Huang v. Harris County ( 2001 )

                           FOR THE FIFTH CIRCUIT
                                No. 00-20806
                             Summary Calendar
         CATHERINE KIANG HUANG, Individually,
         and as next friend of Jeffrey Huang
         and Jonathan Huang, Minors
                         Plaintiff - Counter Defendant - Appellee
         BRIAN ERIC SCUDDER, Harris County
         Precinct 5 Deputy; BENJAMIN EDWARD DARBE, JR,
         Harris County Precinct 5 Deputy,
                         Defendants - Counter Claimants - Appellants
               Appeal from the United States District Court
                    for the Southern District of Texas
                           USDC No. H-99-CV-1029
                               June 22, 2001
    Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
            Pursuant to 5TH CIR. R. 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    that this opinion should not be published and is not precedent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 CIR.
    R. 47.5.4.
         Appellants Brian Scudder and Benjamin Darbe appeal from the
    district court’s denial of their motion for summary judgment
    based on qualified immunity.    For the following reasons, we
    REVERSE the judgment of the district court and REMAND for entry
    of judgment in favor of Scudder and Darbe.
         On April 16, 1997, Catherine Huang called the Harris County
    Constable’s Office after a dispute with a neighbor who complained
    that Huang’s son, Jeffrey, had broken a flood light outside the
    neighbor’s house and asked that an officer be sent to her home.
    Deputy Constable Brian Scudder was dispatched to Huang’s home and
    spoke with both parties.1    After this initial investigation,
    Scudder returned to the Huang residence and asked Jeffrey if he
    had broken the light bulb.    Jeffrey responded that the light bulb
    had been lying in the alleyway and that he had kicked it.2
    Scudder informed Huang that she could either compensate the
            According to Scudder, he also spoke to a neighbor who
    stated that, while gardening, she heard the sound of glass
    breaking in the alleyway between her home and the home of the
    complaining neighbor and that when she looked down the alleyway a
    second or two later she saw Jeffrey kicking a piece of glass and
    could see no one else in the alleyway.
            Specifically, Huang testified that, when asked if he
    broke the light bulb, Jeffrey said “Yes, I kick it. Its right
    there in the alleyway. I just kick it.” Scudder testified that
    Jeffrey responded “I didn’t break the light bulb, I kicked it and
    it broke.” Scudder understood the response to mean that Jeffrey
    had not removed the light bulb from the fixture, but, seeing the
    light bulb in the alleyway, had kicked it, and it broke.
    neighbor for the broken light bulb or he could issue a Class C
    citation to Jeffrey for criminal mischief (a misdemeanor non-
    jailable offense) that she and Jeffrey could go to court and
    contest.   Insisting that her son had not broken the light bulb,
    Huang opted to go to court.    At this point, the parties’ versions
    of the facts diverge slightly.
         According to Huang,3 Scudder went to his car and called for
    back-up assistance, telling Jeffrey to follow him.     Huang heard
    Scudder call for back-up for a “white juvenile detained at
    [Huang’s address].”   Fearing Jeffrey was about to be arrested,
    Huang instructed Jeffrey to go back inside the house and closed
    the security gate behind him as Scudder, who had seen Jeffrey re-
    enter the home, ran up the walkway in an attempt to “grab”
    Jeffrey.   Scudder told Huang, who was still outside, to bring
    Jeffrey back outside or she would be arrested for interfering
    with a police investigation.     Huang refused.   Scudder then told
    Huang she was under arrest for interfering with police work and
    asked her to identify herself.
         Huang refused to identify herself as requested and asked
    Scudder to leave her property or she would call the Sheriff’s
    office and have him arrested.     After Scudder stated he was
    placing her under arrest, Huang asked to use the telephone to
            Huang’s version of the events is taken from her
    complaint, her deposition testimony, and the deposition testimony
    of her two sons who were present during the incident.
    call someone to watch her children.    Scudder told her “no,” but
    she had already proceeded towards her front door, through which
    Jeffrey was holding the telephone.    Scudder knocked the
    telephone, which broke from the fall, out of Huang’s hand,
    grabbed Huang’s right wrist, and twisted it until her knees
    buckled and she was on the ground.    Simultaneously, with her left
    hand, Huang held on to her front doorknob while Scudder pulled
    her towards the squad car.    After she lost her grip on the door,
    Huang grabbed the iron security gate located outside her front
    door.    At this time, Scudder’s back-up, Deputy Constable Benjamin
    Darbe, Jr., arrived and assisted Scudder in turning Huang over on
    her stomach, handcuffing her, and “dragging” her into the squad
    car.    Huang sustained bruises and a broken right thumb.
