REVISED May 24, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 is a false arrest and excessive force case following an altercation

between Reynaldo Ramirez (“Ramirez”) and Deputy Jose “Taser Joe” Martinez

(“Martinez”) in Jim Wells County, Texas. Martinez appeals the district court’s

denial of summary judgment based on qualified immunity on Ramirez’s 42

U.S.C. § 1983 claims and state-law official immunity on Ramirez’s state-law

claims. We REVERSE in part and DISMISS in part.

United States Court of Appeals

Fifth Circuit

F I L E D

May 15, 2013

Lyle W. Cayce

Clerk
No. 11–41109

1 Because this appeal comes to us from the defendant’s motion for summary judgment,

we construe the summary judgment record in the light most favorable to the non-movant

plaintiff. See Little v. Shell Exploration & Prod. Co., 690 F.3d 282, 286 (5th Cir. 2012)

(viewing evidence in light most favorable to non-movant parties); see also FED. R. CIV. P. 56.

2 A videotape, captured by the nearby news crew, recorded some of the events

underlying Ramirez’s claims. The tape’s admissibility is not in dispute, though its contents are

not necessarily a clear depiction of the events. See Part II.B. infra.

2

I

Deputy Martinez, a Jim Wells County sheriff’s deputy, arrived with other

officers at a landscaping business owned by Ramirez to execute a warrantfor the

arrest of Ramirez’s sister-in-law, Diana Flores.1 Ramirez was not the subject of

any warrant. Deputy Martinez entered the business and asked a man and a

woman inside whether Flores was present; both said she was not. Martinez then

exited the building.

Ramirez arrived at the business while Deputy Martinez and the other

officers were still present. A news crew was also present, filming the scene.2

Ramirez claims the officers had their guns drawn and were pointing the guns at

his employees, who were kneeling down. Ramirez approached Deputy Michael

Teodecki, another Jim Wells County sheriff’s deputy, and asked him to explain

what was happening. Teodecki said Martinez was in charge of the operation and

did not disclose any other information.

Ramirez located Deputy Martinez and asked Martinez what was

happening and why the officers were there. The two exchanged profanities.

Martinez yelled, “You shut your mouth or I will take you to jail!” Ramirez

simultaneously yelled, “This is my business, ok?” twice. Martinez yelled, “Turn

around and put your hands behind your back!” Ramirez did not comply.

Martinez grabbed Ramirez’s hand and told him to turn around, but Ramirez

pulled his arm away. Martinez immediately tased Ramirez in the chest.

Ramirez testified that he did not resist after he pulled his arm away.
No. 11–41109

3

Martinez and several officers forced Ramirez to the ground. While doing

so, an officer yelled at Ramirez, “Stop resisting!” and, “Get on the ground!”

Ramirez fell to his knees, and the officers forced him to the ground on his

stomach and restrained him with handcuffs. Martinez tased Ramirez a second

time while lying face-down on the ground in handcuffs. Martinez arrested

Ramirez, who was charged with disorderly conduct. The charge was later

dismissed.

Ramirez filed suit in the United States District Court for the Southern

District of Texas, naming as defendants Jim Wells County and several officers,

including Deputy Martinez. Ramirez alleged excessive force, false arrest, and

malicious prosecution claims under 42 U.S.C. § 1983 and Texas state law claims,

including assault and battery and false arrest and imprisonment. Ramirez

voluntarily dismissed all defendants except Martinez.

Martinez moved for summary judgment on the basis of qualified immunity

and state-law official immunity. A magistrate judge recommended the district

court grant the motion as to Ramirez’s § 1983 claim for malicious prosecution

but deny the motion as to the remainder of Ramirez’s federal claims. The

magistrate judge made no recommendation on Ramirez’s state-law claims,

stating Martinez had not raised these claims in his motion for summary

judgment. The district court adopted the magistrate judge’s recommendations,

but determined Martinez had in fact raised the state-law claims in his motion

for summary judgment. The district court nevertheless denied summary

judgment on these state-law claims. Thus, the district court granted Martinez’s

motion for summary judgment as to Ramirez’s § 1983 claim for malicious

prosecution but denied the motion as to all other claims. Martinez timely

appealed.
No. 11–41109

4

II

A

The denial of a motion for summary judgment is ordinarily a non-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. Brown v. Strain, 663 F.3d 245,

