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

No. 11-41029

JOHN MICHAEL HOGAN, Plaintiff–Appellee,
v. ROBERT CUNNINGHAM; CHRIS POTTER, Defendants–Appellants.

A ppeal from the United States District Court for the Southern District of Texas

Before JOLLY, OWEN, and SOUTHWICK, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge: Officers Robert Cunningham and Chris Potter (the Officers) appeal the district court’s d enial of their motion f or summary judgment on John Hogan’s 42 U.S.C. § 1983 claims of unlawful arrest and e xcessive force and his s tate-law assault and battery claims. W e reverse the district c o urt’s d e n i a l o f summary judgment on Hogan’s excessive-force claim because the Officers are entitled to q u a l i f ied i mmunity, but we affirm the district court’s denial of summ a r y judgment on Hogan’s u n lawful-arrest claim. We lack jurisdiction to consider the Officers’ interlocutory appeal of the d i strict court’s denial of summary judgment on Hogan’s state-law assault and battery claims. 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 J uly 12, 2013 Ly l e W . Cay ce Clerk Case: 11-41029 Document: 00512305516 Page: 1 Date Filed: 07/12/2013No. 11-41029 I The Officers are members o f t h e Corpus C hristi Police Department. According to Officer Cunningham, on t he night of the inci d e n t , he was dispatched in connection with a child-custody matter. He indicated t hat he was instructed to meet Ho g a n ’ s ex-wife at a convenience store, a nd by the time he arrived, Officer Potter was already speaking to Hogan’s ex-wife and examining some paperwork. Officer Cunningham explained: Offi c e r P otter walked to my unit and let me know where we were going to, and explained to me that [Hogan’s ex-wife] h ad court paperwork, child custody paperwork t hat a ppeared to b e in order for what we looked for, and that we were going to go ahead and follow her over to [Hogan’s] apartment. The Hogan divorce decree included a standard possession o rder, which entitled Hogan’s ex- w i fe to possession of their minor son at that time. According to Officer Cunningham, he and Officer Potter were going t o “ t r y and resolve the issue of the child custody.” Officer C unningham indicated that, after arriving at Hogan’s apartment, he did not receive an answ e r t o h i s initial k nocks on H ogan’s door, but eventually the d oor w as opened by Hogan’s roommate, K evin Loudin. When the door opened, Officer Cunningham placed his f oot i n t h e doorway so as to get a better view of the inside o f the apartment. After Lou d i n informed Officer Cunningham that he wa s n o t H ogan, Officer Cunningham asked him to wake Hogan, and Loudin agreed. Loudin attempted to close the a partment door as he left to summon H ogan, but he was prevented fro m d o i n g s o because Officer Cunningham had h i s foot in the doorway. Hogan eventually came to the door and identified himself. The parties presented different versions of what happened next. According to Officer Cunningham, when Hogan a pproached the door, he explained to H ogan that he and Officer Potter “were there in reference to his

2 Case: 11-41029 Document: 00512305516 Page: 2 Date Filed: 07/12/2013No. 11-41029

son,” and in response, Hogan t old him that his son was in the apartment. Officer Cunningham said that he then e xplained that Hogan’s ex-wife was with them and wanted to enforce the custody arrangement contained in t h e divorce decree. Officer Cunningham asserted that as soon a s he explained to H ogan that he and Officer Potter were there to retrieve Hogan’s son, “the door was f orcefully trying to be closed.” O f

ficer Cunningham asserted that the door first h i t h im in the leg. He explained that once the d oor hit him in the l eg, “I put m y hands up to try and stop the door, and at that point a—just a sudden burst of force p u shed me back with the door, and at that point the door hit me in the forehead.” The Officers subsequently entered H ogan’s apartment and a r r e s t e d him for assault on a peace officer. A ccording to the district court, Officer Potter’s version of the events comported w ith that of Officer Cunningham. Officer Potter alleged that “Mr. Hogan grabbed the door a n d a t t e m p ted to s lam i t shut on us. While slammin g t h e d oor Mr. Hogan hit Officer Cunningham in t h e head with the door.” According t o Hogan, w hen he approached the door, he told the Officers that they coul d n o t c o m e i nside the apartment. He could not remember if the Officers said a n y t h i n g to him, but he indicated that he attempted to close the door. At h is deposition, Hogan was asked whether the door hit o n e o f t he Officers. He stated, “I don’t remember because I got tackled immediately as soon
as I tried t o c l o s e i t