           Deputy Scudder’s version of the events is substantially
    similar.    After Huang stated she wanted to go to court, Scudder
    told Jeffrey to step outside so Scudder could get his ticket book
    and issue a citation.    Halfway down the walkway, Scudder told
    Jeffrey to remain on the walk while he obtained his ticket book
    from his car.    As Scudder approached his car, he turned to see
    Huang “pushing” Jeffrey into the house and pulling the door
    closed behind him.    After she refused Scudder’s orders to stop,
    Scudder called for back-up.    Scudder informed Huang that he
    needed to speak with Jeffrey, and she refused.    Huang refused to
    retrieve Jeffrey, refused to give Scudder any information about
    Jeffrey or herself, and told him to leave her property or she
    would have him arrested.    Scudder asked her again for her
    information and she refused to give it to him.    After repeatedly
    asking Huang for her information, Scudder told her she would be
    arrested for failure to identify herself if she did not provide
    the information.    According to Scudder, Huang then ran towards
    the front door of her home.     Scudder told her to stop and gave
    chase.    She kept running and grabbed hold of the front door
    handle.    Scudder grabbed her arm, told her to release her hand
    from the door handle, and told her she was under arrest.      Huang,
    still hanging onto the door handle, began screaming, trying to
    shake off Scudder’s grip, and kicking Scudder.    At that point,
    Darbe arrived.     The two officers were able to remove Huang’s hand
    from the door handle, whereupon she allowed her body to go limp,
    dropping herself to the ground.     The two officers attempted to
    handcuff her, but she freed her hand from Darbe’s grasp and
    grabbed on to the security gate outside of her door.     Huang
    refused to remove her hand from the gate, and when the officers
    freed her hand left hand from the gate, she grabbed it with her
    right hand.    By the time the officers managed to get both her
    hands free from the gate and handcuff her, she had entwined her
    legs in the gate.     Scudder and Darbe waited until a third unit
    responded, and the officers were then able to free her legs from
    the gate and subdue her.    She refused to walk to the squad car
    and the officers were forced to pick her up, carry her to the
    squad car, and place her into the back seat.     Once in the car,
    Huang complained of various broken bones in her arms and legs,
    and an EMS unit was dispatched.   Huang refused treatment.
         Jeffrey was never arrested, and Scudder mailed him a Class C
    citation charging him with criminal mischief.   Jeffrey was
    ultimately acquitted of the charges brought against him.      Huang
    was charged with resisting arrest, a Class A misdemeanor, and
    failure to identify, a Class C misdemeanor; however, the judge
    suppressed all evidence of her “resisting arrest,” finding that
    the evidence was the result of police misconduct.
         On April 6, 1999, Huang filed suit individually and on
    behalf of her minor children against Appellants Scudder and Darbe
    under 42 U.S.C. § 1983, for use of excessive force when effecting
    an allegedly wrongful arrest, and under state law, for false
    arrest, false imprisonment, intentional infliction of emotional
    distress, malicious prosecution, and assault and battery.4
    Appellants sought summary judgment for both the federal and state
    claims on the basis of qualified immunity.
         The district court determined that Huang had raised genuine
    issues of material fact for trial regarding Appellants’ qualified
    immunity defense under both federal and Texas law.   The district
    court stated:   “Specifically, Huang raises issues as to probable
            Huang also filed suit against Harris County and Glen
    Cheek, a Harris County Constable. Cheek was dismissed from the
    suit on April 26, 2000. Summary judgment was granted in favor of
    Harris County on August 31, 2000, a judgment from which Huang has
    not appealed. Only the qualified immunity claims of Scudder and
    Darbe are before us in this appeal.
    cause for her warrantless arrest for some undefined or legally
    unauthorized offense alleged by Defendants not committed in
    Defendants’ presence, their purported use of excessive force and
    extreme and outrageous conduct, and alleged malicious
    prosecution.”   Therefore, the district court denied summary
    judgment for Scudder and Darbe based on qualified immunity.
         Scudder and Darbe timely appeal.