248 (5th Cir. 2011); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)

(holding denial of claim of qualified immunity is appealable to extent it turns on

issue of law). When reviewing an interlocutory appeal asserting qualified

immunity, we lack the jurisdiction to review the district court’s decision that a

genuine issue of fact exists. Brown, 663 F.3d at 248. Instead, this court’s

jurisdiction is limited to determining “whether the district court erred in

assessing the legal significance of the conduct that the district court deemed

sufficiently supported for purposes of 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, not 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 law are appealable in federal

courtto the same extent as district court orders premised on the denial of federal

law immunity.” Id. at 804; accord Kinney v. Weaver, 367 F.3d 337, 346 n.7 (5th

Cir. 2004) (en banc) (“[O]rders denying official 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 denial of summary judgment based on both federal qualified immunity

and Texas official immunity only to the extent the denial was based on an issue

of law. Cantu, 77 F.3d at 804.

We review the district court’s denial of summary judgment de novo.

McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). Summary judgment
No. 11–41109

5

is appropriate when there is no genuine 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 sufficientfor a reasonable jury to return a verdict for

the nonmoving party. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th

Cir. 2000). A fact issue is “material” if its resolution could affect 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. Harris, 550 U.S. 372 (2007). Martinez argues that because there is a

videotape partially capturing the altercation at issue, this court should not view

the facts in the light most favorable to Ramirez, but instead should rely on the

facts established by the video recording and defer to Ramirez’s version of any

remaining relevant facts. See generally Scott v. Harris, 550 U.S. 372 (2007).

Scott involved a § 1983 claim for excessive force stemming from injuries the

plaintiff received when his vehicle crashed while fleeing from a county deputy.

Id. at 374–76. In reviewing the denial of the deputy’s motion for summary

judgment based on qualified immunity,the Supreme Court determined the lower

courts were wrong to accept the version of facts provided by the plaintiff when

that version was contradicted by a videotape of the chase and crash. Id. at

378–81. The plaintiff had contended he remained in control of his vehicle at all

times while he was driving, slowing down and using his indicator lights for turns

at intersections, and he did not pose a threat to any other motorists or

pedestrians. Id. at 378–79. The videotape, by contrast, showed the plaintiff

racing down the road at a very high speed, swerving around more than 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
No. 11–41109

6

by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Id. at 380.

Scott does not control our standard of review here because it is

distinguishable. There, the Court determined the plaintiff’s version of events

was so “blatantly contradicted” 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 to discount Ramirez’s version

of the events under Scott. When the videotape begins, Martinez and Ramirez

are already yelling at each other. A struggle ensues, but it is unclear exactly

what or who precipitates and what constitutes that struggle. There appear to

be about five people involved, but none of their faces are visible on the videotape

until Ramirez is on his knees. The tape only establishes that the officers forced

Ramirez to the ground, an officer placed a black object against Ramirez’s back,

and Ramirez screamed twice.

Martinez asserts we must disregard Ramirez’s version of events on

summary judgment because the video shows Ramirez tried to punch him.

Although the video shows the struggle described above, it does not clearly show

a punch or every particular element of the altercation. The video does not

blatantly contradict Ramirez’s version of the facts; accordingly, we view the

evidence in the light most favorable to Ramirez.

III

On the merits, Martinez contends the district court erred in (1) denying

qualified immunity on Ramirez’s false arrest claim, (2) denying qualified

immunity on Ramirez’s excessive force claim, and (3) denying official immunity

on Ramirez’s state law claims.
No. 11–41109

7

“The doctrine of qualified immunity protects public officials 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.” Brown, 663 F.3d at 249 (internal quotation marks omitted). To

determine whether a public official is entitled to qualified immunity, we decide

“(1) whether the facts that the plaintiff has alleged make out a violation of a

constitutional right; and (2) whether the right at issue was clearly established

atthe time ofthe defendant’s alleged misconduct.” Id.(internal quotation marks

omitted) (citing Pearson v. Callahan, 555 U.S. 223, 230–33 (2009)). A right is

clearly established when “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Jones v. Lowndes Cnty.,

Miss., 678 F.3d 344, 351 (5th Cir. 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 asserts he is entitled to qualified immunity on Ramirez’s false

arrest claim because Martinez thought he had probable cause to arrest Ramirez

for three separate offenses: resisting arrest, attempted assault, and interference

with public duties, all of which are violations of Texas law. In order to make a

lawful arrest, an officer must have probable cause to believe the suspect

committed a crime. Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004).

