Dilworth v. Riner Brief for Appellants

    No. 14-

In THE

j^uprrmr ( ta r t  at tljr lEmtrfc States

CLAU D IA DAWSON,

Petitioner,

v.

ANDERSON COUNTY, TE X A S, et al,

Respondents.

On Petition for a W rit of Certiorari to the 
United States Court of A ppeals for the F ifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Curtis B. Stuckey 
T im Garrigan 
T imothy David Craig 
Stuckey, Garrigan & Castetter 

L aw Offices 
P.O. Box 631902 
Nacogdoches, TX  75963

John Paul Schnapper-Casteras 
NAACP L egal Defense & 

E ducational F und, Inc.
1444 I Street NW  
Washington, DC 20005

E ric Schnapper 
Counsel of Record 

School of Law 
University of Washington 
P.O. Box 353020 
Seattle, WA 98195 
(206) 616-3167 
sehnapp@ii.washington.edu

Sherrilyn Ifill 
Director-Counsel 

Janai Nelson 
Christina Swarns 
NAACP L egal Defense & 

E ducational F und, Inc.
40 Rector Street, 5th Floor 
New York, N Y 10006

Counsel for  Petitioner

257309

mailto:sehnapp@ii.washington.edu


Graham v. Connor, 490 U.S. 386 (1989), established 
the standards for determ ining whether a use o f force 
violates the Fourth Amendment. Graham requires that 
courts identify and w eigh the specific governm ental 
interest furthered by a use of force, such as protecting 
the safety of officers or the public. In this case, the Fifth 
Circuit held that the Fourth Amendment permits the 
use of force whenever an arrestee fails to comply with an 
order, without regard to whether the order itself satisfies 
the Graham standard or advances any governmental 
interest. Every other circuit to address this situation 
has applied the Graham standards in determining the 
constitutionality of the use of force against an arrestee 
who does not comply with an order.

The questions presented are:

(1) Does the Fourth Amendment permit the use of 
force whenever an arrestee fails to comply with any 
order?

(2) Could a reasonable officer believe that the Fourth 
Amendment permits the use of force whenever an 
arrestee fails to comply with any order?

QUESTIONS PRESENTED



PARTIES

The petitioner is Claudia Dawson. The respondents 
are Anderson County, Texas, Greg Taylor, Karen Giles, 
Cheney Farmer, Sarah Watson and Darryl Watson.



Ill

QUESTIONS P R E S E N T E D .............................................. i

P A R T IE S ................................................................................. ii

TABLE OF CON TEN TS.................................................... iii

TABLE OF A P P E N D IC E S ............................................... v

TABLE OF CITED A U T H O R IT IE S ............................. vi

OPINIONS BE LO W ...............................................................1

JU RISD ICTIO N ................................................................

CONSTITUTIONAL PROVISION INVOLVED........... 1

STATEM ENT OF TH E C A S E ......................................... 1

A. The Legal C o n te x t....................................................2

B. The Proceedings B e lo w .................................... .. • -3

REASONS FOR GRANTING TH E PETITION ..........17

I. TH ERE IS AN  IM PORTANT CIRCUIT 
CO N FLICT REG ARD IN G  W H E T H E R  
TH E GRAHAM  STAN D ARD S APPLY 
TO T H E  USE OF FO R C E  A G A IN ST  
A R R E S T E E S  W H O  D I S O B E Y  
O R D E R S ................................................................... 18

TABLE OF CONTENTS

Page



IV

Table o f Contents

Page

II. THE DECISION OF THE FIFTH  CIRCUIT
C O N F L IC T S  W IT H  T H IS  C O U R T ’ S 
DECISION IN GRAHAM V. CONNOR........... 25

III. T H E  I M M E D I A T E  L E G A L  A N D
P R A C T IC A L  C O N S E Q U E N C E S  OF 
T H E  F I F T H  C I R C U I T  D E C IS IO N  
W A R R A N T  R E S O L U T IO N  OF T H E  
QUESTIONS PR ESE N TED  W ITH OU T 
FU R TH ER D E L A Y ................................................28

IV. TH IS CASE PR E SE N TS TH E ID E A L
V E H I C L E  F O R  R E S O L V I N G  T H E  
QUESTIONS P R E S E N T E D ...............................31

CONCLUSION 32



V

TABLE OF APPENDICES

Page

A P P E N D IX  A  —  ORDER OF TH E U N ITED  
S T A T E S  C O U R T  OF A P P E A L S  F O R  
T H E  F I F T H  C I R C U I T  D E N Y I N G  
R E H E A R I N G  A N D  R E H E A R I N G  EN
BANC, DATED OCTOBER 2,2014......................... la

APPE N D IX  B —  OPINION OF TH E UN ITED 
STATES COURT OF A P PE A LS FOR TH E 
FIFTH  CIRCUIT, DATED MAY 6, 2014...............11a

A P P E N D IX  C —  ORDER OF TH E U N ITED  
ST A T E S D IS T R IC T  COU RT, E A S T E R N  
DISTRICT OF TE X A S, TY L E R  DIVISION, 
DATED OCTOBER 31,2012......................................34a



VI

CASES

TABLE OF CITED AUTHORITIES

Page

Abbott v. Sangamon County, Illinois,
705 F.3d 706 (7th Cir. 2013)...........................................22

Austin v. Redford Township Police Dep’t.,
690 F.3d 490 (6th Cir. 2012).................................... 21, 22

Brown v. Cwynar,
484 Fed. Appx. 676 (3d Cir. 2012)................................ 24

Buckley v. Haddock,
292 Fed. Appx. 791 (11th Cir. 2008)............................25

City of Canton, Ohio v. Harris,
489 U.S. 378(1989).......................................................... 29

Damon v. Brooks,
132 S. Ct. 2681 (2012)......................................................24

Eldridge v. City of Warren,
533 Fed. Appx. 529 (4th Cir. 2013)..............................20

Graham v. Connor,
490 U.S. 386 (1989).................................................passim

Harris v. City o f Circleville,
583 F.3d 356 (6th Cir. 2 0 0 9 )..................................  18-19



Headwaters Forest Defense v.
County of Humboldt,
240 F.3d 1185 (9th Cir. 2001)................................  23,24

Headwaters Forest Defense v.
County of Humboldt,
276 F.3d 1125 (9th Cir. 2 0 0 2 ) ...................................... 24

Hickey v. Reeder,
12 F.3d 754 (8th Cir. 1993).............................................30

MacLeod v. Town of Brattleboro,
548 Fed. Appx. 6 (2d Cir. 2013).................................... 24

Martinez v. New Mexico Dept, of Public Safety,
47 Fed. Appx. 513 (10th Cir. 2002)..............................24

Mattos v. Agarano,
661 F.3d 433 (9th Cir. 2011)...........................................24

Mecham v. Frazier,
500 F.3d 1200 (10th Cir. 2 0 0 7 ).................................... 24

Meirthew v. Amore,
417 Fed. Appx. 494 (6th Cir. 2011)..............................20

Norton v. Stille,
526 Fed. Appx. 509 (6th Cir. 2013)

vii

Cited Authorities

Page

19,20



Vlll

Cited Authorities

Owen v. City of Independence,
445 U.S. 622 (1980)..........................................................31

Phillips v. Community Ins. Corp.,
678 F.3d 513 (7th Cir. 2012)..................................  22,23

Plumhoff v. Rickard,
134 S. Ct. 2012(2014)............................................... 3,30

Saucier v. Katz,
533 U.S. 194(2001)............................................................ 3

Scott v. Harris,
550 U.S. 372 (2007).............................................  3, 25, 30

Smith v. Conway County, Arkansas,
749 F.3d 853 (8th Cir. 2014)...........................................30

Stanton v. Sims,
134 S. Ct. 3 (2013)....................................................... 29

Tennessee v. Garner,
471 U.S. 1 (1985)....................................................... 3 ,27

Thomas v. Plummer,
489 Fed. Appx. 116 (6th Cir. 2012).............................. 21

Tolan v. Cotton,
134 S. Ct. 1861 (2014)

Page

18



IX

Tolan v. Cotton,
538 Fed. Appx. 374 (5th Cir. 2013)................. 13,16,18

Tolan v. Cotton,
713 F.3d 299 (5th Cir. 2013).................................... 12,18

Wells v. City o f Dearborn Heights,
538 Fed. Appx. 631 (6th Cir. 2013)........................20, 21

STATUTES AND AUTHORITIES

Fourth Amendment to the U.S. Constitution . . .  passim 

28 U.S.C. § 1254(1).................................................................. ..

Cited Authorities

Page



1

Petitioner Claudia Dawson respectfully prays that this 
Court grant a writ of certiorari to review the judgment 
and opinion of the United States Court o f Appeals entered 
on May 6, 2014.

OPINIONS BELOW

The May 6,2014 opinion of the court o f appeals, which 
is reported at 566 Fed.Appx. 369 (5th Cir. 2014), is set out 
at pp. lla -33a  of the Appendix. The October 2,2014, order 
of the court of appeals denying rehearing and rehearing 
en banc, which is reported at 769 F.3d 326 (5th Cir. 2014), 
is set out at pp. la-lOa of the Appendix. The October 31, 
2012 order of the district court, which is not officially 
reported, is set out at pp. 34a-50a of the Appendix.

JURISDICTION

The decision of the court of appeals was entered on 
May 6,2014. A  timely petition for rehearing and suggestion 
for rehearing en banc were denied on October 2,2014. This 
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment provides in pertinent part, 
“ The right of the people to be secure in their persons 
. . .  against unreasonable searches and seizures, shall not 
be violated . . .

STATEMENT OF THE CASE

Graham v. Connor, 490 U.S. 386 (1989), established the 
Fourth Amendment standards governing the use o f force



2

by law enforcement officials. In the instant case the Fifth 
Circuit, confronted by a case which could not meet the 
Graham standards, established a far-reaching exception 
to Graham that would often eliminate constitutional 
protection when non-lethal force is used against arrestees. 
By a 10-5 vote, a sharply divided court o f appeals refused 
to grant rehearing. D issenting opinions made clear 
that this novel Fifth Circuit constitutional standard is 
inconsistent with Graham. Because the panel decision 
held that the use o f force in this case was constitutional, 
the opinion has the immediate effect of according qualified 
immunity throughout the Fifth Circuit for uses of force 
that violate the Graham standards. The standard adopted 
by the Fifth Circuit in this case conflicts with standards 
in six other circuits.

A. The Legal Context

Graham v. Conner identifies three distinct elements 
to be considered in determining whether a use of force by 
a state violates the Fourth Amendment prohibition against 
unreasonable seizures. First, “proper application [of the 
Fourth Amendment reasonableness standard] requires 
careful attention to the facts and circumstances o f each 
particular case, including the severity o f the crime at 
issue, whether the suspect poses an immediate threat 
to the safety of the officers or others, and whether he is 
actively resisting arrest or attempting to evade arrest 
by flight.” 490 U.S.at 396. The particular circumstances 
spelled out in this passage are widely referred to in the 
lower courts as the uGraham factors.” Second, “whether 
the force used . . .  is ‘reasonable’ requires a careful 
balancing of ‘ “ the nature and quality of the intrusion on 
the individual’s Fourth Amendment interests’” against



3

the countervailing governmental interests at stake.” 490 
U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 
(1985)). Third, it is significant whether or not the “ police 
officers [were] forced to make split-second judgments— in 
circumstances that [were] tense, uncertain, and rapidly 
evolving— about the amount of force that [was] necessary 
in a particular situation.” 490 U.S.at 396; see Saucier v. 
Katz, 533 U.S. 194,205 (2001)(applying Graham factors).

This Court’s post -Graham  decisions have focused 
on the risk to the public, or to law enforcement officers, 
created by the individual against whom force was used. 
Thus in Scott v. Harris, 550 U.S. 372 (2007), the Court 
em phasized that the plaintiff, “ racing down narrow, 
two-lane roads in the dead of night at speeds that are 
shockingly fast” 550 U.S. at 379, “ posed an actual and 
imminent threat to the lives of any pedestrians who might 
have been present, to other civilian motorists, and to the 
officers involved in the chase.” Id. at 384; see Plumhoff v. 
Rickard, 134 S.Ct. 2012, 2021 (2014).

B. The Proceedings Below

(1) This case concerns the use of force against a naked, 
defenseless, pregnant woman.

Plaintiff Claudia Dawson is an African-Am erican 
woman who, at the time o f the events giving rise to 
this action, was 26 years old and in the early stages of 
a pregnancy.1 In the evening of April 26, 2010, police in 
Palestine, Texas stopped a vehicle in which Dawson was 1

1. Dawson Dec. If 2. The baby was born without any ill effects 
later in the year.



4

a passenger. The driver got out o f the vehicle, and an 
altercation with the police ensued. Dawson then exited the 
vehicle, and objected to the actions of the police. The police 
responded by arresting Dawson for public intoxication and 
interference with public duties, both misdemeanors. App. 
12a, 19a. Dawson, who insisted she had nothing at all to 
drink, unsuccessfully asked to be given a breathalyzer 
test.2

The Palestine police took Dawson to the Anderson 
County jail to be booked on the two misdemeanor charges. 
The Palestine police, for reasons that remain unclear, 
asked the county jail officials to subject Dawson to a body 
cavity search.3 The jail officials agreed to do so, without 
making any determination of their own regarding whether 
that highly intrusive search was justified.4 At the direction 
of jail officials, Dawson went into a separate room used for 
such searches and, in the presence of two or three female 
guards— one of them armed with a pepperball gun—  
removed all her clothing. Within the next few minutes a 
male guard briefly entered the room, and a female guard

2. Declaration of Claudia Dawson, Doc. 23-1, par. iii (“ I 
requested a breathalyzer test because I was charged with public 
intoxication and I had not had anything to drink.”).

3. “Palestine Police Department. . . officers brought Dawson 
to the Anderson County Sheriffs Office and requested that the 
Anderson County Officers conduct a strip search. The Anderson 
County officers were never informed of the basis for the PPD officers’ 
request for the strip search but nonetheless complied.” App. 19a.

4. Under the County Sheriffs Office Jail and Detention Policy 
and Procedures, detainees, defined as individuals “held in the 
facility for a short period, pending bond out or release . . .  are not 
normally housed with general population of inmates, and may be 
held in waiting areas, holding cells, etc.” Doc. 22-10,1 (emphasis 
in original).



5

shot Dawson twice with the pepperball gun. A  pepperball 
gun fires rounds of oleoresin capsicum powder, also known 
as pepper spray. “ It is undisputed that throughout the 
strip search, and while all o f the shots were fired, Dawson 
was unclothed, standing within one or two feet of the wall 
in the dress-out room, and was surrounded by multiple 
officers, at least one of whom was armed with a pepperball 
gun. It is also undisputed that Dawson never struck or 
attempted to strike an officer.” App. 20a. But in other 
respects what transpired during that period remains in 
dispute.5

A ccord in g  to Dawson, a fter she had com pletely 
disrobed, the guards ordered her to squat and cough, and 
she did so.6 Dawson then asked to get dressed. According 
to Dawson, “ One o f the Defendant Jailers told me, ‘ I 
will make you squat and cough all night until I get tired 
of looking.’ I had already complied with the Defendant 
Jailers’ order so I truthfully said, ‘You can’t make me 
do this all night and I am not going to do it.’” Dawson

5. App. 22a (“the record evidence presents a factual dispute as 
to whether Dawson wTas argumentative during the strip search or 
rather whether any verbal noncompliance on her part was justified 
given the officer’s alleged harassment. The Defendants testified 
that Dawson was belligerent, screaming, and non-cooperative. 
Comparatively Dawson testified that she did not yell at the officers 
and merely said, in response to the threat that she would have to 
squat and cough all night, that : ‘You can’t make me do this all 
night and I am not going to do it.’”); App. 4a (“Dawson testified 
that she complied with the initial command to ‘squat and cough.’ 
Anderson County contends she did not comply at all.”).

6. Dawson Dec., 11 v (“I squatted and coughed in compliance 
with the order.”); Dawson Dep. 97 (“Q—  They asked you to squat. 
And you did that on your owm? A. Yes, sir. Q. And they asked you 
to cough, and you did that on your own? A. Yes sir.”).



