Case: 23-50696       Document: 83-1      Page: 1     Date Filed: 09/10/2024




        United States Court of Appeals
             for the Fifth Circuit                                  United States Court of Appeals
                                                                             Fifth Circuit

                             ____________                                  FILED
                                                                   September 10, 2024
                              No. 23-50696                            Lyle W. Cayce
                             ____________                                  Clerk

Javier Ambler, Sr., individually, on behalf of all wrongful
death beneficiaries of Javier Ambler, II, on behalf of the
Estate of Javier Ambler, II, and as next friends of J.R.A., a minor
child; Maritza Ambler, individually, on behalf of all wrongful
death beneficiaries of Javier Ambler, II, on behalf of the
Estate of Javier Ambler, II, and as next friends of J.R.A., a minor
child; Michelle Beitia, as next friend J.A.A., a minor child; Javier
Ambler, II, Estate of Javier Ambler, II,

                                                        Plaintiffs—Appellees,

                                    versus

Michael Nissen,

                                        Defendant—Appellant.
               ______________________________

               Appeal from the United States District Court
                    for the Western District of Texas
                        USDC No. 1:20-CV-1068
               ______________________________

Before Smith, Wiener, and Douglas, Circuit Judges.
Dana M. Douglas, Circuit Judge:
       Several officers attempted to restrain an individual following a high-
speed chase. As they did so, the suspect exclaimed that he was suffering
congestive heart failure and could not breathe. One Austin City Police Officer
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                                  No. 23-50696


continued to restrain the arrestee despite those pleas. A few minutes later,
the suspect died. His family later brought a lawsuit in federal court, alleging
theories of excessive force and bystander liability against the restraining
officers. As pertinent here, the Police Officer moved for summary judgment
on qualified immunity grounds. But the district court denied the motion,
reasoning that genuine fact disputes precluded a judgment as a matter of law.
Because those fact disputes were material, we DISMISS for lack of
jurisdiction and REMAND for further proceedings.

                                       I
       Javier Ambler II was traveling on a Texas roadway in the early
morning hours without dimming the high beams on his vehicle. A Texas
sheriff’s deputy noticed and signaled for Ambler to stop, but Ambler refused.
A high-speed pursuit then ensued as more officers joined the chase.
Authorities trailed Ambler for more than twenty minutes along interstate
highways and residential streets, at times exceeding speeds of one-hundred
miles per hour. The chase ended when Ambler crashed into roadside trees
within the city limits of Austin, Texas. After the collision, a deputy
approached Ambler and the wrecked vehicle with his gun drawn. As Ambler
opened his car door, another deputy ordered him to “get on the ground,”
and discharged a taser. Ambler fell to the ground from the shock, and two
deputies tried handcuffing him.
       That was the moment when Austin City Policeman Michael Nissen
entered the scene. The events that followed are in dispute. We nevertheless
restate the facts “in the light depicted by the videotape” Scott v. Harris, 

 (2007), or in this case, Nissen’s body-worn camera, which
shows the following: On arrival, Nissen advanced toward Ambler’s vehicle
with his gun drawn. He called out to the other officers that the car “look[ed]
clear” and then approached the deputies, who were standing over Ambler’s




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body. One of the deputies held a taser to Ambler’s neck and said: “Give me
your hand or I’m going to Tase you again.” Ambler faintly exclaimed that he
had congestive heart failure. An officer then yelled: “Other hand. Give me
your hand.” As one officer instructed Ambler to lie “flat on [his] stomach,”
Ambler twice said, “I can’t breathe.”
        The officers repeatedly told Ambler to stop resisting, to which Ambler
responded: “I am not resisting.” Using his hands, Nissen then applied force
to Ambler’s arms and the back of his head, pushing it into the pavement. One
of the deputies exclaimed: “I think I just broke his finger.” Another said “I
am going to put my knee on this one to control him. Let me know when you’re
ready.” The officers then handcuffed Ambler, who appeared limp. Less than
thirty seconds later, the officers raised Ambler to a seated position and
checked for a pulse. They felt nothing. Ambler was taken to a hospital where
he was pronounced dead; the medical examiner’s report stated that his
manner of death was homicide.
        Ambler’s family filed suit in federal district court against Williamson
County, the City of Austin Texas, and several defendants, including Nissen.1
According to the family, Nissen violated Ambler’s constitutional rights by
using excessive force and failing to intervene in the altercation that allegedly
cost Ambler his life. The district court denied Nissen’s motion for summary




        _____________________
        1
          Several defendants had been dismissed prior to Nissen’s motion for summary
judgment. Plaintiffs also alleged that the City of Austin failed to provide Ambler reasonable
accommodations, in violation of Title II of the ADA, and is liable for Nissen’s Fourth
Amendment violation under Monell v. Dep’t of Soc. Servs. of City of New York, 

(1978). Neither theory is relevant to this appeal. The district court dismissed the deliberate
indifference claim, and the arguments against the City are not implicated in this appeal.