“Probable 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 committed or was committing an

offense.” Id. (internal quotation marks omitted). If an officer reasonably but

mistakenly believes that probable cause exists, he is entitled to qualified

immunity. Club Retro, LLC v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009).
No. 11–41109

3 The offense of Resisting Arrest is defined in relevant part as follows:

(a) A person commits an offense if he intentionally prevents or obstructs a

person he knows is a peace officer or a person acting in a peace officer’s presence

and at his direction from effecting an arrest, search, or transportation of the

actor or another by using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search

was unlawful.

Tex. Penal Code Ann. § 38.03 (West 2009).

8

The facts Ramirez alleges do not make out a constitutional violation in the

form of false arrest, and therefore we do not reach the issue of whether any

violation was clearly established atthe time ofthe conduct. See Brown, 663 F.3d

at 249. Martinez asserts probable cause existed to believe that Ramirez was

resisting arrest.3In Texas, the act of resisting can supply probable cause for the

arrest itself. For example, in Padilla v. Mason, a Texas state court stated:

When Mason touched Padilla’s elbow in an effort to turn or guide

her around to face the vehicle, she pulled her arm away, nearly

striking Mason in the upper body, and stated, “You will not arrest

me.” At that point, a reasonable law enforcement officer would have

believed that he had probable cause 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 his deposition that he pulled his arm out of Martinez’s

grasp as Martinez was attempting to arrest him. He stated, “First of all, he

grabbed my—grabbed my hand, told me to turn around, and I didn’t. . . . I don’t

think I pushed him. But I did—I did snug back, you know.” The great weight of

Texas authority indicates that pulling out of an officer’s grasp is sufficient to

constitute resisting arrest. See Pumphrey v. State, 245 S.W.3d 85, 89 (Tex.

App.—Texarkana 2008, pet. ref’d) (footnote omitted) (“[W]e hold thatthe statute

authorizes a conviction for resisting arrest when the defendant actively pulls

against an officer’s established grasp of the defendant during an arrest

attempt.”); Torres v. State, 103 S.W.3d 623, 627 (Tex. App.—San Antonio 2003,

no pet.) (“[A] person who uses force in order to shake off an officer’s detaining
No. 11–41109

4 One Texas court held pulling out of an officer’s grasp is insufficient to constitute

resisting arrest. Mayfield v. State, 758 S.W.2d 371, 374 (Tex. App.—Amarillo 1988, no writ)

(citing Young v. State, 622 S.W.2d 99, 100–01 (Tex. Crim. App. 1981)) (“The evidence is

insufficient to establish resisting arrest where the accused merely pulls away from the

arresting officer.”). The Texas Court of Criminal Appeals case Mayfield relied on, however,

dealt with an arrestee pulling away from an officer after being arrested, and held, “The arrest

was complete . . . and thus the later violent actions by appellant could not have been in

resistance to the arrest.” Young, 622 S.W.2d at 100.

9

grip, whether by pushing or pulling, may be guilty of resisting arrest under

section 38.03.”); Bryant v. State, 923 S.W.2d 199, 207 (Tex. App.—Waco 1996,

pet. ref’d) (emphasis removed) (“[P]ulling one’s arm in an attempt to shake off

an officer’s detaining grip could amount to force against that officer [under

section 38.03].”); Hopper v. State, 86 S.W.3d 676, 679 (Tex. App.—El Paso 2002,

no pet.) (holding “a person who uses force in order to shake off an officer’s

detaining grip, whether by pushing or pulling, may be guilty of resisting arrest

under Section 38.03” and explicitly disavowing Raymond v. State, 640 S.W.2d

678, 679 (Tex. App.—El Paso 1982, pet. ref’d), which held arrestee’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 could have reasonably concluded that Ramirez committed the offense

of resisting arrest when Ramirez pulled his arm away from Deputy Martinez’s

grasp.

