United States Court of Appeals

for the Fifth Circuit

No. 21-20256

Jessica Lorraine Solis, 

Plaintiff—Appellee,

versus

Samuel A. Serrett; Teddy F. Sims, 

Defendants—Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-4865

Before Davis, Smith, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

Foundational to our qualified immunity doctrine is the concept that 

we must view an officer’s actions from that officer’s point of view without 

the benefit of hindsight. From the comfort of a courtroom or chambers, it is

often possible for judges to muse on how an officer could have handled a 

situation better. But that does not mean the officer is not entitled to qualified 

immunity. In this case, we cannot say that the officers violated clearly 

established law when we view the events from the officers’ point of view at 

the very moment they acted. Accordingly, we reverse and remand. 

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2022

Lyle W. Cayce

Clerk

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I.

On May 27, 2019, Officer Samuel Serrett pulled over Timothy 

Robinson and his girlfriend Jessica Solis in Baytown, Texas near a self-storage 

center.1

 Serrett told Robinson, the driver, that he had been pulled over for 

failing to properly signal and driving outside of his lane. Serrett posed a series 

of questions to Robinson, but Solis interjected and answered the questions

before Robinson could respond. Eventually, Serrett had to clarify to Solis 

that unless he was directing a question specifically to her, he wanted a 

response from Robinson as he was the driver. Serrett requested Robinson’s 

license and registration. Solis informed Officer Serrett that she owned the 

vehicle. The couple further informed Serrett that they lived in an apartment 

unit in the storage unit building across the street. Because Serrett believed 

that either Robinson or Solis (or both) may have been intoxicated, he 

requested the assistance of a backup officer. 

Serrett ordered Robinson to exit the vehicle. Serrett then asked 

Robinson a variety of questions, and the exchange became tense. Eventually, 

Serrett began a field sobriety test of Robinson. Robinson objected, stating “I 

am not intoxicated.” Serrett viewed this as refusing the field sobriety test. 

He arrested Robinson and placed him into the police vehicle. 

When Serrett asked Robinson to exit the vehicle, Solis began 

1 The incidents described here were captured, at least in part, on four videos. 

These videos are available at: 

https://www.ca5.uscourts.gov/opinions/pub/21/21-20256_Body_Cam.mp4

https://www.ca5.uscourts.gov/opinions/pub/21/21-20256_Dash_Cam.mp4

https://www.ca5.uscourts.gov/opinions/pub/21/21-20256_Plaintiff_Recording.mp4

https://www.ca5.uscourts.gov/opinions/pub/21/21-

20256_Storage_Facility_Video.mp4

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recording the encounter on her cell phone and stepped out of the vehicle 

herself. Shortly afterward, Officer Teddy Sims arrived on the scene and 

asked Solis to step over to a grassy area near the storage facility. While 

Serrett and Robinson spoke, Solis spoke with Sims. Sims asked Solis how 

much she had to drink that evening, and Solis responded, “literally none.” 

This was false, as Solis later testified in her deposition that she had been 

drinking. Solis also emphasized that she did “not appreciate this” and stated 

repeatedly that the couple was pulled over only when her “black boyfriend is 

driving [her] car.” 

When Serrett arrested Robinson for refusing the field sobriety test, 

Solis objected, and Sims informed her that Robinson “refused, so he’s taking 

him in.” Solis stepped closer to Serrett and Robinson, and Sims asked her to 

step back to the grassy area because he did not “want to put [Solis] in cuffs 

for interference.” Solis began to narrate the events, and Sims interjected 

stating “well actually, he gave him multiple opportunities, I’m gonna say it 

for the camera . . . multiple opportunities, and he refused.” 

Once Robinson was in Serrett’s vehicle, Serrett walked over to where 

Solis and Sims stood. Serrett informed Sims that Robinson’s license was 

“ineligible.” Sims responded, “Oh that’s why they were acting like that.” 