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judgment, finding that Nissen could not avail himself of qualified immunity.2
Nissen now appeals that ruling.

                                             II
        We typically lack jurisdiction over non-final district court orders,
although a few exceptions exist. Numbered among them, we may review
interlocutory denials of summary judgment on qualified immunity. But that
review is confined: We have jurisdiction to consider such appeals only if they
“turn[] on an issue of law.” Curran v. Aleshire, 

 (5th Cir.
2015) (quoting Kinney v. Weaver, 

 (5th Cir. 2004) (en
banc)).3 In other words, judging the genuineness of the district court’s factual
findings (i.e., whether they exist) is off limits; determining whether those
factual findings have “legal significance” is fair game. Joseph ex. rel. Est. of
Joseph v. Bartlett, 

 (5th Cir. 2020) (citation omitted). We
review the latter issue de novo. See, e.g., Flores v. City of Palacios, 

 (5th Cir. 2004).
        With those basics in mind, we must unfortunately complicate matters
further. Although the district court’s factual findings are given near-
complete deference, we cannot disregard clear video footage when available:
If events in dispute are recorded, as they are here, we do not accept any facts
that are “blatantly contradicted by the record” Scott, 

(emphasis added); see also Bros. v. Zoss, 

 (5th Cir. 2016)
(Smith, J.) (“The Supreme Court has created a narrow exception to this
        _____________________
        2
           The factual findings and legal conclusions were outlined in a report and
recommendation issued by the Magistrate Judge. Because the district court adopted the
ruling, we refer to the opinion throughout as the “district court’s ruling.”
        3
          Because both qualified immunity issues involve questions of law, we consider the
merits of the disputes to the extent that they are legally significant. See Argueta v. Jaradi,

 (5th Cir. 2023).




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                                   No. 23-50696


jurisdictional limitation where the record blatantly contradicts one party's
version of events.”). The summary judgment standard otherwise remains
the same: We view all other facts “in the light most favorable to the
nonmoving party and draw all reasonable inferences in its favor.” Deville v.
Marcantel, 

 (5th Cir. 2009). A movant is entitled to a
judgment as a matter of law if they show “no genuine dispute as to any
material fact.” Fed. R. Civ. P. 56(a).

                                        III
       Plaintiffs’ complaint challenges Nissen’s allegedly unconstitutional
conduct under 

, a statute that holds state actors liable for
depriving claimants of their constitutional rights. In this case, Plaintiffs say
Nissen violated the Fourth Amendment, which protects individuals from
“unreasonable searches and seizures.” U.S. Const. amend. IV. Plaintiffs
contend that, by holding Ambler’s body to the ground during a medical
emergency, Nissen used unreasonable force which was a contributing cause
of Ambler’s death.” Plaintiffs also contend that Nissen should have
protected Ambler from the other officers’ unnecessary force. Nissen’s
failure to do so, Plaintiffs assert, means Nissen is equally liable for his failure
to intervene.
       In response to Plaintiffs’ allegations, Nissen invokes the doctrine of
qualified immunity (“QI”), a defense that shields government officials
“from liability for civil damages[.]” Harlow v. Fitzgerald, 

(1982). Whether an official is entitled to such a defense depends on the
answers to two distinct legal questions. See Ashcroft v. al-Kidd, 

,
735 (2011). The first asks whether the official violated another’s
constitutional rights; the other asks if the alleged violation was “clearly
established” when the misconduct occurred. Id. The latter inquiry involves




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                                   No. 23-50696


a review of legal authority to see if caselaw has deemed similar police actions
to be illegal, thus putting state officials on “notice.” Id.
       In this case, the district court denied QI based on an inconclusive
record and the presence of several factual disputes. The issue presented for
this appeal is whether those disputes were “legally significant” and support
the district court’s holding. See Joseph, 

.
                                        A
       To resolve that issue, we begin with the constitutional violation prong
of the QI analysis. We accordingly consider whether Nissen violated
Ambler’s Fourth Amendment right to be free from excessive force.
Recovering under an excessive force theory requires that Plaintiffs prove “(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 of Rosenberg, 

 (5th Cir.
2009) (quoting Freeman v. Gore, 

 (5th Cir. 2007)). No one
disputes the first element—and for good reason. Ambler, after all, suffered
more than injuries; he died as officers tried to arrest and detain him.
       The crux of the parties’ dispute instead concerns the force Nissen
used to subdue Ambler and whether such force was clearly excessive or
unreasonable. Collapsing these questions into a single inquiry, the district
court found that Plaintiffs raised material fact issues about whether the level
of force Nissen used was appropriate given the circumstances of the
encounter. It reached that conclusion after considering the “totality of the
circumstances” from the “perspective of a reasonable officer on the scene”
and the well-established Graham factors, named after the Supreme Court
case bearing the same name. Graham v. Connor, 

 (1989).
We address the district court’s reasoning and the parties’ arguments below.