Ramirez alternatively 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) uses or attempts to use greater force

than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is

immediately necessary to protect himself against the peace officer’s

(or other person’s) use or attempted use of greater force than

necessary.
No. 11–41109

10

Thatis, Ramirez asserts any resistance was offered in response to Martinez’s use

of greater force than necessary in the form of the first tasing. The problem with

this line of reasoning is that it could only possibly apply to the ensuing struggle,

as Ramirez stated in his deposition that he pulled his arm out of Martinez’s

grasp before any tasing began. As discussed, the act of pulling his arm out of

Martinez’s grasp is enough, standing alone, to constitute resisting arrest, so it

matters not whether the further resistance was 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 of Martinez’s grasp; therefore, the arrest

was supported by probable cause.

Because we hold that under Ramirez’s version of the facts a reasonable

officer at the scene would have thought he had probable cause to arrest Ramirez

for resisting arrest, we do not reach Deputy Martinez’s assertion that he had

probable cause to arrest Ramirez for attempted assault and interference with

public duties. As we held in Wells v. Bonner, “[i]f there was probable cause for

any of the charges made—here either disorderly conduct or resisting a

search—then the arrest was supported by probable cause, and the claim for false

arrest fails.” 45 F.3d 90, 95 (5th Cir. 1995). Because there was no false arrest,

no constitutional violation occurred, and, accordingly, we have no occasion to

reach the part ofthe 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 Ramirez’s false arrest claim.

B

To establish Martinez violated his constitutional right to be free from

excessive force, Ramirez must show: “(1) an injury (2) which resulted from the

use of force that was clearly excessive to the need and (3) the excessiveness of

which was objectively unreasonable.” Rockwell v. Brown, 664 F.3d 985, 991 (5th
No. 11–41109

11

Cir. 2011) (internal quotation marks omitted). If he can establish a violation,

then we determine whether the law was clearly established at the time of

Martinez’s conduct. Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008). Whether

the force was reasonable under the Fourth Amendment is determined “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Id. (internal quotation mark omitted). In determining whether

a use of force was reasonable, we look to the totality of the circumstances,

Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012), giving “careful attention to

the facts and circumstances of each particular case, including the severity of the

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

the officers or others, and whether he is actively resisting arrest or attempting

to evade arrest by flight” (the “Graham factors”). Graham v. Conner, 490 U.S.

386, 396 (1989).

First, Ramirez must assert an injury. In his complaint, Ramirez alleges,

“As a result ofthe Defendant Martinez’s actions,” Ramirez “sustained numerous

injuries to his body, including, but notlimited to, contusions and abrasions to his

body, and burn marks from the taser probes.” Martinez does not challenge these

allegations of injury and causation on appeal. Therefore, we need determine

only whether Ramirez succeeds in showing Martinez’s use of force was clearly

excessive to the need and objectively unreasonable.

Martinez asserts his conduct was not excessive to the force needed nor

objectively unreasonable. We have not addressed a fact pattern precisely on

point, but we have held the use of certain force after an arrestee has been

restrained and handcuffed is excessive and unreasonable. Bush, 513 F.3d at

501–02. In Bush, we held a police officer used excessive force that was

objectively unreasonable and in violation of clearly established law when he

forcefully slammed a suspect’s face into a vehicle after subduing her and placing

her in handcuffs. Id. On the other hand, we recently held the use of a taser was
No. 11–41109

5 The dissent is mistaken not to take Ramirez’s version of the facts as true when

applying Saucier v. Katz to the facts here. 533 U.S. 194 (2001). The dissent implies the

majority intentionally left out of the analysis Martinez’s assertion that he “interpreted

Ramirez’s ‘pulling away’ as raising his arm in order to attempt to punch him, and that is why

12

not excessive where the arrestee was resisting arrest and the officers ceased use

of the taser once the arrestee was handcuffed and subdued. Poole v. City of

Shreveport, 691 F.3d 624, 626 (5th Cir. 2012).

Turning to the case on appeal, we hold Ramirez’s version of the facts as

supported by the summary judgment record is sufficient to establish under the

Graham factors that Martinez used excessive force. See Haggerty v. Tex. State

Univ., 391 F.3d 653, 655 (5th Cir. 2004) (“In an interlocutory appeal in which the

defendant asserts qualified immunity,to the extentthat the district court found

that genuine factual disputes exist, we accept the plaintiff’s version of the facts

(to the extent reflected by proper summary 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 material fact as to any subsequent resistance up until Martinez tased him

after subduing and handcuffing him. Therefore, accepting Ramirez’s version of

the facts as true, the first Graham factor weighs slightly against Martinez.