At this point, Solis stopped filming but continued to hold her cell phone. She 

twice requested Serrett’s badge number. Serrett reached out and said, “Can 

I see your phone for a second please?” Solis jerked the phone away from 

Serrett’s hand and responded, “No you can’t.” Serrett continued to reach 

for the phone stating, “Well I don’t want you to drop it when I arrest you.” 

Solis let her left hand fall to her side and exclaimed, “Drop it? Excuse me!” 

Sims came up behind Solis and quickly pulled her left arm behind her back. 

Serrett reached for Solis’s other arm. Solis fell to the ground, either from the 

officers forcing her down or from the momentum as she struggled. Sims then 

held his knee on Solis’s back as Serrett handcuffed her. Officer Serrett 

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informed Solis that she was being arrested for public intoxication, stood her 

up, and walked her over to the police car. Serrett took Solis and Robinson to 

jail. 

Solis sued Serrett and Sims, asserting various § 1983 claims including 

excessive force, unreasonable seizure due to an arrest without probable 

cause, malicious prosecution, violation of her First Amendment rights for 

arresting her in retaliation for filming the officers, and violation of her

Fourteenth Amendment rights. Serrett and Sims answered and asserted the 

defense of qualified immunity. 

The officers later moved for summary judgment, arguing they were 

entitled to qualified immunity on all of Solis’s claims. The district court 

granted summary judgment on all of Solis’s claims except her excessive force 

§ 1983 claim.2 The district court held that disputed issues of material fact 

barred summary judgment on the excessive force claim and that, viewing the 

facts in Solis’s favor, the officers violated a clearly established right. Serrett 

and Sims promptly appealed. 

II.

“Qualified immunity shields public officials sued in their individual 

capacities from liability for civil damages insofar as their conduct does not 

violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.” Kokesh v. Curlee, 14 F.4th 382, 391 

(5th Cir. 2021) (cleaned up). “This court reviews de novo the district court’s 

resolution of legal issues on a motion for summary judgment on the basis of 

qualified immunity.” Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017) 

(quoting Griggs v. Brewer, 841 F.3d 308, 311 (5th Cir. 2016)). “Summary 

2 The dismissal of Solis’s other claims is not the subject of this appeal. 

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judgment must be granted ‘if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.’” Trammell v. Fruge, 868 F.3d 332, 338 (5th Cir. 2017) 

(quoting FED. R. CIV. P. 56(a)). “In reviewing an appeal from summary 

judgment, we ‘view the facts in the light most favorable to the non-moving 

party and draw all reasonable inferences in its favor.’” Hanks, 853 F.3d at 

743 (quoting Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir. 2009)). “A 

qualified immunity defense alters the usual summary judgment burden of 

proof. Once an official pleads the defense, the burden then shifts to the 

plaintiff, who must rebut the defense by establishing a genuine fact issue as 

to whether the official’s allegedly wrongful conduct violated clearly 

established law.” Id. at 744 (quoting Brown v. Callahan, 623 F.3d 249, 253 

(5th Cir. 2010)). 

Importantly, appellate review of an interlocutory appeal is 

circumscribed. “District court orders denying summary judgment on the 

basis of qualified immunity are immediately appealable and reviewed de novo 

only if they are predicated on conclusions of law and not genuine issues of 

material fact.” Kokesh, 14 F.4th at 390. Put another way, “a defendant, 

entitled to invoke a qualified immunity defense, may not appeal a district 

court’s summary judgment order insofar as that order determines whether or 

not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson 

v. Jones, 515 U.S. 304, 319–20 (1995). “But we do have jurisdiction to decide 

whether the district court erred in concluding as a matter of law that officials 

are not entitled to qualified immunity on a given set of facts. In other words, 

this court can review whether any factual dispute found by the district court 

is material for summary judgment purposes.” Whittington v. Maxwell, 455 F. 

App’x 450, 454 (5th Cir. 2011) (cleaned up). Accordingly, “[t]his Court is 

essentially reviewing the district court’s decision that a ‘certain course of 

conduct would, as a matter of law, be objectively unreasonable in light of 

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clearly established law.’” Kokesh, 14 F.4th at 391 (quoting Kinney v. Weaver, 

367 F.3d 337, 346 (5th Cir. 2004) (en banc)). “To make this determination, 

the court applies an objective standard based on the viewpoint of a reasonable 

official in light of the information then available to the defendant and the law 

that was clearly established at the time of the defendant’s actions.” Id. 