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                                       1
       One Graham factor relevant to the excessive force inquiry considers
the severity of the arrestee’s crime. 

 In Nissen’s view, the district court’s
Fourth Amendment analysis deemphasized this issue and, by extension, key
portions of our precedent. Doing so, according to Nissen, was reversible
error. In making his argument, Nissen points to our ruling in Salazar v.
Molina, 

 (5th Cir. 2022), a case involving a suspect who, like
Ambler, led officers on a high-speed chase. The chase in Salazar culminated
in the subject stopping and exiting his vehicle, and then lying on the ground,
presumably in an act of surrender. 

. Despite the suspect’s
submission, however, a sheriff’s deputy immediately tased him. The arrestee
later sued, alleging excessive force. 

 We concluded that the arrestee’s
claim was meritless, partly because the suspect could have posed a serious
safety threat after dangerously evading capture. 

.
       Nissen claims here that Ambler similarly posed a serious threat of
bodily injury after leading officers on a dangerous chase. And like the
circumstances in Salazar, Nissen asserts that any reasonable officer would
believe that Ambler was an ongoing threat until he was restrained in
handcuffs. Nissen accordingly contends that he is entitled to judgment as
matter of law on Plaintiffs’ excessive force claim. We hold a different view.
For one thing, the district court’s ruling did not undermine the significance
of the high-speed pursuit—nor could it, as the state of Texas considers
evading arrest via high-speed chase a felony, Tex. Penal Code § 38.04,
and the helicopter footage clearly shows Ambler weaving in and out of traffic,
jeopardizing the safety and wellbeing of others, see Salazar, 37 F.4th at 281–
82.
       But, for another, the Fourth Amendment analysis considers the facts
and circumstances of each challenged encounter. See Graham, 

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396. And although some of Salazar’s factual details parallel Ambler’s initial
evasion, what happened after the pursuit in each case is meaningfully
distinct. Of particular note, the officers in Salazar encountered the
unrestrained suspect mere seconds after the chase ended. Id. at 280. Such a
timeframe and scenario are unlike those at issue here: Nissen entered the
arrest scene nearly one minute after the chase. On arrival, Nissen witnessed
several officers surrounding Ambler’s body with one officer pointing a taser
to Ambler’s neck. Distinguishing matters further, Ambler was gasping as he
presumably underwent a medical emergency, all the while repeating “I have
congestive heart failure,” and “I can’t breathe.”
       Relying on these distinctions, the district court believed a separate
Graham factor outweighed the severity of Ambler’s initial crime—that is,
Ambler’s immediate threat of danger. Graham, 

. The court
specifically held that the record raised a genuine issue of “material fact as to
whether a reasonable officer would believe that [Ambler] . . . was subdued
[or] an immediate threat to safety when Nissen began helping handcuff him.”
The video footage does not blatantly contradict that holding. Scott, 

. True enough, Ambler engaged in dangerous behavior before his
arrest. Even still, based on the district court’s factual findings, a reasonable
jury could conclude that Ambler lacked a means to evade custody when
Nissen entered the scene. See Joseph, 

 (“If the suspect lacks
any means of evading custody—for example, by being pinned to the ground
by multiple police officers—force is not justified.”). A reasonable jury could
therefore conclude that Ambler posed little or no threat to Nissen or others
during the arrest. See 

 The fact issues identified by the district court in this
context were therefore material to Plaintiffs’ Fourth Amendment claim. And
we lack jurisdiction to consider anything more. See 

.




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                                       2
       Another Graham factor relevant to the excessive force inquiry is
whether Ambler was resisting or evading arrest by flight. Graham, 

. According to Nissen’s testimony, he was unaware whether Ambler
had been compliant before coming to the scene. But Nissen said that, after he
arrived, it was “clear” that Ambler was not complying with commands; he
was “physically resisting [Nissen’s] efforts to place his hands behind his
back.” Plaintiffs view the facts differently. They contend that Ambler was
not resisting but instead “instinctively putting one arm on the ground to try
to breathe.” For its part, the district court held that the videos did “not
provide the clarity necessary to resolve the factual dispute presented by the
parties’ conflicting accounts.”
       On appeal, Nissen contests the district court’s characterization,
reasoning that any reasonable officer would have believed Ambler was
resisting authority. Although Ambler alerted the officers about his inability
to breathe, Nissen says he need not have credited “Ambler’s statements that
he was having a medical emergency.” Nissen again references Ambler’s
choice to evade arrest by vehicle, explaining that an officer could have
reasonably been concerned about the sincerity of Ambler’s appeals. “When
a suspect has put officers and bystanders in harm’s way,” Nissen stresses,
“it is reasonable for officers to question whether the now-cornered suspect’s
purported surrender is a ploy.” See Salazar, 

.
       Applying such reasoning without context, however, would undermine
the fact-specific nature of the excessive force analysis. After all, a criminal’s
choice to engage in unreasonable behavior does not give officer license to do
the same. To the contrary, an officer must use a “justifiable level of force in
light of the continuing threat of harm that a reasonable officer could
perceive.” 