. ” When asked if it was possible, he said, “I don’t know.” Based o n the conflicting evidence, the district court determined that t h ere was “a genuine issue of material fact as to whether [Hoga n ] d i d in fact hit Officer Cunningham with the door.” What happened insi d e t h e a partment was also d i sputed. Officer Cunningham asserted t h a t h e attempted to p erform a “controlled t ake-down.” After the d oor hit him, h e “pushed the door back to g et it open to attempt to arrest Mr. Hogan.” Officer C unningham asserted t h at Hogan “started stepping

3 Case: 11-41029 Document: 00512305516 Page: 3 Date Filed: 07/12/2013No. 11-41029

backwards into his apartment” and that he instructe d Hogan “to turn around, put his h a n d s behind his back because he w as being p laced under arrest.” According to Officer C unningham, Hogan rejected h is instructions, which eventually prompted Officer C unningham to attempt t he controlled take-down. Officer Cunningham stated: While I wa s trying—while Mr. Hogan was in the process of losing his balance and going down to t he floor, he grabbed on to my arms as well, and that caused me to lose m y b a l a n ce and I f ell o n t h e ground with Mr. Hogan as he went down. Hogan claimed that “as soon as [ he] attempted to close the d o or [h e ] got tackled.” Hogan related that two officers tackled him, causing him to f all on his back. Hogan initially said the Officers fell on t o p of him, but when asked if both fell o n him, he responded, “To the best of my knowledge. I mean, I don’t know for sure.” Hogan c ould not remember how long the Officers were on top of him. Hogan suffered two broken r ibs. T he district court noted that t he parties did not contest that Hogan suffered an injury, but the court determined t hat there was “a factual dispute as to whether [the O ff i c e r s ] p urposefully tackled [ Hogan] or De f e ndant Cunningham accidentally f ell on [ Hogan] while attempting a controlled take-down.” Hogan filed suit against the Officers, bringing 42 U.S.C. § 1983 claims of excessive f

orce, unlawful arrest, and malicious p rosecution as well as Texas state-law claims of assault, battery, and malicious prosecution. H ogan also asserted claims against the C ity of Corpus Christi, but all of t hese claims were dismissed voluntarily. Eventually, the O fficers moved for summary judgment, and t h e district court granted their m otion in part a nd denied it i n part. The court denied t h e Officers’ motion with respect to H o g an’s § 1983 c laims of unlawful arre s t a n d excessive force and his state-law claims of a ssault and battery. The court granted the Officers’ motion with respect to Hogan’s § 1983

4 Case: 11-41029 Document: 00512305516 Page: 4 Date Filed: 07/12/2013No. 11-41029

and state-law malicious prosecution claims. The O fficers t h en filed n otice of the present appeal. II Ordinari l y the denial of a defendant’s m otion for summary j udgment is not appealable, but we have “limited jurisdiction to conduct an interlocutory review of a district c ourt’s o rder denying a motion for summary judgment based upon
q ualified immunity.” 1 Our jurisdiction “extends to these a ppeals onl y ‘ t o t h e extent that [the denial of summary judgment] turns on an issue of l aw.’” 2 The district court makes two d i s t i n c t determinations w hen it denies an official’s motion for summary judgment predicated upon qualified immunity: “First, the district court decides t hat a certain course of conduct would, a s a matter of law, be objectively unreasonable in light of clearly established law. Second, the court decides that a genuine issue of f a ct exists r egarding whethe r t h e d e f e ndant(s) did, i n fact, engag e i n s u c h conduct.” 3 W hile “we lack jurisdiction to review conclusions o f the second type on interlocutory a ppeal,

. . . [w]e d o . . . h ave jurisdiction to

. . . r e v i e w the first type of determination, the purely legal question whether a given course of conduct would be o bjectively unreasonable in light of clearly established law.” 4 “In o ther words, ‘we can review the materiality of any factual disputes, but not their genuineness.’” 5 Because w e lack the a uthority to r eview t he district court’s decision that

a genuine factual d i spute exists, we do not apply t he ordinary summary

1 Jua rez v . A

gui l a r , 666 F. 3d 325, 331 ( 5th Cir. 2011)

.
2 Id. ( alteration in original) ( quoting Ki nney v . Wea v er , 367 F. 3d 337, 346 ( 5th Cir. 2004) ( en banc) )

.

