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

No. 11–41109

REYNALDO RAMIREZ, Plaintiff – Appellee
v. JOSE “TASER JOE” MARTINEZ, Individually, Defendant – Appellant

Appeal from the United States District Court for the Southern District of Texas

Before JONES, GARZA and PRADO, Circuit Judges. EMILIO M. GARZA, Circuit Judge: This i s a false arrest and excessive force case follo w i ng a n altercation between Reynaldo Ramirez (“Ramirez”) and Deputy Jose “Taser Joe” M artinez (“Martinez”) in Jim Wells County, Texas. Martinez appeals the district court’s d enial of summary judgment based on qualified immunity on Ramir e z ’ s 4 2 U.S.C. § 1983 claims and state-l a w o f ficial immunity on Ramirez’s s tate-law claims. We REVERSE in part and DISMISS in part. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D May15, 2013 Ly l e W . Cay ce Clerk Case: 11-41109 Document: 00512242286 Page: 1 Date Filed: 05/15/2013No. 11–41109 I Deputy Martinez, a J im Wells County sheriff’s d eputy, arrived with other officers a t a landscaping business owned by Ramirez to execute a warrant for the arrest o f Ramirez’s sister-in-law, Diana Flores. 1 Ramirez was not the subject of
any warrant. D e p uty Martinez entered the business and asked a man and a

woman i n side whether Flores was present; both said she was not. Martinez then exited the building. Ramirez arrived at the business while Deputy M artinez and the other officers were still present. A n e w s c r ew w as also p resent, filming the scene. 2 Ramirez claims the officers had their guns drawn a nd were p ointing the guns at his employees, who were kneeling down. R amirez a pproached Deputy Michael Teodecki, another Jim W ells County s heriff’s d eputy, and asked him to explain what was h appening. Teodecki said Martinez was in charge of the operation and did not disclose any other information. Ramirez located Deputy M artinez and asked M artinez w hat was happening and why the officers were there. The t wo e xchanged p rofanities. M a r tinez yelled, “You shut your mouth or I will take y ou to jail!” Rami r e z simultaneously yelled, “T his is my business, ok?” twice. Martinez y elled, “Turn around and p ut your hands behind your back!” Ra m i r e z d i d n ot comply. Martinez grabbed Ramirez’s hand an d t old him to turn around, but Ramirez pulled his arm a w ay. M artinez i mmediately tased Ramirez in the chest. Ramirez testified that he did not resist after he pulled his arm away.

1 Becaus e this ap p eal com es to us f rom the d ef

end ant’s m otion f

or s um m ary jud gm ent, w e con s t r u e the s um m ary jud gm ent record in the light m os t f avorable to the non- m ovant p laintif f

. See Li ttle v . Shel l E xp lor a t i on & Prod. Co. , 690 F. 3d 282, 286 ( 5th Cir. 2012) (view ing evid ence in light m os t f avorable to non- m ovant p arties ) ; see a lso F E D

. R. C IV

. P. 56.

2 A v i d e o tap e, cap tured by the nearby new s crew , record ed s om e of the events und erlying R am irez’s claim s . The tap e’s ad m is s ibility is not in d is pute, though its contents are not neces s arily a clear d ep iction of the events

. See Part II. B. inf ra . 2 Case: 11-41109 Document: 00512242286 Page: 2 Date Filed: 05/15/2013No. 11–41109

Martinez and several officers forced R amirez t o the ground. While doing
so, an officer yelled at Ramirez, “Stop resisting!” a nd, “Get on th e ground!” Ramirez fell to his knees, and the officers forced h im to the g r o u n d o n his stomach and restrained him with handcuffs. Martinez tased R amirez a second time while lying f

ace-down on the ground in handcuffs. M a rtinez arrested Ramirez, w ho was charged with disorderly conduct. The charge w as later dismissed. Ramirez filed suit in the United States D istrict Cour t for the Southern District of Texas, naming as defendants Jim W ells County and several officers, including Deputy M artinez

. R a mirez a lleged excessive force, false arrest, and malicious prosecution claims u nder 42 U.S.C. § 1983 and Texas state law claims, including assault and b a ttery and false arrest and imprisonment. Ramirez voluntarily dismissed all defendants except Martinez. Martinez moved for summary judgment on the basis of qualified i m m u nity and s tate-law official immunity. A m agistrate judge recommended the district court grant the motion as t o Ramirez’s § 1983 c laim for malicious p ros e c u t i on but deny the motion as to the remainder of R a m i r ez’s federal claims. The

m agistrate judge made no r ecommendation on R amirez’s state-law cl a i m s , stating Martinez had not raised these claims in h i s m o t i o n f or summary judgment. The district court adopted the magistrate j udge’s recommendations, but determined M artinez had in fact r a i s e d the state-law c laims in his motion for sum m a r y judgment. The district court nevertheless denied summary judgment on these state-law claims. Thus, the district c ourt granted Martinez’s motion for summary judgment as to Ra m i rez’s § 1983 claim for malicious prosecution but denied the motion as to all other claims. Martinez timely appealed.