. And in this case, “the issue of whether reasonable




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officers in this situation would have credited the warnings from
[Ambler] . . . is a factual question that must be decided by a jury.” Darden v.
City of Fort Worth, 

 (5th Cir. 2018).
       None of that means that Nissen acted unreasonably as a matter of law.
Perhaps Ambler was indeed refusing to submit to the officers by pulling his
body away from the ground, and perhaps Nissen responded in a reasonable
manner. But viewing the evidence in Plaintiffs’ favor as we must, however, it
is just as believable that their allegations are correct, and Ambler was in a
struggle for his life. In either case, such a dispute is reserved for a jury, not
summary judgment. Fed. R. Civ. P. 56(a) (stating that a “court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact.”). Because the court correctly considered the legal
significance of the factual disputes, we end our inquiry on this issue here. See
Joseph, 

.
                                       B
       To supplement their Fourth Amendment allegations, Plaintiffs next
contend that Nissen’s use of restraint was an application of deadly force.
Such a theory “is treated as a special subset of excessive force claims.”
Aguirre v. City of San Antonio, 

 (5th Cir. 2021). And like the
excessive force analysis above, this particular inquiry still calls for an
objective reasonableness standard, see Scott, 550 U.S. at 382–83, even though
the analysis includes an added layer: Analyzing the validity of a deadly force
allegation involves a two-pronged test. The first part asks “whether the force
used constituted deadly force”; the second considers “whether the subject
posed a threat of serious harm justifying the use of deadly force.” Timpa v.
Dillard, 

 (5th Cir. 2021). Applying both prongs to the
facts here, the district court denied Nissen summary judgment. On appeal,




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Nissen contends that the district court’s holding was in error and
contradicted by video evidence.
       Nissen focuses his challenge on the first prong of the analysis—
whether the force used was deadly. Even though he concedes that deadly
force was unwarranted in Ambler’s case, he nevertheless avers that the force
he applied was not deadly to begin with. In Nissen’s telling, he was using
“minimal force” or “soft hand force” to place Ambler into handcuffs. That
Ambler died because of such minimal restraint was merely accidental and
mainly the result of Ambler’s poor health. Nissen reasons that it was
unforeseeable that applying “soft hand force” would result in an injury, let
alone death. In support of this argument, Nissen points to video footage that
he argues “conclusively shows that no officer was using deadly force to try
and kill Ambler.”4 As the video depicts, Nissen restrained Ambler for 90
seconds. Compared with other deadly force cases, Nissen explains that such
a period was minuscule. Indeed, two similar cases the district court
referenced involved officers who restrained decedents for at least five
minutes. See, e.g., Aguirre, 

 (five minutes); Timpa, 

 (fourteen minutes).
       Nissen believes that no reasonable officer would have known that
using force on Ambler for such a brief period would lead to his death. He
contends that any conclusion otherwise would essentially require denying QI
in all cases involving an accidental death. Such a result, in Nissen’s telling,
would trade the Fourth Amendment’s general reasonableness standard for

       _____________________
       4
         We note that the test isn’t whether an officer was trying to kill Ambler, but
whether the force is deadly—that is, could have killed him. See Scott, 

.




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an outcome-oriented one that contravenes Supreme Court authority. See
Scott, 

. (“Whether or not [the officer’s] actions constituted
application of ‘deadly force,’ all that matters is whether [the officer’s]
actions were reasonable.”).
       At least in this case, however, Nissen’s fears are unfounded. As a
threshold matter, whether a use of force is “deadly” is a question of fact.
Flores, 

 (“We lack jurisdiction to review the district court’s
factual finding that [the officer] used deadly force.”). The question is
whether a jury could find that the use of force “carr[ied] with it a substantial
risk of causing death or serious bodily harm.” Timpa, 

(quoting Gutierrez v. City of San Antonio, 

 (5th Cir. 1998)).
And the district court here identified specific material fact issues precluding
summary judgment. For example, it considered the recorded footage of the
encounter. As noted, the video shows an obese Ambler stating: “I have
congestive heart failure” and twice exclaiming “I can’t breathe.” Nissen
himself even acknowledged that one “obvious pitfall[] of [a suspect lying face
down] is, you know . . . people could be at risk for positional asphyxiation.”
       The district court also considered expert reports. The medical
examiner who performed Ambler’s autopsy determined that Ambler’s death
was a homicide and found that it was caused by “congestive heart failure and
cardiovascular disease associated with morbid obesity in combination with
forcible restraint.” Plaintiffs’ medical expert further opined that Ambler died
from “a vicious cycle of respiratory distress from hypertensive crisis and
worsening heart failure pushed to physiological extremes by subsequent
tasing and forcible restraint.”
       And while Nissen’s maneuver on a healthy plaintiff may have resulted
in no injury at all, it is well established that state actors who unlawfully use
excessive force take their victims as they find them. Darden, 

.