                            II. STANDARD OF REVIEW
         This court reviews de novo the district court’s denial of a
    motion for summary judgment based on qualified immunity.     See
    Mendenhall v. Riser, 
    213 F.3d 226
    , 230 (5th Cir. 2000).    “Summary
    judgment is appropriate ‘if the pleadings, depositions, answers
    to interrogatories, and admissions on file, together with the
    affidavits, if any, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to judgment
    as a matter of law.’”    Evans v. City of Houston, 
    246 F.3d 344
    347-48 (5th Cir. 2001) (quoting FED. R. CIV. P. 56(c)).
         “The movant has the burden of showing that there is no
    genuine issue of [material] fact.”    Anderson v. Liberty Lobby,
    477 U.S. 242
    , 256 (1986); see Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 325 (1986)    (“[T]he burden on the moving party may be
    discharged by ‘showing’——that is, pointing out to the district
    court——that there is an absence of evidence to support the
    nonmoving party’s case.” ).   If the movant meets this burden,
    “the nonmovant must go beyond the pleadings and designate
    specific facts showing that there is a genuine issue for trial.”
    Little v. Liquid Air Corp., 
    37 F.3d 1069
    , 1075 (5th Cir. 1994).
         A fact is “material” if its resolution in favor of one party
    might affect the outcome of the lawsuit under governing law.     See
    Liberty Lobby, 477 U.S. at 248; Int’l Shortstop, Inc. v. Rally’s,
    939 F.2d 1257
    , 1264 (5th Cir. 1991) (“[F]actual disputes
    over issues not germane to the claim are simply irrelevant
    because they are not outcome determinative.   The court may grant
    a [summary judgment] motion, immaterial factual disputes
    notwithstanding.”).   An issue is “genuine” if the evidence is
    sufficient for a reasonable jury to return a verdict for the
    nonmoving party.   See Liberty Lobby, 477 U.S. at 248.
         This court considers the evidence and all reasonable
    inferences drawn therefrom in the light most favorable to the
    nonmovant.   See Kennedy v. Tangipahoa Parish Library Bd. of
    224 F.3d 359
    , 365 (5th Cir. 2000).
                             III. JURISDICTION
         As an initial matter, we must determine if we have
    jurisdiction to hear this appeal.    Scudder and Darbe argue that
    we have jurisdiction over this interlocutory appeal of the denial
    of qualified immunity because no issue of material fact exists
    and they are entitled to judgment as a matter of law.    Although
    Huang does not contest our jurisdiction, we have a duty to
    satisfy ourselves of our own jurisdiction.   See United Transp.
    Union v. Foster, 
    205 F.3d 851
    , 857 (5th Cir. 2000)   (“‘[E]very
    federal appellate court has a special obligation to satisfy
    itself not only of its own jurisdiction, but also that of the
    lower courts in a cause under review, even though the parties are
    prepared to concede it.’” (alteration in original) (some internal
    quotations omitted) (quoting Steel Co. v. Citizens for a Better
    523 U.S. 83
    , 94 (1998))).
          The denial of a motion for summary judgment based on
    qualified immunity is immediately appealable, under the
    collateral order doctrine, only when based on an issue of law.
    See Bazan v. Hidalgo County, 
    246 F.3d 481
    , 490 (5th Cir. 2001).
    “Accordingly, we have jurisdiction for this interlocutory appeal
    if it challenges the materiality of factual issues, but lack
    jurisdiction if it challenges the district court’s genuineness
    ruling——that genuine issues exist concerning material facts.”
    Id.   Orders determining “only a question of ‘evidence
    sufficiency,’ i.e., which facts a party may, or may not, be able
    to prove at trial,” are not based on an issue of law and are not
    immediately appealable.   Johnson v. Jones, 
    515 U.S. 304
    , 313
    (1995).   This court does have jurisdiction, however, to review a
    determination that certain facts (or factual disputes) are
    “material” to the issue of qualified immunity.   See White v.
    153 F.3d 237
    , 240 (5th Cir. 1998).
