Hinson v. Martin ( 2021 )

Case: 19-30243 Document: 00515841433 Page: 1 Date Filed: 04/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 29, 2021
No. 19-30243
Lyle W. Cayce
Clerk
Jason Hinson,
Plaintiff—Appellee,
versus
Kyle Martin,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:17-CV-260
Before Owen, Chief Judge, and Clement and Higginson, Circuit
Judges.
Per Curiam:*
Jason Hinson was injured when his attempt to flee from police was
abruptly thwarted by a police K9 named “Rex.” Proceeding pro se, he sued
the dog’s handler, DeSoto Parish Sherriff’s Deputy Kyle Martin, under 42
U.S.C. § 1983 for violating his Fourth and Eighth Amendment rights by
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-30243 Document: 00515841433 Page: 2 Date Filed: 04/29/2021
No. 19-30243
applying excessive force during his arrest. Martin’s motion for summary
judgment on the basis of qualified immunity was denied, and he timely filed
this appeal. We now AFFIRM in part and REVERSE in part.
I. Facts and Proceedings
In February 2016, DeSoto Parish Sheriff’s Deputies, including
Martin, were informed that Hinson was wanted on a felony arrest warrant for
armed robbery involving a firearm. He was presumed armed and dangerous,
according to the warrant; a Crime Stoppers tip also indicated that he was
likely armed. The tip described his vehicle and indicated that he was likely
traveling with his pregnant girlfriend, Krystal Grigg. Martin spotted the
vehicle, identified the driver as Hinson, and pursued. Hinson initially
accelerated his vehicle to flee, but then pulled over and fled on foot into a
wooded area. Martin deployed Rex, and both pursued Hinson into the woods.
After approximately 200 yards, Rex caught Hinson by the arm and took him
to the ground.
What happened next is a matter of factual dispute. According to
Martin, Rex bit Hinson’s right forearm, held on, and thereby took him to the
ground. Although Martin could see that Rex had hold of Hinson’s right arm,
he could not see Hinson’s left arm. Instead of calling Rex off Hinson, Martin
drew his handgun and “held cover on Hinson” until a backup officer could
assist him in handcuffing and securing Hinson. As soon as backup arrived,
Martin removed Rex from Hinson’s arm, and Hinson was handcuffed and
taken into custody without further incident or application of force.
According to Hinson, however, Rex initially bit him on the wrist, at
which point he voluntary went to the ground with the canine. Hinson alleges
he ceased any attempts to escape or resist and submitted to commands from
that point on. Nonetheless, Martin cursed at him, hit Rex, and gave Rex a
command that caused Rex to bite Hinson several more times on the upper
2
Case: 19-30243 Document: 00515841433 Page: 3 Date Filed: 04/29/2021
No. 19-30243
arm. Both while Hinson was being handcuffed and after, deputies, including
Martin, kicked him in the ribs. While Hinson lay handcuffed on the ground,
subdued and compliant, Martin yanked on Rex’s choke chain, causing Rex to
once again bite down on Hinson’s forearm and not let go. The biting stopped
only when another deputy said, “he’s had enough,” causing Martin to
remove Rex from Hinson’s arm.
Hinson sued Martin and DeSoto Sheriff Rodney Arbuckle, requesting
both monetary damages and injunctive relief (Martin’s removal from the
force). The district court dismissed all claims against Arbuckle, the claim for
injunctive relief, and an unlawful search and seizure claim, but did not
dismiss the Fourth or Eighth Amendment claims against Martin. Arguing
that Hinson had not produced evidence to substantiate any alleged bite but
the first, and that the first bite was clearly justified to apprehend a fleeing
felony suspect who was presumed armed and dangerous, Martin moved for
summary judgment on the grounds of qualified immunity. The magistrate
judge recommended denying the motion in its entirety, and the district court
adopted the recommendation. Martin timely filed this interlocutory appeal.
II. Standard of Review
This appeal is taken under the collateral order doctrine, which permits
denial of a motion for summary judgment on the basis of qualified immunity
to be appealed immediately as a final decision under 28 U.S.C. § 1291. 1 See
1
We note that Martin also appeals the district court’s decision to treat Hinson’s
references to state court claims in his response to Martin’s motion for summary judgment
as a motion to amend the pleadings under Fed. R. Civ. P. 15(a) and to grant such motion.