Second, a reasonable officer could not have concluded Ramirez posed an

immediate threatto the safety ofthe officers by questioning their presence at his

place of business or laying on the ground in handcuffs. Pulling his arm out of

Martinez’s grasp, without more, is insufficientto find an immediate threatto the

safety of the officers. Third, as in the first Graham factor, according to Ramirez

the only resistance he offered was pulling his arm out of Martinez’s grasp; he

alleges several officers then forced him to the ground without resistance on his

part. Viewing the facts of this record in the light most favorable to Ramirez, any

reasonable officer in Martinez’s place would have recognized Martinez’s conduct

was objectively unreasonable under the Graham factors.5 The district court
No. 11–41109

Martinez tased the arrestee.” Ante at 3. Martinez did not testify he interpreted Ramirez’s

pulling away as raising his arm for a punch; rather, Martinez testified Ramirez pulled his arm

away and put his hand behind his back. Martinez testified he grasped and pulled on Ramirez’s

shirt, and only then did Ramirez attempt to punch him. (As discussed above, Martinez’s heavy

reliance in his briefing on the unclear video to prove the fact of the punch is misplaced. See

Part II.B supra.) It is not the purpose of Ramirez’s allegedly raised arm that is in dispute, but

rather it is whether Ramirez raised his arm at all. Cf. Saucier, 533 U.S. at 198 (“It seems

agreed that respondent placed his feet somewhere on the outside of the van, perhaps the

bumper, but there is a dispute whether he did so to resist.”). In Saucier, the dispute as to

resistance centered on the subjective intent of the arrestee, so a reasonable officer could have

thought the arrestee would “fight back.” Id. at 205. Here, without the alleged raised arm a

reasonable officer could not have even mistakenly thought Ramirez’s purpose was to punch

Martinez.

13

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

under Ramirez’s version of the facts to be clearly excessive and objectively

unreasonable under the circumstances. Thus, a jury must determine the facts

at trial.

Next, the district court did not misapply the law in holding Deputy

Martinez’s alleged excessive and unreasonable force under Ramirez’s version of

the events violated clearly established law. We have explained the ‘clearly

established’ prong as follows:

Qualified immunity should not be denied unless the law is clear in

the more particularized sense that reasonable officials should be “on

notice that their conduct is unlawful.” Saucier v. Katz, 533 U.S.

194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The central

concept is that of “fair warning”: The law can be clearly established

“despite notable factual distinctions between the precedents relied

on and the cases then before the Court, so long as the prior decisions

gave reasonable warning that the conduct then at issue violated

constitutional rights.” Hope, 536 U.S. at 740, 122 S.Ct. 2508

(internal quotation marks omitted).

Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc). In Newman v.

Guedry, we addressed whether the law on the use of tasers was clearly

established at the time of an event that occurred before the incident between

Ramirez and Martinez:
No. 11–41109

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Guedry contends that he had no reasonable warning that tasing

Newman multiple times violated Newman’s constitutional rights,

because there was then no binding caselaw on the appropriate use

of tasers. Lawfulness of force, however, does not depend on the

precise instrument used to apply it. Qualified immunity will not

protect officers 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 Bush we

held an officer used excessive and unreasonable force when he forcefully

slammed an arrestee’s face into 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 down on the ground, in violation of clearly established

law. Therefore, the district court did not err in denying Martinez qualified

immunity on Ramirez’s claim for excessive force. 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 lack jurisdiction to review the district 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 moved for summary judgment on Ramirez’s state-law

claims for assault and battery and false arrest and imprisonment on the basis

of official immunity. Official immunity is an affirmative defense that protects

government employees from personal liability for certain actions taken in the

course of their employment. Telthorster v. Tennell, 92 S.W.3d 457, 460–61 (Tex.

2002). A government employee is entitled to official immunity for “(1) the

performance of discretionary duties (2) that are within the scope of the

employee’s authority, (3) provided that the employee acts in good faith.” Id. at
No. 11–41109

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461. A government employee must “conclusively establish” each of these

elements in order to be entitled to summary judgment on the basis of official

immunity. Id.