(quoting Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007)).3

 

III.

“The qualified immunity inquiry includes two parts. In the first we 

ask whether the officer’s alleged conduct has violated a federal right; in the 

second we ask whether the right in question was ‘clearly established’ at the 

time of the alleged violation, such that the officer was on notice of the 

unlawfulness of his or her conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th 

Cir. 2019) (en banc). The court need not decide the first question before the 

second, and it may decide the case solely on the basis that the right was not 

clearly established. Pearson v. Callahan, 555 U.S. 223, 236–37 (2009). We 

address each question in turn. 

A. Constitutional Violation 

Solis’s sole outstanding § 1983 claim is one for excessive force under 

the Fourth Amendment. “To establish a claim of excessive force under the 

Fourth Amendment, plaintiffs must demonstrate: ‘(1) injury, (2) which 

resulted directly and only from a use of force that was clearly excessive, and 

(3) the excessiveness of which was clearly unreasonable.’” Trammell, 868 

F.3d at 340 (quoting Deville, 567 F.3d at 167). At bottom, “the touchstone of 

3 Notably, although our review is circumscribed as described above, we do have 

jurisdiction. The court may look at the evidence in the light most favorable to Solis and 

determine if the district court erred in finding that evidence established a constitutional 

violation under clearly established law. Solis’s motion to dismiss this appeal for lack of 

jurisdiction, which was carried with the case, is therefore denied. 

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our inquiry is simply the reasonableness of the force employed.” Buehler v. 

Dear, 27 F.4th 969, 981 (5th Cir. 2022). “Excessive force claims are 

necessarily fact-intensive; whether the force used is ‘excessive’ or 

‘unreasonable’ depends on ‘the facts and circumstances of each particular 

case.’” Deville, 567 F.3d at 167 (quoting Graham v. Connor, 490 U.S. 386, 

396 (1989)). We examine each officer’s actions independently to determine 

whether he is entitled to qualified immunity. Meadours v. Ermel, 483 F.3d 

417, 421–22 (5th Cir. 2007). 

We first consider Solis’s injury. At her deposition, Solis testified that 

her back and her wrists were hurt and that she still has problems with her 

right wrist, which she said “feels like a nerve thing” and described as “a 

pulled pain.” Solis also claims that she suffered mental anguish because of

the officers’ actions. 

Generally, to maintain a claim for excessive force, a plaintiff need not 

demonstrate a significant injury, but the injury must be more than de minimis. 

See Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005). Recently, this 

circuit has characterized the injury requirement as “a sliding scale, not a hard 

cutoff.” Buehler, 27 F.4th at 982. This approach treats the degree of injury—

even if minor—as interrelated to the reasonableness and excessiveness of the 

officer’s force. “[A]lthough a de minimis injury is not cognizable, the extent 

of injury necessary to satisfy the injury requirement is ‘directly related to the 

amount of force that is constitutionally permissible under the 

circumstances.’” Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th 

Cir. 2017) (alternation in original) (quoting Brown v. Lynch, 524 F. App’x 67, 

79 (5th Cir. 2013)). Accordingly, “[a]ny force found to be objectively 

unreasonable necessarily exceeds the de minimis threshold, and, conversely, 

objectively reasonable force will result in de minimis injuries only.” Id. 

(quoting Brown, 524 F. App’x at 79). In other words, “as long as a plaintiff 

has suffered ‘some injury,’ even relatively insignificant injuries and purely 

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psychological injuries will prove cognizable when resulting from an officer’s 

unreasonably excessive force.” Id. (quoting Brown, 524 F. App’x at 79). This 

means that if the officer’s force was unreasonably excessive, Solis need only 

show “some injury”—a bar which she clears here. 