Under the circumstances, we have no jurisdiction to review this decision. It is not a final
order, nor is it an unappealable order so “inextricably intertwined with” or “necessary to
ensure meaningful review of the appealable order” as to justify pendant appellate
jurisdiction. Wallace v. Cnty. of Comal, 400 F.3d 284, 291–92 (5th Cir. 2005) (quoting
Thornton v. Gen. Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998)).
3
Case: 19-30243 Document: 00515841433 Page: 4 Date Filed: 04/29/2021
No. 19-30243
Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). We begin by examining the
scope of our jurisdiction over this appeal, which is limited to questions of law,
and does not extend to questions of fact. Winfrey v. Pikett, 872 F.3d 640, 643
(5th Cir. 2017) (“The district court’s denial of summary judgment is
immediately appealable ‘to the extent it turns on an issue of law.’ (quoting
Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010)). “[W]e cannot review a
district court’s conclusions that a genuine issue of fact exists concerning
whether a defendant engaged in certain conduct.” Walsh v. Hodge, 975 F.3d
475, 481 (5th Cir. 2020). In short, where the district court has held that there
is a genuine dispute of material fact, “we have jurisdiction to review the
materiality of any factual disputes, but not their genuineness.” Escobar v.
Montee, 895 F.3d 387, 393 (5th Cir. 2018) (quoting Cooper v. Brown, 844 F.3d
517, 522 (5th Cir. 2016) (internal quotation omitted)).
Martin’s appeal largely turns on a factual dispute—whether Rex bit
Hinson more than once, especially whether Martin caused Rex to bite Hinson
after Hinson had been subdued and handcuffed and no longer posed a threat.
Martin argues Hinson has failed to support his version of events, and that the
record, on the whole, “blatantly contradicts Hinson’s story such that it
should not be considered at all.” Martin invokes the Supreme Court’s
guidance in Scott v. Harris that “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted 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.” 550 U.S.
372, 380 (2007).
The Scott Court’s permissive approach to some questions about the
genuineness of a factual dispute (those involving video footage that blatantly
contradicts one party’s version of events) does not easily square with the
ruling in Johnson v. Jones that “a defendant, entitled to invoke a qualified
immunity defense, may not appeal a district court’s summary judgment order
4
Case: 19-30243 Document: 00515841433 Page: 5 Date Filed: 04/29/2021
No. 19-30243
insofar as that order determines whether or not the pretrial record sets forth
a ‘genuine’ issue of fact for trial.” 515 U.S. 304, 319–20 (1995). At least one
other panel of this court, in a non-precedential opinion, explained how,
“[j]uridictionally speaking, Scott is problematic, as deciding whose version of
the facts must be accepted falls squarely within the realm of a dispute as to
genuineness,” even where the decision is made relatively easy by video
footage. Fuentes v. Riggle, 611 F. App’x 183, 190 (5th Cir. 2015) (per curiam).
Fortunately, like the Fuentes court, we “need not pass on whether or
to what extent such an exception [to Johnson] exists, as Scott is plainly
inapplicable here.” Id. at 191. There is no video footage plainly contradicting
one party’s version of events. Photos that Martin claims clearly depict only a
single bite are far from dispositive. Hinson’s wrist (where he claims Rex
landed the bite that took him to the ground) is obscured by a bloody rag.
Hinson’s upper arm (where Martin claims Rex landed the pursuit-ending
bite, but where Hinson claims Rex bit him after he was handcuffed) shows
evidence of substantial injury, but not with such clarity that we can count the
number of tooth imprints and rule out a second or third bite. Further,
contrary to Martin’s assertion, Hinson’s medical records and the deposition
of the doctor who treated him are not so clear as to implicate Scott. 2 The
district court also had before it not only Hinson’s sworn affidavit, but also
Grigg’s sworn affidavit. She was in the car when Hinson tried to flee from
police; she saw Hinson as he was led out of the woods in handcuffs. She
swears in her affidavit that she “observed multiple dog bite injuries to Mr.
Hinson’s wrist and forearm areas.”
2
Hinson’s treating physician, for example, explained in his deposition, when asked
which version of facts was true, that: “It’s hard to tell. You know, dogs have a lot of teeth,
so it’s hard to see, tell, you know, how many times he was bit.”
5
Case: 19-30243 Document: 00515841433 Page: 6 Date Filed: 04/29/2021
No. 19-30243
We need not—indeed, may not—opine on whether we would have
found such evidence sufficient to create a genuine issue of material fact had
we sat in the district court’s place. Rather, we merely acknowledge that this
case does not present the sort of “visible fiction” the Supreme Court
directed appellate courts to ignore in Scott. 550 U.S. at 380–81.