6

Dec., If vi.7 W hile Dawson and the female guards were 
disagreeing about whether Dawson could be required to 
squat and cough all night, “a guy stuck his head in and 
told her, I tell you what to do with her shoot her with the 
pepper ball gun.” Dawson Dep. 65-66. “ [He] could see me. 
I was standing there in the middle stripped naked” (id. 73); 
the male officer, a Sergeant, was in the room for 15 to 20 
seconds. Id. 74. Dawson told the male officer he should not 
be in the room. Id. 72, 73. The guard with the pepperball 
gun then fired three rounds. The first round missed. The 
second round hit Dawson in the abdomen. “When she shot 
me in the stomach and I went down to my knees, I told 
her that she could not be shooting me with no pepperball 
gun because I was pregnant.” Id. 83; see id. 30 (Dawson 
asked guard not to shoot her because she was pregnant), 
83 (same), 81 (after jailer “ shot me in the stomach, I kind 
of went in the fetal position.” ). The guard shot Dawson 
again, this time hitting her on her leg. The two rounds 
that struck Dawson broke the skin and caused “substantial 
bleeding.” Dawson Dec., If x. During the period when the 
shooting occurred, according to Dawson, the guards were 
laughing. Dawson Dep., 82,83,88; see App. 15a (“Dawson[] 
assert[s] that . . .  the defendants laughed at her and made 
abusive comments.” ).8 One guard remarked “ I wish I was

7. Dawson Dep., 65 (“They were just telling me to . . .  squat, 
and cough. I did that once. And one of them— I don’t know which 
one of them told me that we were going to sit here and do this all 
night. And when she told me that, I told her I done done it for them 
once and I wasn’t going to sit there and do that all night. And I 
asked her for my little clothes to dress out in.”).

8. App.l9a-20a (“Officers Sarah Wells and Cheneya Farmer 
took Dawson into the ‘dress-out room’ where they instructed 
Dawson to remove her clothes. One undressed, Dawson was 
ordered to squat down and cough. Dawson attests that she



7

certified to shoot this bitch up with the pepper ball gun.” 
Id. 66-67.

The guards give a different account of the shooting.9 
They testified that although Dawson had removed all her

complied with this initial order. Once the strip search was in 
progress, a third officer, Karen Giles, entered. According to 
Dawson, after she had already complied with the order to squat 
and cough, one of the officers then stated that she would force 
Dawson to ‘squat and cough all night until [she got] tired of looking.’ 
Dawson asserts that in response, without yelling, she told the 
officers that she could not be forced to squat and cough all night. 
Promptly after this exchange, Sergeant Darryl Watson briefly 
entered the dress-out room and instructed Officer Giles to shoot 
Dawson with a pepperball gun. Officer Giles then fired the first 
shot, which did not hit Dawson. Giles quickly fired the second shot, 
which hit Dawson in the left side of her abdomen, causing her to 
bend over in a ‘fetal position.’ Dawson attests that she then told 
the officers that she could be pregnant and, if she was, that they 
could not shoot at her. Officer Giles than fired the third shot, which 
hit Dawson in her right knee. According to Dawson, the two shots 
broke her skin and caused substantial bleeding. Dawson further 
alleges that throughout the strip search, the officers laughed at her 
expense and were verbally abusive. One female officer allegedly 
stated that she *wish[ed] [she] was certified to shoot this bitch up 
with the pepper ball gun.’ ”)

9. App. 36a (“In contrast, Defendants claim that Plaintiff did 
not initially comply with the squat-and-cough order. Defendants 
assert that Plaintiff was belligerent, used profanity, and yelled that 
she was not going to squat and cough. Giles then entered the search 
room and observed Plaintiff’s noncompliance. Giles also observed 
that Plaintiff was moving closer to one of the jailers, arguing, and 
screaming at the jailers in a threatening manner. Giles then told 
Plaintiff to comply with the squat-and-cough order. When Plaintiff 
still did not comply, Giles fired three shots at Plaintiff from the 
pepperball gun. Plaintiff then complied with the order.”)



8

clothes as directed, she had refused to squat and cough.10 11 
The guards stated that they had fired the pepperball gun 
as a method of forcing Dawson to squat and cough, which 
she did only after being struck by two of the pepperballs. 
They claimed that Dawson had laughed after being struck 
in the abdomen by the second round.11 There is no dispute, 
however, that the male Sergeant wTas in the room at one 
point during the body cavity search. And the Sergeant 
expressly acknowledged that it was only necessary for an 
arrestee to squat and cough a single time.12 “ [N ]o officer 
indicated a problem  with the first ‘squat and cough.” ’ 
App. 5a.

10. Farmer Dep. pp. 15,16, Doc. 22-5.

11. Giles Dep. 46, 51, 53.

12. Watson Dep., Doc. 23-4, p. 18:
“Q. Now, if she did squat and cough one time when she 
was told to, as has been testified to by Ms. Dawson, 
then that would have been in compliance, wouldn’t it?

A. Yes, sir.

Q. And it would be wrong to have her get down and 
squat again?

A. Yes, sir.

Q. Because they don’t have any business harassing 
these people?

A. Right.

Q. You agree with that?

A. Yes, sir.

Q. And you wouldn’t put up with that?

A. No, sir.”



9

Dawson was released the next morning. She went 
to a local hospital for treatment o f the wounds caused 
by the pepperball rounds. Dawson testified that the two 
rounds that struck her, both fired at close range, had 
caused pain that lasted for several months, and had left 
scars still visible several years later. Dawson Dep., 33. 
The prosecuting attorney did not pursue charges against 
Dawson.

Dawson commenced this action in federal district 
court, naming as the defendants four guards, the County 
S h eriff, and A n derson  C ounty.13 A fte r  a p eriod  o f 
discovery, the defendants moved for summary judgment. 
In support of that motion, the defendants asserted that 
it was “ undisputed” that Dawson had refused to comply 
with the order to squat and cough.14 15 Dawson’s response 
em phasized that this assertion was in fact squarely 
disputed, noting that she had repeatedly insisted in her 
deposition that she had complied with the first squat and 
cough order, and had objected only to the order that she 
resume squatting and coughing “all night.”16 Dawson

13. The complaint alleged that the use of the pepperball gun 
was authorized by county policy. The official policy of the County 
Sheriffs Office states that “The Anderson County Sheriffs Office 
will utilize the Pepperball systems as an attempt to overcome 
resistance from persons who clearly refuse to obey lawful 
directions given them by officers.” Doc. 22-9, Anderson County 
Sheriffs Office: Use of Force: Pepperball Deployment Systems, 1; 
see id. at 4 (“the Pepperball system is a viable means of attempting 
to bring suspects into compliance.”)

14. Defendants’ Motion for Summary Judgment, 3-4,18,19.

15. Plaintiffs Response in Opposition to Defendants’ Motion
for Summary Judgment and Brief in Support, 20.



10

argued that the order to squat and cough all night served 
no legitimate government purpose at all, citing testimony 
by the Sergeant involved that there was no need for her 
to squat and cough more than once.16 Dawson urged the 
court in determining the constitutionality o f the use of 
the pepperball gun to apply the standards in Graham v. 
Connor.

The d istrict court acknow ledged that there was 
conflicting testimony about whether Dawson had obeyed 
the first order to squat and cough. “ The Court recognizes 
that there is a factual dispute about whether Plaintiff 
complied with the squat-and-cough order before being shot 
with the pepperball gun.” App. 42a. It reasoned, however, 
that the individual defendants were entitled to summary 
judgment even on Dawson’s version of the facts, because 
Dawson admitted having disobeyed the order to continue 
squatting and coughing indefinitely, and because it was 
undisputed that, rather than merely failing to obey that 
order, she had explained to the guards that she thought 
she could not be required to do that. “ Plaintiff conceded 
that the jailers told her to squat and cough a second time 
and that she did not obey. Furthermore, it is undisputed 
that Plaintiff was arguing with the jailers.” App. 42a 
(footnote omitted). The court concluded that the guards 
were entitled to qualified immunity, because they could 
reasonably have concluded that the use of the pepperball 
gun under such circum stances was constitutionally 
permissible. “ [A] reasonable jailer, faced with an arguing, 
non-compliant arrestee, who was moving toward another 
jailer, could have believed that [the guards’] actions were

16. Id. 17.



11

lawful.” App. 43a.17 The district court did not consider 
whether the use of force satisfied the specific factors 
established by Graham; instead, it deemed the fact an 
arrestee had failed to obey an order sufficient by itself to 
justify the use of force, especially where the arrestee gave 
a reason for not complying. The district court dismissed 
on other grounds the claims against Anderson County 
and the Sheriff. App. 48a.

On appeal18 Dawson urged that the district court had 
erred in failing to apply the Graham factors, emphasizing 
that she had not been charged with a dangerous offense, 
that she was not attempting to flee or actively resist arrest, 
and that she denied having taken any action that posed any 
threat to the safety of the officers.19 Again she pointed to 
undisputed testimony by the Sergeant on the scene that 
squatting and coughing a single time was all that was 
necessary to complete the body cavity search.20 The Fifth 
Circuit acknowledged that there was a factual dispute 
about whether Dawson had com plied with the initial 
order to squat and cough, and thus about whether any 
government purpose would have been served by forcing

17. The statement that Dawson was “moving toward” a jailer 
was controverted by testimony by the defendants that Dawson 
(indisputably naked and unarmed) at all times remained within 
one or two feet of the wall. App. 23a. The court of appeals did not 
rely on this contested factual assertion.

18. The court of appeals held that under Fifth Circuit precedent 
Dawson’s claim was governed by the Fourth Amendment. App. 
13a n. 3.

19. Brief of Plaintiff-Appellant, 19.

20. Id., 8.



12

her to do so again (and again). “ Contrary to her jailers, 
Dawson stated she initially complied with their directive 
to ‘squat and cough’ during the strip search—  This initial 
compliance rem oved any need for the pepperball gun 
. . .  and, she contended, its use therefore was excessive.” 
App. 13a.

The Fifth Circuit, in a 2 -to -l decision, nonetheless 
concluded that the pepperball shooting was constitutional. 
The panel majority held that a mere refusal by an arrestee 
to obey any order— even in this case an order that she 
squat and cough “all night”—justifies the use of force.21

We cannot conclude that all reasonable officers 
would believe that the use o f force in this case 
violated the Fourth Amendment, because it 
is undisputed that Dawson did not com ply 
with successive search com mands given at 
her arrestee intake encounter. Even crediting 
her that she obeyed at first, Dawson admitted 
refusing a renewed command to “ squat and 
cough.” Law enforcement officers are within 
their rights to use objectively reasonable force 
to obtain com pliance from  prisoners............

21. The Fifth Circuit’s holding that disobedience to an order 
can suffice to justify the use of force was presaged to some degree 
by that Circuit’s decision in Tolan v. Cotton. “ Robbie Tolan’s 
refusing to obey a direct order to remain prone violated [Texas 
law] . . . .  Such refusal, under the circumstances, could have 
reinforced an officer’s reasonably believing Robbie Tolan to be a 
non-compliant and potentially threatening suspect. Robbie Tolan 
could have avoided injury by remaining prone as Officer Edwards, 
with pistol drawn, had ordered him to do.” 713 F.3d 299, 308 (5th 
Cir. 2013).



13

Measured force achieved compliance with the 
officers’ search directives in this case, again, 
crediting as we must, Dawson’s contention that 
she complied at first but then refused a search 
order given twice believing it to be abusive. 
M easured force on an arrestee who refuses 
immediately successive search orders cannot 
be deemed objectively unreasonable under our 
qualified immunity caselaw.

App. 13a-14a (footnote omitted). The Fifth Circuit did 
not consider whether this use of force could satisfy the 
Graham factors; indeed, the majority opinion never refers 
to Graham at all. On its view, the disobedience of any order 
by an arrestee is inherently sufficient by itself to justify 
the use of force. The Court o f Appeals’ decision was not 
limited to the individual defendants’ claims of qualified 
immunity; it concluded that the use of the pepperball 
gun was for these reasons “objectively reasonable,” i.e. 
constitutional. App. 13a n. 3. It therefore dismissed the 
claims against Anderson County and the Sherriff on the 
ground that there had been no constitutional violation. Id.

Judge Dennis22 dissented, objecting that the panel’s 
per se rule perm itting use of force against any non­
complying arrestee was inconsistent with Graham. App. 
lla -3 3 a . “ W ithout applying the Graham factors, the 
majority summarily concludes that because Dawson was 
non-compliant, the officers’ use of force was objectively 
reasonable to achieve compliance and thus the Defendants 
are entitled to qualified immunity.” App. 27a. Judge Dennis

22. Judge Dennis wrote the dissenting opinion in Tolan. 538 
Fed. Appx. 374, 375 (5th Cir. 2013)(en banc).



14

analyzed the case under the Graham factors— as the panel 
had not— and easily concluded that the use of force was 
unconstitutional.23 The dissent objected that the panel’s 
order-obedience doctrine permitted the use of force to 
compel compliance with an order that was unlawful or 
baseless, a result inconsistent with Graham; under the 
Graham standard, Judge Dennis emphasized, the use of 
force would be unconstitutional if, as Dawson testified, 
she had already complied with the order to squat and 
cough.24 The Sergeant in charge, he stressed, had agreed

23. App. 27a-28a:
First, Dawson was in custody for two misdemeanor 
charges, neither of which involves accusations of 
violence. Thus the first Graham factor—the severity 
of the crime—militates against concluding that the 
Defendants’ use of force was objectively reasonable.

 ̂  ̂ ^
[T]he second Graham factor—the individual’s threat 
to officer safety— similarly supports a conclusion that 
Defendants’ conduct was not objectively reasonable. 
Viewing the evidence in the light most favorable 
to Dawson, she . . . was unarmed, unclothed, stood 
within one to two feet of the dress-out room’s wall, 
was surrounded by multiple armed officers, and did 
not attempt to strike an officer. On this record, viewing 
the evidence in her favor, Dawson did not pose a threat 
to the officer’s safety.

❖  ❖  ^
[T]he third Graham factor—whether the plaintiff 
actively resisted the officers— also supports a 
conclusion that the officer’s use of force was objectively 
unreasonable.

24. “Sergeant Watson’s acknowledgement that a detainee 
would be in compliance if he or she obeyed the first order to squat



15

that squatting and coughing a single time was sufficient. 
App. 20a, 21a. “ Crediting all reasonable inferences in 
Dawson’s favor, she presented record evidence that she 
never resisted the officer’s lawful directives. Rather, 
the evidence regarding her refusal to squat and cough 
after she initially complied with officers’ orders may 
reasonably be construed as a verbalized denial to consent 
to an unlawful, abusive order and thus would not qualify 
as ‘active resistance’ and would not justify the officer’s 
resort to force.” App. 28a. Application o f the Graham 
standard, Judge D ennis also concluded, precluded  
qualified immunity. “ Under Graham, a reasonable officer 
would have sufficient notice that using a pepperball gun to 
repeatedly shoot a naked, possibly pregnant, compliant, 
non-threatening detainee who merely stated she would 
not comply with an abusive command, clearly constitutes 
excessive force in violation of the Fourth Amendment.” 
App. 28a-29a.

Dawson petitioned for rehearing and rehearing en 
banc, again arguing that her constitutional claim should 
have been evaluated under Graham.25 26 A  sharply divided

and cough—read in conjunction with Dawson’s testimony that 
she did just that— creates a genuine issue of material fact as to 
whether Dawson’s behavior was in fact non-compliant. . . . ” App. 
21a-22a.

25. Suggestion for Rehearing En Banc, 7-9.

In their brief opposing rehearing en banc, the defendants 
embraced the panel’s reasoning, arguing that the use of force was 
constitutional because “Dawson admits that she refused to comply 
with at least one order to squat and cough. . . . Dawson contends 
that she initially complied but then refused subsequent orders to 
squat and cough.” Response to Petition for Rehearing En Banc,



16

court o f appeals denied rehearing en banc, over the 
objection of five judges.* 26 In an opinion dissenting from 
the denial o f rehearing en banc, Judge Haynes expressed 
particular disagreement with the panel’s order-obedience 
doctrine because it permitted the use o f force to compel 
compliance with any order, and thus would apply to the 
use of force to compel an arrestee to obey an entirely 
illegitimate order. The dissent questioned whether “an 
arrestee is required to follow any order from  a group 
o f armed jailers, regardless o f how ridiculous, or face 
a pepperball to force compliance.” App. 5a. “ [IJt would 
be unreasonable for a jailer to take Dawson’s refusal to 
comply for the jailer ’s amusement a second time (after 
already squatting and coughing), without more, as license 
to begin shooting pepperballs at her.” App. 4a. “ [R] 
equiring her to ‘squat and cough’ ‘all night long’ just to 
humiliate her is not a legitimate basis upon which to use 
force, such as a pepperball shot, to obtain compliance.” 
App. 5a. “ No case law suggests [that a body cavity search] 
can be conducted for any reason other than to assure 
officers there is nothing hidden inside the cavity.” App. 4a.

