

Arguing against qualified immunity, Tucker emphasizes that he was 

outnumbered, there being four officers to him alone, and that he was on the 

ground where he had less room to maneuver, thereby suggesting a reduced 

threat to officer safety. There is logic to this assertion. Nevertheless, even 

accepting—as we must in this interlocutory appeal—the district court’s 

inference that a reasonable officer with the knowledge of Cisco, McIntire, and 

Johnson would not have believed that Tucker was armed, Kolb did not witness 

the patdown and thus could have reasonably believed that Tucker might be 

armed. Additionally, upon arriving, Kolb encountered a melee consisting of 

three fellow officers unsuccessfully trying to control a single civilian, who Kolb 

knew had purposely driven well into this residential area, rather than 

promptly pulling over in response to Cisco’s signal. Under these circumstances, 

Kolb understandably simply sought to immediately assist, rather than seeking 

a status update from the other officers, or considering and suggesting an 

alternative means of handling the situation. And the record undisputedly 

24 On this point, Cisco testified that Tucker was kicking his feet, which Cisco thought 

to be intended to create separation from the officers. He explained: “He was laying on the 

ground, kicking his feet kind of like he was on a bicycle. He’s going [] straight back, straight 

forward, like you pedal a bicycle. . . . I believe he was trying to create separation from officers.” 

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reflects that it was only with Kolb’s assistance that the officers were able to 

gain control of Tucker’s arms such that he could be placed in handcuffs. 

According to Kolb, “it took everything to get that one arm” so “my entire focus 

was [on] that.” When asked how Tucker was able to hold his arm away from 

Kolb, “a pretty big guy,” Kolb explained: “He kept pulling his arms into the 

center of his body. And I don’t care how strong you are, if someone resists that 

violently, I can be 6’7”, 280 [pounds], and it’s not easy.”

In hindsight, knowing as we do that Tucker was unarmed, was not in 

possession of drugs or other contraband, and was pulled over for a non-violent 

traffic offense, it is regrettable that Tucker suffered any injury or indignity at 

the hands of law enforcement officers, no matter how slight or temporary. And, 

of course, one might logically wonder if injury could have been avoided, or at 

least lessened, if one of the five persons involved had reacted differently. In 

one respect, the answer certainly is “yes”; that is, Tucker could have obeyed 

and pulled over when Cisco signaled; or he could have quieted, stilled, and put 

his hands behind his back when ultimately stopped. Otherwise, in these 

scenarios, unlike in boxing, there unfortunately is no referee to ring a bell 

requiring everyone to “return to their corners” for time out to rest, re-evaluate, 

and reconsider strategies.

Even so, one might argue that, at some point in the maelstrom,

considering that Tucker was on the ground and surrounded by three, and then 

with Kolb’s arrival, four officers, including one of substantially superior height 

and brawn (Kolb), one of the officers could, or should, have called for a pause—

that is, for the officers to cease any efforts to physically restrain Tucker—in 

order to give Tucker an opportunity, void of confusion and in a moment of calm, 

to make the logical decision to simply cooperate in Cisco’s efforts to handcuff 

him, despite believing handcuffs to be unwarranted. We need not and do not 

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decide that question today, especially on the instant record, reflecting that the 

entirety of the struggle lasted less than one minute. And, importantly, for its 

duration, the situation was replete with rapid movement, confusion, and the 

(apparently ignored) repeated directives, both by Defendant Officers and 

Tucker’s onlooking girlfriend, for Tucker to: “Put your hands behind your back! 

Stop moving! Stop resisting! Quit moving! Quit resisting!” 

In any event, clearly established law, as of November 30, 2016, certainly 

did not impose such a requirement. Nor, on the instant facts, viewed from the 

perspective of the officers, as the events occurred, not from hindsight, is this 

situation one in which it should have been obvious to Defendant Officers, even 

in the absence of pre-existing, factually similar case law, that the force being

utilized was excessive.

V.