In short, because the Johnson doctrine applies, “we are required to
accept the truth of the plaintiff[’s] summary judgment evidence, and we lack
jurisdiction to review the genuineness of those factual disputes that
precluded summary judgment in the district court.” Kinney v. Weaver, 367
F.3d 337, 341 (5th Cir. 2004) (en banc). We are limited to reviewing whether
the facts, as Hinson presents them, can overcome Martin’s claim of qualified
immunity, which is a question of law that we review de novo. Cooper, 844
F.3d at 522.
III. Discussion
Because we have no jurisdiction to review the genuineness of factual
disputes, our review is limited to whether Martin is entitled to qualified
immunity under Hinson’s version of the facts. Unfortunately for Martin, his
appeal relies almost entirely on contesting the genuineness of the factual
dispute. Because we must accept as true Hinson’s allegation that he suffered
multiple bites, including after he was subdued, handcuffed, and compliant,
we will evaluate whether Martin is entitled to qualified immunity based on
the facts as Hinson presents them. Martin justifiably asks us to consider
Hinson’s claims individually, separating Fourth Amendment claims from
Eighth Amendment claims and claims related to events that took place during
Hinson’s apprehension from those that took place after he was subdued.
To overcome an official’s claim of qualified immunity, a plaintiff must
be able to prove “facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time
6
Case: 19-30243 Document: 00515841433 Page: 7 Date Filed: 04/29/2021
No. 19-30243
of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)
(internal quotation omitted). We may address these two prongs in either
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “Qualified immunity
shields from liability all but the plainly incompetent or those who knowingly
violate the law. Accordingly, qualified immunity represents the norm, and
courts should deny a defendant immunity only in rare circumstances.”
Angulo v. Brown, 978 F.3d 942, 948–49 (5th Cir. 2020) (Clement, J.) (internal
quotations omitted) (quoting Romero v. City of Grapevine, 888 F.3d 170, 176
(5th Cir. 2018) (Clement, J.)).
A.
We begin with the relatively simple point that Hinson’s claims are
properly characterized as arising under the Fourth Amendment, not the
Eighth Amendment. See, e.g., Graham v. Connor, 490 U.S. 386, 394 (“Where,
as here, the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment . . . .”). Hinson’s claims
arise entirely from the allegation that he was subject to excessive force during
arrest, which amounts to an unreasonable seizure under the Fourth
Amendment. The magistrate judge acknowledged this, but nonetheless
recommended a blanket denial of Martin’s summary judgment motion.
Martin claims this is error; Hinson did not brief this argument.
We agree that Hinson’s claims sound in the Fourth Amendment, and
he has failed to state an Eighth Amendment violation. Hinson has therefore
failed to overcome Martin’s claim of qualified immunity at the first prong, so
Martin is entitled to qualified immunity. The district court erred by denying
summary judgment on Hinson’s Eighth Amendment claim.
7
Case: 19-30243 Document: 00515841433 Page: 8 Date Filed: 04/29/2021
No. 19-30243
B.
We turn next to Hinson’s Fourth Amendment claims. Hinson is
proceeding pro se, and his claims are not neatly divided. Construing his
pleadings generously, he appears to argue that Martin used excessive force
both, initially, by using Rex to apprehend him and, subsequently, by causing
Rex to continue biting him after he was subdued, including after he was
handcuffed. Hinson also alleges that Martin kicked him after he was
handcuffed. We first consider the force applied to stop Hinson’s flight from
police, including the initial bite that brought Hinson to the ground.
To overcome Martin’s qualified immunity defense on the excessive
force claims, Hinson “must show ‘(1) an 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.’” Poole v. City of Shreveport,
691 F.3d 624, 628 (5th Cir. 2012) (quoting Ontiveros v. City of Rosenberg, 564
F.3d 379, 382 (5th Cir. 2009)). The Graham Court counseled that the
reasonableness of force may be evaluated by looking to factors including (1)
“the severity of the crime at issue,” (2) “whether the suspect poses an
immediate threat to the safety of the officers or others,” and (3) “whether he
is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S.
at 396. We must be careful to judge the reasonableness of a use of force “from
the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. All factors favor Martin.
This court explained in a similar case that driving under the influence
is a serious offense, and “[i]f DUI is serious, then a fortiori so is felony
assault.” Escobar, 895 F.3d at 394. Similarly, a violent felony like armed
robbery is certainly at least as serious (if not clearly more so) than DUI. The
first factor favors Martin.