3 Case: 11-41109 Document: 00512242286 Page: 3 Date Filed: 05/15/2013No. 11–41109 II A The denial of a motion for summar y j u dgment is ordinarily a n on-final, non-appealable order; however, when such a motion is based upon qualified immunity, its denial is a collateral order that is immediately reviewable to the extent the denial was based on an issue of law. B rown v. Strain , 6 63 F .3d 245, 248 (5th Cir. 2 0 1 1 ) ; s ee also Mitchell v. Forsyth , 472 U.S. 511, 530 (1985) (holding denial of claim of qualified immunity is a ppealable t o extent it turns on issue of law). When r eviewing an interlocutory appeal asserting q ualified immunity, we lack the jurisdiction to review the district court’s decision that a genuine issue o f fact exists. B r o wn , 663 F.3d at 248. Instead, this court’s jurisdict i o n i s limited t o determining “w h e ther the district court erred in assessing the legal significance of the c onduct that the distric t c o u r t d eemed sufficiently supported f or purp o s e s o f summary judgment.” Id. (internal quotation marks omitted). Whether we have appellate jurisdiction to review the district court’s disposition of state law matters “is a question of federal, n ot state, law.” Cantu v. Rocha , 77 F .3d 795, 803 (5th Cir. 1996). “[O]rders premised on the denial of [official] immunity under Texas state l a w are a ppealable in federal court to the same extent as district court orders premised o n the denial of federal law immunity.” Id

. at 8 04; accord Kinney v. Weaver , 367 F .3d 337, 3 46 n.7 (5th Cir. 2 004) (en banc) (“[O]rders denying offici a l immunity under Texas law are immediately appealable to the same extent as denials of qualified immunity under federal law.”). Therefore, we have jurisdiction to review the district court’s de n ial of summary judgment based on both federal qualified immunity and Texas official immunity only to the e xtent the denial w as based on an issue of law. Cantu , 77 F.3d at 804. We review the district court’s d e n i a l of s ummary judgment de novo. McFaul v. Valenzuela , 684 F.3d 564, 571 (5th Cir. 2 012). Summary judgment

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is appropriate w h e n there is no g enuine issue of material fact and the moving party has shown it is entitled to judgment as a matter of law. Id

. A dispute is “genuine” if the evidence is sufficient for a reasonable jury to r e turn a verdict for the n onmoving party. Hamilton v. Segue Software, I nc. , 232 F.3d 4 73, 477 (5th Cir. 2 000). A f

act issue is “ material” if its resolution could a ffect the outcome of the action. Id. We construe all facts and all reasonable inferences in the light most favorable to Ramirez, the non-moving party. McFaul , 684 F.3d at 571. B Related to the appropriate standard of review is our consideration of Scott

v. H arris , 550 U.S. 372 (2007). Martinez argues th a t because there is a videotape p artially capturing the altercation at issue, this c ourt should not view the facts in the light most favorable t o Ramirez, but instead s hould rely on the facts e stablished by the video recording and d efer to Ramirez’s versi o n o f any remaining relevant facts. Se e ge n erally Scott v. Harris , 550 U.S. 372 (2007). Scott involved a § 1 9 8 3 c l a im for excessive force s temming from injuries the plaintiff received when his vehicle crashed while fleeing from a county deputy. I d

. a t 374–76. In reviewing the denial o f the d eputy’s motion for su m m a r y j u d g m e nt b a s e d o n qu alif i e d immunity, the Supreme C ourt determined th e l o w e r courts were wrong to accept the version of facts provided by the plaintiff when t h a t version was contradicted by a videotape of the chase and c r ash. Id. at 378–81. The p laintiff had contended he r emained i n control o f his vehicle at all times while he was driving, slowing down a nd using his indicator lights for turns at intersections, a nd he did not pose a threat to any o t h e r m o t orists or pedestrians. Id. at 3 7 8–79. The videotape, by contrast, showed the plaintiff racing down the road at a v ery high speed, swerving around more th an a dozen other cars, forcing cars onto the shoulder of the road, crossing the double-yellow line, and running multiple red lights. Id. at 379. The Court concluded, “When opposing parties tell two different stories, one of which is blatantly contradicted

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b y t h e r ecord, s o that no reasonable jury c o uld believe it, a c ourt should n ot adopt that version of the facts for p u r p o s es o f ruling on a m otion for summary judgment.” I

d

. at 380. Scott does not control our standard of review here be c a u s e it is distinguishable. There, the Court determined the p l a i n t iff’s version of events

was so “blatantl y c o n tradicted” by the video that “no reasonable jury” could believe him. Id. Here, the video does not so blatantly contradict the version of events told by Ramirez that no reasonable jury could believe his version. The contents of the video are too uncertain t o discount Ramirez’s version

o f t h e e vents under Scott

. When the videotape begins, Martinez and Ramir e z

are already yelling a t e ach other. A struggle ensues, but it is u n c l e a r e xactly