First,“an arrestis 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 not dispute the arrest was within the scope of Martinez’s

authority. See Telthorster, 92 S.W.3d at 461 (treating elements of official

immunity as “conclusively 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 have believed

that his conduct was justified based on the information he possessed when the

conduct occurred.” Telthorster, 92 S.W.3d at 465. Good faith is to be measured

“against a standard of objective legal reasonableness, without regard to the

officer’s subjective state of mind.” Wadewitz v. Montgomery, 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 for false 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 pulling his arm

out of Martinez’s grasp. Therefore, Martinez is entitled to official immunity on

Ramirez’s claim for false arrest and imprisonment. 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 for his § 1983 claim for excessive force. As discussed above, no

reasonable officer acting in good faith could have believed Deputy Martinez’s

specific conduct was justified based on Ramirez’s version ofthe facts. Therefore,

the district court correctly denied Martinez’s motion for summary judgment on

the basis of official immunity for this claim.
No. 11–41109

16

V

In summary, we hold Deputy Martinez is entitled to qualified immunity

on Ramirez’s false arrest claim but not on Ramirez’s excessive force claim. In

addition, Deputy Martinez is entitled to official immunity on Ramirez’s state-law

false arrest and imprisonment claim but not on Ramirez’s state-law assault and

battery claim. For the reasons we have stated in this opinion, we REVERSE in

part and DISMISS in part.
No. 11-41109

17

EDITH H. JONES, Circuit Judge, dissenting. 

With respect to my colleagues, I must dissent to the extent the majority

opinion denies qualified immunity to Officer Martinez for his alleged use of

unconstitutionally excessive force against arrestee Ramirez. Between this

opinion and another recently issued in this court, Newman v. Guedry, 703 F.3d

757 (5th Cir. 2012), we seem to have departed from the Supreme Court’s clear

and repeated statements regarding qualified immunity for law enforcement

officers. 

In brief,the Supreme Court has held that given the perilous circumstances

under which much law enforcement work is carried out and the inevitable need

for split-second decisions, a plaintiff must overcome two levels of

unreasonableness to get to the jury on a claim for a Fourth Amendment

violation. 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 first create a genuine issue of material fact that the force

used under the circumstances was objectively unreasonable. Graham v. Connor,

490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989). He or she must additionally

show a genuine, material factissue thatthe law was so “clear,” 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. 194, 201,

125 S. Ct. 596, 600 (2004) (reversing the Ninth Circuit and awarding qualified

immunity following police shooting of suspect). The standard thus shields all

but the plainly incompetent officers or those who knowingly violate the law. 

Anderson, 483 U.S. at 638, 107 S. Ct. at 3038. The standard also explicitly

operates to “protect officers from the sometimes ‘hazy border between excessive

and acceptable force.’” Saucier, 533 U. S. at 206, 121 S. Ct. at 2158 (citation

omitted).
No. 11-41109

18

Whatthis court’s recent decisions seem to suggest, however, is that officers

can be liable even if they are well within that hazy border. Saucier explains why

this is wrong:

If an officer reasonably, but mistakenly, believed that a suspect was

likely to fight back, for instance, the officer would be justified in

using more force than in fact was needed. 

. . . 

The concern of the [qualified] immunity inquiry is to acknowledge

that reasonable mistakes can be made as to the legal constraints on

particular police conduct. . . . An officer might correctly perceive all

of the relevant facts but have a mistaken understanding as to

whether a particular amount of force is legal in those circumstances.

. . . 

Graham and Anderson refute the excessive force/probable

cause distinction on which much of respondent’s position seems to

depend. The deference owed officers facing suits for alleged

excessive force is not different in some qualitative respect from the

probable-cause inquiry in Anderson. . . . The same analysis is

applicable in excessive force cases, where in addition to the

deference officers receive on the underlying constitutional claim,

qualified immunity can apply in the event the mistaken belief was

reasonable. 

Id. at 205–06, 121 S. Ct. at 2158–59. In Saucier,the Ninth Circuit was reversed,

and qualified immunity held appropriate as a matter of law, where police

roughly removed the defendant, a suspect, from the scene of a U.S. Vice

Presidential speech, jostled his leg that had a brace on it, and shoved him into

a trailer for awhile. The Court held that any mistake the officers made was,

under the circumstances, reasonable, despite the fact that, as it earlier noted,

“there is a dispute whether he did so to resist.” Id. at 198, 121 S. Ct. at 2154.