         The district court found that Huang had raised genuine
    issues of material fact regarding the existence of probable cause
    for her warrantless arrest, the use of excessive force, and
    malicious prosecution.   The district court stated:
         Specifically, Huang raises issues as to probable cause
         for her warrantless arrest for some undefined or
         legally unauthorized offense alleged by Defendants not
         committed in Defendants’ presence, their purported use
         of excessive force and extreme and outrageous conduct,
         and alleged malicious prosecution. Huang argues that
         before the warrantless arrest at her home by the
         deputies pursuant to her request for assistance in a
         dispute with a neighbor, Huang was suspected of no
         crime, did not commit any crime after they arrived, did
         not threaten the officers or give them any reason to
         fear for their safety or conclude that Huang had
         committed a crime, in her own home, not a suspicious
         place. Nor, she contends, was the use of such
         excessive force objectively reasonable in the light of
         the circumstances confronting the officers.
    Unfortunately, the district court was not very specific in
    stating which facts it found to be material to the denial of
    summary judgment.   We note also that several of the issues raised
    by Huang are undisputed.   For example, the parties agree that,
    prior to her arrest, (1) Huang was responsible for initiating the
    request for police assistance; (2) at that time, she was
    suspected of no crime; (3) she did not give the officers any
    reason to fear for their safety; and (4) she was in her own home.
    Further, although noting as a reason for its denial of summary
    judgment Huang’s allegation that the force used was objectively
    unreasonable, the district court identified no disputed material
    facts on this issue.
         Faced with an order from the district court that denies
    summary judgment simply because “fact issues” remain, we have two
    choices after determining we have jurisdiction: (1) review the
    record to determine what facts the district court likely assumed,
    or (2) “remand to the district court for the purpose of allowing
    it to articulate specifically what factual scenario it believes
    emerges from viewing the summary judgment evidence in the light
    most favorable to [Huang].”   Id. at 242; see also Behrens v.
    516 U.S. 299
    , 313 (1996); Johnson v. Jones, 
    515 U.S. 304
    , 319 (1995); Wagner v. Bay City, Tex., 
    227 F.3d 316
    , 320 (5th
    Cir. 2000); Colston v. Barnhart, 
    146 F.3d 282
    , 285 (5th Cir.
    1998) (denial of application for reh’g en banc) (“[W]here the
    district court does not identify those factual issues as to which
    it believes genuine disputes remain, an appellate court is
    permitted to go behind the district court’s determination and
    conduct an analysis of the summary judgment record to determine
    what issues of fact the district court probably considered
         “In deciding an interlocutory appeal of a denial of
    qualified immunity, we can review the materiality of any factual
    disputes, but not their genuineness.”   Wagner, 227 F.3d at 320.
    After having reviewed the record to determine which facts the
    district court assumed, in the light most favorable to the
    plaintiff, we find that we have jurisdiction to determine whether
    Appellants are entitled to qualified immunity as a matter of law.
                           IV. QUALIFIED IMMUNITY
         Qualified immunity shields government officials performing
    discretionary functions from civil liability so long as their
    conduct does not violate clearly established statutory or
    constitutional rights of which a reasonable person would have
    known.   See Bazan v. Hidalgo County, 
    246 F.3d 481
    , 488 (5th Cir.
    2001).   The evaluation of a qualified immunity claim is a two-
    step process.    “The first step is to determine whether the
    plaintiff has alleged a violation of a clearly established
    constitutional right.”    Colston v. Barnhart, 
    130 F.3d 96
    , 99 (5th
    Cir. 1997); see also Hare v. City of Corinth, MS, 
    135 F.3d 320
    325 (5th Cir. 1998).    “The second step requires the court to
    determine whether [the defendant’s] conduct was objectively
    reasonable under existing clearly established law.”     Colston, 130
    F.3d at 99; see also Hare, 135 F.3d at 326.     Unlike the first
    step, the step-two inquiry applies the law that was clearly
    established at the time of the alleged violation.     See Hare, 135
    F.3d at 326.    To ensure that qualified immunity serves its
    intended purpose, it is of paramount import, during step two, to
    define “clearly established law” at the proper level of
    generality.   See Anderson v. Creighton, 
    483 U.S. 635
    , 639-40
    (1987); Petta v. Rivera, 
    143 F.3d 895
    , 899 (5th Cir. 1998).
         “Clearly established” means that the “contours of the right
    must be sufficiently clear that a reasonable official would
    understand that what he is doing violates that right.”     Anderson,
    483 U.S. at 640.     A defendant is entitled to qualified immunity
    “unless, at the time and under the circumstances of the
    challenged conduct,    all reasonable officials would have realized
    that [the defendant’s conduct] was proscribed by the federal law
    on which the suit was founded.”     Pierce v. Smith, 
    117 F.3d 866
    871 (5th Cir. 1997).    Thus, “‘law enforcement officials who
    reasonably but mistakenly commit a constitutional violation are
    entitled to immunity.’”     Bazan, 246 F.3d at 488 (quoting Glenn v.