Solis’s injuries are properly characterized as minor. Courts have 

found similar or worse injuries to be minor. See, e.g., Westfall v. Luna, 903 

F.3d 534, 549–50 (5th Cir. 2018) (holding that abrasions, bruises, bloody 

urine and high blood pressure were de minimis injuries); Buehler, 27 F.4th at 

982 (holding that abrasions to the face, head and tricep bruises, and mental 

trauma were minor injuries). Moreover, Solis never sought medical 

treatment. See Buehler, 27 F.4th at 983 (noting that a plaintiff’s failure to seek 

medical treatment suggested the injury was minor). Nor do we place much 

weight on Solis’s supposed psychological injury, as “we have rejected similar 

attempts by excessive-force plaintiffs to parlay their minimal injuries into 

more serious ones by tacking on allegations of psychological suffering.” Id. 

Accordingly, the limited extent of Solis’s injuries tends to support a 

conclusion that the officers acted reasonably. 

We next consider the amount of force used and the reasonableness of 

resorting to such force. Courts generally consider these factors together, as 

“officers must assess not only the need for force, but also ‘the relationship 

between the need and the amount of force used.’” Deville, 567 F.3d at 167 

(quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)). In Graham v. 

Connor, the Supreme Court enumerated three non-exclusive considerations

for courts to examine when analyzing the reasonableness of the force used, 

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.” 490 U.S. at 

396. 

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The severity of the crime at issue here weighs against the officers.

Robinson, not Solis, was pulled over for a traffic violation. See Newman v. 

Guedry, 703 F.3d 757, 762 (5th Cir. 2012). The officers ultimately arrested 

Solis for public intoxication, a Class C misdemeanor in Texas. Tex. Penal 

Code § 49.02(c); see also Trammell, 868 F.3d at 340 (holding that public 

intoxication in Texas is a “minor offense” for the purposes of the Graham 

factors). Indeed, the officers do not dispute this factor. We next consider 

whether Solis posed an immediate threat to the safety of the officers or 

others. Solis, who was wearing an evening dress with laced sandals and 

armed only with her cell phone, did not pose an immediate threat to the safety 

of the officers or others. This factor therefore also weighs against the officers. 

The third factor—whether Solis was resisting arrest—cuts in favor of 

the officers. Case law distinguishes between active and passive resistance. 

“[W]here an individual’s conduct amounts to mere ‘passive resistance,’ use 

of force is not justified.” Trammell, 868 F.3d at 341. Here, Solis was 

generally hostile to the officers from the beginning of the traffic stop. She 

emphasized that she and Robinson were near their home, argued with the 

officers, repeatedly implied that Robinson was pulled over only because of 

his race, pulled away when Serrett asked for her phone, and stepped back and 

exclaimed “Drop it? Excuse me!” when Serrett told her she was being 

arrested. This court has also acknowledged that “a suspect who backs away 

from the arresting officers is actively resisting arrest—albeit mildly.” 

Buehler, 27 F.4th at 984 (cleaned up). Solis also seemed to struggle against 

the officers as they grabbed her arms, which viewed from the officers’ 

perspective could be “another form of resistance.” Id. Accordingly, it may 

have been reasonable for the officers to perceive Solis as actively resisting 

arrest, and this factor weighs in the officers’ favor. 

Although not listed in the Graham factors, courts also consider the 

speed with which officers resort to force. See, e.g., Trammell, 868 F.3d at 342 

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(“[T]he quickness with which the officers resorted to tackling Trammel [sic]

to the ground militates against a finding of reasonableness.”). This is because 

“an officer must use force with measured and ascending actions that 

correspond to a suspect’s escalating verbal and physical resistance.” Joseph 

ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 332–33 (5th Cir. 2020) 

(cleaned up). Here, Sims grabbed Solis’s arm seconds after Serrett told her 

that she would be arrested, and Serrett joined him immediately after. 

However, we are mindful that the “focus is on the officers’ reasonable 

perception of the events at issue, as they happened, without the aid of 

hindsight.” Tucker v. City of Shreveport, 998 F.3d 165, 176 (5th Cir. 2021). 