Dawson alleged that the jailers laughed at her 
and were verbally abusive throughout the strip 
search . . .  [T]he alleged statements inform the

3-4 and n. 4; see id. 6 (“Because Dawson admits that she refused 
to comply with the order to squat and cough (at least once),. . .  the 
Panel did not err in concluding that Giles’ and Watson’s actions were 
not objectively unreasonable under qualified immunity case law.”).

26. The judges who voted for rehearing en banc in this case 
included all the judges who had voted for rehearing en banc in 
Tolan. Compare App. 2a with Tolan v. Cotton, 538 Fed.Appx. 374, 
375 (5th Cir. 2013)(en banc).



17

question of whether . . . the commands were 
legitim ate or for harassm ent and, in turn, 
whether force was justified to obtain compliance.
In examining. . .  whether the commands were 
consistent with a need for security or simply 
done for sport, the alleged contemporaneous 
comments support a conclusion that it was the 
latter, not the former. . . .  The facts as alleged 
by Dawson . . . suggest a level of sadism and 
brutality that is totally unacceptable.

App. 9a-10a.

REASONS FOR GRANTING THE PETITION

The Fi f th  Circuit  in this case has adopted an 
unprecedented and far-reach in g  constitutional rule 
that m aterially subverts a quarter century o f Fourth 
Amendment jurisprudence regarding the use of force by 
law enforcement officials.

The decisions in Graham v. Connor and its progeny 
carefully balance the public and private interests at stake 
when force is used, assuring the ability of law enforcement 
officers to protect themselves and the public from harm, 
while preventing the use o f unnecessary force. The 
circumstances alleged in this case could not conceivably 
satisfy the Graham standard; neither the defendants nor 
the courts below suggested that there was any legitimate 
government interest in requiring an arrestee who has 
already submitted to one body cavity search to continue 
squatting and coughing, naked and surrounded by guards, 
until the guards grew  weary of that spectacle.



18

The Fifth  Circuit— in a decision with far greater 
ramifications that its decision in Tolan v. Cotton, 713 
F.3d 299 (5th Cir. 2013), rehearing en banc denied, 538 
Fed. Appx. 374 (5th Cir. 2013)(en banc), rev’d per curiam 
134 S. Ct. 1861 (2014)— created a loophole which permits 
wholesale evasion o f Graham. Under the decision below, 
disobedience of any order by an arrestee is sufficient to 
justify the use of force to compel compliance, regardless of 
whether the order itself advances a sufficient governmental 
in terest to sa tisfy  Graham. A s the dissents below  
correctly warned, that Fifth Circuit’s order-obedience 
constitutional rule sanctions the use of force to compel 
obedience to an order that serves no legitimate purpose 
at all, the very circumstance alleged in this case.

The court of appeals decision conflicts with decisions in 
six other circuits, and has the immediate effect throughout 
the F ifth  Circuit o f according qualified immunity for 
conduct that violates the standards in Graham.

I. THERE IS AN IMPORTANT CIRCUIT CONFLICT 
REGARDING W HETHER THE GRAHAM 
STANDARDS APPLY TO THE USE OF FORCE 
AGAINST ARRESTEES WHO DISOBEY ORDERS

The Fifth Circuit order-obedience doctrine conflicts 
with the decisions in six other circuits, which correctly 
apply the Graham standards when force is used against 
an arrestee who does not comply with an order.

The Sixth Circuit has in a wide variety of circumstances 
utilized the Graham factors in resolving claims regarding 
the use o f force against arrestees who disobey an order. 
In Harris v. City of Circleville, 583 F.3d 356 (6th Cir.



19

2009), while the plaintiff was being booked, the officers 
escorting him instructed him to kneel down. Harris did 
not obey the order, although “other than not complying 
with the command to kneel down, Harris was not doing 
anything to resist.” 583 F.3d at 361. In response, officers 
struck the back of his knees as a take-down maneuver. 
The Sixth Circuit applied the Graham factors in holding 
this use of force unconstitutional, and in rejecting qualified 
immunity.27 In Norton v. Stille, 526 Fed.Appx. 509 (6th 
Cir. 2013), the plaintiff while being booked defied the 
directions of an escorting officer by “p icking] up a paper 
towel to blow her nose as well as a bottle o f soda, stating 
that she needed something to drink.” 526 Fed.Appx. at 
510-11. The Deputy pinned Norton to the wall and used a 
take-down technique to force her to the floor. Applying the 
Graham factors28, the court of appeals held that the use 
of force was unconstitutional, and that qualified immunity 
was not available, even if “ Norton may have defied [the

27. 583 F.3d at 366:

We conclude that the Graham factors weigh against 
the Officers. Harris was accused o f . . .  not particularly 
serious crimes and none of them involve violence. In 
addition, Harris did not pose an immediate threat
to the Officers or anyone else at the . . . Jail..........
[UJnder Harris’s version of the facts, he did not 
actively resist at any time.

28. 526 Fed.Appx. at 512-13:

All of the Graham factors . . . favor a finding of 
excessive force. First, Norton’s crime was not 
particularly serious.. . .  Second, Norton never posed
any real threat to [the officer]___Finally, Norton was
not actively resisting arrest or attempting to evade 
arrest by flight.



20

Deputy] by grabbing a tissue, paper towels, and a soda 
bottle.” 526 Fed.Appx. at 513. In Meirthew v. Amove, 417 
Fed.Appx. 494 (6th Cir. 2011), while the plaintiff was being 
booked, an officer ordered her to spread her feet in order 
to facilitate a pat down search. The plaintiff refused to 
spread her feet, continually moving them together after 
the officer kicked them apart; the officer used an arm-bar 
take-down in an effort to obtain compliance. Applying the 
Graham factors, the court o f appeals concluded that the 
use of force was unconstitutional and that the officer was 
not entitled to qualified immunity.29

The Sixth Circuit has also applied the Graham factors 
to claims that excessive force was applied to an arrestee 
who disobeyed an order while being taken into custody. 
In Eldridge v. City of Warren, 533 Fed.Appx. 529 (4th 
Cir. 2013), police shot a taser at an arrestee who did not 
obey an order to get out of his truck. See 533 Fed.Appx. 
at 532-35 (applying Graham  factors). “ W hether the 
officers receive qualified immunity . . .  turns on whether 
failing to comply with an officer’s commands, with nothing
more, constitutes active resistance------[NJoncompliance
alone does not indicate active resistance; there must be 
something more.” 533 Fed.Appx. 533-34. In Wells v. City 
of Dearborn Heights, 538 Fed.Appx. 631 (6 th Cir. 2013),

29. 417 Fed.Appx. at 497-98:

[A]ll the Graham . . . factors favor a finding of 
excessive force. First, the underlying crimes allegedly
committed by Meirthew were not severe-----Second,
Meirthew did not pose an immediate threat at 
the police station. . . . Finally, Meirthew was not
attempting to resist or evade arrest by flight..........
While Meirthew refused to spread her feet to be 
searched, such resistance was minimal.



21

officers fired a taser at an arrestee who, while lying on 
the ground, violated officers’ order by attempting to roll 
over onto his back and see what was happening. 538 Fed. 
Appx. at 637-39 (applying Graham factors). In Thomas v. 
Plummer, 489 Fed.Appx. 116 (6th Cir. 2012), police shot 
with a taser an arrestee who, when ordered to lie on the 
ground, instead got down on her knees and put her hands 
in the air. “ Thomas did not lie face-down on the ground as 
[the] Officer . .  . ordered.” 489 Fed.Appx. at 127; see 489 
Fed.Appx. at 125-26 (applying Graham factors).

In Austin v. Redford Township Police Dep’t., 690 
F.3d 490 (6th Cir. 2012), police twice fired a taser at an 
arrestee, seated in a police car, who disobeyed an order to 
put his feet inside the car. The Sixth Circuit rejected the 
defendants’ argument that the usual Graham standards 
did not apply because Austin had violated an order by 
the officers:

Defendants. . .  raise a . . .  purely legal argument 
that this C ircu it’s precedent on the use of 
excessive force on subdued and unresisting 
subjects is irrelevant to situations involving 
noncom pliance with police orders. Instead, 
they argue that [the officer’s] two discharges 
of his Taser in order to gain compliance with 
his order for Austin to put his legs in the police 
car did not violate any clearly established 
constitutional right. . . . Our “ prior opinions 
clearly establish that it is unreasonable to use 
significant force on a restrained subject, even if 
some level of passive resistance is presented.” 
Meirthew v. Amove, 417 Fed.Appx. 494, 499 
(6th Cir. 2011). . . . Although Defendants cite



22

non-binding authority from  other courts for 
the proposition that use of a Taser to obtain 
com pliance is ob jectively  reasonable, each 
o f those cases involved the potential escape 
o f  a dangerous  cr iminal  or the th reat o f 
immediate harm, neither of which is present 
h e re . . . .  Defendants’ legal argument that this 
C ircuit’s precedent on the use o f excessive 
force on subdued and unresisting subjects is 
irrelevant to situations involving noncompliance 
with police orders fails.

690 F.3d at 497-99.

The Seventh Circuit applies the Graham factors to 
excessive force claims by arrestees who disobey an order, 
and generally bars the use o f force against arrestees 
whose disobedience is limited to passive resistance. In 
Abbott v. Sangamon County, Illinois, 705 F.3d 706 (7th 
Cir. 2013), the court o f appeals held that police violated 
clearly established Fourth Amendment rights when they 
fired a taser at an arrestee who, while lying on the ground, 
disobeyed an order to roll over onto her stomach. “ [N] 
one of the three Graham factors provide a justification
for the . . . tasing..........[Although [the plaintiff] did not
comply with [the officer’s] order to turn over onto her 
stomach . . . , she did not move and at most exhibited 
passive noncompliance and not active resistance.” 705 
F.3d at 730. In Phillips v. Community Ins. Corp., 678 F. 
3d 513 (7th Cir. 2012), police fired a “baton launcher” at 
an arrestee who did not obey an order to get out o f her 
car. The Seventh Circuit concluded under Graham that 
this violated clearly established Fourth Am endm ent 
rights. “ Phillips was never ‘actively resisting arrest,’



23

a touchstone o f the Graham analysis. . . . The officers 
argue that Phillips demonstrated continuous ‘defiance’ by
failing to follow their commands to exit the vehicle___ To
the extent that Phillips’s perceived conduct could be 
considered ‘resistance’ at all, it would have been passive 
noncompliance . . . 678 F.3d at 524-25. A  dissenting
opinion in that case agreed that the plaintiff’s claims 
were governed by Graham. 678 F. 3d at 531 (Tinder, J., 
dissenting).

The Ninth Circuit has repeatedly dealt with this issue 
in the context of demonstrators who, after having been 
placed under arrest, passively resist orders to cooperate 
when being taken into custody. In Headwaters Forest 
Defense v. County of Humboldt, 240 F.3d 1185 (9 th Cir. 
2001), a group of nonviolent environmental activists staged 
a sit-in in the lobby of a lumber company. They linked 
hands through a device that police could remove by using 
a metal grinder. Rather than do that, police ordered the 
protesters to release themselves, and when they failed to 
do so an officer applied pepper spray to the corners of their 
closed eyes. The resulting pain caused the demonstrators 
to comply with the police orders to disengage from  one 
another. 240 F.3d at 1193. Applying the Graham factors, 
the Ninth Circuit held that the use of the pepper spray 
violated the Fourth Amendment. 240 F.3d at 1199-1204.

Under the Fourth Am endm ent, using such 
a “ pain compliance technique” to effect the 
arrests o f nonviolent protesters can only be 
deemed reasonable force if the countervailing 
governm ental in terests w ere particu larly  
strong. The protestors posed no safety threat to 
anyone. Their crime was trespass. T h e . . .  lock-



24

down device they used meant that they could not 
“ evade arrest by flight.” Graham, 490 U.S. at
396___ [T]he need for the force used during the
protests falls far short of supporting a judgment 
as a matter o f law in favor of the defendants.

240 F.3d at 1205. A  subsequent decision held that the 
constitutional violation was sufficiently obvious to preclude 
qualified immunity. Headwaters Forest Defense v. County 
of Humboldt, 276 F.3d 1125 (9th Cir. 2002). In Mattos 
v. Agarano, 661 F.3d 433 (9th Cir. 2011)(en banc), cert, 
denied sub nom. Damon v. Brooks, 132 S.Ct. 2681 (2012), 
the Ninth Circuit applied Graham in concluding that the 
Fourth Amendment was violated by the use of a taser 
against a pregnant arrestee who refused to get out o f her 
car. 661 F. 3d at 443-46.

Four other circuits have applied Graham to cases 
in which police used non-lethal force on an arrestee 
who failed to obey a police order. MacLeod v. Town of 
Brattleboro, 548 Fed.Appx. 6 (2d Cir. 2013)(taser fired 
at arrestee who disobeyed order to lie on ground; use of 
force constitutional because the plaintiff was a dangerous); 
Brown v. Cwynar, 484 Fed.Appx. 676 (3d Cir. 2012)(taser 
fired at arrestee who refused to release his hands so he 
could be handcuffed; use of force constitutional because 
arrestee had struggled with police); Martinez v. New 
Mexico Dept, of Public Safety, 47 Fed.Appx. 513,515 (10th 
Cir. 2002)(arrestee sprayed with mace when she refused to 
get into back of police car; use of force unconstitutional and 
violated clearly established rights); Mecham v. Frazier, 
500 F.3d 1200,1204-05 (10th Cir. 2007)(arrestee sprayed 
with pepper spray when she refused to get out o f her car; 
use of force constitutional because dangerous location of



25

car required prompt resolution); Buckley v. Haddock, 292 
Fed.Appx. 791 (11th Cir. 2008)(arrestee shot with a taser 
when he refused to obey an order to get up o ff the ground 
and get into a police car; use of force constitutional because 
location o f arrestee near busy highway endangered the 
arrestee, police, and passing motorists).

II. THE DECISION OF THE FIFTH CIRCUIT
CONFLICTS WITH THIS COURT’S DECISION 
IN GRAHAM V. CONNOR

This case involves, not a dispute about the meaning of 
Graham, but an outright refusal by the Fifth Circuit to 
apply the Graham standards. As the dissenting opinions 
below made clear, the Graham standards apply to all 
uses of force subject to the Fourth Amendment, and are 
not limited by an exception for cases in which an arrestee 
has failed to comply with an order by a law enforcement 
official. The effect o f the Fifth Circuit’s order-obedience 
doctrine is to create a major loophole in this C ourt’s 
Fourth Amendment jurisprudence, one which officials 
can to some degree manipulate.

Like all decisions applying the Fourth Amendment’s 
reasonableness standard, Graham  d irects courts to 
identify “ the countervailing governm ental interests” 
that are advanced by a disputed use of force. 490 U.S. at 
396. In Scott v. Harris, 550 U.S. 372, 383-84 (2007), the 
Court explained that “ in judging whether [Deputy] Scott’s 
actions were reasonable, we must consider the risk of 
bodily harm that Scott’s actions posed to [the plaintiff] 
in light o f the threat to the public that Scott was trying 
to eliminate.” 550 U.S. at 383 (emphasis added). Under 
the Fifth Circuit’s order-obedience doctrine, however, a



26

court never considers whether public safety or any other 
governmental interest is at stake; the mere existence o f a 
disobeyed order renders that inquiry irrelevant, even in 
a case in which— as here— the order, and thus the use of 
force itself, may not serve any governmental interest at 
all. In this case, the Sergeant on the scene acknowledged 
that if— as Dawson testified— she had already obeyed 
an order to squat and cough, there would have been no 
need for her to do so again (and again); under Graham 
that acknowledgement would have been dispositive of the 
summary judgment motion.

Graham directs courts to assess the extent to which 
force— rather than some other governmental measure— is 
necessary to protect the governmental interest at issue. 
It is for that reason that the non-exclusive list o f factors 
set out in Graham are all concerned with immediate 
threats to public safety, a compelling interest that often 
requires the near-instantaneous solution that force alone 
may provide. Graham “requires 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 [the plaintiff] is actively resisting 
arrest or attempting to evade arrest by flight.” 490 U.S. 
at 396 (emphasis added). But the court o f appeals—  
unlike the dissenting opinion—did not consider any of 
these “ require[d]” factors, and disregarded all other 
“ circum stances o f [the] case,” except for the fact that 
Dawson had disobeyed an order.