    City of Tyler, 
    242 F.3d 307
    , 312 (5th Cir. 2001)).
         The burden of proving the Appellants are not entitled to
    qualified immunity rests with Huang.
         Where, as here, a section 1983 defendant pleads
         qualified immunity and shows he is a governmental
         official whose position involves the exercise of
         discretion, the plaintiff then has the burden “to rebut
         this defense by establishing that the official’s
         allegedly wrongful conduct violated clearly established
         law.” We do “not require that an official demonstrate
         that he did not violate clearly established federal
         rights; our precedent places that burden upon
    Pierce, 117 F.3d at 871-72 (citations omitted).
                    A.    Probable Cause/Wrongful Arrest
         “The Fourth Amendment requires that an arrest be supported
    by a properly issued arrest warrant or probable cause.    The
    officers are entitled to qualified immunity for the arrest if ‘a
    reasonable person in their position could have believed he had
    probable cause to arrest.’”   Glenn v. City of Tyler, 
    242 F.3d 307
    , 313 (5th Cir. 2001) (quoting Goodson v. City of Corpus
    202 F.3d 730
    , 740 (5th Cir. 2000)).    Probable cause
    “exists ‘when the totality of the 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.’”    Spiller v. City of
    Tex. City, Police Dep’t, 
    130 F.3d 162
    , 165 (5th Cir. 1997)
    (citation omitted).   “Thus, the central question in our qualified
    immunity inquiry is ‘the objective (albeit fact-specific)
    question whether a reasonable officer could have believed [the
    arrest] to be lawful, in light of clearly established law and the
    information the [arresting] officers possessed.’”    Sorenson v.
    134 F.3d 325
    , 328 (5th Cir. 1998) (alterations in
    original) (quoting Anderson v. Creighton, 
    483 U.S. 635
    , 641
    (1987)).   In a 42 U.S.C. § 1983 suit alleging false arrest, in
    response to defendants’ motion for summary judgment based on
    qualified immunity, the burden is on the plaintiff to show that
    the officer lacked probable cause, which means that she must show
    that the legality of her conduct was clearly established.       See
    Sorenson, 134 F.3d at 330.
         The probable cause inquiry is an objective one.     “A police
    officer need not actually have had the crime for which probable
    cause existed in mind at the time of the arrest; rather, the
    question is ‘whether the conduct that served as the basis for the
    charge for which there was no probable cause could, in the eyes
    of a similarly situated reasonable officer, also have served as
    the basis for a charge for which there was probable cause.’”
    Gassner v. City of Garland, Tex., 
    864 F.2d 394
    , 398 (5th Cir.
    1989) (quoting Trejo v. Perez, 
    693 F.2d 482
    , 486 (5th Cir.
         In this case, certain facts are undisputed.     After Scudder
    told Jeffrey to stay where he was, Huang told Jeffrey to go back
    into the house.   Further, Huang closed the security gate behind
    Jeffrey as Scudder, then aware Jeffrey was re-entering the home,
    ran up the walk and attempted to grab Jeffrey.     She was informed
    by Scudder that if she did not allow Jeffrey to come out of the
    house, she would be arrested for interference with a police
    investigation.    Further, Huang refused to give Scudder
    information he requested, such as her identity, and Huang was
    ultimately placed under arrest.
         There is, however, some dispute as to the order of the
    events surrounding Huang’s arrest.     While Huang testified that
    Scudder placed her under arrest for failure to identify herself
    and then asked for her identification, Scudder testified that he
    asked Huang for her information and, when she refused to give it
    to him, placed her under arrest for failure to identify.          We do
    not find, however, that given the undisputed facts and
    circumstances of this case, that this difference is material to
    the issue of probable cause.
         Texas law recognizes the offense of “failure to identify.”
    “A person commits [the offense of failure to identify] if he
    intentionally refuses to give his name, residence address, or
    date of birth to a peace officer who has lawfully arrested the
    person and requested the information.”     TEX. PENAL CODE ANN.