3 Ki nney , 367 F. 3d at 346.

4 Id. at 346- 47.

5 Jua rez , 666 F. 3d at 331 ( quoting Ki nney , 367 F. 3d at 347)

. 5 Case: 11-41029 Document: 00512305516 Page: 5 Date Filed: 07/12/2013No. 11-41029

judgment standard. 6 Instead, we “consider only whether t he district court erred in assessing the legal significance of the conduct that the district court deemed sufficientl y s u p p orted for p urposes of summary judgment.” 7 “Where factual disputes exist in an interlocutory appeal a s s e r t i n g q u a l i f i e d i m munity, we accept the plaintiffs’ version o f t h e facts as true.” 8 “In reviewing the district court’s

co n c l u s i o n s c o n c e r n i n g t h e l e g a l c o n s e q u e n c e s

— t h e m a t e r i a l i t y—of t he facts, our review is of course de novo .” 9 III The Officers argue that the district court erred i n denying them qualified immunity with respect to Hoga n ’ s unlawful-arrest and excessive-force claims. “Qualified immunity shields g overnment officials from civil damages liability unless the official violated a statutory o r c onstituti o n a l right that was clearly established at the time of the challenged conduct.” 1 0 A We f i r s t a d d ress t he Officers’ claim that they are entitled to qualified immunity with respect to Hogan’s unlawful-arrest claim. “It is w e ll established that un d e r t h e F o urth Amendment a warrantless arrest must be based on probable cause.” 1 1 Additionally, “the Fourth A mendment has d r awn a firm line at the entrance to the house. Absent e xigent circumstances, that threshold m ay

6 Ki nney , 367 F. 3d at 348.

7 Id.

8 Id.

9 Id. at 349.

1 0 Rei chl e v . H

ow a rds , 132 S. Ct. 2088, 2093 ( 2012)

.
1 1 Uni ted Sta t es v . C

a stro , 166 F

. 3d 728, 733 (5th Cir. 1999) ( en banc) ( p er curiam ) ( citing Uni ted Sta tes v . Shuga rt , 117 F. 3d 838, 846 (5th Cir. 1997) )

. 6 Case: 11-41029 Document: 00512305516 Page: 6 Date Filed: 07/12/2013No. 11-41029

not reasonably be crossed w ithout a warrant.” 1 2 Wi t h o u t a w arrant, “police officers need . . . probable cause plus exigent circumstances in order to make a lawful entry into a home.” 1 3 Probable c a u s e j u s t i f

y i ng an arrest “means facts and circumstances within the officer’s k nowledge that are s ufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or i s abo u t t o c o m mit an offense.” 1 4 “The possibility that evidence will be removed or destroyed, the pursuit of a suspect, and immediate safety risks to officers and o thers are exigent circumstances that
may excuse an o therwise u nconstitutional intrusion into a residence

. ” 15 An individual may also consent to a warrantless intrusion i n to his h o me. 1 6 It is uncontested that the Officers lack e d a w arrant, and Hogan d i d not c onsent to their entry. For Hogan’s arrest inside his home t o be constitutional, there must have been probable cause and exigent circumstances. The Officers a ssert t ha t t h ey had probable cause to arrest Hogan for assault on a pub l i c s e r v a nt based upon their allegation that Hogan hit Officer Cunningham w ith the apartment door. T he district court determined that there

was “a genuine issue of material fact as to whether [Hogan] did in fact hit Officer Cunningham with the door.” As discussed above, w hen cond u c t i n g an interlocutory review of a district court’s order denying a motion for summ a ry

1 2 Pa yton v . N

ew York , 445 U

. S. 573, 590 ( 1980)

.
1 3 Ki rk v . Loui si ana , 536 U

. S. 635, 638 ( 2002)

.
1 4 M i chi ga n v . D eFi l l i

p po , 443 U

. S. 31, 37 (1979) ( collecting cas es ).

1 5 Uni ted Sta t es v . Jones , 239 F

. 3 d 7 1 6 , 720 ( 5th Cir. 2001) ( citing U ni ted Sta tes v . Ri cha rd , 994 F

. 2d 244, 248 ( 5th Cir. 1993) )

.