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Although that standard does not make minimal force excessive when used on
an eggshell plaintiff, a claimant may nevertheless prevail on an excessive
force claim if a reasonable officer would be aware of a preexisting health issue
and then aggravates it. See Windham v. Harris Cnty., 

 (5th
Cir. 2017) (“Our law is clear that the second [excessive force] prong does not
‘preclude [] recovery for aggravation of preexisting injury caused by the use
of excessive force.’”) (second alteration in the original). In this case, the
court identified enough evidence to conclude that a reasonable officer could
have been aware of Ambler’s health issues giving his obvious size and pleas
for air. See, e.g., Timpa, 

 (holding that reasonable jury could
find “use of a prone restraint with bodyweight force on an individual with
three apparent risk factors—obesity, physical exhaustion, and excited
delirium—‘created a substantial risk of death or serious bodily injury.’”
(quoting Gutierrez, 

)). This was so even if Nissen applied
force for a mere ninety seconds.
       Perhaps Nissen heard Ambler’s cries. Perhaps he did not. And
perhaps Nissen’s use of force, in his mind, was minimal given the context.
But the issues here do not turn on Nissen’s subjective appraisals; the relevant
inquiry is whether a “reasonable officer” would consider applying Nissen’s
level of force in the same situation. See Graham, 

. The district
court acknowledged this reality and, to that end, did not legally err as a result.
If anything, the district court’s holding demonstrates precisely why these
Fourth Amendment cases are fact intensive: Not all plaintiffs are the same,
and harmless force in one situation could be deadly force in another. While
Nissen would have us disregard the context of his encounter with Ambler,
doing so would trade nuance for willful blindness. And contrary to his view,
such an approach is incompatible with the Fourth Amendment
reasonableness standard. See Graham, 

 (“Because ‘the test of
reasonableness under the Fourth Amendment is not capable of precise




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                                 No. 23-50696


definition or mechanical application,’ however, its proper application
requires careful attention to the facts and circumstances of each particular
case[.]”) (citation omitted) (quoting Bell v. Wolfish, 

(1979))).
       In sum, the district court’s factual findings regarding a Fourth
Amendment violation support its legal conclusions. We lack jurisdiction to
“second guess” anything more. See Joseph, 

.

                                      IV
       Excessive force aside, Plaintiffs’ other basis for establishing § 1983
liability stems from Nissen’s alleged failure to intervene. According to
Plaintiffs, Nissen is liable under this theory because he was “present at the
scene and [did] not take reasonable measures to protect a suspect from
another officer’s use of excessive force.” Hale v. Townley, 

(5th Cir. 1995). Section 1983 claimants may succeed on these “bystander
liability” claims when the officer “(1) knows that a fellow officer is violating
an individual’s constitutional rights; (2) has a reasonable opportunity to
prevent the harm; and (3) chooses not to act.” Whitley v. Hanna, 

 (5th Cir. 2013) (cleaned up). In resolving whether a bystander
liability claim is viable, courts also consider whether an officer “acquiesce[d]
in” the alleged constitutional violation. See Hale, 

.
       When addressing Plaintiffs’ allegations here, the district court
identified a genuine dispute of material fact as to whether Nissen failed to
reasonably intervene. Relying on video evidence and testimony, the court
found that Nissen helped with the arrest after he cleared Ambler’s vehicle. It
further pointed to evidence showing that Nissen heard Ambler say he had
congestive heart failure and repeatedly say he could not breathe. Based on
Nissen’s proximity and the duration of force, the court concluded that a




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                                 No. 23-50696


reasonable jury could find that Nissen had an opportunity to intervene.
Nissen disagrees.
       As a threshold issue, Nissen stresses that he cannot be liable for the
force other officers used outside his presence. As for the force they used after
he arrived, Nissen claims it was insignificant. He argues that videos reveal
that he saw Ambler tased only once by the deputies—and this occurred as
they tried rolling Ambler back onto his stomach after Ambler had “effectively
resisted all three officers.” In Nissen’s telling, it was impossible for him to
know how Ambler acted between the time the crash occurred and his arrival
on the scene. As a policy matter, Nissen contends that courts should give
leeway to late-arriving officers because they must make split-second
assumptions based on incomplete information. See Chivers v. Reaves, No.
1:13-CV-00171, 