w hat or who p recipitates and what constitutes that struggle. There appe a r t o be about five people involved, but none of their faces are visible on the videotape until Ramirez is on his knees. The t ape only establishes that the o fficers forced Ramirez to the ground, an officer placed a b lack object against Ramirez’s back, and Ramirez screamed twice. Martinez a s s e rts we must disregard Ramirez’s v ersion of events on

s u m m a ry judgment because the video shows Ramirez tried to punch h i m . Although the vi deo shows the struggle d escribed above, it does not clearly show

a punch or every particular element o f the a ltercation. T h e v i d e o d oes not blatantly contradict R amirez’s version of t h e facts; a ccordingly, we view the evidence in the light most favorable to Ramirez. III On the m erits, Martine z c o n tends the district court erred in (1) denying qualified immunity on Ramirez’s false arrest claim, ( 2) denying q u a l ified immunity on Ramirez’s excessive force claim, a nd (3) denying official immunity on Ramirez’s state law claims.

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“The d octrine of qualified immunity protects public officials from liability for civil damages i n s o f a r a s their conduct does n ot violate clearly established statutory o r c o n stitutional rights of which a reasonable person would have known.” Brown , 663 F.3d at 249 (internal quotation marks omitted). To determine whether a public official is entitled to qualified immunity, we decide “(1) w h e t her the facts th at the plaintiff h as alleged make out a violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.” Id. (i nternal quotation marks omitted) (citing P

earson v. Callah a n , 5 5 5 U .S. 223, 230–33 (2009)). A right is clearly established when “it wou l d b e c l e ar to a reasonable officer that his conduct was unlawful in the situation h e confronted.” Jones v. Lowndes Cnty., Miss. , 678 F.3d 344, 3 51 (5th C ir. 2012) (citation omitted). Once a defendant has raised qualified immunity, the burden shifts to the plaintiff to demonstrate that qualified immunity does not apply. Id. A Martinez a sserts he is entitled to qualified immunity o n Ramirez’s false arrest claim because M artinez thought h e had probable cause to arrest Ramirez for three separate o ffenses: resisting a rrest, attempted a ssault, and interference with public duties, all of which are violations of Texas law. In order to make a lawful a rrest, an officer must have probable cause to believe the suspect committed a crime. Flores v. City of Palacios , 3 81 F.3d 391, 402 (5th Cir. 2004). “Pro b able cause exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable
person to conclude that the suspect had committe d or was committing an offense.” Id. (internal quotation m arks omitted). I f an o ffic e r reasonably but mistakenly b elieves that pr o b a b l e cause exists, he is entitled to qualified immunity. Club Retro, LLC v. Hilton , 568 F.3d 181, 206 (5th Cir. 2009).

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The facts Ramirez alleges do not make out a constitutional violation in the f o r m o f f alse arrest, and therefore we do not reach the issue of whether an y violation was clearly established at the time of the conduct. See Brown , 663 F.3d at 249. M a r t i n e z asserts probable cause existed to believe that Ramirez was resisting arrest. 3 In Texas, the act of r esisting can supply probable c ause for the arrest itself. For example, in Padilla v. Mason , a Texas state court stated: When Mason touched Padilla’s e lbow in an effort to turn or g u i d e her around to face th e vehicle, she pulled her arm away, nearly striking M ason i n the u pper body, and stated, “You will not arrest me.” At that point, a reasonable law enforcement officer would have believed that he had pr o b a ble c a use to arrest Padilla for resisting arrest and was authorized to use force to secure the arrest. 169 S.W.3d 493, 504 (Tex. App.—El Paso 2005, pet. denied). Ramirez stated in h is deposition that he p ulled his arm out of Martinez’s grasp as Martinez w a s a t t e mpting to a rrest him. He stated, “First o f all, he grabbed my—grabbed m y hand, told me t o turn around, and I didn’t.

. . . I don’t think I p ushed h im. But I did—I did snug back, you know.” The great weight of Tex a s a u thority indicates that pulling out of an officer’s grasp is s ufficient to consti t u t e r e sisting arrest. See Pumphrey v. S tate , 245 S.W.3d 85, 89 (Tex. App.—Texarkana 2 008, pet. ref’d) (footnote omitted) (“[W]e hold that th e statute authorizes a conviction for resisting arre s t w h en the d efendant a ctively pulls against an officer’s establishe d grasp o f the defendant d uring an arrest attempt.”); Torres v. State , 103 S.W.3d 6 23, 627 (Tex. App.—San Antonio 2003,

no pet.) (“[A] p erson who uses fo r ce in order to s hake off an officer’s detaining

3 The of f ens e of Res is ting Arres t is d ef ined in relevant p art as f ollow s : ( a) A p ers on com m its an o f f ens e if he intentionally p revents or obs tructs a p ers on he k now s is a p eace of f icer or a p ers on acting in a p eace of f i cer’s p res ence and at his d irection f rom ef f ecting an arres t, s earch, or trans p ortation of the actor or another by us ing f orce agains t the p eace of f icer or another. (b) It is no d ef

ens e to p ros ecution und er this s ecti o n t h a t t h e arres t or s earch
w as unlaw f

ul. Tex. Penal Cod e Ann. § 38. 03 (Wes t 2009)