1 6 See i d. at 719 (“A w arrantles s intrus ion into an ind ivid ual’s hom e is pres um p tively unreas onable unles s the pers on cons ents or probable caus e and exigent circum stances jus tif y the encroachm ent. ” ( collecting cas es ) )

. 7 Case: 11-41029 Document: 00512305516 Page: 7 Date Filed: 07/12/2013No. 11-41029

judgment based on qualified immuni t y , o u r jurisdiction is limited. While we may review the materiality of any factual disputes, we may n ot review the district court’s determination that a factual dispute is genuine. We must view the facts in Hogan’s favor, and according to Hogan’s v ersion of the events, he did not hit Officer Cunni n g h a m w i t h the door. Assuming that fact to be t rue, the Officers would not have had probable cause to a rrest Hogan f or assault upon a public servant. 1 7 Nevertheless, the probable cause requirement i s satisfied in this case because the Officers had probable cause to believe that Hogan was c ommitting the felony offense of interference with child custody. Section 25.03 o f the Texas Penal Code provides that “[a] person commits an offense if the person takes or retains a child younger than 1 8 years of a ge when the person . . . knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, o f a court disposing of the child’s custody.” 1 8 Hogan does not contest that, prior t o proceeding to his apartment, the Officers learned from his ex-wife that s he had a divorce decree entitling her to possession of their minor s on at t h at t ime. D espite H o g a n ’ s and the district court’s reliance on Hogan’s contention that h e took possession of his son at the direction o f t h e Portland, Texas Police Department, there is no evidence that t he O fficers knew this a t the time Hogan w as a rrested. Although the district court said there was “a factual dispute as to w h e ther [Hog a n ] k new that he was in violation of the custody order or w hether he believed that he was excused fro m i t s terms,” Hogan’s knowledge is immaterial t o t he question of whether the Officers had probable cause; what i s important to t h a t q u e stion is the O f ficers’ knowledge, not Hogan’s. Based on the divorce decree and Hogan’s refusal to turn over his son

1 7 See T E X

. P E N

A L C O DE A N N

. § 22. 01( b) ( 1) ( Wes t 2011)

.
1 8 Id

. § 25. 03. 8 Case: 11-41029 Document: 00512305516 Page: 8 Date Filed: 07/12/2013No. 11-41029

to his ex-wife, the Officers had p r o b a b l e cause to b elieve that Hogan was in violation of section 25.03. Although the Officers had probable cause to believe t hat H o gan was in violation of section 25.03 o f the Texas Penal C ode, their warrantless entry into Hogan’s apartment was unconstitutional because, when t he facts a re viewed in Hogan’s favor, there were n o exigent circumstances. In arguing that there were exigent circumstances, the Officers rely s olely u pon the a lleged exigency created by H ogan striking Officer Cunningham with t he apartment door. But, as we reiterate once again, we lack jurisdiction to review the district court’s determination that t here was a genuine factual dispute as to whether Hogan hit Officer C unningham with the apartment door. According to Hogan, he did not, and therefore n o exigency justifying the Officers’ warrantless entry can be based upon Hogan striking Officer Cunningham with the door. We also conclude that no other exigent ci r c u m s t a n c e s j u s t i f i e d t h e Officers’

war r antless entry i nto the home to arrest Hogan. No evidence of Hogan’s interference with child custody was likely to be removed o r destroyed, and there

was nothing indicating a n i m m e d i a t e s a f e t y r i sk that would justify a warrantless entry. The district court stated t hat t h e O f f icers “did not

. . . have any knowledge or cause to believe that [ Hogan] ever used any violence against his

son or possessed any weapons,” and the Officers concede that this determination is correct. Standing alone, t h e f a ct that the Officers were sent to Hogan’s apartment to deal with a child-custody matter cannot create the exigency that would make the Officers’ warrantless entry constitutionally p e rmissible. Here, when viewing the facts in Hogan’s favor, nothing the Officers knew or observed indicated a potential s a fety threat. Furt h e r m ore, the Officers cannot justify their warrantless entry based upon their hot pursuit of Hogan for the offense of interference with c hild custody. Hogan did not retreat into his apartment from

a public place. H e w as fully i nside his apartment at a ll times, a nd his apartment
9 Case: 11-41029 Document: 00512305516 Page: 9 Date Filed: 07/12/2013No. 11-41029

was only opened after t he O fficers had knocked. 1 9 Viewing the facts in Hogan’s favor, t he Officers’ entry i nto Hogan’s apartment to effectuate his arrest violated the Fourth Amendment, in light of the lack of exigent circumstances. T h e s e c o n d i n q u i r y i s w h e t h e r e v e r y r e a s o n a b l e o f f icial wo u l d h a v e understood that what he was doing violated the Fourth A mendment. 2 0 “[E]xisting p recedent must have placed the