    § 38.02(a) (Vernon 1994); see also Presley v. City of Benbrook, 
    4 F.3d 405
    , 408-09 (5th Cir. 1993).      Viewing the facts in the light
    most favorable to Huang, she was not under arrest at the time she
    refused to give her information to Scudder.     Therefore, we cannot
    find as a matter of law that “a reasonable officer could have
    believed [the arrest] to be lawful, in light of clearly
    established law and the information the [arresting] officers
    possessed.’”     Sorenson, 134 F.3d at 328 (alterations in original)
    (quoting Anderson, 483 U.S. at 641).
             However, Texas law also recognizes the crime of
    “interference with public duties.”     A violation occurs when “[a]
    person with criminal negligence[5] interrupts, disrupts, impedes,
            “Criminal negligence” is a state of mind occurring “when
    [a person] ought to be aware of a substantial and unjustifiable
    risk that the circumstances exist or the result will occur. The
    risk must be of such a nature and degree that the failure to
    perceive it constitutes a gross deviation from the standard of
    care that an ordinary person would exercise under all the
    or otherwise interferes with . . . a peace officer while the
    peace officer is performing a duty or exercising authority
    imposed or granted by law.”   TEX. PENAL CODE. ANN. § 38.15(a)(1)
    (Vernon 1994 & Supp. 2001).   A defense to prosecution under this
    statute is that the alleged interference consisted of speech
    only.   Id. § 38.15(d); see also Carney v. State, 
    31 S.W.3d 392
    396 (Tex. App.-Austin 2000, no writ).   Huang’s testimony that she
    closed the gate behind Jeffrey as he entered the home, thereby
    preventing Scudder’s access to him, supports a probable-cause
    determination.   Cf. Carney, 31 S.W.3d at 398 (defendant’s verbal
    challenges to the sufficiency of the search warrant did not
    impede officers’ entry under § 38.15 where there was no physical
    action on his part).   We are not required to determine that
    Huang’s actions would be legally sufficient to support a
    conviction.   We are only required to determine that it was not
    unreasonable for Scudder to believe he had probable cause for
         Although Huang was not charged with the offense of
    interfering with public duties, “the legality of an arrest may be
    established by proving that there was probable cause to believe
    that the plaintiff had committed a crime other than the one with
    which [s]he was eventually charged, provided that the crime under
    circumstances as viewed from the actor’s standpoint.” TEX. PENAL
    CODE ANN. § 6.03(d) (Vernon 1994). Criminal negligence is the
    lowest culpable mental state under Texas law. See Carney v.
    31 S.W.3d 392
    , 395 (Tex. App.-Austin 2000, no writ).
    which the arrest is made and [the] crime for which probable cause
    exists are in some fashion related.”      Gassner, 864 F.2d at 398
    (internal quotations and citation omitted).     We conclude that,
    given the factual circumstances here, failure to identify and
    interfering with public duties were sufficiently related that an
    objective officer might have charged the offense of interference
    with public duties.    After Scudder asked Jeffrey to remain where
    he was, Huang told her son to return to the house and, as Scudder
    tried to “grab” Jeffrey, shut the security gate.     Huang, after
    having been warned that she was interfering with a police
    investigation, refused to bring Jeffrey back outside and refused
    to give Scudder any information about Jeffrey or herself.        The
    conduct that gave rise to the arrest for failure to identify was
    part of the same conduct that would have supported an arrest for
    interference with public duties.      See Vance v. Nunnery, 
    137 F.3d 270
    , 274 (5th Cir. 1998); see, e.g., Babb v. Dorman, 
    33 F.3d 472
    479 n.12 (5th Cir. 1994); Gassner, 864 F.2d at 400; Trejo v.
    693 F.2d 482
    , 485-86 (5th Cir. 1982).