. 8 Case: 11-41109 Document: 00512242286 Page: 8 Date Filed: 05/15/2013No. 11–41109

grip, whether by pushing o r pulling, m ay be guilty of resisting arrest under

s e c t i o n 38.03.”); B ryant v. State , 923 S.W.2d 199, 207 (Tex. App.—Waco 1996, pet. ref’d) (emphasis removed) (“[P]ulling one’s arm in a n a t t empt to shake off

an officer’s detaining grip could amount to f orce a gainst th a t officer [under section 3 8.03].”); Hopper v. S tate , 86 S.W.3d 6 76, 679 (Tex. App.—El Paso 2002,

no pet.) (holding “a person who uses force in o rder to shake of f a n o f f i c e r’s detaining grip, whether b y pushing or pulling, m ay be guilty of resisting arrest under Section 38.03” and explicitly disavowing Raymond v . S t ate , 640 S.W.2d 678, 679 (Tex. App.—El Paso 1 982, pet. ref’d), which held a rrestee’s act of pulling away, as opposed to pushing toward, officer in shaking off officer’s grip insufficient to constitute resisting arrest). 4 Therefore, under Texas law Deputy Martinez c ould have reasonably c oncluded that Ramirez committed the offense of resisting a rrest w hen Ramirez pulled his arm away from Deputy Martinez’s grasp.Ramirez a lternatively asserts that any resistance was justified by Texas Penal Code § 9.31(c), which states: The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) u ses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the a ctor reasonably believes the force is immediately necessary to protect himself a gainst the p eace officer’s (or other person’s) u se or attempted use of great e r force than necessary.

4 One Texas court held pulling out of an of f icer’s gras p is ins uf

ficien t to cons titute
res is ting arres t. M

a yf i el d v . Sta te , 758 S. W. 2d 371, 374 (Tex. Ap p.

— Am arillo 1988, no w rit) ( citing Young v . Sta te , 622 S. W. 2d 99, 100–01 (T ex. Crim

. Ap p . 1981) ) (“The evid ence is i n s uf ficient to es tablis h res is ting arres t w here the accus ed merely p ulls aw ay f r o m t h e arres ting of

ficer. ”)

. T h e Texas C ourt of Crim inal Ap p eals cas e M a yf i el d relied on, how ever, d ealt w ith an arres tee p ulling aw ay f rom an of

f icer af ter being arres ted , and held , “The arres t w as c o m p l e t e . . . and thus the later violent actions by ap pellant could not have been in
res is tance to the arres t. ” Young , 622 S. W. 2d at 100. 9 Case: 11-41109 Document: 00512242286 Page: 9 Date Filed: 05/15/2013No. 11–41109

That is, Ramirez asserts any r e s i s t a n ce was offered in response to Martinez’s use of greater f

orce than necessary in the form of the first tasing. The problem with this line of reasoning is that it could only possibly apply t o the e nsuing struggle,

as Ram i r e z s t a t e d in h is deposition that he pulled his arm out o f Martinez’s grasp before any tasing began. A s discussed, t h e act of pulling his arm out of Martinez’s grasp is enough, standing alone, t o c onstitute resisting arrest, so it matters not whether the further resistance w as justified under § 9.31(c) or whether a reasonable officer on the scene would have known such resistance was justified. Deputy Martinez had probable cause to arrest Ramirez based on the fact that Ramirez pulled his arm out o f Martinez’s grasp; therefo r e , the arrest was supported by probable cause. Because w e hold that und e r R a m i r e z’s version of the facts a reasonable officer a t the s c ene would have thought he had probable cause to arrest Ramirez f or resisting arrest, we do not reach Deputy Martinez’s assertion th a t h e h a d probabl e c a u s e to arrest Ramirez for attempted assault and interference with public duties. As we h e ld in W ells v. Bonner , “[i]f there was probable c ause for
any of t he charges made—here either disorderly conduct or resisting a search—then the arrest was s u pported by probable cause, a nd the c laim for false arrest fails.” 45 F.3d 90, 95 (5th Cir. 1995). Because there was n o f alse arrest,

no constitutional violation occurred, and, accordingly, we have no o ccasion to reach th e part of the qualified immunity analysis that asks whether the law was clearly established. See Brown , 663 F.3d at 249. Thus, the district court erred by denying Deputy Martinez qualified immunity on R a m irez’s false a rrest claim. B To establi s h Martinez violated his constitutional right to be free from excessive force, Ramirez must show: “(1) an injury ( 2) w hich resulted from the

use of force that was clearly excessive t o t h e n eed and (3) the excessiveness of which was objectively unreasonable.” Rockwell v. B rown , 664 F.3d 9 85, 991 (5th