. . . constitutional question beyond debate.” 2 1 At the time of the Officers’ conduct, the Supreme Court and this court had made it abun d a n t l y clear that either a warrant or probable cause and exigent circumstances is r e q u i r e d to arrest an individual in his home. The Officers are n o t entitled to qualified immunity and summary judgment on Hogan’s unlawful-arrest claim, assuming, as we m ust, that Hogan’s version of the events is accurate. B We next consider H ogan’s excessive-force claim

. E v e n if the Officers unlawfully arrested Hogan, t hat alone d o e s n ot mean that the force used to effectuate the arrest w as excessive. 2 2 Ultimately, we conclude that the Officers are entitled to qualified immunity and summary judgment on this claim. The first prong of qualified immunity is w h e ther a d efendant’s conduct violated a constitutional right. 2 3 To state a violation of the Fourth Amendment

1 9 See Uni ted S ta tes v . Sa n t a n a , 427 U

. S. 38, 40 & n. 1, 42- 43 ( 1976) ( conclud ing that Santana w as i n a “p ublic place” w hen the of f icers arrived at her res id ence becaus e s he w as “s tand ing d irectly in the d oorw ay— one s t e p f o r w a rd w ould have p ut her outs id e, one s tep back w ard w ould have p ut her in the ves tibule of her res id ence, ” and hold ing that s he could not “thw art an otherw is e p rop er arres t” by “retreating into her hous e”)

.

2 0 See Rei chl e v . H

ow a rds , 132 S. Ct. 2088, 2093 ( 2012)

.
2 1 Id

. ( quoting A shcrof t v . a l

- Ki dd , 131 S. Ct. 2074, 2083 ( 2 0 1 1) ) ( internal quotation
m ark s om itted )

.

2 2 Freem a n v . Gore , 483 F. 3d 404, 417 ( 5th Cir. 2007)

.
2 3 See , e . g
. , Pea rson v . Ca l l a ha n , 555 U

. S. 223, 232 (2009)

. 10 Case: 11-41029 Document: 00512305516 Page: 10 Date Filed: 07/12/2013No. 11-41029

prohibition on excessive force, a plaintiff must a llege “(1) a n i n j u r y that (2) resulted directly and only from the use of f orce that was excessive t o the need, and that (3) t he f

orce used was objectively unreasonable.” 2 4 T h e o b j e c tive reasonab l e n e s s o f the force depends on the facts and circumstances of the particular case—the n e e d f o r f o r c e d e t e r m i n e s h o w m uch force is constitutionally permissible. 2 5 The court should consider “the severity o f the crime at issue,

w h ether the suspect poses an immediate threat to the safety of the of f i c e r s o r others, and whether he is actively r esisting arrest o r attempting to evade arrest by flight.” 2 6 The Supreme C o urt explained in G raham v. Connor 2 7 that the reasonableness of the use o f force must be judged from the perspectiv e of a reasonable officer: The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, r a ther than with the 20/ 2 0 v i s i o n of h indsight

. . . . The calculus of reasonableness must embody allowance for the fact that p o lice officers are often force d t o make split-second j udgments—in c i r c u m s t a n c e s t h a t a r e t e n s e , u n c e r t a i n , a n d r a p i d l y evolving—about the amount of force that is n e c e s s ary in a particular situation. 2 8 Only the objective reasonableness of t h e force is considered; an officer’s subjective intent is irrelevant. 2 9

2 4 Fl ores v . Ci ty of Pa l a ci os , 381 F. 3d 391, 396 ( 5t h C i r . 2004) ( citing G oodson v . Ci ty of Corp us Chri sti , 202 F. 3d 730, 740 ( 5th Cir. 2000) )

.

2 5 Ikerd v. Bl a i r , 101 F. 3d 430, 434- 35 ( 5th Cir. 1996)

.
2 6 G ra ha m v . Connor , 490 U. S. 386, 396 ( 1989) ( citing Tennessee v . G a rner , 471 U

. S. 1, 8- 9 ( 1985) )

.

2 7 490 U

. S. 386.

2 8 G ra ha m , 490 U. S. at 396- 97 ( citations om itted ).

