On June 14, 2022, the Fifth Circuit Court of Appeals decided Salazar v. Molina[i], in which the court examined whether a deputy, who had just been involved in a high-speed vehicle pursuit with Salazar, used excessive force in violation of the Fourth Amendment, when he Tased Salazar, who, after he stopped his car, exited the vehicle on his own accord and laid down on the ground.  The relevant facts of Salazar are as follows:

Around 2:00 a.m. on March 1, 2014, a Zapata County sheriff’s deputy tried to pull over Juan Carlos Salazar for speeding. Instead of stopping, Salazar accelerated and led police on a high-speed chase for approximately five minutes. At one point, Salazar traveled in excess of 70 miles per hour on a narrow residential street.

Eventually, two vehicles pulled in front of Salazar’s path, blocking his way forward. Salazar abruptly stopped his vehicle. He quickly got out, dropped to his knees next to the car, and raised his hands. He then lay on the ground with arms above his head and legs crossed. Five seconds after stopping his car, Salazar was lying prone on the ground.

Just as Salazar finished lowering himself to the ground, Deputy Juan Molina brought his patrol car to a stop behind Salazar’s vehicle. Molina exited his vehicle and ran toward Salazar. Salazar remained on the ground but uncrossed his legs two seconds before Molina got to him. Upon reaching Salazar—eight seconds after Salazar had stopped his car—Molina fired his taser at Salazar’s back.

The video shows that Salazar tensed up and his upper body shook for approximately six seconds. Molina says he deployed his taser just once, shocking Salazar for one five-second cycle. Salazar contends that Molina kept his finger on the taser and triggered a second cycle, tasing Salazar for a total of ten seconds.

After the tasing, Molina removed the taser prongs from Salazar’s back and handcuffed Salazar. Then he helped Salazar up and walked him to a patrol car. Salazar was back on his feet less than a minute after lying down next to his car.[ii]

Salazar filed suit and alleged that Deputy Molina used excessive force under the Fourth Amendment when he Tased Molina, who had exited his vehicle and laid on the ground.  Deputy Molina filed a motion for summary judgment based on qualified immunity.  The district court denied motion and held that there were factual disputes regarding whether a reasonable officer would have perceived Salazar as a threat after the pursuit, when he laid on the ground.  Deputy Molina appealed the denial of qualified immunity to the Fifth Circuit Court of Appeals.

The court of appeals first discussed qualified immunity and what the plaintiff must show to defeat the officer’s qualified immunity.  In order to defeat an officer’s motion for qualified immunity in this case, the plaintiff must show that the officer (1) violated the plaintiff’s Fourth Amendment right to be free from an unreasonable seizure (excessive force) and (2) the law was clearly established such that a reasonable officer would know that he was violating the Fourth Amendment.

  1. General Legal Principles that Apply in Use of Force Cases

The court of appeals then discussed the general legal principles that apply in use of force case.  The court stated

The Fourth Amendment prohibits “unreasonable . . . seizures.” Salazar concedes that Molina had the right to seize—i.e., arrest—him after his high-speed flight from police. . .

In Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), the Court emphasized that our excessive-force inquiry must be fact-intensive. See id. at 396-97. It “requires careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. We must also account for “the degree of force” the officer used, because “the permissible degree of force depends on the Graham factors.” Cooper v. Brown, 844 F.3d 517, 524-25 (5th Cir. 2016) (quotation omitted). Moreover:

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . The calculus of reasonableness must embody 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. Graham, 490 U.S. at 396-97.[iii]

In summary, the court noted that, in a use of force case, they should consider (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the officer or others, and (3) whether the suspect was actively resisting or attempting to evade arrest by flight.  These factors must be balanced against the degree or level of force used by the officer.  Further, the use of force must be judged from the perspective of a reasonable officer on the scene, not in hindsight, and in consideration of the fact that officers must make split-second decisions in tense, rapidly evolving circumstances.

In light of these principles, the court appeals then began to consider each factor from Graham v. Connor.

  1. Analysis of Factors from Graham v. Connor
  2. Factor One: The Severity of the Crime at Issue

The court of appeals discussed the severity of the crimes at issue with Salazar.  They noted that he led police on a “high-speed chase through a heavily populated area” which is a serious crime that put the lives of public, the officers and Salazar at risk.  Thus, the severity of the crime at issue weighed in favor of the use of force.

  1. Factor Two: Whether Salazar Posed an Immediate Threat to the Officers or Others

Salazar argued that jury could find he posed no threat to the officers at the time he was Tased because (1) he was not suspected of a violent offense, (2) he assumed a non-threatening position of surrender after he exited his vehicle, and (3) Deputy Molina could see that his hands were not holding a weapon.

