On January 21, 2020, the Fifth Circuit Court of Appeals decided Hoke v. Anderson et al.[i], in which Sara Hoke and Amanda Hoke, two sisters, sued several officers for excessive force under the Fourth Amendment for, among other things, allegedly failing to properly decontaminate them after spraying them with pepper spray.

The incident that gave rise to this suit took place in 2016 in Austin, Texas, after the Southwest Festival.  Sara and Amanda Hoke, twin sisters, attended the festival and, when the bars closed at 2:00am, thousands of people took to the streets, including the Hoke sisters, who became involved in a fight.  Members of the Austin Police Department arrived and used pepper spray to subdue the Hoke sisters and other participants in the fight.  They were arrested, taken to a staging area, and promptly given water to wash off the pepper spray.

The Hoke’s subsequently sued several officers for violating their rights under the Fourth and Eighth Amendments for the use of the pepper spray, failing to properly decontaminate them after the use of the pepper spray, and false arrest.  The officers filed a motion for qualified immunity and the district court granted the motion and dismissed the suit.  The Hoke’s appealed to the Fifth Circuit Court of Appeals.

On appeal, the Hoke’s only argue that the officers failed to properly decontaminate them after the use of the pepper spray.

The court then set out to determine whether the officers were entitled to qualified immunity regarding the decontamination of the Hoke sisters after spraying them with pepper spray.

The court first noted that there is a two-pronged test to determine whether an officer is entitled to qualified immunity.  To defeat qualified immunity, a plaintiff must show (1) that the officers violated the plaintiff’s constitutional rights, and (2) that the law was “clearly established” such that another reasonable officer in the same situation would have known the conduct was unlawful.

The Hoke’s offered several arguments as to why the officers should not be entitled to qualified immunity.

First, they argued that it was unreasonable under the Fourth Amendment for the officers not to pour water on every part of their bodies that came into contact with the pepper spray.  Regarding this argument, the court noted that there is no clearly established law that requires an officer to pour water on every area of person’s body that comes into contact with pepper spray.  The court stated

[T]he only Fifth Circuit case that addresses pepper-spray decontamination states that “[d]econtamination consists primarily of flushing the eyes with water.” Wagner v. Bay City, 227 F.3d 316, 319 n.1 (5th Cir. 2000).[ii]

The court noted that there was body camera video footage that clearly showed that the officers washed the Hoke’s eyes after they took them to the staging area.  As such, this argument failed to defeat qualified immunity.

Second, the Hoke’s argued that the officer’s (1) failed to decontaminate them at all, (2) failed to tell them to remove their contact lenses, (3) failed to warn them not to rub the affected areas because it increases the pain, (4) failed to use enough water to properly decontaminate them, and (5) failed to call them an ambulance.  Regarding these allegations, the court noted that the Hoke’s misstate the evidence because there was clear body camera video of an officer washing one of the sister’s eyes and offering more water, if needed.  The video even showed the officer calling an EMT to check one of the sisters to make sure she was okay.  The court also noted that the Hoke’s cited no precedent that requires the officers to advise the sisters to remove their contact lenses or not to rub the affected areas.  As such, these arguments fail to defeat qualified immunity.

Lastly, the Hoke’s argue that the officers acted inconsistent with their training, and as such, violated their constitutional rights.  However, the court stated

[E]ven if we accepted the (questionable) premise that the defendants didn’t follow their training, “that does not itself negate [QI] where it would otherwise be warranted.” City and Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015).[iii]

Thus, a failure to follow training does not override qualified immunity when qualified immunity is appropriate because the plaintiff fails to meet both prongs required to defeat qualified immunity.

Therefore, the court of appeals affirmed the grant of qualified immunity for the officers in this case.

Practice Pointer:  An important lesson regarding the use of body cameras

The officers in this case were fortunate to have body camera footage that clearly refuted the allegations of the plaintiff’s in this case.  At the qualified immunity stage of litigation, the court is required to accept the version of the facts most favorable to the plaintiff, or in other words, the plaintiff’s version of events, unless there is clear evidence, such as video, that contradicts the plaintiff’s version of events.  Here, the video clearly showed that the plaintiff’s misstated the facts and supported the grant of qualified immunity for the officers.



[i] No. 19-50602 (5th Cir. Decided January 21, 2020 Unpublished)

[ii] Id. at 3

[iii] Id. at 5

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