2 9 Id

. at 397. 11 Case: 11-41029 Document: 00512305516 Page: 11 Date Filed: 07/12/2013No. 11-41029

As d iscussed earlier, Hogan’s version of events is that when he encountered the officers at the door, he advised them that they could not come into t he apartment and attempted to close the door. Hogan does n ot dispute that from the Officers’ perspective, he had violated the law by failing to return his son to his son’s mother i n a ccordance with a court o rder. Attempting to shut the door on the officers could reasonably be viewed as resisting arrest for a felony. Entry i n to the home and tackling H ogan w hile he remained in sight was an amount of force calculated to effectuate an arrest of a person who was actively resisting arrest. The of ficers could reasonably have feared that H ogan might retreat into his apartment a fter shutting the d oor to arm himself or to obtain a weapon and then secrete himself in the apartment while the Officers searched for him. A reasonable officer was also entitled to consider that tackling a suspect

was not necessarily likely to result in broken r i bs or s i m ilar injuries. Under these circumstances, no reasonable jury c ould conclude that the officers used excessive force to subdue Hogan. 3 0 Even if we a re mistaken, however, and t h e O f ficers employed unreasonable force, that is not t he end o f the inquiry i n a qualified immunity analysis. If th e o n l y q u e stion were whether the amount of force used was unreasonable, t hen the issue of q ualified immunity w o u l d be subsumed by whether there w as a constitutional violation. T he Supreme Court explained in Saucier v. Katz 3 1 that the qualified i mmunity analysis i n a n excessive force case involves two distinct reasonableness i nquiries. 3 2 O ne is whether the officer’s use of force was objectively reasonable in light of Fourth Amendment standards. 3 3

3 0 See H i l l v . Ca rrol l Cnty. , M i ss. , 587 F. 3d 230, 237 ( 5th Cir. 2009)

.
3 1 533 U

. S. 194 (1989)

.
3 2 Sa uci er , 533 U

. S. at 200- 02.

3 3 Id

. at 201. 12 Case: 11-41029 Document: 00512305516 Page: 12 Date Filed: 07/12/2013No. 11-41029

The other is whet h e r t he right was c learly established such that a reasonable officer would know that the p articular level of force used w as excessive. 3 4 While the right to b e free from excessive force is c learly established in a general sense, the right t o be f

ree from t he degree of force used in a given situation may not have been clear to a reasonable officer at the scene. 3 5 To say that the law was clearly established, “we must be able to point to controlling authority—or a ‘robust consensus o f persuasive authority’—that d efines the contours o f the right in question with a high degree of particularity.” 3 6 “ Although the Supreme Court has repeatedly admonished courts not to define c learly established law at a high l evel of generality, this does not m ean that ‘a case directly on point’ i s required. Rather, ‘existing precedent must have placed the statutory or constitutional question beyond debate .’” 3 7 In the end, the q uestion is wheth e r t h e r i ght is “ sufficiently clear ‘that every reasonable official would [have understood] that w hat he is doing violates that right.’” 3 8 Viewing the f

a c t s i n Hogan’s favor, he approached his apartment d oor, told the Officers that t hey c ould not come i nside, attempted to close the door, and was immediately tackled by two officers. In tackling him, the Officers caused him to fall on h is back, and they fell on top of him. As a r esult, h e suffered two broken ribs. We conclude that Hogan has not met his b u r d e n t o show t hat existing precedent at the time of his arrest placed beyond d ebate the question of whether

3 4 Id

. at 202 ( citing A nderson v . Crei g hton , 483 U

. S. 635, 640 ( 1987) )

.
3 5 Id

. at 201- 02; see al so Bush v . Stra i n , 513 F

. 3d 492, 502 (5th Cir. 2008)

.
3 6 M orga n v . Sw a nson , 659 F. 3d 359, 371- 72 ( 5th C ir. 2011) ( en banc) ( citation om itted ) ( quoting Ashcrof

t v . a l

- Ki dd , 131 S. Ct. 2074, 2084 (2011) ) ( internal quotation m ark s om itted )

.
3 7 Id. at 372 ( quoting a l

- Ki dd , 131 S. Ct. at 2083)

.
3 8 Rei chl e v. H

ow a rds , 132 S. Ct. 2088, 2093 ( 2012) ( alteration in original) ( quoting a l

Ki dd , 131 S. Ct. at 2078) ( internal quotation mark s om itted )