, at *27 (D. Utah Sept. 26, 2017) (holding
that “[i]t [was] plain that a reasonably prudent officer arriving on scene with
limited information would be justified in assuming that . . . [a plaintiff] [was
a] potential threat[].”).
       While it might be true that Nissen’s actions were reasonable, the video
evidence here does not blatantly contradict Plaintiffs’ version of events or the
district court’s findings. Plaintiffs allege that Nissen had every reasonable
opportunity to mitigate and stop the use of force once he arrived at the active
arrest. After all, Plaintiffs note, Nissen had at least two minutes when he was
within arm’s reach to realize that Ambler was not resisting and posed no
threat. Based on the video footage, Plaintiffs say Nissen was in earshot of
Ambler to hear his breathing and pleas for help. Nissen was also present as
the deputies tased Ambler at least once. It is true that Nissen’s expert report
explained that the other officer’s taser was set to a mode that “does not
penetrate deeply enough to affect any human muscles or organs.” But as the
district court found, Plaintiffs’ expert concluded that Ambler died from “a
vicious cycle of respiratory distress from hypertensive crisis and worsening



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                                  No. 23-50696


heart failure pushed to physiological extremes by subsequent tasing and
forcible restraint.”
       Given those contradicting facts, the court held that a jury could
reasonably determine that Nissen had an opportunity to stop the excessive
force but failed to do so. We agree that the factual disputes the district court
identified are material. Ambler’s pleas for help, coupled with his arguably
obvious medical distress, may have alerted a reasonable officer to intervene
in the ordeal to stop the tasing and continued use of force. See, e.g., Carroll v.
Ellington, 

 (5th Cir. 2015) (affirming denial of summary
judgment when it was disputed whether officer was present for taser strikes
of restrained individual). We have no authority to engage Nissen’s arguments
further on this claim because they turn on factual disputes alone.

                                        V
       Our analysis does not end after a plaintiff clears QI’s first hurdle. As
noted above, plaintiffs must also meet the “clearly established” prong to
avoid summary judgment. Doing so requires them to point to a case where an
official, faced with similar circumstances as the defendant, was held to have
violated the Constitution. White v. Pauly, 

 (2017). Although
the law can be clearly established “despite notable factual distinctions
between the precedents relied on and the cases then before the Court,” Hope
v. Pelzer, 

 (2002), relying on generalized principles is not
enough: The pertinent decisions must give “reasonable warning that the
conduct then at issue violated constitutional rights” White, 

.
                                        A
       We first address excessive force. Citing Darden v. City of Fort Worth,
880 F.3d at 733–34, the district court held that Nissen violated clearly
established law. In Darden, officers performed a no-knock raid to execute a




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                                  No. 23-50696


narcotics warrant inside a residence. During his subsequent arrest, arrestee
Darden was thrown to the ground, tased, choked, and punched. He was
“obese” and died from a “heart attack” during the encounter. Id. at 725.
Throughout Darden’s arrest “other people in the residence were repeatedly
yelling that Darden could not breathe.” Id. at 726. A unanimous panel of this
court held it clearly established that “the degree of force an officer can
reasonably employ is reduced when an arrestee is not actively resisting.” Id.
at 733 (collecting cases). Because Darden was issued years before the relevant
encounter here, the district court held that it applied to this case; Nissen,
according to the district court, was therefore on notice that it was unlawful to
use excessive force against a person who was on the ground, not resisting,
and possibly unable to breathe.
       Nissen disputes that holding, arguing that the district court’s
rehashing of Darden “glossed” over the relevant facts without considering
the relevant distinctions. Most importantly, Nissen explains, the Darden
court held that the force used on an arrestee was excessive partly because he
“was not suspected of committing a violent offense.” Id. at 729 (citation
omitted). That issue alone, Nissen thinks, makes Darden counterfactual to
the case here. Indeed, Nissen argues that Ambler was suspected of
committing a crime that revealed an abject intention to endanger others and
escape at all costs.
       In making his argument, however, Nissen seems to suggest that
Ambler continued fleeing throughout the encounter, despite the clear video
evidence suggesting otherwise. To be sure, “where a suspect initially resists,
force must be reduced once he has been subdued.” Bagley v. Guillen, 

, 803–04 (5th Cir. 2024) (internal quotation marks, alteration, and
citation omitted). As explained above, there is a fact dispute about whether
Ambler was subdued when Nissen arrived on the scene. If Ambler was indeed
compliant and not resisting arrest, then the continued use of force,



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                                   No. 23-50696


particularly after Ambler said he had congestive heart failure and could not
breathe, necessarily would be excessive. See id.; see also Timpa, 

 (determining that law in 2016 clearly established that if plaintiff was
“subdued and nonthreatening by nine minutes into the restraint, then the
continued use of force for five additional minutes was necessarily
excessive”). To that end, such a circumstance would, as the district court
found, parallel Darden. On that basis, the district court did not commit legal
error.
                                         B
         Turning last to Plaintiffs’ § 1983 bystander claim on QI’s second
prong, the district court held that an officer violates clearly established law in
excessive force cases if the officer “knew a constitutional violation was taking
place and had a reasonable opportunity to prevent the harm.” Hamilton v.
Kindred, 