8
Case: 19-30243 Document: 00515841433 Page: 9 Date Filed: 04/29/2021
No. 19-30243
The second factor, at least through the initial bite and takedown, also
favors Martin. Although Hinson argues that he was, in fact, unarmed and that
Grigg had informed officers that Hinson was unarmed as they exited their
vehicles and began their pursuit on foot, Martin had a reasonable basis for his
belief that Hinson should nonetheless be treated as armed and dangerous.
Hinson was suspected of a crime involving a firearm, he was presumed armed
and dangerous according to the warrant, the Crime Stoppers tip Martin had
received indicated that Hinson was armed, and Martin was under no
obligation to blindly accept Grigg’s bare assertion that her boyfriend (and
father of her unborn child) was unarmed. In other words, Martin reasonably
believed he was chasing an armed and dangerous fugitive suspected of a
violent felony through a wooded area, near residences. Martin had adequate
cause to believe Hinson posed a substantial threat to himself, his fellow
officers, and bystanders. The second factor favors Martin.
Finally, as Hinson admits and Grigg confirms, Hinson was actively
fleeing from police when Martin used Rex to apprehend him. He had
attempted to evade capture in his vehicle, and subsequently fled on foot into
a wooded area. The third factor favors Martin.
Hinson was suspected of a violent felony involving a firearm, was
presumed to be armed and dangerous, and was fleeing through a wooded area
where officers could not see him. It was objectively reasonable for Martin to
deploy Rex to conclude Hinson’s evasion. Hinson has therefore failed to
establish that Martin violated his Fourth Amendment rights by using Rex to
apprehend him, and the district court erred by denying Martin summary
judgment based on qualified immunity as to Hinson’s claims insofar as they
are based on the initial dog bite that brought him to the ground.
9
Case: 19-30243 Document: 00515841433 Page: 10 Date Filed: 04/29/2021
No. 19-30243
C.
Hinson alleges, however—and we must accept for the purpose of this
appeal—that Martin’s use of force did not cease once Hinson was subdued.
Instead, Martin ordered Rex to release Hinson and bite him again, including
after Hinson was handcuffed. Hinson also alleges that Martin kicked him,
including after he was handcuffed. Merely because a use of force was
reasonable at the outset of an apprehension does not mean that the continued
use of force remains reasonable. We must therefore turn to Martin’s alleged
use of force after Hinson had been subdued. 3
The first Graham factor (severity of the crime) is unchanged by the
fact that Hinson had been subdued and handcuffed—he was still being
apprehended for the serious crime of armed robbery. However, at that point,
he was no longer fleeing or offering active resistance. He was obeying officer
commands and, particularly once handcuffed, could not reasonably be
believed to pose a continuing threat to officers that would justify superfluous
dog bites. Because Martin maintains that there was only a single bite (and
relies almost exclusively on appeal on the argument that the district court
erred by finding a genuine issue of material fact as to whether there were
subsequent bites—a claim we have no jurisdiction to evaluate), he offers no
explanation that could justify ordering Rex to bite Hinson after Hinson was
subdued. The second and third Graham factors therefore indicate that
3
We refer broadly to the time “after Hinson had been subdued” because the facts
are underdeveloped. Hinson alleges, for example, that he was subdued and compliant, but
not yet handcuffed, when Martin unnecessarily ordered Rex to bite Hinson a second time.
Martin does not address this allegation or offer any argument in the alternative that could
justify a second bite. We have no basis in the record to define the precise point at which
Hinson should be considered to have been fully subdued, so we decline to further divide
Hinson’s claims into the bite that arrested his flight, bite(s) after he was subdued, but before
he was handcuffed, and bite(s) after he was handcuffed.
10
Case: 19-30243 Document: 00515841433 Page: 11 Date Filed: 04/29/2021
No. 19-30243
Martin’s alleged decision to order Rex to bite Hinson and to personally kick
Hinson in the ribs after he was subdued was objectively unreasonable. This
court has also held in the past that “permitting a dog to continue biting a
compliant and non-threatening arrestee is objectively unreasonable.” Cooper,
844 F.3d at 524. Hinson has overcome the first prong of the qualified
immunity analysis by showing facts to support his Fourth Amendment claim
that his rights were violated when he was subjected to excessive force.
Martin argues that Hinson has failed to show the injury prong of an
excessive force claim because he has only put forth evidence of a single bite.