. 13 Case: 11-41029 Document: 00512305516 Page: 13 Date Filed: 07/12/2013No. 11-41029

the use of such force amounted to a constitutional violation because the cases on which Hogan relies are distinguishable from the circumstances of this case. 3 9 Hogan relies on Blankenhorn v . C ity of Orange 4 0 and Brown v. Long Beach Police Department 4 1 to show t hat it w a s clearly established t hat using such force is excessive. In Blankenhorn , the Ninth Circuit concluded that a rational jury could find the use of a “gang tackle” to be excessive under the circumstances, 4 2 but the circumstances here are distinguis h able. The felony offense of i n t e r ference with child custody is more severe than m isdemeanor trespass, ther e is no evidence here that Hogan was cooperative i n the past, and this case did i n v o l v e a s p l i t

- s e cond police judgment because—accepting Hogan’s v ersio n o f t h e events—Hogan started to close the door on the Officers as soon as he approached the door, and the Officers had to decide immediately how to react. This is also not a case like B rown in which “a teenage girl weighing less than 100 pounds”

was fleeing from a 300-pound officer arresting her for t r uancy. 4 3 Here, a felony offense was in v o l v e d , and the Officers confronted two a dult males inside the entryway of a home. Meredith v. Erath , 4 4 cited by the district court, also p resented d i f f e r ent circumstances. The income-tax-related crimes investigated i n t hat case were less likely to create a volatile situation than the child-custody matter i nvolved here. Similarly, the plaintiff in Meredith —who repeatedly protested the search

3 9 See Sa m a v . H

a nni g a n , 669 F. 3d 585, 591 ( 5th Cir. 2012) ( “O nce rais ed , the burd en s hif ts to the p laintif

f

. . . . ” ( citing Kov a ci c v . V i l la rrea l , 628 F. 3d 209, 211- 12 ( 5th Cir. 2010) ))

.
4 0 485 F. 3d 463 ( 9th Cir. 2007)

.
4 1 105 F. Ap p ’x 549 ( 5th Cir. 2004) ( per curiam )

.
4 2 Bl a nkenhorn , 485 F. 3d at 478.

4 3 Brow n , 105 F. Ap p ’x at 550.

4 4 342 F. 3d 1057 ( 9th Cir. 2003)

. 14 Case: 11-41029 Document: 00512305516 Page: 14 Date Filed: 07/12/2013No. 11-41029

o f h e r residence b ut only passively resisted her handcuffing—was not a safe t y risk, while here t here was arguably a greater n eed for force. The Officers were confronted with making a split-second police judgment concerning how to deal with H ogan as he c losed the door on them when they knew that another adult male, L oudin, was also within the a partment. In Meredith , thirteen IRS agents confronted a single f

e male upon entering the third f loor of the b uilding they were searching. 4 5 Conversely, the two officers here were not yet within t h e apartment

a n d k n e w that t hey would potentially be evenly matched against two adul t males if further issues arose in arresting Hogan. IV Apart from q ualified immunity, the Officers c o ntend that section 105.006(e-1) of the Texas Family Code e ntitles them to immunity, but we reject this contention. T his provision does not grant immunity itself. 4 6 The r eference to immunity appears to be a general reference to official i mmunity from statelaw claims under Texas law. 4 7 To the extent that the Officers may have intended to argue that they are entitled t o qualified immunity because they “ a cted reasonably and did not offend
any c onstitutional rights” while “atte m p t i n g t o assist Ms. Hogan in securing compliance w ith the divorce decree,” the cases that the O fficers cite do not support their a r g ument because those c a ses do n ot present circumstances

4 5 Id. at 1060.

4 6 See T E X

. F A

M

. C ODE A N N

. § 105. 006( e- 1) ( Wes t 2 0 08) ( m and ating that, in an ord er p rovid ing f

or the p os s es s ion of or acces s to a child , notice be prom inently d is p layed regard ing an of f icer’s right to us e reas onable ef f orts to enf

o rce the term s of child cus tod y and that the notice s tate that “[ a] p eace of f icer w ho relies on the term s of a co u r t o r d e r a n d the of f icer’s agency are entitled to the ap p licable im m unity agains t any claim , civil or otherw is e, regard ing the of f icer’s g ood f

aith acts p erf

orm ed in the s cop e of the of f icer’s d uties in enf

orcing the term s of the ord er that relate to child cus tod y”)

.