Compare Saucier to the facts at issue here. The officers arrived at

Ramirez’s landscaping business to serve an arrest warrant on his sister-in-law.

When Ramirez came on the scene, he began arguing with Officer Martinez.
No. 11-41109

1 This court has not often or in detail discussed the use of tasers to subdue suspects.

Although the decision is inapposite to this case, Draper v. Reynolds, 369 F.3d 1270, 1278 (11th

Cir. 2004), indicates that in some confrontations the use of a taser may well be preferable in

effecting arrests because it reduces the uncertainties and dangers surrounding hands-on

tactics.

19

Martinez ordered him to turn around and submit to handcuffing. As the

majority opinion initially describes the summary judgment evidence, 

Ramirez did not comply. Martinez grabbed Ramirez’s hand and told

him to turn around, but Ramirez pulled his arm away. Martinez

immediately tased Ramirez in the chest. Ramirez testified that he

did not resist after he pulled his arm away.

Later on, the majority concludes that because Ramirez pulled his arm away,

Officer Martinez could reasonably believe that he was resisting arrest in

violation of Texas law. The majority opinion barely notes that Martinez

interpreted Ramirez’s “pulling away” as raising his arm in order to attempt to

punch him, and that is why Martinez tased the arrestee. Given Ramirez’s

heated reaction and refusal to comply with Martinez’s order, Martinez could

have “reasonably, but mistakenly, believed that [the] suspect was likely to fight

back” and Martinez “would be justified in using more force than in fact was

needed.” Saucier, 533 U.S. at 205, 121 S. Ct. at 2158.

The possible distinction between this case and Saucier is that Ramirez was

tased once more as he allegedly lay on the ground while handcuffed.

Fortunately, the majority does not treat this case as an indictment of the use of

tasers, but rather an incident that must be considered in totality through the

lens of Ramirez’s self-serving testimony.1 But as I have noted, Saucier found

qualified immunity appropriate even though there was a factual dispute

concerning the suspect’s degree of resistance. 

The totality of circumstances in Saucier furnishes strong support for

granting qualified immunity as a matter of law here. First, there was

reasonable cause to believe Ramirez violated Texas law. Second, Ramirez
No. 11-41109

2 From this discussion, itfollows that I would also grant immunity from Ramirez’s state

law claims because Texas law parallels the federal standards.

20

admits he resisted handcuffing and pulled his arm away, and thus actively

resisted 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.” Id. at 208, 121 S. Ct. at 2160 (quoting Graham, 490 U.S. at 396,

109 S. Ct. at 1872). Fourth, as in Saucier, the degree of force used here could not

have been extreme; the majority opinion refers only to Ramirez’s claims of cuts

and bruises, taser burn marks, and temporary pain. Finally, the entire

confrontation lasted about a half minute and included scuffling after Ramirez

was on the ground. Officer Martinez had to react instinctively to a “tense,

uncertain, and rapidly evolving” situation. Graham, 490 U.S. at 397, 109 S. Ct.

at 1872. 

Balancing all these circumstances, a jury could not find that no

reasonable officer would have tased Ramirez two times. Even if Officer Martinez

made a mistake on the second tasing, Saucier, echoing the line of consistent

Supreme Court precedent, should shield his reasonable but mistaken conduct

from suit as well as liability.2

The majority’s principal authorities are Newman, supra, and Bush v.

Strain, 513 F.3d 492 (5th Cir. 2008). Newman, as I have said, appears to suffer

from flawed analysis like this opinion. Bush, however, is inapposite because it

represents a far more extreme alleged use of force. The Supreme Court has

cautioned against applying the tests for excessive force and qualified immunity

at too high a level of generality. Brosseau, 543 U.S. at 198, 125 S. Ct at 599.

The plaintiff in Bush was a female detained for simple battery and resisting

arrest, whose face was allegedly shoved into the rear window of an auto after she

had been handcuffed. Unlike Ramirez, she suffered injuries to her face, teeth,
No. 11-41109

21

and jaw and incurred sizable medical expenses as a result. There 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 to holding law enforcement officers personally liable for damages are

necessarily and properly high. Taking this case to a jury, in my view,

significantly erodes the protection of qualified immunity. I respectfully dissent.