For the reasons stated herein, we find that the district court erred in 

concluding that factual issues preclude application of qualified immunity 

relative to Tucker’s claims against Defendant Officers’ in their individual 

capacities. Accordingly, we REVERSE and REMAND that aspect of the 

district court’s February 27, 2019 ruling for entry of summary judgment in 

favor of Defendant Officers. 

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STEPHEN A. HIGGINSON, Circuit Judge, dissenting:

The district court, in an extensively detailed order, determined that 

issues of fact precluded summary judgment based on qualified immunity for 

the Defendant Officers. I agree with the district court that fact issues remain 

as to whether Tucker, a motorist whose brake light was out, actively resisted 

arrest to justify a sudden, violent takedown and repeated physical blows and 

open kicks while prone and unarmed and surrounded by officers. See 

Trammell v. Fruge, 868 F.3d 332 (5th Cir. 2017); see also Wright v. City of 

Euclid, 962 F.3d 852 (6th Cir. 2020). I would affirm the district court. 

Video footage of the incident confirms the violent takedown and 

Defendant Officers’ use of repeated strikes and kicks against Tucker while he 

was on the ground. Tucker asserts that, immediately prior to the takedown, 

he was putting his hands behind his back in compliance with Officer Cisco’s 

order and did not pull away from Officers Cisco and McIntire prior to being 

taken to the ground. The footage does not “blatantly contradict” his account. 

See Darden v. City of Fort Worth, 880 F.3d 722, 729 (5th Cir. 2018); see also 

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

The law is clearly established that the use of violent physical force 

against—not to mention the extreme violence of kicking—an arrestee who is 

not actively resisting arrest is a constitutional violation. Darden, 880 F.3d at 

731. It may be that the Defendant Officers will nonetheless prove entitled to 

qualified immunity for the extreme force they used against Tucker from start 

to finish. But, as the district court found, a jury must first resolve the factual 

uncertainty as to whether Defendant Officers had justification and urgency to 

throw Tucker down and repeatedly strike and kick him. See Joseph v. Bartlett, 

981 F.3d 319, 342 (5th Cir. 2020); Goode v. Baggett, 811 F. App’x 227, 232 (5th 

Cir. 2020); see also Wright, 962 F.3d at 868 (whether motorist’s “arm 

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movement” was active resistance as opposed to passive presents a 

quintessential jury question, indeed, noting that such movement could be 

deemed “minimal to the extent that it constituted resistance at all”).

I regret not having persuaded the majority. I hope, however, our 

disagreement highlights the importance of recent attention given to the issue 

of qualified immunity and violent police-citizen encounters. See Cole v. Carson, 

935 F.3d 444 (5th Cir. 2019) (en banc); id. at 470 (Willett, J., dissenting); id. at 

473 (Ho & Oldham, JJ., dissenting); see also Jamison v. McClendon, 476 F. 

Supp. 3d 386, 423 (S.D. Miss. 2020) (exhortation to revisit doctrine of qualified 

immunity). From my perspective, it is not our role to second guess a district 

court’s assessment of factual disputes, here pretermitting resolution of 

uncertainties about excessive force, specifically why police inflicted such 

abrupt and steadily escalating violence against this motorist whose brake light 

was out. 

When there is no dispute about the reasonableness of the use of force, for 

example when an arrestee flees or is an aggressor, the doctrine of qualified 

immunity will shield defendant officers. But here, I agree with the district 

court that qualified immunity is not yet an available tool to resolve this factladen, extended, and brutal police-citizen encounter. See generally Graham v. 

Connor, 490 U.S. 386, 396 (1989). Instead, careful resolution properly comes, 

and constitutionally must come, from citizen peer jurors. Their fair 

assessment is vital as much for fellow citizens like Tucker and public trust, as 

it is for the police who respond to situational threats with professional 

restraint and seek to be distinguished from the few who do not, whose 

misconduct is maliciously unrestrained. One acting under color of law who 

throws a fellow citizen to the ground and then, when the other is prone, 

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surrounded, and unarmed, repeatedly strikes and kicks him, surely gives rise 

to a material question of fact as to whether that government force is excessive.

Case: 19-30247 Document: 00515866203 Page: 31 Date Filed: 05/18/2021