Graham also “requires a careful balancing of “ ‘the 
nature and quality of the intrusion on the individual’s 
Fourth Amendment interests’” against the countervailing



27

governmental interests at stake.” Id. (quoting Tennessee 
v. Garner, 471 U.S. at 8)(emphasis added). But the court of 
appeals, applying its order-obedience doctrine, engaged in 
no such balancing; indeed, in the absence of any identified 
purpose for an order requiring Dawson (as she alleged) to 
squat and cough until the guards were bored, there would 
have been no countervailing government interest to weigh 
against the intrusion on Dawson’s Fourth Amendment 
interests caused by the pepperball shootings.

In addition , un der Graham  “ [t]he ca lcu lu s  o f  
reasonableness must em body allowance for the fact 
that police officers are often forced to make split-second 
judgments— in circumstances that are tense, uncertain, 
and rapidly evolving— about the amount of force that 
is necessary in a particular situation.” 490 U.S. at 396 
(emphasis added). Conversely, the absence of such exigent 
circumstances would under Graham also be a necessary 
consideration. But in the F ifth  Circuit, whenever an 
arrestee disobeys an order, that aspect of Graham is also 
irrelevant.

Under the Graham standards, to be sure, the refusal 
of an arrestee, or anyone else, to obey an order could be 
a consideration bearing on the governmental interest 
at stake, and thus might properly be considered along 
with all other relevant circumstances. But it is palpably 
inconsistent with Graham to hold that the use of force is 
permissible in response to every act of noncompliance with 
any order under all circumstances. There is a difference 
o f constitutional magnitude between disobeying an order 
to “drop your gun,” disobeying an order to “ tell me your 
name,” and disobeying an order to “wipe that smile off 
your face.”



28

III. THE IMMEDIATE LEGAL AND PRACTICAL 
CONSEQUENCES OF THE FIFTH CIRCUIT 
DECISION WARRANT RESOLUTION OF THE 
QUESTIONS PRESENTED WITHOUT FURTHER 
DELAY

The necessarily dramatic and immediate impact the 
decision below will have on qualified immunity in the Fifth 
Circuit weighs heavily in favor of review by this Court.

Civil actions to redress constitutional violations 
are a linchpin of the rule o f law. The possibility that 
law en forcem en t o ffic ia ls  m ay be held p erson a lly  
accountable for violating constitutional rights provides 
them with a powerful incentive to conform their conduct 
to constitutional standards. At the same time, qualified 
im m unity p rotects  law en forcem ent o ffice rs  i f  the 
existence o f the constitutional right in question was not 
clearly established at the time of an asserted violation. 
The backdrop o f judicial decisions by this Court and the 
lower courts thus determines the scope of that immunity, 
and shapes the conduct o f law enforcement officials and 
agencies.

Prior to May 6, 2014, the date of the panel decision 
in this case, no law enforcem ent official in the F ifth 
Circuit, or elsewhere, could reasonably have believed 
that the use of force would be constitutional whenever 
an arrestee violated any order; the decisions in Graham 
and its progeny were clearly to the contrary. But the 
issuance of the single opinion in this case has overnight 
changed that situation throughout the Fifth Circuit. In 
that circuit today, any official who uses “measured force” 
against a disobedient “arrestee” would be entitled to 
qualified immunity, because he or she could point to the



29

panel decision in this case as holding that, regardless 
of any other circumstances, such a use o f force would 
be constitutional. App. 14a. “ [A]ctions that [are] lawful 
according to courts in the jurisdiction where [a defendant] 
acted” are the quintessential example of conduct accorded 
qualified immunity. Stanton v. Sims, 134 S.Ct. 3 ,7  (2013). 
Any uncertainty about when an individual becomes an 
“arrestee,” or about what constitutes “ measured force,” 
under the decision below, will further expand the range 
of actions protected by qualified immunity.

The Fifth Circuit’s order-obedience doctrine, because 
limited to arrestees, provides officials with a significant 
incentive to arrest members of the public before issuing 
whatever orders they may see fit, since doing so will permit 
the use o f force that might otherwise be unconstitutional. 
Government lawyers in the Fifth Circuit can be expected 
now to advise their clients that in dealing with arrestees 
they no longer have to conform to the more demanding 
requirements of Graham. Under City of Canton, Ohio v. 
Harris, 489 U.S. 378, 392 (1989), cities and counties face 
liability for supervision or training practices which reflect 
a “deliberate indifference t o . . .  constitutional rights — ” 
That liability, and the incentives for cities and counties 
to engage in practices consistent with Graham, have 
also been largely undercut by the decision below; a local 
government could not be said to be deliberately indifferent 
to a right that the Fifth Circuit in this case has announced 
does not exist.

The particular importance o f the decision below is 
not its impact on the limited number of cases that may 
actually be litigated, but its consequences for everyday 
law enforcement and jail practices throughout the Fifth 
Circuit. The panel decision virtually invites jails to post



30

signs like that once utilized in a county jail reading: 
“ Failure to immediately comply with orders of jail staff, 
you will be t a s e d Smith v. Conway County, Arkansas, 749 
F.3d 853,855 (8th Cir. 2014). The Eighth Circuit correctly 
struck down that practice, explaining that “ ‘[t]he law does 
not authorize the day-to-day policing of prisons’ . . .  by 
taser.” 749 F.3d at 861 (quoting Hickey v. Reeder, 12 F.3d 
754,756 (8th Cir. 1993). But today in Texas, Louisiana, and 
Mississippi, the day-to-day policing o f jails and booking 
areas by taser, pepperball gun, pepperspray, and mace 
has the approval of the United States Court of Appeals 
with jurisdiction over those states. The Fifth Circuit has 
also sanctioned the use outside of such facilities of those 
chem ical agents and other pain-infliction techniques 
whenever an arrestee disobeys an order, agents and 
techniques that are forbidden in other circuits except 
when their use is consistent with the Graham standards.

The delineation and enforcement o f the constitutional 
line separating permissible and impermissible uses of 
force are matters of great public importance; recent events 
have significantly increased public concern with that 
distinction. This Court granted review in Scott v. Harris 
and Plumhoff v. Rickard to correct misapplications of the 
Graham standards, and did so even in the absence of any 
dispute in those cases about the governing constitutional 
standards. The decisions in Scott and Plumhoff reiterated 
the importance of according proper weight to the vital 
governm ental interest in protecting the safety of the 
public and law enforcement officials. This case concerns 
the other side of the Graham balance: the shooting o f a 
pepperball gun at a naked, defenseless, pregnant woman 
cowering in a fetal position and imploring guards to hold 
their fire. It is no less deserving o f review by this Court 
than the petitions in Scott and Plumhoff.



31

IV. THIS CASE PRESENTS THE IDEAL VEHICLE 
FORRESOLVINGTHEQUESTIONSPRESENTED

The F ifth  C ir c u it ’s o rd e r -o b e d ie n ce  d o c tr in e  
originated in this case; it should end here as well.

The decision below rests solely on the Fifth Circuit’s 
new constitutional standard. Because the court of appeals 
held the use of force constitutional, it dismissed not only 
the claims against the individual guards but also the 
claims against Anderson County. A  county may not assert 
qualified immunity. Owen v. City of Independence, 445 
U.S. 622 (1980). Thus if review were granted, regardless 
o f whether the individual defendants might be entitled to 
qualified immunity, this Court could determine whether 
the claim asserted by Dawson is governed by the Graham 
standard and constituted a constitutional violation.

The panel did not purport to apply to Dawson’s claim 
the Graham  standards that are utilized in all other 
circuits in deciding the constitutionality o f a use o f force 
against a non-compliant arrestee. The two dissenting 
opinions correctly explain that the use of force alleged 
in this case could not satisfy Graham. I f  review were 
granted, this Court could reach that issue, and itself apply 
Graham to the circumstances of this case; the Court could 
also take the more limited step o f holding that Graham 
indeed establishes the controlling legal standards, and 
then remand the case to the lower courts with instructions 
to apply those standards.



32

CONCLUSION

For the above reasons, a writ o f certiorari should 
issue to review the judgment and opinion of the Court of 
Appeals for the Fifth Circuit.

Respectfully submitted,

Curtis B. Stuckey 
T im Garrigan 
T imothy David Craig 
Stuckey, Garrigan & Castetter 

L aw Offices 
P.O. Box 631902 
Nacogdoches, TX  75963

John Paul Schnapper-Casteras 
NAACP L egal D efense & 

E ducational F und, Inc.
1444 I Street NW  
Washington, DC 20005

E ric Schnapper 
Counsel of Record 

School of Law 
University of Washington 
P.O. Box 353020 
Seattle, WA 98195 
(206) 616-3167 
schnapp@u.washington.edu

Sherrilyn Ifill 
Director-Counsel 

Janai Nelson 
Christina Swarns 
NAACP L egal Defense & 

E ducational F und, Inc. 
40 Rector Street, 5th Floor 
New York, N Y 10006

Counsel for Petitioner

mailto:schnapp@u.washington.edu


APPENDIX



la

APPENDIX A — ORDER OF THE UNITED 
STATES COURT OF APPEALS FOR THE 

FIFTH CIRCUIT DENYING REHEARING AND 
REHEARING EN BANC, DATED OCTOBER 2, 2014

IN TH E U N ITED  STATES COURT OF A P PE A LS 
FOR TH E FIFT H  CIRCU IT

No. 12-41223

Claudia DAWSON,

Plaintiff-Appellant

v.

Anderson County, Texas; Sheriff Greg Taylor; Jailer 
Karen Giles; Jailer Cheneya Farmer; Jailer Sarah 

Watson; Jail Sergeant Darryl Watson,

Defendants-Appellees

Appeal from  the United States District Court 
For the Eastern District of Texas

ON PETITION  FOR RE H E A R IN G  AN D  
R E H E A R IN G  EN BANC 

(Opinion May 6, 2014, 556 F.Appx. 369)

[Oct. 2, 2014]

Before SM ITH , D E N N IS, and HIGGINSON, Circuit 
Judges.



2a

HIGGINSON, Circuit Judge:

The Petition for Rehearing is DENIED. Judge Dennis 
dissents from the denial of panel rehearing for the reasons 
stated in his panel dissent of May 6, 2014, Dawson v. 
Anderson County, Texas, 566 Fed. Appx. 369,371-79 (5th 
Cir.2014) (Dennis, J., dissenting), and the dissent from the 
court’s denial of rehearing en banc.

The court having been polled at the request o f one 
o f its members, and a majority of the judges who are in 
regular active service and not disqualified not having 
voted in favor (Fed. R.App. P. 35 and 5th Cir. R. 35), the 
Petition for Rehearing En Banc is also DENIED.

In the en banc poll, five judges voted in favor of 
rehearing (Judges Jolly, Dennis, E lrod, Haynes, and 
Graves) and ten judges voted against rehearing (Chief 
Judge Stewart and Judges Davis, Jones, Smith, Clement, 
Prado, Owen, Southwick, Higginson, and Costa).

H A Y N E S , C ircu it Judge, jo in ed  by  D E N N IS  and 
G RAVES, Circuit Judges, dissenting from  Denial o f 
Rehearing En Banc:1

Police officers put their lives on the line every day 
to keep us safe, and I am grateful for the fact that we 
have men and women willing to serve for relatively low

1. Judge Dennis joins this dissent for the reasons set forth 
herein and for the reasons set forth in his dissent from the panel 
opinion. Dawson v. Anderson Cnty., 566 Fed.Appx. 369, 371-79 
(5th Cir.2014) (Dennis, J., dissenting).

Appendix A



3a

pay in these essential positions. The doctrine of qualified 
immunity recognizes that split-second decisions made in 
(literally) life and death situations should not be second- 
guessed by judges or juries far removed from  the scene. 
However, immunity for officers is qualified, not absolute. 
The fact that Section 1983 liability exists in the first place 
recognizes that when a person is given a badge and a gun, 
the potential for abuse o f power exists. The doctrine of 
qualified immunity is not meant to protect officers who 
behave abusively. Cfi Ramirez v. Martinez, 716 F.3d 369, 
373, 378-79 (5th Cir.2013) (upholding denial of summary 
judgment where officer tased suspect after he had been 
handcuffed and subdued).

Appellant Claudia Dawson accused several jail officers 
o f using excessive force by issuing unreasonable orders 
for sport and shooting her with a pepperball gun when 
she refused to comply. The panel majority opinion found 
the jailers entitled to qualified immunity based on its 
conclusion that law officers may use “measured force” 
against an arrestee who refuses immediately successive 
search orders. Dawson, 566 Fed.Appx. at 370-71 (majority 
opinion). Because there are genuine issues o f fact as to 
whether the force was objectively reasonable, I conclude 
that the majority opinion erred in affirming the district 
court’s opinion.

The Supreme C ourt’s recent decision in Tolan v. 
Cotton reminds us that, for summary judgment motions 
based on qualified immunity, the facts must be viewed in 
context and in the light most favorable to the nonmovant. 
----- U .S .--------- , 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895

Appendix A



4a

(2014). A fter Dawson was arrested and brought to the 
jail, she was asked to “squat and cough” while undressed 
in the presence o f four armed jailers. The stated reason 
for the “ squat and cough” was that the jailers needed to 
determine whether Dawson had secreted contraband or 
weapons on her person. Dawson testified that she complied 
with the initial command to “ squat and cough.” Anderson 
County contends she did not comply at all. The jailers 
asked Dawson to “ squat and cough” again, allegedly 
stating that they would make her “squat and cough” “all 
night long.” Dawson refused. At some point, the jailers 
responded by shooting her with a pepperball gun to force 
compliance.

As we must view the facts in the light most favorable 
to Dawson, we must assume she did com ply with the 
initial command. Assuming Dawson complied, a jury  could 
infer that the jailers were not concerned about safety 
at all but rather were issuing unreasonable orders for 
sport. See Tolan, 134 S.Ct. at 1867-68 (vacating grant of 
summary judgment where “a ju ry  could reasonably infer 
that [the plaintiffs] words, in context, did not amount to a 
statement of intent to inflict harm” ). In that light, it would 
be unreasonable for a jailer to take Dawson’s refusal to 
comply for the jailer ’s amusement a second time (after 
already squatting and coughing), without more, as license 
to begin shooting pepperballs at her. No case law suggests 
this sort of procedure can be conducted for any reason 
other than to assure officers there is nothing hidden inside 
the cavity. As such, summary judgment was improper.

Appendix A



5a

I recognize, however, that the fact that a case is 
wrongly decided on the merits is not, by itself, a basis 
for en banc rehearing. Fed. R.App. P. 35(a). This case 
presents larger questions that would benefit from  en banc 
consideration. W here is the line between a legitimate 
security protocol and governm ent oppression? W hat 
standard should apply when the alleged victim of police 
abuse has been arrested but is not yet processed for 
pretrial detainment? Both questions are worthy of this 
full court’s attention. I therefore dissent from the court’s 
decision not to rehear this case en banc.

I agree that Supreme Court precedent makes a strip 
search with a “squat and cough” arguably permissible for 
an initial search. Florence v. Bd. of Chosen Freeholders
of Cnty. of Burlington,----- U .S .-------- , 132 S.Ct. 1510,182
L.Ed.2d 566 (2012). But does Florence mean an officer can 
make a naked, defenseless arrestee “ squat and cough” 
“all night long?” Once an arrestee “ squats and coughs,” 
how many more times must she comply? Is an arrestee 
required to follow  any order from  a group o f arm ed 
jailers, regardless of how ridiculous, or face a pepperball 
to force compliance? W here is the line? Dawson argues 
that since she complied once, and no officer indicated a 
problem with the first “ squat and cough,” requiring her 
to “squat and cough” “ all night long” just to humiliate her 
is not a legitimate basis upon which to use force, such as 
a pepperball shot, to obtain compliance. I submit that we 
cannot and should not tolerate unnecessary harassment 
and humiliation of arrestees for the amusement of officers.

Appendix A



6a

Further, we lack clarity as to which standard should 
apply to determine whether the use of force was excessive 
in this case. When a plaintiff alleges that a government 
official has employed “ excessive force” in violation of 
the Constitution, several constitutional standards are 
potentially applicable (the Fourth, Eighth, and Fourteenth 
Amendments). W hether a particular standard applies 
turns on the plaintiff’s status during the relevant time 
period.