Solis’s adverse course of conduct leading up to the arrest—including 

indignant remarks, asking for Serrett’s badge number, refusing to provide 

him her phone, and stepping back—may have indicated to the officers that 

she would not submit to arrest. Indeed, such a belief would be well-founded. 

Solis confirmed in her deposition that she would not have submitted to arrest 

unless the officers explained to her why was being arrested. Accordingly, to 

the extent this factor tilts against the officers, it does so only slightly. 

Taking these considerations together, we conclude that the actions of 

Serrett and Sims were not so objectively unreasonable as to violate Solis’s 

constitutional rights. First, Solis’s essentially de minimis injuries weigh 

strongly in favor of a finding of qualified immunity. Second, while two of the 

Graham factors weigh against the officers, qualified immunity can apply even 

when only one factor weighs against the plaintiff. See Betts v. Brennan, 22 

F.4th 577, 582 (5th Cir. 2022). And we have held that the two Graham factors 

that favor Solis “are less salient.” Id. Moreover, “‘[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.” Buehler, 27 F.4th at 981

(quoting Graham, 490 U.S. at 396–97). The use of force demonstrated on 

the video evidence was relatively limited, involving only the officers’ 

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restraint of Solis’s arms, a brief takedown, the force necessary to restrict her 

while she was handcuffed, and she was promptly brought to her feet. Finally, 

as we have stressed, “the ‘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.” Graham, 490 U.S. at 396. It was 

reasonable of Sims and Serrett to believe that, in light of Solis’s interjections, 

her comments toward them, her resistance, and her indignation on being told 

she would be arrested, some degree of force would be necessary to subdue her. 

In sum, even viewing the facts in the light most favorable to Solis, we cannot 

say that the officers violated her constitutional right to be free from excessive 

force. Accordingly, we conclude that the district court erred in denying the 

officers’ motion for summary judgment. 

B. Clearly Established 

We further hold that even had Serrett and Sims violated Solis’s 

constitutional rights, such a right was not clearly established at the time of 

the supposed constitutional violation.

4 To determine that a right is clearly 

established “we must be able to point to controlling authority—or a robust 

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

question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 

359, 371–72 (5th Cir. 2011) (en banc) (cleaned up). “Although this does not 

mean that ‘a case directly on point’ is required, ‘existing precedent must 

have placed the statutory or constitutional question beyond debate.’” 

Trammell, 868 F.3d at 339 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 

4 Appellee briefly states that the Fifth Circuit should reconsider its jurisprudence 

on what constitutes “clearly established law.” This argument is meritless as the panel is 

bound by the rule of orderliness. See, e.g., United States v. Traxler, 764 F.3d 486, 489 (5th 

Cir. 2014). 

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(2011)).5 The precedent must also be at “a sufficiently high level of 

specificity to put a reasonable official on notice that his conduct is definitively 

unlawful.” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). 

The most similar Fifth Circuit cases that Solis cites are Trammell v. 

Fruge, 868 F.3d 332 (5th Cir. 2017), and Hanks v. Rogers, 853 F.3d 738 (5th 

Cir. 2017), each of which we consider in turn. Trammell was the case that the 

district court held clearly established that the officers’ conduct violated 

Solis’s Fourth Amendment rights. In that case, George Trammell, the 

plaintiff, was suspected of driving his motorcycle while intoxicated. 

Trammell, 868 F.3d at 336. Four officers, including Officer Fruge, arrived on 

the scene and asked Trammell a series of questions. Id. at 336–37. Trammell 

calmly refused to tell Fruge how much he had been drinking, declined to walk 

toward Fruge, and refused to put his hands above his head. Id. at 337. He 

also told Fruge “I’m not going to jail.” Id. 