         Finally, under Texas law, “[a] person commits [the offense
    of resisting arrest] if he intentionally prevents or obstructs a
    person he knows is a peace officer . . . from effecting an arrest
    . . . of the actor or another by using force against the peace
    officer or another.”   TEX. PENAL CODE ANN. § 38.03(a) (Vernon
    1994).   The undisputed testimony is that, after having been
    placed under arrest, Huang clung to both her front door and then
    to her security gate in an effort to resist Scudder’s attempt to
    handcuff her.   Scudder also asserted, and Huang did not produce
    evidence to refute Scudder’s testimony, that she resisted
    Scudder’s attempts to place her under arrest by entwining her
    legs inside the iron security gate.   We note that there is a
    split of authority under Texas law whether simply hanging onto
    the gate and trying to shake off the peace officer’s grip
    constitutes a violation of § 38.03.   Compare Leos v. State, 
    880 S.W.2d 180
    , 184 (Tex. Ct. App.–Corpus Christi 1994, no writ)
    (finding insufficient evidence to support conviction for
    resisting arrest when evidence only showed appellant attempted
    flight and shook off officer’s grip because such force not
    directed against officer), and Luxton v. State, 
    941 S.W.2d 339
    341 (Tex. Ct. App.–Fort Worth 1997, no writ), with Bryant v.
    923 S.W.2d 199
    , 207 (Tex. Ct. App.–Waco 1996, pet. ref’d)
    (“We disagree with the courts’ decisions in Leos[ v. State, 
    880 S.W.2d 180
     (Tex. Ct. App.–Corpus Christi 1994, no writ)] and
    Raymond[ v. State, 
    640 S.W.2d 678
     (Tex. Ct. App.—El Paso 1982,
    pet. ref’d),] to the extent that they hold that any effort to
    shake off an officer’s detaining grip by ‘simply pulling one’s
    arm away’ is not sufficient force to sustain a conviction for
    resisting arrest.” (citations omitted)).   However, we need not
    resolve the conflict.   Huang did not dispute Scudder’s testimony
    that she kicked the constable repeatedly in the shin during the
    incident.   Kicking Scudder while he attempted to arrest her
    constitutes using force against him.     Under these circumstances,
    a reasonable officer would have believed he had probable cause to
    arrest Huang for resisting arrest.
         Scudder and Darbe have demonstrated probable cause for
    Huang’s arrest, entitling them to the defense of qualified
    immunity.   Huang has failed to carry her summary judgment burden
    by producing competent evidence that would create a genuine issue
    of material fact on this issue.    The officers are entitled to
    qualified immunity on the § 1983 claim to the extent it was
    grounded on an alleged false arrest.
                             B.   Excessive Force
         “‘All claims that law enforcement officers have used
    excessive force . . . in the course of an arrest . . . should be
    analyzed under the Fourth Amendment and its “reasonableness”
    standard[.]’”    Gutierrez v. City of San Antonio, 
    139 F.3d 441
    446 (5th Cir. 1998) (third alteration in original) (quoting
    Graham v. Connor, 
    490 U.S. 386
    , 395 (1989)).     To succeed on an
    excessive-force claim under the Fourth Amendment, the plaintiff
    bears the burden of showing:    “(1) an injury (2) which resulted
    directly and only from the use of force that was clearly
    excessive to the need and (3) the force used was objectively
    unreasonable.”   Williams v. Bramer, 
    180 F.3d 699
    , 703, clarified,
    186 F.3d 633
    , 634 (5th Cir. 1999).     Although a showing of
    “significant injury” is no longer required in the context of an
    excessive force claim, this court does “require a plaintiff
    asserting an excessive force claim to have ‘suffered at least
    some form of injury.’”     Id. (quoting Jackson v. Culbertson, 
    984 F.2d 699
    , 700 (5th Cir. 1993)).
         To determine whether an injury caused by excessive force is
    more than de minimis, the court looks to the context in which
    that force was deployed.    See id.    “‘[T]he amount of injury
    necessary to satisfy our requirement of “some injury” and
    establish a constitutional violation is directly related to the
    amount of force that is constitutionally permissible under the
    circumstances.’”   Id. at 703-04 (alteration in original) (quoting
    Ikerd v. Blair, 
    101 F.3d 430
    , 434-35 (5th Cir. 1996)).
         The right to make an arrest necessarily carries with it the
    right to use some degree of force or threat thereof to effect it.
    Graham v. Connor, 
    490 U.S. 386
    , 396 (1989); see also Ikerd v.
    101 F.3d 430
    , 434 (5th Cir. 1996) (“[E]ven in the fourth
    amendment context, a certain amount of force is obviously
    reasonable when a police officer arrests a dangerous, fleeing
    suspect.”).   When determining whether force used was excessive,
    “reasonableness” under the Fourth Amendment is judged according
    to the facts of each 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.”
    Graham, 490 U.S. at 396.