At one end of the timing spectrum are excessive force 
claims arising during the initial arrest or apprehension 
o f a free  citizen, which are governed by the Fourth 
Am endm ent. As explained by the Supreme C ourt in 
Graham v. Connor, when an “ excessive force  claim 
arises in the context o f an arrest or investigatory stop 
of a free citizen, it is most properly characterized as one 
invoking the protections of the Fourth Amendment, which 
guarantees citizens the right ‘to be secure in their persons 
... against unreasonable... seizures’ o f the person.” 490 U.S. 
386, 394,109 S.Ct. 1865,104 L.Ed.2d 443 (1989) (quoting 
U.S. Const. Amend.. IV). Analysis of a Fourth Amendment 
excessive force *329 claim involves consideration of the 
need for force and the so-called Graham factors: the 
“ severity of the crime at issue, whether the suspect poses 
an immediat e threat to the safety of the officers or others, 
and whether he is actively resisting arrest or attempting 
to evade arrest by flight.” Id. at 396,109 S.Ct. 1865.

At the other end of the spectrum are excessive force 
claim s arising during incarceration , a fter crim inal 
prosecution is complete. A  convicted inmate’s excessive

Appendix A



7a

force claim is governed by the Eighth Amendment. As 
explained by the Supreme Court in Hudson v. McMillian, 
“whenever prison officials stand accused of using excessive 
physical force in violation o f the Cruel and Unusual 
Punishments Clause [of the Eighth Amendment], the core 
judicial inquiry is ... whether force was applied in a good- 
faith effort to maintain or restore discipline, or maliciously 
and sadistically to cause harm.” 503 U.S. 1 ,6 -7 ,112  S.Ct. 
995, 117 L .Ed.2d 156 (1992). Analysis o f an excessive 
force  claim  under the E ighth Am endm ent includes 
consideration of the Hudson factors: “ [1] the extent o f the 
injury suffered; [2] the need for the application of force; 
[3] the relationship between the need and the amount of 
force used; [4] the threat reasonably perceived by the 
responsible officials; and [5] any efforts made to temper 
the severity o f a forceful response.” Gomez v. Chandler, 
163 F.3d 921, 923 (5th Cir.1999) (citation and internal 
quotation marks omitted). In contrast to the Fourth 
Am endm ent excessive force inquiry under Graham, 
which prohibits consideration of the officer’s subjective 
intent, “ [t]he focus of [the Eighth Amendment excessive 
force inquiry under Hudson] is on the detention facility 
official’s subjective intent to punish.” Valencia v. Wiggins, 
981 F.2d 1440,1449 (5th Cir.1993).

Between these two periods, i.e., between the time a 
suspect is initially arrested and then is incarcerated after 
being prosecuted, is pretrial detainment. The Due Process 
Clause of the Fourteenth Amendment protects pretrial 
detainees from  excessive force. See Graham, 490 U.S. at 
395 n. 10,109 S.Ct. 1865; Brothers v. Klevenhagen, 28 F.3d 
452, 455-56 (5th Cir.1994) (“A  pretrial detainee receives

Appendix A



8a

the protection of the Due Process Clause of the Fourteenth 
Amendment.” )- Although the Due Process Clause of the 
Fourteenth Amendment protects pretrial detainees from 
excessive force, we have held that excessive force claims 
arising during a plaintiffs pretrial detainment are also 
governed by the Supreme C ourt’s test from  Hudson. 
See Valencia, 981 F.2d at 1446; see also United States v. 
Daniels, 281 F.3d 168,179 (5th Cir.2002) (explaining that 
“a claim of excessive force by a law enforcement officer is 
correctly examined under the same standard regardless 
whether the claim arises under the Eighth Amendment 
or the Fourteenth Amendment” ). That is because “ it is 
impractical to draw a line between convicted prisoners 
and pretrial detainees for the purpose of maintaining jail 
security.” See Valencia, 981 F.2d at 1446. Thus, “when a 
court is called upon to examine the amount of force used 
on a pretrial detainee[ ] for the purpose of institutional 
security, the appropriate analysis is that announced in ... 
Hudson.” Id.

Less clear is the person who, like Dawson, has been 
arrested but not yet processed for pretrial detainment. We 
should take this case en banc to announce clearly which of 
these standards applies to such a person. For its part, the 
majority opinion does not announce or follow any standard 
whatsoever. It rests, instead, on the seemingly unassailable 
notion that law enforcement officers are entitled to use 
force to obtain compliance with necessary commands. See 
Dawson, 566 Fed.Appx. at 370-71. The problem here is 
that this analysis overlooks a significant factual dispute 
between the officers, who contend that Dawson did not 
comply at all (thus, she refused a “necessary command” ),

Appendix A



9a

and Dawson, who contends that she did comply and that 
the further commands to “ squat and cough” “all night 
long” were issued merely for sport. Three aspects o f the 
evidence support Dawson’s position: (1) the testimony of 
jailer Darryl Watson,2 who agreed that one “ squat and 
cough” is all that is necessary for security purposes such 
that subsequent “ squat and coughs” would be “wrong,” see 
Los Angeles Cnty. v. Rettele, 550 U.S. 609, 615,127 S.Ct. 
1989,167 L.Ed.2d 974 (2007) (deputies were not “ free to 
force [plaintiffs] to remain motionless and standing for any 
longer than necessary”); (2) the fact that, taking Dawson’s 
evidence as true, there was no security threat; and (3) 
the “ totality o f the circumstances,” including statements 
allegedly made by the jailers, suggest the commands to 
Dawson were for sport, not security.

The true im port o f applying the correct standard 
becom es clear when considering the latter point. The 
Hudson  test considers the subjective intent o f  the 
jailers. Valencia, 981 F.2d at 1449. Dawson alleged that 
the ja ilers laughed at her and were verbally abusive 
throughout the strip search. In this regard, the majority 
opinion misapprehended the import o f the laughing and 
harassing. The majority opinion stated that verbal abuse 
by a jailer does not give rise to a Section 1983 claim. See 
Dawson, 566 Fed.Appx. at 371. While I agree that verbal 
abuse, alone, is not actionable, the alleged statements 
inform  the question o f whether or not the commands

Appendix A

2. Watson testified: Q: Now, if she did squat and cough one time 
when she was told to ... then that would have been in compliance 
...? A: Yes, sir. Q: And it would be wrong to have her get down and 
squat again? A: Yes, sir.



10a

were legitimate or for harassment and, in turn, whether 
force was justified to obtain compliance. In examining the 
“ totality of the circumstances” and whether the commands 
were consistent with a need for security or simply done for 
sport, the alleged contemporaneous comments support a 
conclusion that it was the latter, not the former.

The facts as alleged by Dawson— which must be taken 
as true at this stage (even if  ultimately a ju ry  concluded 
they were greatly exaggerated)— suggest a level of sadism 
and brutality that is totally unacceptable. The majority 
vote of this court not to take this case en banc should not 
be viewed as condoning the conduct alleged here. It is not 
even necessarily an endorsement o f the panel majority 
opinion. Judges vote against a grant of en banc rehearing 
for a variety o f reasons that can include a conclusion that 
the particular issue is not squarely presented by the 
facts o f the particular case. Nonetheless, this case raises 
serious questions that deserve clarity from  this court. I 
therefore respectfully dissent from the court’s decision to 
deny rehearing en banc.

Appendix A



11a

APPENDIX B — OPINION OF THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH 

CIRCUIT, DATED MAY 6, 2014

IN  TH E U N ITED  STATES COURT OF A P PE A LS 
FOR TH E F IFT H  CIRCU IT

No. 12-41223.

Claudia Dawson,

Plaintiff-Appellant

v.

Anderson County, Texas; Sheriff Greg Taylor; Jailer 
Karen Giles; Jailer Cheneya Farmer; Jailer Sarah 

Watson; Jail Sergeant Darryl Watson,

Defendants-Appellees

[May 6, 2014]

Appeal from  the United States District Court 
for the Eastern District of Texas 

USDC No. 6 :ll-C V -5 0 7

Before SM ITH , D E N N IS, and HIGGINSON, Circuit 
Judges.

HIGGINSON, Circuit Judge:*

* 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.



12a

Appellant Claudia Dawson was arrested by Palestine, 
Texas police for public intoxication and interference with 
public duties. She was taken to the Anderson County jail 
and, based on probable suspicion, police officers asked 
the ja il’s officers to perform  a strip search. During that 
search, Dawson was shot with a pepperball gun,1 once in 
the leg and once in the abdomen. She sued, alleging civil 
rights violations under 42 U.S.C. § 1983 for use of excessive 
force by Anderson County jailers and an unreasonable 
search. She also raised pendent state law claims for assault 
and battery.1 2 The district court granted the defendants’ 
motion for summary judgment and dismissed Dawson’s 
claims. We A F F IR M .

“We review the district court’s summary judgment 
decision de novo, applying the same standards as the 
district court.” Poole v. City of Shreveport, 691 F.3d 624, 
627 (5th Cir.2012). Summary judgm ent is appropriate 
where “ there is no genuine dispute as to any material 
fact and the movant is entitled to judgment as a matter 
of law.” Fed.R.Civ.P. 56(a).

Appellant first claims that the use o f the pepperball 
gun constituted excessive force in violation of the Fourth

Appendix B

1. “Pepperball guns are, in essence, paintball guns that fire 
rounds containing oleoresin capsicum (‘OC’) powder, also known 
as pepper spray.” Nelson v. City of Davis, 685 F.3d 867, 873 (9th 
Cir.2012).

2. The original complaint included an Eighth Amendment 
violation that was dropped during summary judgment.



13a

Am endm ent.3 Contrary to her jailers, Dawson stated 
she initially complied with their directive to “ squat and 
cough” during the strip search. This initial compliance 
removed any need for the pepperball gun (which left small 
marks and broke the skin) and, she contended, its use 
therefore was excessive. The defendants responded with 
a claim of qualified immunity. To overcome this defense, 
Dawson must show an injury caused by actions that were 
objectively unreasonable in light of clearly established 
law. Poole, 691 F.3d at 627. “ The defendant’s acts are 
held to be objectively reasonable unless all reasonable 
officials in the defendant’s circumstances would have then 
known that the defendant’s conduct violated the United 
States Constitution or the federal statute as alleged by 
the plaintiff.” Thompson v. Upshur Cnty., 245 F.3d 447, 
457 (5th Cir.2001).

We cannot conclude that all reasonable officers would 
believe that the use of force in this case violated the Fourth 
Amendment, because it is undisputed that Dawson did 
not comply with successive search commands given at

Appendix B

3. The district court correctly characterized this claim as a 
Fourth Amendment issue rather than a Fourteenth Amendment 
one— even though Dawson claimed her substantive due process 
rights were violated. The claim is against Jailer Giles (who shot 
the pepperball gun) and Sergeant Watson (who authorized the 
use of the pepperball gun) for their direct actions. It is also 
raised against Anderson County and Sheriff Taylor for deficient 
policies, procedures, etc. that allowed the incident. Because we 
find the use of the pepperball gun to be objectively reasonable, 
we do not reach Appellant’s argument against Anderson County 
and Sheriff Taylor.



14a

her arrestee intake encounter. Even crediting her that 
she obeyed at first, Dawson admitted refusing a renewed 
command to “ squat and cough.” Law enforcement officers 
are within their rights to use objectively reasonable force 
to obtain compliance from  prisoners. Compare Tillis v. 
Garcia, 99 F.3d 1135 (5th Cir.1996) (affirming judgment 
as matter of law for defendants in Eighth Amendment 
excessive force case, in which officers applied physical 
force to restrain plaintiff after he concededly “engaged in 
provocative conduct toward the officers” ), with Comeaux 
v. Sutton, 496 Fed.Appx. 368 (5th Cir.2012) (reversing 
sum mary judgm ent for defendants in excessive force 
case in which plaintiff denied offering any resistance 
to o fficers ’ commands and officers forcib ly  rem oved 
handcuffed plaintiff from his wheelchair to floor to remove 
clothing). Measured force achieved compliance with the 
officers’ search directives in this case, again, crediting, as 
we must, Dawson’s contention that she complied at first 
but then refused a search order given twice believing it 
to be abusive. Measured force4 used on an arrestee who 
refuses immediately successive search orders cannot be 
deemed objectively unreasonable under our qualified 
immunity caselaw.

Appendix B

4. Of course, we do not cast judgment on the use of pepperball 
projectiles in other factual contexts. See, e.g., Nelson, 685 F.3d 
867 (holding that qualified immunity did not protect police officers 
from Fourth Amendment seizure claim stemming from their firing 
pepperball that struck plaintiff, a university student at a party 
who was nonresistant and awaiting instruction from officers, in 
the eye, causing permanent vision loss).



15a

We next consider Dawson’s argument that the search 
was conducted in an unreasonable manner.5 Dawson’s 
assertion is that, in addition to using a pepperball gun, the 
defendants laughed at her and made abusive comments. 
We have held previously that verbal abuse by a jailer alone 
does not give rise to a § 1983 claim. Bender v. Brumley, 1 
F.3d 271,274 n. 4 (5th Cir.1993). We have already held that 
the use of the pepperball gun in this case was objectively 
reasonable, and we do not find that her assertions about 
laughter and taunts combine to overcom e defendants’ 
qualified immunity.

F inally we address Dawson’s state law claims of 
assault and battery.6 The defendants argue that they are 
entitled to official immunity under Texas law. We agree. 
The question is whether the officers acted in good faith and 
their conduct “ is evaluated under substantially the same 
standard used for qualified immunity determinations in 
§ 1983 actions.” Meadours v. Ermel, 483 F.3d 417,424 (5th 
Cir.2007). Because the officers were entitled to qualified 
immunity on the federal claims, they are also protected 
by official immunity under state law.

Appendix B

5. This claim is raised against Jailers Wells, Giles, and 
Farmer for their direct roles. It is also pressed against Anderson 
County and Sheriff Taylor for deficient policies, procedures, etc. 
Dawson explicitly waived the argument that the strip search 
was invalid at its inception, citing Florence v. Bd. of Chosen
Freeholders ofCnty. of Burlington,----U.S.-------- , 132 S.Ct. 1510,
182 L.Ed.2d 566 (2012). We accordingly do not pass on whether 
the search was justified initially.

6. These claims are against Sergeant Watson and Jailers 
Giles, Farmer, and Wells.



16a

In sum, the district court did not err in holding in 
favor o f the defendants.

Appendix B

AFFIRMED.

JAM ES L. D EN N IS, Circuit Judge, dissenting:

The m ajority concludes that Dawson has failed to 
present a genuine issue of material fact regarding whether 
the D efendants1 violated clearly established Fourth

1. I use the term “Defendants” as a short-hand to refer 
to the individual Anderson County officers who Dawson alleges 
violated her Fourth Amendment rights. In addition to her claims 
against the officers in their individual capacities, Dawson also filed 
suit against Anderson County, Texas, and Sheriff Greg Taylor, 
in his official capacity. For the reasons set forth infra, I believe 
that Dawson presented competent summary-judgment evidence 
to overcome the individual Defendants’ summary judgment 
motions. However, I would affirm the district court’s summary 
judgment as to Anderson County and Sheriff Taylor because 
Dawson failed to present sufficient evidence that her injury was 
a result of an official policy or custom in Anderson County law 
enforcement. See, e.g., Piotrowski v. City of Houston, 237 F.3d 
567, 578 (5th Cir.2001) (“ [MJunicipal liability under section 1983 
requires proof of three elements: a policymaker; an official policy; 
and a violation of constitutional rights whose ‘moving force’ is 
the policy or custom.” (quoting Monell v. Dep’t of Social Serv., 
436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978))). Dawson 
does not point to any official “statement, ordinance, regulation, or 
decision that is officially adopted and promulgated” by Anderson 
County which was the “moving force” behind Ms. Dawson’s alleged 
constitutional deprivations. Duvall v. Dallas Cnty., 631 F.3d 203, 
209 (5th Cir.2011); Bennett v. City of Slidell, 735 F.2d 861, 862 
(5th Cir.1984) (en banc). Likewise, no record evidence exists which



17a

Amendment law by repeatedly shooting at her with a 
pepperball gun during a strip search in which she was 
undressed, unarmed, and surrounded by multiple officers. 
The majority fails to view the evidence in the light most 
favorable to Dawson and disregards reasonable inferences 
that jurors could draw from the record to conclude that 
under clearly established law, the officers used excessive 
force and conducted a strip search in an unreasonable 
m anner in violation of Dawson’s Fourth Am endm ent 
rights. Accordingly, I respectfu lly dissent and would 
reverse and remand for trial.

