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Hanks v. Rogers

United States Court of Appeals, Fifth Circuit

April 5, 2017

MARCUS HANKS, Plaintiff - Appellant
OFFICER RANDALL ROGERS, Individually, Defendant-Appellee

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

          Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.

          JAMES E. GRAVES, JR., Circuit Judge

         Below, the district court dismissed Marcus Hanks's Section 1983 claim against a police officer, Randall Rogers, at summary judgment on the basis of qualified immunity. We REVERSE and REMAND to the district court for further proceedings consistent with this opinion.[1]


         On the evening of February 26, 2013, Hanks was driving slowly along Interstate 30 in Grand Prairie, Texas. Hanks hoped to find his cellular telephone on the shoulder of the road-Hanks accidentally left the phone on top of his car at the outset of his trip, and, upon realizing his mistake, aimed to find where the phone slid off along the roadway.

         Officer Rogers, a member of the Grand Prairie Police Department, observed Hanks driving with his vehicle's hazard lights engaged and approximately 20 miles per hour under the interstate speed limit. Rogers turned on his patrol car's emergency lights, and Hanks immediately pulled his car onto the shoulder of the interstate.

         Officer Rogers stopped his patrol car a short distance behind Hanks's vehicle and walked to Hanks's passenger-side front window. Once at the window, Officer Rogers stated that he had stopped Hanks because Hanks was driving 20 miles per hour below the speed limit. Hanks told Officer Rogers that he was searching for his phone.

         After a brief exchange regarding the phone, Officer Rogers asked Hanks to produce his driver's license and insurance. Hanks immediately presented his driver's license. Hanks could not, however, locate an insurance card for the vehicle, which he had borrowed with permission from a relative. After waiting silently at the window for almost one minute, Officer Rogers stated that he would "be right back." Only a second or two later, Officer Rogers instructed Hanks to "step out of the vehicle and come to the back."

         According to Officer Rogers, he ordered Hanks to exit the vehicle "[i]n an attempt to decrease . . . Hanks' anger." Officer Rogers states that when he asked Hanks for his driver's license and insurance, "Hanks appeared upset and began to cuss at [Officer Rogers] for stopping him." Hanks denies that he "cuss[ed] at or act[ed] aggressive to Officer Rogers" while sitting in the vehicle.

         Hanks did not immediately exit his vehicle. Instead, he questioned the basis for Officer Rogers's instruction. Officer Rogers repeated his instruction six times during the approximately 45-second exchange, and also calmly told Hanks to "put his stuff up." Hanks exited the vehicle after Officer Rogers adopted a more assertive tone and added "do it now" to his instruction. As Hanks exited the vehicle, Officer Rogers turned his back to Hanks's car for about three seconds and walked towards his patrol car.

         Officer Rogers next pointed his flashlight at a spot on the ground between the two vehicles and instructed Hanks to stand there. Hanks silently complied with that instruction. While walking to the spot Officer Rogers indicated, Hanks pulled his shirt sleeves up to his elbows. Hanks also placed his right hand into his pants pocket for about three seconds.

         Officer Rogers instructed Hanks to take his hands out of his pockets, but by that time Hanks only had his thumbs tucked inside his pockets. In response to the instruction, Hanks said, "what?" Officer Rogers repeated his instruction, and Hanks lifted his hands to his waist, palms towards Officer Rogers, while saying "my hands aren't in my pockets." Officer Rogers then instructed Hanks to place his hands on the rear of Hanks' vehicle.

         In response to Officer Rogers's command to place his hands on the car, Hanks moved towards the rear of his vehicle while saying, "for what? I . . . did nothing." Hanks initially leaned back against the rear of his vehicle, but after about one or two seconds, and in response to Officer Rogers repeating his commands while drawing his taser, Hanks turned his back to Officer Rogers and placed his hands on the trunk of his car.

         Within two or three seconds, Officer Rogers next instructed Hanks to put his hands behind his head. Hanks immediately raised his left hand to the back of his head, and placed his right hand behind his head moments later, simultaneously with Officer Rogers' repetition of the command.

         As soon as Hanks's hands reached the back of his head, Officer Rogers instructed Hanks to "go to [Hanks's] knees." In response, Hanks looked over his right shoulder and asked, "for what?" Hanks simultaneously moved his hands to his rear, so that they were folded behind his back with his empty palms facing Officer Rogers. Officer Rogers repeated his command twice more over the next five seconds, and, with his hands still plainly visible behind his back, Hanks looked over his left shoulder to ask whether he was under arrest. Officer Rogers responded by repeating his command, and Hanks said something inaudible on the recording before again asking whether he was under arrest. Officer Rogers only responded by repeating his command.

         About five seconds after Hanks asked whether he was under arrest for the second time, and immediately after Officer Rogers repeated his command for Hanks to "go to [his] knees, " Hanks made a small lateral step with his left foot. When Hanks took this small step, his empty hands remained surrendered behind his back. He continued to face away from Officer Rogers, so his hands stayed in Officer Rogers's view. Officer Rogers still had his taser trained on Hanks.

         Almost simultaneously with Hanks's small step, Officer Rogers rushed towards Hanks and administered a blow to Hanks's upper back or neck (the parties refer to this as a "half spear"). The blow forced Hanks's upper body onto the trunk of his vehicle. Officer Rogers maintained contact with Hanks as Hanks shifted onto the ground.

         Once on the ground, Hanks laid face-down and placed his hands behind his back. Hanks offered no resistance while Officer Rogers handcuffed him.

         Later, while sitting in Officer Rogers's patrol car, Hanks requested medical care. Officer Rogers issued Hanks a traffic citation, and medics transported Hanks to Baylor Medical Center. Hanks states that he received treatment for "Assault; Contusion; Strain; [and] Acute Myofascial Strain" and received prescriptions for pain medications. Hanks asserts that the blow administered by Officer Rogers has caused him "continuous pain in [his] upper back, neck, head, and ribs, " as well as psychological fear.

         The Grand Prairie Police Department subsequently conducted an investigation that led to Officer Rogers's indefinite suspension. The department's investigation concluded Officer Rogers's "half spear . . . was not objectively reasonable to bring the incident under control . . . based on Mr. Hanks' lack of resistance." The department's investigation noted Officer Rogers's "fail[ure] to communicate to a citizen [i.e., Hanks] [that] he was under arrest." Notably, the investigation report viewed Hanks as a "compliant subject."


         Several months after the incident, on December 16, 2013, Hanks filed a complaint against Officer Rogers and the City of Grand Prairie. Hanks's complaint included a claim against Officer Rogers under 42 U.S.C. § 1983, alleging Officer Rogers used excessive force against him in violation of the Fourth Amendment. On August 6, 2015, the district court granted summary judgment in favor of Officer Rogers on the basis of his qualified immunity defense. In relevant part, the district court concluded that, "[e]ven drawing all inferences in light most favorable to [Hanks], [Hanks] has not shown that the force used was ...

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