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As public officials, Guedry and Burke ("the officers") are entitled to qualified immunity on Newman's § 1983 excessive-force claim unless (1) Newman has "adduced sufficient evidence to raise a genuine issue of material fact suggesting [their] conduct violated an actual constitutional right," and (2) the officers' "actions were objectively unreasonable in light of clearly established law at the time of the conduct in question." Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Although qualified immunity is "nominally an affirmative defense," the plaintiff bears a heightened burden "to negate the defense once properly raised." Id.
To prevail on his Fourth Amendment excessive-force claim, Newman must establish "(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." Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). Claims of excessive force are fact-intensive; whether the force used was "clearly excessive" and "clearly unreasonable" depends on "the facts and circumstances of each particular case." Graham v. Connor, 490 U.S. 386, 396 (1989). Some relevant considerations include "the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight." Id.
We do not judge the reasonableness of the officers' use of force from the safety of our chambers or "with the 20/20 vision of hindsight" but rather "from the perspective of a reasonable officer on the scene . . . ." Id. Our inquiry is "whether the officers' actions [we]re 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. 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).
The officers' theory that they were trying to prevent serious injury or death to themselves is severely overwrought. The videos do not show Newman attempting to strike either officer, holding a weapon, or even reaching for his waistband. The officers did not try to warn each other or the other officers that Newman had a weapon, which might be expected if either officer truly thought that at the time. The officers were obviously already behind Newman, pushing him down onto the trunk of the car, before Burke began swinging his baton. Although "traffic stops may be dangerous encounters," Maryland v. Wilson, 519 U.S. 408, 413 (1997), and officers must have the discretion to make hard decisions in situations that are "tense, uncertain, and rapidly evolving," Graham, 490 U.S. at 397, the particular facts of this encounter did not justify treating Newman as a serious threat, at least at the summary-judgment stage.
No one contends that Newman attempted to flee. The officers maintain that their use of force was appropriate, because Newman struggled and was non-compliant. But, on Newman's account, he was never given any commands that he disobeyed. Duchamp, who was standing near the officers, testified that he did not recall their giving Newman any commands before striking him. In his deposition, Burke clarified that by "struggle" he meant that Newman was pushing himself off from the car and back onto the officers. Newman also failed to "comply" with Burke's first ten baton strikes by pushing off the car. After the blows to his leg, Newman's body failed to comply, according to Burke, by not falling to the ground. Even on the officers' version of events, Newman's behavior did not rise to the level of "active resistance."
Although officers may need to use "physical force . . . to effectuate [a] suspect's compliance" when he refuses to comply with commands during a traffic stop, Deville, 567 F.3d at 167, the officers still must assess "the relationship between the need and the amount of force used," id. In Deville, we held that a reasonable jury could find that the degree of force used was not justified where the officer "engaged in very little, if any, negotiation" with the suspect and "instead quickly resorted to breaking her driver's side window and dragging her out of the vehicle." Id. at 168. If Newman's allegations are true, the officers immediately resorted to taser and nightstick without attempting to use physical skill, negotiation, or even commands. Viewing the summary-judgment facts in a light most favorable to Newman, we conclude that the use of force was objectively unreasonable.
The officers maintain that their conduct was not objectively unreasonable in light of clearly established law at the time of the incident. "[T]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). "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." Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (internal quotations and citation omitted). It is beyond dispute that Newman's right to be free from excessive force during an investigatory stop or arrest was clearly established in August 2007. See, e.g., Deville, 567 F.3d at 169; Tarver, 410 F.3d at 753S54.
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, how- ever, does not depend on the precise instrument used to apply it. Qualified *fn6 immunity will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel. *fn7
Furthermore, "in an obvious case," the Graham excessive-force factors themselves "can 'clearly establish' the answer, even without a body of relevant case law." Brosseau v. Haugen, 543 U.S. 194, 199 (2004). None of the Graham factors justifies Guedry's tasering Newman. As noted above, on Newman's account, he committed no crime, posed no threat to anyone's safety, and did not resist the officers or fail to comply with a command. Therefore, taking the facts *fn8
in the light most favorable to Newman at the summary-judgment stage, the officers' conduct was objectively unreasonable in light of clearly established law at the time of the incident.
As governmental employees, the officers are entitled to official immunity on Newman's state-law claims for "(1) the performance of discretionary duties (2) that are within the scope of the employee's authority, (3) provided that [they] act in good faith." Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex. 2002). The only dispute is whether the officers acted in good faith. On the facts before us on summary judgment, they did not.
"Texas law of official immunity is substantially the same as federal qualified immunity." Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir. 1997); see also Haggerty v. Tex. S. Univ., 391 F.3d 653, 658 (5th Cir. 2004). An officer acts in good faith if a reasonably prudent officer, under the same or similar circumstances, could have believed that the facts justified his conduct. City of Lancaster v. Chambers, 883 S.W.2d 650, 656S57 (Tex. 1994). Like the federal standard from which it is derived, Texas's good-faith test is one of objective legal reasonableness. Id. at 656. Because the officers' use of force was not objectively reasonable, it was not in good faith, so the officers are not entitled to official immunity on Newman's state-law claims.
Under the applicable law, we have no jurisdiction to review a district court's determination that there are genuine disputes of fact where we have decided, as a matter of law, that those factual issues are material. See, e.g., Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011).