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Cir. 2 011) (internal quotation marks o mitted). If he can establish a violation, then we d e t e rmine whether the law was clearly established at the time of Martinez’s conduct. Bush v. Strain , 513 F.3d 4 92, 502 (5th Cir. 2 008). Whether the force was reasonable under the F o urth Amendment is determined “from the perspective of a reasonable o fficer on the scene, rather than w ith the 20/20 vision of hindsight.” Id. (internal quot a t i o n mark omitted). In determining whether

a u se of force was reasonable, w e look to the totality of t h e circumstances, Elizondo v. Green , 671 F .3d 506, 510 (5th Cir. 2012), giving “careful attention to the facts and c ircumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an i m mediate threat to th e safety of the officers o r others, and whether he is actively resisting arrest o r attempting to evade arrest by flight” (the “ Graham factors”). Graham v. Conner , 490 U.S. 386, 396 (1989). First, R amirez must a ssert an injury. In his complaint, R a mirez alleges, “As a result of th e Defendant Martinez’s a ctions,” Ramirez “sustained numerous injuries to his body, including, but not limited to, c ontusions a nd abrasions to his body, and burn marks f r om the taser probes.” Martinez does not challenge these allegations of injury a nd c ausation o n appeal. Therefore, we n eed determine only whether Ramirez succee d s i n s howing Martinez’s use of force w as clearly excessive to the need and objectively unreasonable. Martinez asserts his conduct was not excessive t o the force needed nor

o bj e c t i vely unreasonable. W e have not addressed a fact pattern precisely o n point, but we h ave held the use of cert a i n f o r ce after an a rrestee has been restrain e d and handcuffed is excessive and unreasonable. Bush , 513 F.3d at 50 1

– 0 2

. I n B ush , w e held a police officer used excessive force th at was objectively unre a s o n a ble and in violation of c learly established law when he forcefully slammed a suspect’s face into a v ehicle after subduing her a nd placing her in handcuffs. I

d

. On the other h and, we recently h eld the use o f a t aser was

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not excessive where the arrestee was resisting arrest and th e officers c e ased use

o f t h e taser once the arrestee was handcuffed and s ubdued. Poole v. City of Shreveport , 691 F.3d 624, 626 (5th Cir. 2012). Turning to the case on appeal, we hol d R a m i r e z ’ s version of the facts as supported by the summary judgment record is sufficient to establish u n der the Graham factors that M artinez used excessive force. See Haggerty v. Tex. State Univ. , 391 F.3d 653, 655 (5th C ir. 2004) (“In an interlocutory appeal in which the defendant asserts qualified immunity, to the extent that the di strict court found that genuine factual disputes exist, we accept the plaintiff’s v ersion of the facts (to the extent reflected b y proper s ummary judgment evidence) as true.”). First,

we consider the severity of the crime in question. Although Ramirez pulled his

arm out of Martinez’s grasp, the district court found there was a genuine issue of mat e r i a l f

act as to any subsequent resistance up until Martinez tased him after subduing and handcuffing him. Therefore, a ccepting Ramirez’s version of the facts as t r u e , t h e f irst Graham factor weighs slightly against Martinez. Second, a reasonable officer could not have concluded Ramirez posed an immediate threat t o the safety of the officers by questioning their presence at his place of business or laying on the ground i n h andcuffs. Pulling his a rm out of Martinez’s grasp, without m ore, is insufficient to find an i m mediate threat to the safety of the officers. Third, as in the first Graham factor, according to Ramirez the only resistance he offered was p ulling h is arm o ut of Martinez’s grasp; he alleges s everal o fficers then f orced him t o the ground without resistance on his part. Viewing the f

acts of this record i n th e light m ost f avorable to Ramirez, any reasonable officer in Martinez’s place would have recognized M artinez’s conduct

was objectively unreasonable under the Graham factors. 5 T h e district court

5 The d is s ent is m is tak en not to tak e Ram irez’s vers ion of the facts as t rue w hen ap p lying Sa uci er v . Ka t z t o the f acts here. 533 U

. S. 194 ( 2001)

. The d is s ent im p lies the
m ajority intentionally lef t o u t o f the analys is M artinez’s as sertion that he “interp reted

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properly determined that a r easonable officer would view Martinez’s use of force

u n d e r R amirez’s version of the facts to be clearly e xcessive and objectivel y unreasonable under the circumstances. Thus, a jury must determine the facts at trial. Next, the district cour t d i d n o t misapply the law i n holding Deputy Martinez’s alleged excessive and unreasonable force under Ramirez’s version of the events violated clearly established law. We h ave e x p l a i n e d the ‘clearly established’ prong as follows: Qualified immunity should not be denied unless the law i s c lear in the more particularized sense that reasonable officials s h ould b e “ o n n o t i c e t h at their conduct is unlawful.” Saucier v. K atz , 533 U.S. 194, 2 06, 121 S.Ct. 2 151, 15 0 L.Ed.2d 272 (2001). The central concept is that of “fair warning”: The law can be clearly established “despite notable f

actual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave r easonable warning that the conduct then a t i s sue violated constitutional rights.” Hope , 536 U.S. at 740, 122 S. C t

. 2 5 0 8 (internal quotation marks omitted). Kinney v. Weaver , 367 F.3d 3 37, 350 (5th Cir. 2004) (en banc). In Newman v. Guedry , we addressed whether the law on the use of tasers was clearly

e s t a b l i s hed at the time o f a n event that occurred before the incident between Ramirez and Martinez:

Ram irez’s ‘p ulling aw ay’ as rais ing his arm in ord er to attem p t to p unch him , and that is w hy M artinez tas ed the arres tee. ” A n t e a t 3

. M a r tinez d id not tes tif y he interp reted R am irez’s p ulling aw ay as rais ing his arm f or a p unch; rather, M artinez tes tif ied Ram irez p ulled his arm aw ay and p ut hi s ha nd b e h i n d hi s ba ck

. M artinez tes tif ied he gras p ed and p ulled on Ram irez’s s hirt, and o n l y t h e n d id Ram irez attem p t to p unch him

. (As d is cus sed above, M artinez’s heavy reliance in his brief ing on the u n c l e a r vid eo to p rove the f act of the p unch is m is placed

. See Part II. B sup ra . ) It is not the p urp ose of R am irez’s alleged ly rais ed arm that is in d is p ute, but rather it is w hether Ram irez rais ed his arm a t a l l

. Cf

. Sa uci er , 533 U

. S. at 198 ( “It s eem s agreed that r es pond ent p laced his f eet s om ew here on the outs id e of the van, p erhap s the bum per, but there is a d is p ute w hether he d id s o to res is t. ” )

. I n Sa u c i e r , the d i s p u t e as to res is tance centered on the s ubjective intent of the arres tee, so a reas onable of f icer could have tho u gh t t h e a r r e s tee w ould “f ight back

. ” Id

. at 205. H ere, w ithout the alleged rais ed arm a reas onable of f icer could not have even m is tak enly thought R a m i r ez’s p urp os e w as to punch Martinez. 13 Case: 11-41109 Document: 00512242286 Page: 13 Date Filed: 05/15/2013No. 11–41109

Guedry contends that he had no reasonable w ar n i ng th at tasing Newman multiple times violated Newman’s constitutional rights, because there was then no binding c aselaw on the a ppropriate use of tasers. Lawfulness of for c e , h o w e v er, does not depend on th e precise instrument used to apply i t. Qualified immunity w ill n ot protect o fficers who apply excessive and unreasonable force merely because their means of applying it are novel. 703 F.3d 757, 763–64 (5th Cir. 2012) (footnotes omitted). Further, in Bushwe held an officer used excessive and unrea s o n ab l e force when he forcefully slammed an arrestee’s f ace i nto a vehicle when the arrestee was handcuffed and subdued. Bush , 513 F.3d at 501. Here, Ramirez alleged he posed no threat to the officers and yet was tased twice, including once after he was handcuffed and subdued while lying face d own on the ground, in violation of clearly established law. Therefore, the district court di d not err in d enying Martinez q u alified immunity on Ramirez’s c laim for excessive f orce. Ramirez’s version of the facts, which the district court found supported by the summary judgment record, does not indicate the district court committed a “purely legal” error, Kinney , 367 F.3d at 347, and we l ack jurisdiction to review the d i s trict court’s finding “that a genuine issue of fact exists regarding whether [Martinez] did, in fact, engage in

. . . conduct [that was objectively unreasonable in light of clearly established law].” Id . at 346. IV Deputy Martinez m oved for s ummary judgment on Ramirez’s s tate-law claim s f or assault and battery and false a rrest and imprisonment o n the basis of official immunity. Official immunity is an affirmative defense that protects governm e n t employees f rom personal l iability for certain actions taken in the

course of their employment. Telthorster v. Tennell , 92 S .W.3d 457, 460–61 (Tex. 2002). A government e m p l o y e e is entitled to o fficial immunity f or “(1) the performance o f discretionary d uties (2) that are within the scope of the employee’s authority, (3) p rovided that the employee acts in good faith.” Id. at

14 Case: 11-41109 Document: 00512242286 Page: 14 Date Filed: 05/15/2013No. 11–41109

461. A government employee must “conclusively e s t a blish” each of these elements in order to be entitled to summary judgment on t h e b a s i s o f official immunity. Id. First, “an arrest is a discretionary act.” Cherqui v. Westheimer St. Festival Corp. , 116 S.W.3d 337, 350 n.17 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Second, Ramirez does n ot dispute the arrest was within the scope o f Martinez’s authority. See Telthorster , 92 S.W.3d at 461 (treating elem e n t s o f o fficial immunity as “c onclusively established” when they were not disputed by the parties). Third, to establish good faith, an officer must show that “a reasonably prudent officer, under the same or similar circumstances, could h ave b e lieved that his conduct was j u stified based on the information he possessed when the conduct o ccurred.” Telthorster , 9 2 S.W.3d at 465. Good faith is to be measured “agains t a s tandard of objective legal reasonableness, without regard to the officer’s subjective state o f m ind.” Wadew i tz v . M o ntgomery , 951 S .W.2d 464, 466 (Tex. 1997). The factual basis for Ramirez’s claim for false arrest and imprisonment is the same as the basis for his § 1983 claim f o r f alse arrest. For the reasons discussed above, a reasonable officer acting in good faith could have concluded probable cause existed for resisting arrest based on Ramirez’s p ulling his arm out o f Martinez’s grasp. Therefore, M artinez i s entitled to official immunity on Ramirez’s claim for false arrest and i mprisonment. The district court erred by denying Martinez official immunity for this claim. The factual basis for Ramirez’s claim for assault and battery is the same

as the basis f

o r h i s § 1 983 claim for excessive force. As discussed above, no reasonable officer acting in good faith could have b e l i e v ed D eputy Martinez’s specific conduct was justified based on Ramirez’s version of the facts. Therefore, the di strict court correctly denied M artinez’s m otion for summary judgment on the basis of official immunity for this claim.