This argument is unavailing. Hinson argues that the initial bite that took him
down (the reasonable application of force) was to his wrist, and that
subsequent bites were to his upper arm. Regardless of whether Hinson has
successfully shown that his wrist was injured, he has clearly shown that his
forearm was. The photos Martin points to show substantial damage to the
upper forearm, as do all of the medical records. The subsequent bites to the
forearm clearly caused significant injury.
As to the kicks, although the injury caused by allegedly excessive force
“must be more than de minimis,” Hanks v. Rogers, 853 F.3d 738, 744–45 (5th
Cir. 2017), “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) (Clement, J.) (internal quotations omitted). “Any 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. (internal quotations omitted). “[E]ven relatively insignificant
injuries and purely psychological injuries will prove cognizable when
resulting from an officer’s unreasonably excessive force.” Id. (internal
quotations omitted). Thus, the relatively minor injury (pain) that Hinson
alleges resulted from being kicked, when examined in the context of a
11
Case: 19-30243 Document: 00515841433 Page: 12 Date Filed: 04/29/2021
No. 19-30243
subdued, handcuffed, and compliant arrestee, may suffice to meet the injury
element of an excessive force claim, if objectively unreasonable.
Turning to the second prong, whether the right was clearly established
at the time, we are mindful of the obligation “not to define clearly established
law at a high level of generality.” al-Kidd, 563 U.S. at 742. Instead, for Hinson
to prevail on the second prong of the qualified immunity test, “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) (internal quotations omitted). That said, “a case directly on point” is
not required. Id. at 372 (quoting al-Kidd, 563 U.S. at 741). Rather, “[t]he
central concept is ‘fair warning.’” Cooper, 844 F.3d at 524 (quoting Morgan,
659 F.3d at 372). If, given existing law, “every reasonable official” would
realize that the conduct at issue constituted excessive force for Fourth
Amendment purposes, then the right is clearly established. al-Kidd, 563 U.S.
at 741 (internal quotation omitted).
Although Martin is correct that Hinson has not pointed us to a directly
on-point case of excessive force by way of canine bites in the Fifth Circuit
that predates this incident, this is not dispositive. “Lawfulness of force . . .
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.” Cooper, 844 F.3d
at 525. Although the Cooper opinion was not published until almost a year
after the events at issue here, it is nonetheless helpful, because the Cooper
panel had no difficulty finding that an officer had “‘fair warning’ that
subjecting a compliant and non-threatening arrestee to a lengthy dog attack
was objectively unreasonable” at least as early as 2013. Id. The Cooper court
was also able to point to a robust consensus of opinion that an unnecessary or
12
Case: 19-30243 Document: 00515841433 Page: 13 Date Filed: 04/29/2021
No. 19-30243
unnecessarily prolonged dog bite was unconstitutional. Id. at 525–26
(discussing cases from the Sixth, Ninth, and Eleventh Circuits).
The law was also clearly established before February 2016 that,
generally speaking, “once a suspect has been handcuffed and subdued, and
is no longer resisting, an officer’s subsequent use of force is excessive.”
Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir. 2015); see also Ramirez v.
Martin, 716 F.3d 369, 378–79 (5th Cir. 2013) (tasing a suspect after he has
ceased resisting and is handcuffed is clearly excessive); Bush v. Strain, 513
F.3d 492, 500–02 (5th Cir. 2008) (slamming a handcuffed and non-resisting
suspect’s head against a car is clearly excessive). This well-established
general principle—that harsh force should not be applied to a handcuffed,
compliant suspect—is enough to give an officer “fair warning” that ordering
a dog to inflict a severe bite wound or kicking a handcuffed and compliant
suspect without cause violates the suspect’s Fourth Amendment rights.
IV. Conclusion
Because Hinson has not stated a violation of his Eighth Amendment
rights, the district court erred in denying Martin summary judgment on the
basis of qualified immunity as to Hinson’s Eighth Amendment claim. The
district court also erred in denying Martin summary judgment on the basis of
qualified immunity as to Hinson’s Fourth Amendment excessive force
claims to the extent they rely on Martin’s conduct in apprehending Hinson,
before Hinson was subdued. However, taking Hinson’s version of the facts
to be true, the district court did not err in finding that a jury could reasonably
conclude that ordering Rex to continue biting Hinson after he was subdued,
and kicking him after he was handcuffed, constituted excessive force in
violation of Hinson’s Fourth Amendment rights. We AFFIRM in part, and
REVERSE and REMAND in part.
13