 (5th Cir. 2017). In this context, the district court
concluded that tasing someone who is subdued and does not pose a threat can
constitute excessive force. See Ramirez v. Martinez, 

 (5th
Cir. 2013); Newman v. Guedry, 

 (5th Cir. 2012).
         On appeal, Nissen again points to Ambler’s decision to flee from
police by motor vehicle. He contends that no clearly established case put
Officer Nissen on notice that the deputies—in subjecting Ambler to a taser
and prone restraint after a high-speed chase—violated Ambler’s
constitutional rights. But, again, the district court identified a fact dispute
about whether Ambler was visibly undergoing a medical emergency when
Nissen arrived at the active arrest. It also found a dispute about whether
Nissen had time to decide that force was not necessary and try to stop it. See
Hamilton, 

. If Plaintiffs’ view of the encounter prevails at trial,
Nissen had fair notice that participating in another officers’ use of excessive
force gives rise to liability. See, e.g., Carroll, 

 (affirming denial




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                                   No. 23-50696


of summary judgment where it was disputed whether officer was present for
taser strikes of restrained individual); Timpa, 

 (holding that
it was clearly established in 2016 that officers who stood “mere feet away”
from plaintiff during fourteen-minute restraint were subject to bystander
liability). The district court did not legally err in reaching that conclusion.
                                     *        *     *
       One final point bears mentioning. In reaching our conclusion today,
we deferred to the district court’s sound identification of genuine factual
disputes and reserved the weighing of evidence for the jury’s capable hands.
In doing so, we have not only allowed the district court space to do its job,
but we have given jurors the space to do theirs. See Joseph, 

.
So, for all the dissent’s inflammatory rhetoric, it makes at least one salient
point: The majority’s ruling indeed “serves . . . this plaintiff.” See post, at 15.
Absent from the dissent’s observation, however, is the value our decision
offers this defendant. A restrained judiciary, after all, benefits all parties in
equal measure. In the dissent’s view, our decision today in this interlocutory
appeal will lead to an endless parade of horribles. But to the extent the
dissent’s concerns are valid, it should direct its criticisms at the Federal
Rules of Civil Procedure, see Fed. R. Civ. P. 56(a), or Supreme Court
authority, Mitchell v. Forsyth, 

 (1985), not this opinion. See
also Anderson v. Liberty Lobby, Inc., 

 (1986) (“[T]he judge's
function is not himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.”).

                                         VI
       As outlined above, Nissen fails to raise pure legal issues and instead
challenges the district court’s factual findings. Nissen has therefore failed to
invoke this court’s limited interlocutory jurisdiction and this appeal is




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                           No. 23-50696


accordingly DISMISSED. This case is REMANDED for further
proceedings.




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                                  No. 23-50696


Jerry E. Smith, Circuit Judge, dissenting:
       The majority, albeit with the most wholesome of intentions, preaches
that qualified immunity is “a defense that shields state officials from being
held accountable for their misconduct.” Op. at 5 (citation omitted). Given
that opening, what follows is no surprise.
       In the wake of a high-speed chase involving three crashes and triple
digit speeds, Officer Michael Nissen used a modicum of force to restrain
Javier Ambler. Nissen spent about a minute controlling Ambler’s hand—
without touching any other part of his body—and then no more than
20 seconds applying pressure to Ambler’s upper back and head. That is
hardly anything out of the ordinary, especially in the immediate aftermath of
Ambler’s extended and reckless flight from justice that endangered the
public, the officers, and Ambler himself. Indeed, that is precisely the type of
controlled and measured response we expect from police reacting to a mani-
festly dangerous suspect. Tragically, in part because of an imperceptible
medical condition, Ambler died during the arrest as a result of the restraint.
       Qualified immunity exists for just this sort of a case. A police officer
made an appropriate, split-second judgment about reasonable force in light
of the gravity of the situation and is now tied up in a federal lawsuit, facing
possible civil damages, because of it. Yet the majority jettisons QI for officers
who do just that.
       Because the majority makes it impossible for officers to receive quali-
fied immunity in cases of accidental death, no matter how reasonable their
use of force was in context, I respectfully dissent.

                                       I.
       Some of the majority’s errors stem from its misconception of the
appropriate standard of review. It avers that “judging the genuineness of the




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                                       No. 23-50696


district court’s factual findings (i.e., whether they exist) is off limits.” Op. at
4 (citation omitted). Yet, though some judges, in error, have suggested that
we are forbidden to do so,1 “we are permitted to review genuineness where,
as here, video evidence is available.” Argueta v. Jaradi, 

(5th Cir. 2023) (citations omitted). There are multiple, clear videos of what
happened.      Therefore, reviewing the district court’s determinations of
genuineness is not off the table.