Appendix B

suggest that any other similar incidents have occurred, let alone 
a sufficient pattern or custom, to establish municipal liability. 
See, e.g., Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161,171 
(5th Cir.2010). Dawson has presented evidence of only the single 
incident with which she was personally involved. Compare DeShay 
v. Bastrop Indep. Sch. Dist., 180 F.3d 262 (5th Cir.1999) (“ [T]he 
district court correctly determined that, when read in the light 
most favorable to the [plaintiffs], the summary judgment evidence 
shows at most an isolated incident... which is not actionable under 
section 1983.” ) (citation omitted), with Sharp v. City of Houston, 
164 F.3d 923 (5th Cir.1999) (upholding jury verdict finding a city 
liable for damages in a § 1983 action when the plaintiff presented 
evidence from nine witnesses who all testified to the city’s 
repeated practices that exhibited “deliberate indifference to her 
constitutional rights by its inaction.”). Viewing the facts in the light 
most favorable to Dawson, she alleges conduct arising out of one 
incident, involving four individual officers. Although the evidence 
before the court gives rise to a triable issues of fact regarding the 
individual officers’ (“Defendants’ ”) liability, Dawson’s allegations 
are limited to this single occurrence and thus are insufficient to 
raise a genuine issue of material fact regarding an unconstitutional 
policy or custom in Anderson County.



18a

Appendix B

I.

Although a summary-judgment motion premised upon 
qualified immunity shifts the burden to the plaintiff, this 
burden shift does not alter the requirement that a court 
view all evidence and make all reasonable inferences in the 
light most favorable to the plaintiff. Brown v. Callahan, 
623 F.3d 249, 253 (5th Cir.2010) (“ The plaintiff bears the 
burden of negating qualified immunity, but all inferences 
are drawn in his favor.” ) (citation omitted). The majority 
fails to view the evidence in the light most favorable to 
Dawson, as it must at this procedural posture. Employing 
sim ilar reasoning as the district court, the m ajority 
affirms the sum mary-judgm ent order as to Dawson’s 
excessive-force claim,2 concluding that not all reasonable 
officers would have known that the use of the pepperball 
gun here violated the Fourth Amendment because it is 
“undisputed that Dawson did not comply with successive 
search commands given at her arrestee intake encounter.” 
Maj. Op., ante at 3 .1 respectfully dissent.

I will begin by describing the evidence in the light 
most favorable to Dawson. Next, I will note the specific 
errors the district court, and, in turn, the majority, 
committed when it credited the Defendants’ version of 
events to conclude that the use of force here was objectively 
reasonable. Lastly, I will explain why the record evidence 
sufficiently creates genuine issues of material facts to 
overcome Defendants’ assertion o f qualified immunity 
and, thus, why reversal and remand is necessary.

2. Dawson’s excessive-force claim is asserted against Officer 
Karen Giles and Sergeant Darryl Watson.



19a

Appendix B

A.

On A pril 26, 2010, at approxim ately 11:00 p.m., 
officers o f the Palestine Police Department [hereinafter 
“ PPD ”] stopped a vehicle in which Claudia Dawson was a 
passenger. During the traffic stop, Dawson was arrested 
for public intoxication and interference with public duties, 
two misdemeanor charges. PPD officers brought Dawson 
to the Anderson County S heriffs Office and requested 
that the Anderson County Officers conduct a strip search. 
The Anderson County officers were never informed of the 
basis for the PPD officers’ request for the strip search but 
nonetheless complied.

O fficers Sarah W ells and Cheneya Farm er took 
Dawson into the “dress-out room ” where they instructed 
Dawson to remove her clothes. Once undressed, Dawson 
was ordered to squat down and cough. Dawson attests that 
she complied with this initial order. Once the strip search 
was in progress, a third officer, Karen Giles, entered. 
According to Dawson, after she had already complied 
with the order to squat and cough, one o f the officers 
then stated that she would force Dawson to “ squat and 
cough all night until [she got] tired of looking.” Dawson 
asserts that in response, without yelling, she told the 
officers that she could not be forced to squat and cough 
all night. Promptly after this exchange, Sergeant Darryl 
Watson briefly entered the dress-out room and instructed 
Officer Giles to shoot Dawson with a pepperball gun. 
Officer Giles then fired the first shot, which did not hit 
Dawson. Giles then quickly fired the second shot, which 
hit Dawson in the left side of her abdomen, causing her



20a

to bend over in a “ fetal” position. Dawson attests that 
she then told the officers that she could be pregnant and, 
if she was, that they could not shoot at her. Officer Giles 
then fired the third shot, which hit Dawson in her right 
knee. According to Dawson, the two shots broke her skin 
and caused substantial bleeding. Dawson further alleges 
that throughout the strip search, the officers laughed at 
her expense and were verbally abusive. One female officer 
allegedly stated that she “wish[ed][she] was certified to 
shoot this bitch up with the pepper ball gun.”

It is undisputed that throughout the strip search, and 
while all of the shots were fired, Dawson was unclothed, 
standing within one to two feet of the wall in the dress-out 
room, and was surrounded by multiple officers, at least 
one of whom was armed with a pepperball gun. It is also 
undisputed that Dawson never struck or attempted to 
strike an officer.

W hat is disputed is Dawson’s level o f compliance. 
Officer Giles testified that during the strip search, Dawson 
was belligerent, yelled, threatened the officers, and got 
“ too close” to Officer Farmer. Officer Farm er testified 
that Dawson did not comply with the initial order to squat 
and cough, or any order thereafter, until she was shot 
with the pepperball gun. Sergeant Watson testified that 
if Dawson had complied with the first order to squat and 
cough— as Dawson asserts she had— then she would have 
been in compliance and that any further orders to squat 
and cough would have been improper, agreeing that the 
officers “don’t have any business harassing [detainees].”

Appendix B



21a

Appendix B

B.

W hen the evidence is v iew ed in the light m ost 
favorable to Dawson, the record establishes that she was 
initially compliant, was not yelling or arguing with the 
officers, and that after telling officers that she would not 
comply with a harassing request to squat and cough all 
night, she was met with near-immediate use of force, while 
she was undressed, unarmed, and did not pose any threat 
to the officers’ safety. The majority improperly credits 
the Defendants’ version of events when it concludes that 
Dawson’s conduct was undisputedly non-compliant and 
thus reasonably warranted “measured force” to “achieve[ 
] compliance with the officers search directives.” Maj. Op., 
ante at 370. By describing Dawson’s alleged non-compliance 
as “ undisputed” and characterizing the officers response 
as “ m easured”— disregarding testim ony that creates 
an inference that the officers’ immediately resorted to 
force without sufficient negotiation— the majority, like 
the district court, fails to view the record evidence in the 
light most favorable to Dawson. Accordingly, I respectfully 
dissent and would reverse the grant of summary judgment 
on this issue. See, e.g., Comeaux v. Sutton, 496 Fed.Appx. 
368, 371 (5th Cir.2012) (reversing summary judgment in 
favor of defendants when the district court failed to view 
the facts in the light most favorable to the plaintiff).

F irst, Sergeant W atson’s acknowledgment that a 
detainee would be in compliance if he or she obeyed the 
first order to squat and cough— read in conjunction with 
Dawson’s testim ony that she did just that— creates a 
genuine issue of material fact as to whether Dawvson’s



22a

behavior was in fact noncompliant and therefore whether 
repeatedly shooting her with a pepperball gun, while 
naked and surrounded by at least three officers, was 
an unreasonable, excessive use o f  force in violation 
of Dawson’s Fourth Am endm ent rights. Accordingly, 
summary judgm ent was improper. See, e.g., Deville v. 
Marcantel, 567 F.3d 156, 167 (5th Cir.2009) (reversing 
sum mary judgm ent when the nature o f the plaintiff’s 
resistance to officer’s directives during a minor traffic 
stop was in dispute); see also Tarver v. City o f Edna, 
410 F.3d 745, 754 (5th C ir.2005) (“A t a m inim um , 
determ ining whether [the defendant officer’s] conduct 
was objectively  reasonable requires factfinding and 
credibility assessments; dismissal is thus inappropriate 
at the summary judgment phase.” ).

Second, the district court found that Dawson was 
“arguing” with the officers. However, when viewed in 
the light most favorable to Dawson, the record evidence 
presents a factual dispute as to whether Dawson was 
argumentative during the strip search or rather whether 
any verbal noncom pliance on her part was justified  
given the officers’ alleged harassment. The Defendants 
testified that Dawson was belligerent, screaming, and 
noncooperative. Comparatively, Dawson testified that she 
did not yell at the officers and merely said, in response 
to the threat that she would have to squat and cough all 
night, that: “You can’t make me do this all night and I 
am not going to do it.” The district court appears to have 
erroneously credited Defendants’ testimony and rejected 
Dawson’s characterization of her conversation with the 
officers during the strip search and thus im properly

Appendix B



23a

weighed the evidence. See Provident Life & Acc. Ins. Co. 
v. Goel, 274 F.3d 984,991 (5th Cir.2001) (“ [T]he weighing of 
the evidence... [is a] ju ry  function[ ], not [that] o f a judge.... 
The evidence of the non-movant is to be believed, and all 
justifiable inferences are to be drawn in his favor.” ). A  
ju ry  question remains as to whether Dawson’s account of 
her response to the officers’ second request to squat and 
cough is credible and therefore whether or not she was in 
fact argumentative.

Third, the district court concluded that the use o f the 
pepperball gun was reasonable in part because Dawson 
did not dispute Officer Giles’s testim ony that Dawson 
“ was moving toward another ja iler” during the strip 
search. However, Dawson elicited testim ony from  the 
Defendants that throughout the entire strip search she 
was within one or two feet from  the wall and never struck 
or attempted to strike the officers. The record evidence 
thus creates a genuine issue of material fact as to whether 
Dawson approached the officers and, in turn, whether 
the use of the pepperball gun was reasonably warranted, 
precluding summary judgment. See Tarver, 410 F.3d at 
753 (reversing summary judgment because “ reasonable 
o fficers  could d isagree about w hether [the o ffice rs ’ 
conduct] was not unreasonable under the circumstances, 
[and thus] this decision *375 should not be made at the 
summary judgment stage. Any credibility determination 
made between the officers’ and [the plaintiff’s] version of 
events is inappropriate for summary judgment.” ).

Appendix B



24a

Moreover, even if we were to classify Dawson’s refusal 
to comply with the second order to squat and cough all 
night as non-compliant and her response to the officers 
as argumentative, a ju ry  could nonetheless reasonably 
infer from the record that the pepperball shots were fired 
in quick succession, immediately after Sergeant Watson 
stuck his head into the room and gave the order to shoot, 
and thus am ounted to an unreasonable use o f force. 
Dawson testified that none of the jailers said anything to 
her between the firing of the first two shots, one o f which 
made contact with her body. Thus, viewed in the light 
most favorable to Dawson, the evidence raises a genuine 
issue of material fact with regard to whether— even if  she 
was technically noncompliant— her refusal to continue to 
squat and cough warranted the jailers’ immediate resort 
to repetitively shooting her with a pepperball gun, without 
first attempting to utilize any other form of sanctions, such 
as additional negotiation. “ [Ojfficers must assess not only 
the need for force, but also ‘the relationship between the 
need and the amount of force used.’ ” Deville, 567 F.3d at 
167. A  juror could thus reasonably infer that the jailers 
did not use measured, gradual force to extract compliance, 
but rather resorted too quickly and unreasonably to the 
use o f the pepperball gun. See, e.g., Newman v. Guedry, 
703 F.3d 757 (5th Cir.2012) (reversing summary judgment 
and reasoning that “a reasonable ju ry  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 [force]” ); Deville, 567 
F.3d at 168 (“A  reasonable ju ry  could infer from  [the 
plaintiff’s] deposition testimony that [the officer] engaged 
in very little, if  any, negotiation with her[.]” ). According,

Appendix B



25a

I respectfully dissent from  the majority’s conclusion that 
the record evidence does not present a genuine issue 
o f material fact that the Defendants’ use o f force was 
excessive and in violation of Dawson’s Fourth Amendment 
rights.

Appendix B

C.

At the summary-judgment stage, if a party asserts 
qualified immunity in defense of an excessive-force claim, 
the plaintiff must provide evidence that raises a genuine 
issue o f material fact regarding: “ (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.” Ontiveros v. City o f Rosenberg, 
564 F.3d 379, 382 (5th Cir.2009); see also Ramirez v. 
Martinez, 716 F.3d 369,377 (5th Cir.2013). When analyzing 
an excessive-force claim and determining whether the 
officials’ conduct was objectively unreasonable, we must 
carefully consider the particular facts and circumstances 
o f the case, including the so-called Graham factors: 
(1) “ the severity of the crim e 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 [ ].” Hogan v. Cunningham, 722 F.3d 725, 734 
(5th Cir.2013) (quoting Graham v. Connor, 490 U.S. 386, 
396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quotation 
marks omitted)). “ Excessive force claims are necessarily 
fact-intensive; whether the force used is ‘excessive’ or 
‘unreasonable’ depends on ‘the facts and circumstances of 
each particular case.’ ” Deville v. Marcantel, 567 F.3d 156, 
167 (5th Cir.2009). Viewing the evidence in the light most



26a

favorable to Dawson, as we must, Dawson has presented 
competent summary-judgment evidence to establish all 
three elements required to rebut Defendants’ qualified 
immunity defense.

First, there is record evidence that Dawson suffered 
an injury. Dawson attests that two o f the three shots 
fired with the pepperball gun broke her skin and caused 
substantial bleeding. An in jury does not need to be 
“ substantial” if  under the totality o f the circumstances 
the force was excessive and objectively unreasonable, 
particularly if  the defendants’ conduct was malicious. 
Schmidt v. Gray, 399 Fed.Appx. 925,928 (5th Cir.2010); see 
also Brown v. Lynch, 524 Fed.Appx. 69,79 (5th Cir.2013) 
(“ [A]s long as a plaintiff has suffered some injury, even 
relatively insignificant injuries ... will prove cognizable 
when resulting from  an officer’s unreasonably excessive 
force.” ) (citations omitted). Here, the defendants allegedly 
laughed at Dawson, threatened her, and repeatedly shot 
her with the pepperball gun despite her compliance. When 
viewed in the light most favorable to Dawson, the evidence 
establishes that the Defendants’ conduct in this context 
amounted to a malicious and unnecessary physical assault 
upon a non-threatening, compliant detainee. The resulting 
in jury caused by D efendants’ purported ly  malicious 
conduct sufficiently raises a genuine issue o f material fact 
with regard to the first prong of her excessive force claim.

Second, Dawson must establish that her injuries were 
a direct result o f the use of force. Here, it is undisputed 
that Dawson’s injuries on her right knee and left abdomen 
were caused by the pepperball gun bullets fired by Officer 
Giles.

Appendix B



27a

Third, Dawson must raise a genuine issue of material 
fact that the use of the pepperball gun was objectively 
unreasonable. See, e.g., Goodson v. Corpus Christi, 202 
F.3d 730,740 (5th Cir.2000). Without applying the Graham 
factors, the majority summarily concludes that because 
Dawson was non-compliant, the officers’ use of force was 
objectively reasonable to achieve compliance and thus the 
Defendants are entitled to qualified immunity. I disagree. 
Applying the Graham factors to the record evidence 
viewed in the light most favorable to Dawson, I would 
find that she presented sufficient evidence to create a 
genuine issue o f material fact to dispute the Defendants’ 
claims that the use of the pepperball gun was objectively 
reasonable under clearly established law.

First, Dawson was in custody for two misdemeanor 
charges, neither of which involve accusations o f violence. 
Thus, the firs t  Graham  fa ctor— the severity  o f the 
crime— militates against concluding that the Defendants’ 
use of force was objectively reasonable. See, e.g., Reyes v. 
Bridgwater, 362 Fed.Appx. 403, 407 n. 5 (5th Cir.2010) 
(noting that the decedent was in violation of “at most, a 
misdemeanor,” suggesting that the “ severity o f the crime” 
factor thus weighs against the district court’s summary- 
judgment order for the defendant-officer who used deadly 
force).