15 Case: 11-41109 Document: 00512242286 Page: 15 Date Filed: 05/15/2013No. 11–41109 V In summary, w e hold Deputy Martinez is entitled to qualified immunity

on Ramirez’s f

alse arrest c laim but not on Ramirez’s e x c e s s ive f orce claim. In addition, Deputy Martinez is entitled t o of f ic i al i m m u nity o n R a m irez’s s tate-law false arrest and i mprisonment claim but not on R a mirez’s state-law assault and battery claim. F or the reasons we have stated in this opinion, we REVERSE in part and DISMISS in part.

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EDITH H. JONES, Circuit Judge, dissenting.
W i th respect t o my colleagues, I must dissent to th e extent the majority opinion denies qualified immunity t o Officer Ramirez f o r h i s alleged use of unconstitutionally excessive force against arrestee M a rtinez. B e tween this opinion and another recently issued i n this court, Newman v. Guedry , 703 F.3d 757 (5th Cir. 2012), we seem to have d eparted from the Supreme Court’s clear and repeated statements r egarding q u a l ified immunity for law enforcement officers. In brief, the Supreme Court has held th at given the pe ril o u s c irc u m s tances under which much law enforcement work is carried out and the i nevitable need for split-second d ecisions, a plaintiff must o v e rcome two levels of unreasonableness to g et to the jury on a claim for a Fourth Amendment vi o l ation. Saucier v. Katz , 533 U.S. 194, 204–05,121 S

. Ct. 2151, 2158 (2001); Anderson v . Creighton , 483 U.S. 635, 640–44, 107 S. Ct. 3034, 3039–41 (1987). The plaintiff must firs t create a genuine issue of material fact that the force used under the c ircumstances was objectively unreasonable. G rah a m v. Connor , 490 U.S. 386, 397, 109 S. C t

. 1 8 6 5 , 1872 ( 1989). He or she must additionally show a genuine, material fact issue that the law was so “c lear,” under reasonably analogous circumstances confronted by the officer, that “no reasonable officer” would have used that quantum of force. Brosseau v. Haugen , 543 U.S. 1 94, 201, 125 S. Ct. 596, 600 (2004) (reversing the Ninth Circuit and awarding qualified i m m u n i t y following police shooting of suspect). The standard thus shields all but the plainly incompetent office r s or those who k nowingly violate the law. A nderson , 483 U.S. at 638, 1 07 S

. Ct. at 3038. The standard also explici t l y operates to “protect officers from the sometimes ‘ hazy border between excessive and ac c e p t a b l e force.’” Saucier , 533 U. S. at 2 06, 121 S. Ct. at 2158 (citation omitted).

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What this c ourt’s r e c e nt d e c i s i o n s s e em t o suggest, however, is that officers

can b e liable even if they are well within that hazy border. Saucier explains why this is wrong: If a n officer reasonably, but mistakenly, believed that a suspect was likely to fight back, f

or instance, the officer w ould be jus t i f ied in using more force than in fact was needed.

. . . The concern of the [ qualified] immunity inquiry is to ackn o w l e dge that reasonable mistakes c an be made as t o the legal constraints o n particular police conduct.

. . . An o fficer might correctly perceive all of t h e relevant f

acts but have a mistaken u nderstanding as to whether a particular amount of force is legal in those circumstances.

. . . G r a ham and Anderson refute the excessive force/probab l e cause distinction on which much of respondent’s posi tion seems to depend. The deference o wed officers facing s u i ts for alleged excessive force is n ot different in some qualitative respect from th e probable-cause inquiry in Anderson

. . . . The same an a l y s i s is appl icable in excessive force cases, where in addition to th e deference officers receive on the underlying co n s t i tutional claim, qualified immunity can apply in the e vent the mistaken b elief was reasonable.
Id

. at 205–06, 121 S. Ct. at 2158–59. In Saucier , the Ninth Circuit was r eversed, and qualified i mmunity h eld appropriate as a matter of l aw, wh e r e police roughly removed the defendant, a susp e ct, from the scene of a U.S. Vice Presidential speech, jostled his leg that had a brace on it, and shoved him into

a tr a i l e r f

o r awhile. The Court held that any mistake the officers made was, under the circumstances, reasonable, despite the f act that, as it ea r l i e r n oted, “there is a dispute whether he did so to resist.” Id

. at 198, 121 S

. Ct. a t 2154. Compare Saucier t o the f acts at issue here. The officers a rrived at Ramirez’s landscaping business to serve an arrest warrant on his sister-in-law. When Ramirez came on the scene, he began argui n g w i t h O fficer Martinez.