Fruge then grabbed Trammell’s right arm. Id. Trammell pulled back 

and told Fruge that it hurt and not to grab him there. Id. Another officer 

grabbed Trammel’s left arm, but Trammell pulled away. Id. Fruge then 

performed a knee strike on Trammell’s thighs, and another officer put 

Trammell in a headlock. Id. Three officers pulled Trammell to the ground, 

where his face landed on the pavement. Id. While Trammell was on the 

ground, the officers administered knee strikes to Trammell’s arms, thighs, 

and ribs to subdue him. Id. at 337–38. Trammell was eventually diagnosed 

with “mildly displaced right L1, L2, and L3 transverse process fractures.” 

Id. at 338. He was forced to give up recreational activities and claimed he had 

5 The law does not always require an on-point authority: if an officer commits a 

patently obvious violation of the Constitution, he is not entitled to qualified immunity. See 

Hope v. Pelzer, 536 U.S. 730, 738–41 (2002). But this is not an obvious case. 

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“very limited mobility” as a result of his injuries. Id. 

The court analyzed the Graham factors and held either that they all 

weighed against the officers or that disputed issues of material fact existed. 

Specifically, it found that: (1) Trammell’s offense was minor; (2) a fact 

question existed as to whether Trammell posed a threat to himself or others; 

(3) a fact question existed as to whether Trammell was actively resisting; and 

(4) the quickness with which the officers resorted to force weighed against 

finding the officers’ actions reasonable. Id. at 340–42. Importantly, the court 

also held that “Trammell has independently presented a question of material 

fact as to whether the force used to gain control of his arms was excessive to 

the need.” Id. at 342. The court emphasized the harsh nature of the officers’ 

actions and the degree of force used. Id. 

The degree of force used sets Trammell apart from the case at hand. 

Unlike here, three officers “tackled” Trammell to the ground, where he 

landed face first on pavement. Id. at 337–38. They “pummeled” him with 

their knees and fists. Id. at 342. They did so after Trammell shouted that his 

arm was fused. Id. The court held that “a jury could reasonably infer that 

the officers heard Trammel’s plea but nevertheless continued to beat him 

without consideration for his limited mobility and strength.” Id. And unlike 

Solis’s minor injuries, Trammell incurred bone fractures that significantly 

affected his life. Id. at 338. In short, the use of force in Trammell was clearly

disproportionate to the need for it. Accordingly, no officer reading that case 

would reasonably understand it to govern here, where the officers only 

yanked Solis’s arms behind her back and—at most—briefly pulled her to the 

ground. 

Hanks involved a similar factual scenario that is also distinguishable. 

In that case, Marcus Hanks was pulled over by Officer Randall Rogers for 

driving too slowly. Hanks, 853 F.3d at 741. Rogers asked Hanks to exit the 

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vehicle and step to the back. Id. at 741–72. Rogers gave Hanks additional 

orders, including to keep his hands out of his pockets, to place his hands on 

the vehicle, and then to place his hands on his head. Id. at 42. Although 

Hanks at times questioned why he was being asked to do so, he complied with 

the officer’s orders. Id. During these exchanges, Rogers’s pulled out a taser 

and trained it on Hanks. Id. Rogers then asked Hanks to go to his knees. Id. 

Hanks did not immediately comply, and Rogers repeated his request. Id. 

Hanks, with his hands still behind his head and with Rogers taser still aimed 

at him, took a small sidestep. Id. Simultaneously with this step, Rogers 

rushed forward and “administered a blow to Hanks’s upper back or neck,” 

which “forced Hanks’s upper body onto the trunk of his vehicle.” Id. at 743. 

“Rogers maintained contact with Hanks as Hanks shifted onto the ground. 

Once on the ground, Hanks laid face-down and placed his hands behind his 

back.” Id. He was arrested. Id. He later sought medical care, and was 

diagnosed with a contusion, strain, and acute myofascial strain. Id. He later 

claimed the blow caused him continuous pain in his upper back, neck, head, 

and ribs, as well as psychological fear. Id. 

The court analyzed the Graham factors and, as in Trammell, found 

that (1) Hanks’s violation was minor; (2) Hanks offered no immediate safety 

threat; (3) Hanks was at most passively resisting; and (4) Rogers “abrupt 

application of physical force rather than continued verbal negotiating” was 

unreasonable. Id. at 745–49. But again, the court noted the extreme degree 

of physical force used. See id. at 747 (finding a Fourth Amendment violation 

when the officer resorts to “overwhelming physical force” rather than 

continuing verbal negotiations). 