A pplication  o f  the second Graham  fa c to r— the 
individual’s threat to officer safety— similarly supports a 
conclusion that Defendants’ conduct was not objectively 
reasonable. V iew ing the evidence in the light m ost 
favorable to Dawson, she was compliant with the officers’

Appendix B



28a

instruction to submit to a strip search, obediently agreed 
to squat and cough upon the officer’s first instruction to do 
so, was unarmed, unclothed, stood within one to two feet 
of the dress-out room ’s wall, was surrounded by multiple 
armed officers, and did not attempt to strike an officer. 
On this record, viewing the evidence in her favor, Dawson 
did not pose a threat to the officers’ safety.

Lastly, the third Graham factor—whether the plaintiff 
actively resisted the officers— also supports a conclusion 
that the officer’s use of force was objectively unreasonable. 
Crediting all reasonable inferences in Dawson’s favor, she 
presented record evidence that she never resisted the 
officers’ lawful directives. Rather, the evidence regarding 
her refusal to squat and cough after she initially complied 
with officers’ orders may reasonably be construed as a 
verbalized denial to consent to an unlawful, abusive order 
and thus would not qualify as “ active resistance” and 
would not justify the officer’s resort to force. Cf Collier 
v. Montgomery, 569 F.3d 214, 219 (5th Cir.2009) (finding 
that the use of measured force was reasonable when there 
was video evidence that the plaintiff physically resisted 
an officer’s attempt to handcuff him).

On this record, viewing the evidence in Dawson’s favor, 
a jury  could reasonably conclude that the officers resorted 
to the use of force without threat to their safety, in violation 
of Dawson’s clearly established Fourth Amendment rights, 
and that therefore, summary judgment for Defendants 
was improper. See, e.g., Newman, 703 F.3d at 763. Under 
Graham, a reasonable officer would have sufficient notice 
that using a pepperball gun to repeatedly shoot a naked,

Appendix B



29a

possibly pregnant, compliant, non-threatening detainee 
who merely stated she would not comply with an abusive 
command, clearly constitutes excessive force in violation of 
the Fourth Amendment. Although Dawson was unable to 
point to case law forbidding this exact conduct, that alone 
is insufficient to warrant qualified immunity.

W hen the a rrest occu rred , [Daw son] had 
a clearly established right to be free  from  
excessive force, and it was clearly established 
that the amount of force that the officers could 
use “depended] on the severity of the crime at 
issue, whether the suspect posed a threat to the 
officer’s safety, and whether the suspect was 
resisting arrest or attempting to flee.”

Deville, 567 F.3d at 169 (quoting Bush v. Strain, 513 
F.3d 492, 502 (5th Cir.2008)). “ Qualified immunity will 
not protect officers who apply excessive and unreasonable 
force merely because their means o f applying it are novel.” 
Id. at 763-64. “ [T]he Graham excessive-force factors 
themselves can clearly establish the answer, even without 
a body o f relevant case law.” Id. (internal quotation marks 
omitted). Therefore, the district court erred in granting 
the Defendants’ motion for summary judgment based upon 
qualified immunity.

Appendix B



30a

Appendix B 

II.

In addition to the excessive force-claim ,3 Dawson 
a lleges that the strip  search  was conducted  in an 
unreasonable, unconstitutional manner, in violation of the 
Fourth Amendment.4 Dawson contends that the search 
was unreasonably conducted because she was verbally 
harassed, laughed at, and, despite her compliance with the

3. Dawson’s unreasonable-search claim is asserted against 
Officers Wells, Farmer, and Giles.

4. Relying upon a flawed reading of Florence v. Board of
Chosen Freeholders of the County of Burlington,-----U .S.--------,
132 S.Ct. 1510,182 L.Ed.2d 566 (2012), Dawson contended that the 
strip search itself, if conducted properly, would not have violated 
her Fourth Amendment right to be free from unreasonable 
searches by the government. In Florence, the Court found that a 
strip search of a detainee prior to admission to the general prison 
population is reasonable and thus constitutional under the Fourth 
Amendment. However, the Florence Court explicitly limited its 
holding, noting that “ [t]his case does not require the Court to rule 
on the types of searches that would be reasonable in instances 
where, for example, a detainee will be held without assignment to 
the general jail population and without substantial contact with 
other detainees.” Florence, 132 S.Ct. at 1522. It is unclear from 
the record whether Dawson—who was admitted into custody for 
two misdemeanor crimes and released the following morning— 
was admitted to the general prison population or whether she had 
any contact with other detainees. Thus, Dawson may have had a 
viable claim that the strip search was unreasonable at its inception. 
However, she waived this argument by conceding that she was not 
harmed by the search itself and that she had no objection to it, had 
it been done “properly.” Thus, I consider only her claim that the 
manner in which the search was conducted was unconstitutional.



31a

officers’ initial orders, shot repeatedly with a pepperball 
gun. The majority opinion reasons that the use o f the 
pepperball gun was not objectively unreasonable and 
an unreasonable search claim may not be established 
by allegations of mere verbal abuse alone, and affirms 
summary judgment on this claim.

Because I disagree with the majority’s finding that 
the use of the pepperball gun here was not unreasonable, 
I would consider the allegations of verbal harassment in 
the context in which it occurred and not in isolation from 
the officers’ use of the pepperball gun. W hile mere verbal 
threats and gestures may not be cognizable under § 1983, 
the combination o f taunting and harassing language with 
the use of excessive force would violate clearly established 
law as an unreasonable manner o f conducting a search.

Whether a search is conducted reasonably under the 
Fourth Amendment “requires a balancing o f the need 
for the particular search against the invasion of personal 
rights that the search entails. Courts must consider the 
scope of the particular intrusion, the manner in which it is 
conducted, the justification for initiating it, and the place 
in which it is conducted.” Elliott v. Lynn, 38 F.3d 188,191 
(5th Cir.1994) (quotingBell v. Wolfish, 441 U.S. 520,558,99 
S.Ct. 1861,60 L.Ed.2d 447 (1979)). Dawson has presented 
summary-judgment evidence that during the strip search, 
despite her compliance and non-threatening behavior, she 
was surrounded by multiple officers, was verbally abused, 
was seen undressed by a male officer, and was shot at 
repeatedly with a pepperball gun. Moreover, the state’s 
need for the search is unclear. As noted supra, the search

Appendix B



32a

was conducted pursuant to a request by the arresting 
officers from the PPD. The majority states that the search 
was conducted upon “ probable suspicion” and cites to an 
Anderson County Unclothed Search form that indicates 
only that the strip search was conducted because “ PPD 
asked.” Despite the majority’s contention to the contrary, 
there is no evidence in the record that the search was 
conducted based upon reasonable or “probable” suspicion. 
Nor does the record contain evidence that the search was 
conducted because, for example, Dawson posed a threat 
to officer safety or was carrying any contraband on her 
person or had concealed evidence. In light of the absence 
of any evidence suggesting there was any need for the 
search balanced against the way in which it was conducted, 
reasonable jurors could conclude that the Defendants 
violated clearly established Fourth Amendment law that 
requires that strip searches be conducted in a reasonable 
manner and in light o f the governm ent’s need for the 
search.

Rather than viewing the totality of the circumstances 
as alleged by Dawson, the m ajority again im properly 
d iscred its  and d isregards  evidence that gives rise 
to a genuine issue o f  m ateria l fa ct re g a rd in g  the 
reasonableness o f the search.

Appendix B



33a

I respectfully dissent from  the majority opinion and 
would hold that the district court’s summary-judgment 
order in favor of the Defendants should be reversed and 
the case remanded for further proceedings regarding 
D aw son ’s excessiv e -force  and u n reasonab le-search  
claims.5

Appendix B

5. Additionally, for the reasons that I disagree with the 
majority’s conclusions as to Dawson’s § 1983 claims, I likewise 
would reverse the summary-judgment order with regard to her 
state-law claims of assault and battery raised against Officers 
Wells, Farmer, and Giles, and Sergeant Watson. “Under Texas 
law, government officials are entitled to immunity from suit 
arising under performance of their (1) discretionary duties in (2) 
good faith as long as they are (3) acting within the scope of their 
authority.... The good faith element is ‘substantially’ the same 
as the federal inquiry of qualified immunity.... [but is distinct in 
that it] focuses solely on the objective legal reasonableness” of the 
officers’ conduct. Hernandez ex rel. Hernandez v. Tex. Dep’t of 
Protective & Regulatory Servs., 380 F.3d 872, 885 (5th Cir.2004). 
Because, as explained supra, Dawson has presented genuine 
issues of material fact from which a reasonable factfinder could 
conclude that the Defendants acted unreasonably in causing 
her injuries, summary judgment as to her state-law claims was 
likewise improper.



34a

APPENDIX C — ORDER OF THE UNITED 
STATES DISTRICT COURT FOR THE EASTERN 

DISTRICT OF TEXAS, TYLER DIVISION, 
DATED OCTOBER 31, 2012

U N ITE D  STATES D ISTRICT COURT 
FOR TH E E A STE R N  D ISTRICT OF TE X A S  

T Y L E R  DIVISION

Case No. 6:ll-cv-507

CLAU D IA DAWSON

v .

AN D ERSO N  COUNTY, T E X A S, et al.

ORDER GRANTING DEFENDANTS’ MOTION 
FOR SUMMARY JUDGMENT

Currently before the Court is Defendants’ motion 
for summary judgment (Doc. No. 22). Plaintiff Claudia 
Dawson alleges that A nderson  County ja ilers  used 
excessive force and performed an unreasonable search in 
violation of her constitutional rights. Plaintiff also alleges 
that Anderson County and Sheriff Greg Taylor failed to 
adequately train and supervise the Anderson County 
jailers and these failures violated Plaintiffs constitutional 
rights. Plaintiff seeks redress for these alleged violations 
under 42 U.S.C. § 1983.

Defendants moved for summary judgment on all of 
P la in tiffs  claims. They argue that the evidence does 
not support Plaintiffs claims. In addition, the Anderson



35a

County jailers argue that they are entitled to qualified 
immunity. Having considered the briefing, the competent 
sum mary judgm ent evidence, and the applicable law, 
the Court GRANTS Defendants’ motion for sum mary 
judgment (Doc. No. 22).

I. Factual and Procedural Background

At approximately 11:00 p.m. on April 26,2010, officers 
with the Palestine, Texas police department arrested 
P laintiff Claudia Dawson for public intoxication and 
interference with public duties. The officers took Plaintiff 
to the Anderson County Sheriff’s Office where she was 
booked for the two offenses. Anderson County Jailers 
Cheyena Farmer and Sarah Wells1 took Plaintiff to a room 
to search her. As part o f the search, the jailers required 
Plaintiff to remove all of her clothing, squat, and cough.

P la in tiff and D efendan ts d isa gree  about w hat 
happened next. Plaintiff claims that she initially complied 
with the squat-and-cough order and then asked for her 
clothes. The jailers instead ordered her to squat and cough 
a second time. Plaintiff refused. P laintiff claims that 
Sergeant Darryl Watson told Jailer Karen Giles to shoot 
Plaintiff with a pepperball gun.1 2 Giles entered the search

Appendix C

1. Sarah Wells answered Plaintiff’s complaint and stated 
that she was incorrectly sued as Sarah Watson (Doc. No. 8). In 
their Rule 26(f) report, the parties agreed that Sarah Wells is the 
correct name of the defendant.

2. A pepperball gun is, in essence, a paintball gun that fires 
rounds containing pepper spray. See Nelson v. City of Davis, 685 
F.3d 867,873 (9th Cir. 2012).



36a

room and fired three shots at Plaintiff. Plaintiff claims 
that Defendants Farmer, Wells, and Giles verbally abused 
and harassed Plaintiff, including calling her a vulgar name 
and laughing during the search. Plaintiff claims that one 
of the jailers stated she wished she were certified to shoot 
Plaintiff with the pepperball gun.

In contrast, D efendants claim  that P la in tiff did 
not initially com ply with the squat-and-cough order. 
Defendants assert that Plaintiff was belligerent, used 
profanity, and yelled that she was not going to squat and 
cough. Giles then entered the search room  and observed 
P la in tiff ’s noncom pliance. Giles also observed  that 
Plaintiff was moving closer to one of the jailers, arguing, 
and screaming at the jailers in a threatening manner. Giles 
then told Plaintiff to comply with the squat-and-cough 
order. When Plaintiff still did not comply, Giles fired three 
shots at Plaintiff from a pepperball gun. Plaintiff then 
complied with the order.

Regardless of whether Plaintiff complied with the 
first order to squat and cough, the parties agree that the 
jailers told her to squat and cough a second time and that 
she did not obey. The parties also agree that Giles shot 
Plaintiff with the pepperball gun after Plaintiff failed to 
comply with the second order. The parties further agree 
that Plaintiff was near a wall in the search room when 
Giles shot her. One of the shots missed. One shot struck 
P laintiff in the leg and another shot struck P laintiff 
above the abdomen causing her to bleed. The jailers gave 
Plaintiff a band aid and she remained in custody until she 
posted bond the next morning. She went to the hospital 
after her release.

Appendix C



37a

Plaintiff filed this suit against Defendants under 42 
U.S.C. § 1983 alleging various constitutional violations 
including excessive force, unreasonable search, cruel 
and unusual punishment, failure to train, and failure to 
supervise. Plaintiff also asserts a claim for assault and 
battery under Texas law.

Defendants moved for summary judgment on all of 
Plaintiff’s claims. In Plaintiffs response, she abandoned 
her Eighth Amendment cruel and unusual punishment 
claim. In Plaintiff’s surreply, she abandoned her failure 
to train and failure to supervise claims against Anderson 
County and Sheriff Taylor. The two remaining federal 
claim s are against the A nderson  County ja ilers  for 
excessive force and unreasonable search. Defendants have 
asserted qualified immunity on both claims. Defendants 
assert Texas official immunity on Plaintiff’s assault and 
battery claim.

Defendants also moved to strike portions of Plaintiff’s 
declaration offered as evidence in opposition to summary 
judgment (Doc. No. 24). Defendants argue that several 
statements in Plaintiff’s declaration are legal conclusions 
and are therefore inadmissible as summary judgment 
evidence under Federal Rule o f Civil Procedure 56(c)(4).

II. Legal Standard

a. Motion for Summary Judgment

The C ou rt should gran t a m otion for sum m ary 
judgment if no genuine issue as to any material fact exists

Appendix C



38a

and the moving party is entitled to judgment as a matter 
of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 
U.S. 317, 323-25 (1986); Norwegian Bulk Transp. A/S v. 
Int’l Marine Terminals P ’ship, 520 F.3d 409,411 (5th Cir. 
2008). A  fact is material if it might affect the outcome of the 
suit under the governing law. Sossamon v. Lone Star State 
of Tex., 560 F.3d 316,326 (5th Cir. 2009). Issues of material 
fact are “genuine” only if they require resolution by a trier 
of fact and if  the evidence is such that a reasonable jury  
could return a verdict in favor of the non-moving party. 
Anderson v. Liberty Lobby, Inc., All U.S. 242,248 (1986); 
Sossamon, 560 F.3d at 326. When ruling on a motion for 
summary judgment, the Court must view all inferences 
drawn from  the factual record in the light most favorable 
to the non- moving party. Matsushita Elec. Indus. Co. v. 
Zenith Radio, 475 U.S. 574, 587 (1986); Sossamon, 560 
F.3d at 326.

U nder Rule 56, the p arty  m oving for sum m ary 
judgment must “ demonstrate the absence of a genuine 
issue o f material fact.” Duffie v. United States, 600 F.3d 
362, 371 (5th Cir. 2010) (internal quotation omitted). I f  
the moving party fails to meet this initial burden, the 
motion must be denied regardless of the nonmovant’s 
response. Id. (internal quotation omitted). I f  the movant 
meets the burden, however, Rule 56 requires the opposing 
party to go beyond the pleadings and show by affidavits, 
depositions, answers to interrogatories, admissions on file, 
or other admissible evidence that specific facts exist over 
which there is a genuine issue for trial. Anderson, 477 U.S. 
at 256; U.S. ex rel. Farmer v. City of Hous., 523 F.3d 333, 
337 (5th Cir. 2008); EEOC v. Tex. Instruments, Inc., 100

Appendix C



39a

F.3d 1173, 1180 (5th Cir. 1996). The nonmovant’s burden 
may not be satisfied by argument, conclusory allegations, 
unsubstantiated assertions, metaphysical doubt as to the 
facts, or a mere scintilla o f evidence. Matsushita, 475 U.S. 
at 586 - 87; U.S. ex rel. Farmer, 523 F.3d at 337; Duffie, 
600 F.3d at 371.