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Martinez ordered him to t urn around and submit to handcuffing. As t h e majority opinion initially describes the summary judgment evidence, Ramirez did not comply. Martinez grabbed Ramirez’s hand and told him to turn around, but R amirez pu l l e d h i s arm a way. M artinez immediately tased Ramirez in the chest. Ramirez testified that h e did not resist after he pulled his arm away.
Later on, the majority concludes that because Ramirez pulled his a r m away, Officer Martinez could reasonably believe that he was resisting arres t i n violation of Texas law. The m ajority opinion barely notes that M artinez interpreted Ramirez’s “pulling away” as raising h is arm in order to attempt to punch him, and that is why Martinez t a s e d the arrestee. Given Ramirez’s heated reaction and refus a l t o c omply with Martinez’s o rder, Martinez could have “reasonably, but mistakenly, believed that [the] s uspect was likely to fight back” and Martinez “would b e justifie d in using more force th an in f act was needed.” Saucier , 533 U.S. at 205, 121 S. Ct. at 2158. The possible distinction between thi s c a s e a n d Sa u c ier is that Ramirez was tased on c e m o r e a s he allegedly lay o n the ground while handcuffed. Fortunately, the m ajority d oes not treat this c ase as an indictment of the use of tas e rs, but rather an incident that m ust be c o nsidered in totality through the lens of Ramirez’s self-serving testimony. 1 But as I have noted, Saucier found qualified i mmunity appropriate e v e n though there was a factual dispute concerning the suspect’s degree of resistance. The tota l ity of circumstances in Saucier furnishes strong support for granting qualified immunity as a matter of law here. First, there was reasonable caus e to believe Ramirez violated Texas law. Second, Ramirez

1 This court has not of ten or in d etail d is cus sed the us e of tas ers to s ubd ue s u s p e c t s . Although the d ecis ion is inap pos ite to this cas e, D ra p er v . Reynol ds , 369 F. 3d 1270, 1278 ( 11th Cir. 2004) , ind icates that in s om e conf rontations the us e of a tas er m ay w ell be p ref erable in ef f ecting arres ts becaus e it red uces the uncertainties and d anger s s u r r o und ing hand s - on tactics

. 19 Case: 11-41109 Document: 00512242286 Page: 19 Date Filed: 05/15/2013N o. 11-41109

admits he resisted handcuffing and pulled his arm away, and thus ac t i v e l y

r esisted arrest. Third, Saucier reiterates that the right to make an arrest “necessarily carries with it the right to use some degree of physical coercion or threat thereof.” I

d

. at 208, 121 S. Ct. at 2160 (quoting Graham , 490 U.S. at 396, 109 S. C t. at 1872). Fourth, as in Saucier , the degree of force used here could not have b een extreme; the majority opinion refers o nly to Ramirez’s claims of cuts and br u i s e s , taser burn marks, a nd temporary pain. Finally, the entire confrontation lasted about a half minute and i ncluded scuffling aft e r R a m i rez

was on the ground. Officer Martinez had to react instinctively to a “ t e nse, uncertain and rapidly evolving” situation. Graham , 490 U.S. at 397, 1 09 S. Ct. at 1872. Bala n c i ng a ll these circumstances, a jury could n ot find that no reasonable officer would have tased Ramirez two times. E v e n if Officer M artinez made a mistake on the second tasing, Saucier , ec h o i n g t h e line of consistent Supreme Court p recedent, should shield his rea s o n a ble b ut mistaken conduct from suit as well as liability. 2 The majo r i t y ’ s principal authorities a re Newman , supra , and Bush v. Strain , 513 F .3d 492 (5th C ir. 2008). Newman , as I have said, a ppears to suffer from flawed analysis like this opinion. Bush , however, is inapposite b ecause it represents a far more extreme alleged use of force. The Supreme Court has cautioned against applying th e tests for e xcessive force a nd qualified immunity at too high a l evel of generality. Brosse a u , 5 4 3 U.S. a t 1 98, 125 S. Ct at 599. The plaintiff in Bush was a female detained for simple battery and resisting arrest, whose face was allegedly s hoved into the rear window of an auto after she had been handcuffed. Unlike Martinez, she suffered injuries t o her face, teeth,

2 From this d is cus s ion, it f ollow s that I w ould als o grant im m unity f rom Ram irez’s s tate law claim s becaus e Texas law p arallels the f ed eral s tand ard s . 20 Case: 11-41109 Document: 00512242286 Page: 20 Date Filed: 05/15/2013N o. 11-41109

and jaw a nd incurred sizable medical expenses as a result. T here is no one-size fits all standard requiring resisting-arrest excessive force claims to be tried. Although I deplore official misconduct as much as does the majority, the bars t o holding law enforcement officers personally liable for damages are necessarily and properly h i gh. Taking th is c ase to a jury, in my view, significantly erodes the protection of qualified immunity. I respectfully dissent.

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