As with Trammell, the degree of force Rogers used under the 

circumstances sets Hanks apart from this case. Rather than just grabbing the 

plaintiff’s arms, Rogers “administered a blow to Hanks’s upper back or 

neck” which forced his body down and which caused a contusion and an 

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acute myofascial strain. Rogers did this while pointing a taser at Hanks, who 

had largely complied with his orders. This differsin kind from a brief struggle 

that yielded “a nerve thing” for which Solis tellingly never sought treatment. 

Accordingly, Hanks would not make Sims or Serrett aware that their actions 

could give rise to an excessive force claim. 

The remaining cases cited by the district court and Solis are even 

further afield from the facts here. In Deville v. Marcantel, an officer pulled 

over a 45-year-old nurse for speeding. 567 F.3d 156, 161 (5th Cir. 2009). In 

response to her passive resistance, the officers broke her window, pulled her 

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

abdominal area. Id. at 162. The next day, the plaintiff visited a doctor who 

observed “contusions to both wrists, neuropathy of her hands, right shoulder 

strain, left shoulder bruising (with handprints), and multiple cuts caused by 

broken glass (with one to her forehead).” Id. The plaintiff required four 

surgeries and missed thirteen to fifteen weeks of work as a result of her 

injuries. Id. As with the cases discussed above, the court discussed the 

Graham factors and reasoned they favored a finding the police acted 

unreasonably and took issue with the fact the officers engaged in “little, if 

any negotiation” with the plaintiff before resorting to force. Id. at 167–68. 

But the court also focused on the “the severity of Deville’s injuries” in 

determining whether there was excessive force under these circumstances. 

Id. at 168. Finding that the “facts [were] sufficiently egregious,” the court 

denied qualified immunity. Id. at 169. As above, although there are parallels 

to the instant case, Deville dealt with a use of force and an injury far greater 

than here. 

Similarly, Newman v. Guedry was a traffic-stop case where all of the 

Graham factors weighed against the officers and the court expressed a 

concern about how quickly the officers resorted to force. 703 F.3d 757, 762–

63 (5th Cir. 2012). In that case, in response to a plaintiff’s passive resistance, 

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officers struck the plaintiff with a baton thirteen times and tased him three 

times. Id. at 760. Again, the degree of force in that case was significantly 

greater than that here and was obviously disproportionate to the plaintiff’s 

actions. Likewise, in Goodson v. City of Corpus Christi, two officers tackled a 

plaintiff to the ground, broke his shoulder, jerked his arm back, and cuffed 

him even after he complained his arm was broken. 202 F.3d 730, 734 (5th 

Cir. 2000). The plaintiff spent eight days in the hospital and needed a plate 

and screws implanted. Id. Further, the plaintiff’s retelling of the incident 

indicated he complied completely with the officers’ orders. Id. at 733–34. 

Accordingly, the degree of force and injury in Goodson is readily

distinguishable from the facts here. 

Finally, Solis argues that Joseph ex rel. Estate of Joseph v. Bartlett

supports her argument that the officers violated a clearly established right. 

981 F.3d 319 (5th Cir. 2020). That case (which was issued over a year after 

the incident at issue here), involved police officers beating and tasing a 

schizophrenic man to death while he was on the ground, not resisting, and 

calling out for his mother. Id. at 326–27. Joseph’s facts are so far afield from 

the instant case that even were it published before May 2019, it could not 

establish that the Appellants’ actions here were unconstitutional. 

Since May 2019, we have decided numerous cases with facts even 

more like this case than Trammell or Hanks, and we have repeatedly found no 

constitutional violation. Consider Tucker v. City of Shreveport, which dealt 

with a plaintiff who was pulled over for a broken brake light. 998 F.3d 165. 