4 7 See Ci ty of La nca ster v . Cha m bers , 883 S. W. 2d 650, 653 ( T ex. 1994) ( d ef ining of f icial im m unity)

. 15 Case: 11-41029 Document: 00512305516 Page: 15 Date Filed: 07/12/2013No. 11-41029

similar to those present here. Here, Hogan’s constitutiona l c l a ims involve an

u n l a w f u l arrest and the use of excessive force. N either o f the cited cases involved an arrest or the use of force. 4 8 V In addition to his § 1983 c laims, Hogan a lso asserted civil assault and battery clai m s under Texas state law. Before t he d istrict court, the Officers argued t hat they were enti t l e d t o summary judgment on these c l aims because

s e ction 9.51(a) o f the T exas Penal Code provides them w ith a civil-defe n s e privi l e ge. The district court determined that there were questions of fact concerning whether the Officers w ere e ntitled to the privilege, and therefore the court denied the Officers’ motion for summary judgment o n Hogan’s a ssault and battery claims. We l a c k jurisdiction t o consider the Officers’ i nterlocutory appeal of the district c ourt’s denial of their motion for summa r y j u d g m ent on these claims. Section 9.51(a) is not a grant of immunity; i nstead, it is an affirmative defense, which “privileges t he conduct of all p eace officers who use r e asonable force to effect an arrest.” 4 9 Because section 9.51(a) is merely an affirmative defense, this

4 8 Bri tta i n v . H

a nsen , 451 F. 3d 982, 985- 87 ( 9th Cir. 2006) ; Wi l l i a m s v . Bl a i sdel l , 173 F. Sup p . 2d 574, 581 ( N

. D. T ex. 2001) ( “[ P] laintif f ’s only com p laints agains t L ance are that

. . . he threatened to arres t her on the s p ot i f s h e d i d n o t r e l inquis h cus tod y . . . and , p erhap s , that

. . . Lance rejected her sugges tion that he read the p os ses s ion ord er. ”)

.

4 9 Vi ll af ra n c a v . U

ni ted Sta t es , 587 F. 3d 257, 263- 64 ( 5th Cir. 2009) ( relying on s ection 9. 51( a) being a p rivilege and not an im m unity) ; see a l so T E X

. P E N A L C ODE A N N

. § 9. 02 ( Wes t 2011) ( “It is a d ef ens e to p ros ecution that the cond uct in ques tion is jus tif ied und er this chap ter. ”) ; Tex. Dep ’t of Pub. Sa f ety v . Petta , 44 S. W. 3d 575, 579 & n. 14 ( Tex. 2001) ( d es cribing
s ection 9. 51 as an “af

f irm ative d ef

ens e of p rivilege”)

.

16 Case: 11-41029 Document: 00512305516 Page: 16 Date Filed: 07/12/2013No. 11-41029

court lacks j u r i sdiction to consider this portion of the Officers’ appeal at this time. 5 0 The cases cited by the Officers do n ot mandate a different c onclusion. 5 1 * * * We AFFIRM the district court’s denial of summary judgment o n Hogan’s unlawful-arrest claim and REMAND to the district co u r t for proceedings consistent with this opinion. We REVERSE the district court’s denial of
summary judgment on H ogan’s excessive-force claim a nd RENDER judgment in the Officers’ favor on that claim. We lack j urisdiction to consider the Officers’ interlocutory appeal of the d istrict court’ s d e cision denying them summary judgment on Hogan’s state-law assault and battery claims.

5 0 See K i n n e y v . W e a v e r , 367 F. 3d 337, 346 ( 5th Cir. 2004) ( en banc) ( “[ A] denial of a d ef end ant’s m otion f

or s um m ary jud gm ent is ord inarily not im m ed iately ap p ealable

. . . . ”)

.
5 1 See V i l l a f ra nca , 587 F. 3d at 260- 65 ( af f irm ing the dis trict court’s j ud g m ent agains t the p laintif

f on his as s ault claim af ter d eterm ining that the f ed eral ag e nts ’ cond uct w as p rivileged und er s ection 9. 51( a) ) ; F ra i re v . Ci t

y of A rl i ngton , 957 F. 2d 1268, 1269, 1273- 77 ( 5th Cir. 1992) ( agreeing w ith the d is trict court that the of f icer w as entitled to qualif ied im m unity and , in d oing s o, ref

erencing s ection 9. 51( a) in ord er to d em ons trate that the of f icer’s actions
w ere not gros sly dis p rop ortionate) ; Petta , 4 4 S

. W

. 3 d at 578- 80 ( hold ing that the of f icer w as entitled to the a f

f i r m a tive d ef

ens e of p rivilege bas ed on collateral es top p el aris ing f rom the p laintif f ’s p rior crim inal trial and conviction)

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