III. Discussion

a. Qualified Immunity

In her first cause of action, P laintiff claims that 
Defendants Giles and Watson are liable under 42 U.S.C. 
§ 1983 for excessive force. Next, Plaintiff claims that 
Defendants Giles, Farmer, and Wells are liable under 
42 U.S.C. § 1983 for conducting an unreasonable search. 
All of these defendants argue that they are entitled to 
qualified immunity.

“ The d octr in e  o f  qu a lified  im m unity  p ro te c ts  
governm ent officials ‘from  liability for civil damages 
insofar as their conduct does not violate clearly established 
statutory or constitutional rights o f which a reasonable 
person would have known.’” Pearson v. Callahan, 555 
U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 
U.S. 800,818 (1982)). The qualified immunity inquiry has 
two prongs: (1) whether an official’s conduct violated a 
constitutional right of the plaintiff; and (2) whether that 
right was clearly established at the time of the violation. 
Brown v. Callahan, 623 F.3d 249,253 (5th Cir. 2010). The 
Court may begin its analysis by considering either prong. 
Id.; Pearson, 555 U.S. at 236.

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40a

W hether a legal rule is clearly established depends 
substantially upon the level of generality at which the rule 
is identified. See Anderson v. Creighton, 483 U.S. 635, 
639 (1987). The right a government official is alleged to 
have violated must have been “clearly established” in a 
particularized and relevant sense. Id. at 640. This means 
that “ [t]he contours of the right must be sufficiently clear 
that a reasonable official would understand that what he 
is doing violates that right.” Id. In other words, in view 
of pre-existing law, the unlawfulness o f an official action 
must be apparent. Id. (citations omitted). In applying 
Anderson v. Creighton, the Fifth Circuit has held that 
a defendant’s acts are objectively reasonable “ unless all 
reasonable officials in the defendant’s circumstances would 
have then known that defendant’s conduct violated the 
United States Constitution.” Thompson v. Upshur Cnty., 
245 F.3d 447, 457 (5th Cir. 2001).

To prevail on her claims, Plaintiff has the burden 
to rebut D efendants’ qualified immunity defense “ by 
establishing a genuine fact issue as to w hether the 
[Defendants’] allegedly wrongful conduct violated clearly 
established law.” Brown, 623 F.3d at 253.

b. Excessive Force During Search

Plaintiff first alleges that Jailer Karen Giles and 
Sergeant D arryl W atson used excessive force  when 
Giles shot Plaintiff with the pepperball gun. Plaintiff 
alleges that the excessive force violated her rights under 
the Fourth Amendment as applied to the states by the

Appendix C



41a

Fourteenth Amendment3 and entitles her to relief under 
42 U.S.C. § 1983.

To overcome Giles and Watson’s claim of qualified 
immunity as to the excessive force claim, Plaintiff must 
show “ (1) an injury (2) [that] resulted directly and only 
from the use of force that was excessive to the need and 
(3) the force used was objectively unreasonable.” Good.,son 
v. Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000); see 
also Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 
2001). Under this “objectively unreasonable” standard, “an 
officer’s subjective motivation and intent are irrelevant.” 
Hill v. Carroll Cnty., 587 F.3d 230, 234 (5th Cir. 2009). 
W hether Giles and Watson acted reasonably requires 
consideration of the facts and circumstances, including (1)

Appendix C

3. Plaintiff’s complaint alleges that Defendants’ actions 
“deprived Plaintiff Dawson of substantive due process of law in 
violation of the Due Process Clause of the Fourth Amendment.” 
The Fourth Amendment does not contain a due process clause. 
Rather, the Fourth Amendment requires that all searches and 
seizures be reasonable. The Fifth and Fourteenth Amendments 
contain due process clauses. To the extent Plaintiff alleges that 
the Fourteenth Amendment’s substantive due process standard 
applies to this case, the Court disagrees. The Court will analyze 
Plaintiff’s excessive force claim under the Fourth Amendment’s 
reasonableness standard and not the Fourteenth Amendments 
substantive due process standard. See Graham v. Connor, 
490 U.S. 386, 395 (1989) (holding that claims of excessive force 
during a seizure should be analyzed under the Fourth Amendment 
reasonableness standard); see also Valencia v. Wiggins, 981 F.2d 
1440, 1444 (5th Cir. 1993) (holding that the Fifth or Fourteenth 
Amendments begin to protect a person after the person has been 
in detention awaiting trial for a significant period of time).



42a

the severity of the crime at issue; (2) whether the suspect 
posed an immediate threat to the safety o f the officers 
or others; and (3) whether she was actively resisting or 
attempting to evade arrest. See Graham, 490 U.S. at 396.

Appendix C

Plaintiff contends that Giles and W atson are not 
entitled to qualified immunity. She argues that she has 
presented substantial material evidence that shooting 
her with a pepperball gun was clearly unreasonable 
and excessive. According to Plaintiff, she has presented 
evidence that (1) she was compliant during the search; 
(2) she did not pose a threat during the search; (3) she 
never struck or attempted to strike anyone; and (4) she 
was obedient and not belligerent. Plaintiff also argues 
that Watson testified that it would be w rong to shoot 
Plaintiff if she had complied with the first order to squat 
and cough. Plaintiff contends that “ it was clear as a bell” 
that Defendants’ use of the pepperball gun was excessive 
and that Defendants’ conduct “violated well-settled law.” 
The Court disagrees.

The Court recognizes that there is a factual dispute 
about whether Plaintiff complied with the squat-and- 
cough order before being shot with the pepperball gun. 
Plaintiff maintains that she complied with the first order, 
but not the second, and then was shot. Defendants contend 
that Plaintiff did not comply until after being shot. Even 
assuming that she complied with the first order, Plaintiff 
conceded that the jailers told her to squat and cough a 
second time and that she did not obey. Furtherm ore, it 
is undisputed that Plaintiff was arguing with the jailers.



43a

Pla intiff also does not dispute G iles’ testim ony that 
Plaintiff was moving closer to the other jailers.4

The Court must determ ine whether, under these 
c ircu m sta n ces  and in v iew  o f  p r e -e x is t in g  law, a 
reason ab le  ja ile r  w ou ld  have know n that u sin g  a 
pepperball gun was barred by the Fourth Amendment’s 
prohibition of excessive force. See Gutierrez v. City o f San 
Antonio, 139 F.3d 441, 446 (5th Cir. 1998). To determine 
the objective reasonableness of the jailers’ conduct, the 
Court examines whether “a reasonable officer could have 
believed [Defendants’ conduct] to be lawful, in light of 
clearly established law and the information [Defendants] 
possessed.” Anderson, 483 U.S. at 641.

Under these circumstances, a reasonable jailer, faced 
with an arguing, non-compliant arrestee, who was moving 
toward another jailer, could have believed that Giles and 
Watson’s actions were lawful. Poole v. City o f Shreveport, 
691 F.3d 624, 629 (5th Cir. 2012) (use of a taser was 
not excessive where plaintiff actively resisted officers’ 
instructions and posed a threat to their safety).

Furtherm ore, P laintiff does not cite any cases in 
support of her argument that qualified immunity should 
not apply to Giles and Watson under these circumstances. 
Nor has Plaintiff provided sufficient competent summary

Appendix C

4. Whether Plaintiffs proximity to the other jailers influenced 
Giles’ decision to use the pepperball gun is irrelevant to the 
analysis of objective unreasonableness. See Hill, 587 F.3d at 234 
(stating that an officer’s subjective motivation and intent are 
irrelevant).



44a

judgm ent evidence to establish a genuine fact issue 
regard ing the objective reasonableness o f Giles and 
W atson ’s actions. T h erefore , P la in tiff has failed to 
overcome the qualified immunity defense. Accordingly, 
Defendants’ motion for summary judgment on Plaintiff’s 
excessive force claim is G RAN TED .

c. Strip Search

In her third cause of action, Plaintiff alleges that 
Defendants Giles, Farmer, and Wells subjected Plaintiff 
to an unreasonable strip  search  in violation o f her 
constitutional rights.

Plaintiff concedes that it was lawful to subject her to 
a strip search. See Florence v. Bd. of Chosen Freeholders 
ofCnty. of Burlington, 132 S. Ct. 1510, 1522-23 (2012) 
(permitting certain invasive searches o f arrestees before 
they enter a ja il ’s general population). Nevertheless, 
Plaintiff alleges Defendants Giles, Farmer, and Wells 
perform ed the search in an objectively unreasonable 
m anner because they laughed, made com ments, and 
otherwise verbally abused and harassed her during the 
search. Plaintiff also argues that the pepperball gun did 
not need to be used at all.

As with the claim of excessive force, Defendants invoke 
qualified immunity. Again, the burden is on Plaintiff to 
rebut the qualified immunity defense “by establishing 
a genuine fact issue as to whether the [Defendants’ ] 
allegedly wrongful conduct violated clearly established 
law.” Brown, 623 F.3d at 253.

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45a

To prevail on her unreasonable search claim, Plaintiff 
must show that the search was unreasonable under 
clearly-established law. See Zarnow v. City of Wichita 
Falls, Tex., 500 F.3d 401, 408 (5th Cir. 2007). Plaintiff 
argues that Defendants’ laughing, comments, and other 
verbally abusive behavior violated clearly established law. 
Plaintiff does not cite any cases to support her position.

Verbal abuse by a jailer does not give rise to a cause 
of action under § 1983. Bender v. Brumley, 1 F.3d 271,274 
n. 4 (5th Cir. 1993); McFadden v. Lucas, 713 F.2d 143,146 
(5th Cir. 1983) (“ [a]s a rule, ‘mere threatening language 
and gestures o f a custodial office[r] do not, even if true, 
amount to constitutional violations.’ ” ) (quoting Coyle v. 
Hughs, 436 F. Supp. 591, 593 (W.D. Okla. 1977)).

Additionally, Plaintiff argues that the strip search 
was ob je ctiv e ly  unreasonable becau se  D efendants 
repeatedly shot her with a pepperball gun during the 
search. The Court has already determined that the use 
o f the pepperball gun did not violate clearly established 
constitutional law. Accordingly, Defendants’ motion for 
summary judgm ent on Plaintiff’s unreasonable search 
claim is GRANTED.

d. Assault and Battery

In her fourth cause of action, Plaintiff alleges that 
Defendants Giles, Farmer, Wells, and Watson are liable 
under Texas law for assault and battery for their actions 
during the search, including the alleged excessive force. 
Defendants claim they are entitled to official immunity 
under Texas law.

Appendix C



46a

In Texas, the elements for assault and battery are 
the same in civil and criminal cases. See Baribeau v. 
Gustafson, 107 S.W.3d 52, 60 (Tex. App.— San Antonio 
1996, writ denied). Under the Texas Penal Code, a person 
commits an offense if the person:

(1) intentionally, knowingly, or recklessly  causes 
bodily injury to another;

(2) intentionally or knowingly threatens another with 
imminent bodily injury; or

(3) intentionally or knowingly causes physical contact 
w ith another when the person  knows or should 
reasonably believe that the other will regard the 
contact as offensive or provocative.

Tex. Penal Code Ann. § 22.01.

“ Official immunity is an affirm ative defense that 
shields governmental employees from  personal liability 
. . . .” Telthorster v. Tennell, 92 S.W.3d 457, 460 (Tex. 
2002). “ G overnm ent officia ls  are entitled to official 
immunity from  suit arising from  perform ance of their 
(1) discretionary duties in (2) good faith as long as they 
are (3) acting within the scope of their authority.” City 
of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 
1994). The only question in this case is whether the jailers 
acted in good faith. “ The test for good faith is ‘derived 
substantially’ from  the test for qualified immunity under 
federal law.” Rockwell v. Brown, 664 F.3d 985, 993 (5th 
Cir. 2011); see also Meadours v. Ermel, 483 F.3d 417,

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47a

424 (5th Cir. 2007) (“ The ‘good  faith’ test applied by- 
Texas law in determining official immunity is evaluated 
under substantially the same standard used for qualified 
immunity determinations in § 1983 actions.” ).

The main difference is that Texas official immunity 
does not require that the right alleged to have been 
violated be clearly established. See Cantu v. Rocha, 77 F.3d 
795, 808-09 (5th Cir. 1996). Instead, the Texas standard 
“ focuses solely on the objective legal reasonableness of 
the officer’s conduct.” Id. at 809.

Defendants argue that they are entitled to Texas 
official immunity for the same reasons that they are 
entitled to federal qualified immunity: there is no evidence 
that all reasonable officials similarly situated would have 
known that the alleged acts violated the United States 
Constitution. See Thompson v. Upshur Cnty., 245 F.3d 
447,457 (5th Cir. 2001). The Court agrees that Defendants 
are entitled to official immunity.

The Court previously determined, for purposes of 
federal qualified immunity, that neither Defendants’ use of 
force nor the strip search were objectively unreasonable. 
That determination is dispositive of P laintiff’s claims 
under Texas law for assault and battery. See Meadours, 
483 F.3d at 424; Cantu, 77 F.3d at 809. Accordingly, 
Defendants’ motion for summary judgment on Plaintiff’s 
claims for assault and battery is GRANTED.

Appendix C



48a

e. Claims against Anderson County and Sheriff 
Taylor

Plaintiffs complaint contains several claims against 
Anderson County and Sheriff Taylor. Plaintiff explicitly 
alleges that Anderson County and Sheriff Taylor’s failure 
to adequately train and failure to adequately supervise 
em ployees w ere producing and proxim ate causes o f 
P la intiffs  injuries. P laintiff abandoned her failure to 
train and failure to supervise claims in her surreply 
opposing summary judgment. To the extent that Plaintiffs 
complaint alleges any additional claims against Anderson 
County or Sheriff Taylor, those claims are dismissed. 
Plaintiff has not responded to Defendants’ motion for 
summary judgment with competent evidence o f a policy 
or custom that was the moving force behind the alleged 
constitutional violations. See Duvall v. Dallas Cnty., 631 
F.3d 203, 209 (5th Cir. 2011) (“ For a municipality to be 
liable, the plaintiff must show that there was either an 
official policy or an unofficial custom, adopted by the 
municipality, that was the moving force behind the claimed 
constitutional violation.” ).

f. Defendants’ Motion to Strike

Finally, the Court addresses Defendants’ objection 
to and motion to strike portions o f Plaintiff’s declaration 
(Doc. No. 24). In her declaration, Plaintiff states:

• “ D efendant Jailers Giles, F arm er and W ells 
strip searched me in an objectively unreasonable 
manner.”

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49a

• “ D e fe n d a n t J a ile r  G iles  u sed  o b je c t iv e ly  
unreasonable force and excessive force.

• “ D efendant Ja iler G iles, F a rm er and W ells 
conducted the strip search in an abusive and 
objectively unreasonable manner.”

Doc. No. 23-1 at 2 -3 . Defendants argue that these 
statem ents are legal conclusions and are therefore  
inadm issible as sum m ary judgm ent evidence under 
Federal Rule o f Civil Procedure 56(c)(4). In contrast, 
Plaintiff contends that these statements are relevant facts 
that accurately describe the strip search and use of force.

The Court has reviewed the declaration in accordance 
with Rule 56(c)(4). The C ourt’s analysis o f P laintiff’s 
claims considered only those portions of the declaration 
that “ [are] made on personal knowledge [and] set out 
facts that would be admissible in evidence.” Fed. R. Civ. 
P. 56(c)(4). Therefore, Defendants’ objection to and motion 
to strike portions of Plaintiff’s declaration (Doc. No. 24) 
is DENIED.

IV. Conclusion

For the reasons set forth above, it is ORDERED that 
Defendants’ objection to and motion to strike portions of 
Plaintiff’s declaration (Doc. No. 24) is DENIED.

It is further ORDERED that Defendant’s motion for 
summary judgment (Doc. No. 22) is GRANTED.

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50a

It is further ORDERED that all o f Plaintiff’s claims 
against all Defendants in this case are dismissed with 
prejudice.

A  final judgment will follow.

It is SO ORDERED.

SIGNED this 31st day of October, 2012.

/s/__________________________
M IC H A EL H. SCH N EID ER 
U N I T E D  S T A T E S  D I S T R I C T  
JUDGE

Appendix C