An officer asked him to come to the back of the car, where he searched him 

and found a small knife. See Tucker v. City of Shreveport, No. 17-1485, 2019 

WL 961993, at *1 (W.D. La. Feb. 27, 2019). Although the plaintiff was 

agitated, he was compliant. Id. He was never told that he was under arrest. 

Id. The plaintiff denied that he ever pulled away from the officers, but they 

claimed that he jerked his arm when they tried to arrest him, and the video 

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evidence showed his arm moving. Tucker, 998 F.3d at 178. The officers 

performed a takedown and brought the plaintiff to the ground. Id. at 175. He 

sued, and the district court denied qualified immunity to the officers. After 

an exhaustive review of the evidence and an emphasis on viewing the events 

from the point of view of the officers at the time, the Fifth Circuit reversed, 

finding no constitutional violation and that the law was not clearly 

established. Id. at 176–81. If there is no constitutional violation where the 

officers perform a takedown on a mostly compliant plaintiff who was never 

told he was under arrest and whose form of active resistance was jerking his 

arm away, it is difficult to say that there was a “clearly established” violation 

here. 

Or consider Craig v. Martin, 26 F.4th 699 (5th Cir. 2022). There, 

Jacqueline Craig called the police after a neighbor grabbed her son’s neck for 

littering. Id. at 702. Officer Martin responded, and Craig and Martin had a 

dispute. Id. at 702–03. One of Craig’s daughters, J.H., grabbed her mother’s 

arms during the dispute, and Martin pulled her aside. Id. at 703. Another of 

Craig’s daughters, K.H., pushed into Martin, and Martin told the family to 

get on the ground, shoved Craig into the ground, and pulled Craig’s arms 

behind her back. Id. Martin handcuffed Craig and walked over to J.H., 

grabbed her arm and the back of her neck, and put her on the ground. Id. 

When he tried to take Craig and J.H. to his vehicle, K.H. appeared and 

attempted to block access to the vehicle. Id. Martin struck the fourteen-yearold K.H. in the throat. Id. He also kicked J.H.’s leg as he placed her in the 

vehicle. Id. Finally, Martin went to arrest another of Craig’s daughters, Brea 

Hymond, who had been filming the altercation. Id. Martin handcuffed 

Hymond and put her against his vehicle. Id. When she refused to answer his 

questions, Martin pulled her arms behind her back to force compliance, a 

maneuver Hymond claimed caused excruciating pain. Id. 

This court held that Martin was entitled to qualified immunity. 

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Specifically, it held that Martin did not use excessive force because the 

plaintiffs’ injuries were not significant, and the use of force was proportionate 

to the need given the resistance that Martin faced throughout the incident. 

Moreover, the court also found that even had Martin violated a constitutional 

right, such a right was not clearly established. If there was no constitutional 

violation on those facts, including the initial takedown of Craig and the 

compliance maneuver performed on Hymond, it is difficult to see how a 

clearly established violation could exist here. 

Finally, consider Betts v. Brennan, 22 F.4th 577 (5th Cir. 2022). In 

that case, a police officer tased a plaintiff who was highly agitated but had 

mostly complied with the officer’s orders. Id. at 580–81. The plaintiff in 

Betts offered more resistance than Solis, but the use of force was also greater. 

The district court denied qualified immunity but this court reversed, holding 

that the plaintiff’s actions rose to active resistance and that Hanks was not 

sufficiently on-point to illustrate a constitutional violation. Id. at 583–86. 

Although Tucker, Craig, and Betts were decided after the incident at 

issue here, they demonstrate that as of May 2019 the constitutional question 

at issue here was far from “beyond debate.” Trammell, 868 F.3d at 339. 

Moreover, it is telling that in none of these cases did the court find a “clearly 

established” right. If the law was not sufficiently clear to deny qualified 

immunity in these factual similarly cases, it follows that no “clearly 

established” right exists here. 

IV.

For the foregoing reasons, we DENY Appellee’s motion to dismiss 

this appeal, REVERSE the district court’s order denying Appellant’s 

motion for summary judgment, and REMAND with instructions that 

Solis’s claims against Appellants be dismissed. 

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