The court of appeals disagreed with Salazar and discussed their rationale. First, the court stated that while, Salazar’s current position on the ground, may be an indication of someone who does not pose a threat, the officers are allowed to consider the suspect’s conduct prior to the purported surrender.  In Salazar’s case, he had led police on a dangerous, high-speed chase.  The court stated

A reasonable officer will have little cause to doubt the apparent surrender of a compliant suspect who has not engaged in dangerous or evasive behavior. But when a suspect has put officers and bystanders in harm’s way to try to evade capture, it is reasonable for officers to question whether the now-cornered suspect’s purported surrender is a ploy. That’s especially true when a suspect is unrestrained, in close proximity to the officers, and potentially in possession of a weapon.[iv]

Second, the court of appeals noted that Fifth Circuit precedent is contradictory to Salazar’s argument in this case.  The court stated

[W]e’ve [the Fifth Circuit] repeatedly refused to hold that “any application of force to a compliant arrestee is per se unreasonable.” Escobar v. Montee, 895 F.3d 387, 394-95 (5th Cir. 2018) (quotation omitted)[v]

In Escobar, the suspect led police on a high-speed chase, stopped, exited his vehicle holding a knife, and then dropped the knife and laid on the ground, as police approached.  An officer allowed the police canine to bite Escobar as the officers handcuffed him.  The suspect sued the canine officer for excessive force for allowing the dog to bite him after he surrendered.  The Fifth Circuit granted qualified immunity for the officer and held that, while the suspect may be in a position that appears to indicate a surrender, other factors indicated he may still be a threat, such as (1) the suspect committed a felony, (2) he led police on a high-speed chase to attempt to get away, (3) it was nighttime, (4) the suspect was in reach of a knife, and (5) the officer was warned that the suspect was dangerous.       The court then stated

As Escobar illustrates, a suspect cannot refuse to surrender and instead lead police on a dangerous hot pursuit—and then turn around, appear to surrender, and receive the same Fourth Amendment protection from intermediate force he would have received had he promptly surrendered in the first place.[vi]

The Fifth Circuit defined “intermediate force” as “non-deadly force” such as “police dogs and Tasers.”

Third, Salazar tried to distinguish the facts of Escobar and argue that Escobar’s case presented more danger to the police than he did, since Escobar was within reach of a knife.  However, the court noted that, the location at which Salazar stopped was known for cartel activity and the presence of bystanders in Salazar’s case “made the situation Deputy Molina confronted more dangerous than the one in Escobar.”[vii]

  1. Factor Three: Whether Salazar Actively Resisted or Attempted to Evade Arrest by Flight

The court of appeals noted that the facts that support that Salazar posed a threat to the officers also support the third factor from Graham v. Connor.  First, Salazar had just led police on a high-speed, dangerous chase, as he “attempted to evade arrest by flight.”  Second, after stopping his car, he exited the vehicle on his own accord, and looked in the direction of an open area, rather than remaining in his vehicle and waiting on officers to give him commands.  The court stated

If anything, these facts made it just as reasonable for Molina to fear that Salazar still sought to escape as it was for Molina to fear that Salazar was a threat to his or others’ safety.[viii]

Thus, the court held that the third factor from Graham supports the reasonableness of the officer’s use of the Taser.

As such, the court of appeals held

When [Deputy] Molina made the split-second decision to deploy his taser, Salazar had just committed a dangerous felony and was unrestrained at night in the open. Because of the preceding high-speed chase, Molina could reasonably be concerned about the sincerity of Salazar’s purported surrender. And the totality of the force deployed—a 10-second tasing—was comparatively modest and not grossly disproportionate to the threat Molina could have reasonably perceived. We hold that Molina’s conduct did not amount to an unreasonable seizure under the Fourth Amendment.[ix]

Therefore, Salazar failed to satisfy the first prong of the test to defeat the officer’s qualified immunity in that he did not show that the deputy violated the Fourth Amendment.  The court of appeals also discussed the fact that the law was not clearly established, such that a reasonable officer would have had notice that using a Taser in this situation was unlawful, thus, Salazar also failed to establish the second prong of the qualified immunity test.

As such, Deputy Molina is entitled to summary judgment based on qualified immunity.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 20-40334 (5th Cir. Decided June 16, 2022)

[ii] Id. at 2-3

[iii] Id. at 4-5 (emphasis added)

[iv] Id. at 7 (emphasis added)

[v] Id. (emphasis added)

[vi] Id. at 8 (emphasis added)

[vii] Id. at 11

[viii] Id. at 12

[ix] Id. at 12-13 (emphasis added)

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