         Continuing to view the events in her favor, Huang, having
    been verbally placed under arrest, asked Scudder if she could
    call someone to watch her children and proceeded towards the door
    of her home to use the phone after Scudder had told her she could
    not do so.    Scudder followed her and slammed the phone out of her
    hand.    Huang grabbed onto the door knob with her left hand and
    screamed for help as Scudder simultaneously grabbed her by the
    right wrist and put her down on the pavement by twisting her arm
    until her knees buckled.    As Scudder pulled her away from the
    door, Huang grabbed the security gate with her left hand.      Darbe
    arrived on the scene and helped Scudder turn Huang on to her
    stomach, handcuff her, and drag her to the police car.
         Huang suffered a broken right thumb.    In twisting her right
    wrist to bring Huang to her knees, Officer Scudder used a
    reasonable amount of force necessary to subdue Huang and prevent
    her from kicking him, pry her free hand first off of the door to
    her home and then off the iron security gate, and place her in
    handcuffs.    Considering the way in which she resisted arrest,
    Huang’s broken thumb was not caused by an unreasonable amount of
    force.    The officers have established their entitlement to
    qualified immunity.    Huang has again failed to come forward with
    any evidence, as is her burden, that there exist genuine issues
    of material fact whether the officers’ conduct rose to the level
    of a constitutional violation.    See Pierce, 117 F.3d at 871-72.
    Summary judgment should have been granted in favor of the
    officers on the federal claims.
                                C. State Claims
         The district court denied Scudder and Darbe summary judgment
    on Huang’s state claims for false arrest, false imprisonment,
    intentional infliction of emotional distress, malicious
    prosecution, and assault and battery.    “[A]n order denying
    qualified immunity under state law is immediately appealable as a
    ‘final decision,’ provided that ‘the state’s doctrine of
    qualified immunity, like the federal doctrine, provides a true
    immunity from suit and not a simple defense to liability.’”
    Cantu v. Rocha, 
    77 F.3d 795
    , 803 (5th Cir. 1996) (quoting Sorey
    v. Kellett, 
    849 F.2d 960
    , 962 (5th Cir. 1988)).
         Texas law of official immunity is substantially the same as
    federal qualified-immunity law.    See id. at 808.   It provides
    government officials with “official immunity” from suit for
    matters (1) arising from the performance of their discretionary
    duties, (2) if they are acting in good faith, and (3) within the
    scope of their authority.    See Wren v. Towe, 
    130 F.3d 1154
    , 1160
    (5th Cir. 1997) (citing City of Lancaster v. Chambers, 
    883 S.W.2d 650
    , 653 (Tex. 1994)).
         Under Texas law, actions which involve “personal
    deliberation, decision, and judgment [are] discretionary,” as
    opposed to ministerial “[a]ctions[,] that require obedience to
    orders or the performance of a duty to which the actor has no
    choice.”   Tamez v. City of San Marcos, Tex., 
    118 F.3d 1085
    , 1097
    (5th Cir. 1997).    Neither Scudder nor Darbe was acting pursuant
    to orders, but instead they exercised their discretion as police
    officers in investigating the complaint, attempting to issue a
    citation, and arresting Huang.    See id.
         Whether an officer acts in “good faith” under Texas law is
    analyzed by an objective-reasonableness standard derived
    substantially from the standard for qualified immunity.    See id.
    (citing Chambers, 883 S.W.2d at 656) (officer acts in “good
    faith” in a pursuit case if “a reasonably prudent officer, under
    the same or similar circumstances, could have believed that the
    need to immediately apprehend the suspect outweighed a clear risk
    of harm to the public in continuing the pursuit”).   As previously
    discussed in the Fourth Amendment context, Scudder’s and Darbe’s
    actions were objectively reasonable.   Therefore, as a matter of
    Texas law, the officers acted in good faith.    See id.
         “An officer acts within the scope of his authority if he
    discharges the duties generally assigned to him.”    Id.   There is
    no question that Scudder was fulfilling the duties of his office
    by responding to and investigating Huang’s call and that Darbe
    fulfilled the duties of his office by responding to Scudder’s
    call for back-up.   We hold, therefore, that Scudder and Darbe are
    immune from suit for both the state claims and federal claims
    brought against them.
                               V. CONCLUSION
         We REVERSE the district court’s denial of summary judgment
    and REMAND to the district court for entry of judgment in favor
    of Scudder and Darbe.   Costs shall be borne by Huang.