from the United States District Court for the Northern
District of Texas
ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
E. GRAVES, JR., Circuit Judge
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.
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.
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.
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.
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."
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
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.
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.
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.
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.
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 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
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.
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.
the ground, Hanks laid face-down and placed his hands behind
his back. Hanks offered no resistance while Officer Rogers
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.
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."
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 ...