                                            II.
        One might charitably express a narrow version of what the majority
advances as follows:
             Ambler died. Deadly force is a question of fact. There is
        no question that if Nissen had walked up and shot Ambler in
        the head he would be liable. So deadly force is obviously mate-
        rial. Ergo, we deny QI.
        The practical problem is two-fold. First, the majority essentially elim-
inates qualified immunity in cases of accidental death, almost all of which are
situations where deadly force is not warranted. If it were warranted, they
would likely not be accidental. That means “whether force is deadly” will
almost always be material in accidental-death cases. Since deadliness is a fact
question, a defendant will never get QI.

        That is error. If we accept the basic rationale behind qualified immun-
ity, this sort of an accidental-death case is squarely within its heartland. But
instead, the majority’s rationale categorically eliminates QI from this set of
cases.


        _____________________
        1
        See Argueta v. Jaradi, 

, 476–81 (5th Cir. 2024) (Douglas, J., dissenting
from denial of rehearing en banc).




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                                  No. 23-50696


       Second, the majority’s reasoning creates a perverse incentive for police
to use deadly force when it is justified, even if the situation can be de-
escalated. This case is the perfect example: To avoid liability, Nissen should
have shot Ambler during the chase (when deadly force was more likely justi-
fied to protect the public). In the majority’s view, waiting and trying to
defuse the situation with minimum force increased, counterintuitively,
Nissen’s risk of liability. That is an odd result, indeed.
       Obviously, we are not policymakers, so none of the above matters on
its own accord. I offer it only to demonstrate the grave consequences of the
majority’s legal error.

                                       II.
       And what a legal error! Nissen should receive qualified immunity
from both claims at both prongs of the standard QI analysis.

                                       A.
       Nissen did not use constitutionally excessive force.

                                       1.
           In excessive-force claims, the reasonableness of an officer’s
       conduct depends on the “facts and circumstances of each par-
       ticular 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.”
Cooper v. Brown, 

 (5th Cir. 2016) (quoting Graham v.
Connor, 

 (1989)). These are the so-called Graham factors,
each of which supports Nissen’s use of force against Ambler.
       The majority agrees that the first Graham factor supports Nissen. It
rightly notes that “the state of Texas considers evading arrest via high-speed




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                                       No. 23-50696


chase a felony, Tex. Penal Code § 38.04, and the helicopter footage clearly
shows Ambler weaving in and out of traffic, jeopardizing the safety and well-
being of others.” Op. at 7 (citation omitted). The majority wrongly empha-
sizes the district court’s weighing of the factors. “[T]he ultimate determina-
tion of Fourth Amendment objective reasonableness is a question of law.”
White v. Balderama, 

 (5th Cir. 1998) (per curiam) (citation
omitted). Therefore, we may freely weigh the first Graham factor in favor of
Nissen.
        The majority does not grapple with the degree to which this factor
supports Nissen’s use of force. Undeterred by multiple crashes, Ambler con-
tinued to flee at triple-digit speed through residential neighborhoods—
gravely endangering many innocent lives to evade a routine traffic stop. This
weighs strongly in favor of Nissen.

                                            2.
        On to the second Graham factor, “whether the suspect poses an
immediate threat to the safety of the officers or others.” Graham, 

. The majority suggests that there is a genuine dispute of material fact
“whether a reasonable officer would believe that [Ambler] . . . was subdued
[or] an immediate threat to safety when Nissen began helping handcuff him.”
Op. at 8 (citation omitted). But this factor—which may or may not be the
most important in this context2—“is a question of law left to the court.”
Argueta, 

. And with the benefit of two videos of Ambler’s
arrest, this factor readily resolves in favor of Nissen.


        _____________________
        2
           “[T]he second factor—whether there is an immediate threat to safety—is gen-
erally the most important factor in determining the objective reasonableness of an officer’s
use of deadly force.” Baker v. Coburn, 

, 247–48 (5th Cir. 2023) (citation
omitted). I will address the argument that this was a use of deadly force.




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                                   No. 23-50696


       There are several reasons why a reasonable officer in Nissen’s posi-
tion might act as he did. First, Ambler had just come from of a high-speed
chase fleeing a traffic stop for failure to dim his high beams. That suggests
(1) that Ambler had little to no regard for the lives of others, (2) that Ambler
had a demonstrated willingness to flee the police at all costs, and (3) that
maybe this was not just about a minor traffic infraction. Maybe Ambler had
something else in the car that heightened his desire to flee. Maybe he was
mentally ill or on drugs. Each of these is a meaningful possibility that a rea-
sonable officer would consider. Ambler’s flight alone makes this Graham
factor weigh in favor of Nissen.
       But the flight was not the only fact known to Nissen from which he
could have reasonably inferred Ambler’s dangerousness.               Inter alia,
Ambler—at 410 pounds—was a very large individual, who was still unre-
strained and feet from an unsearched car, despite the efforts of multiple other
police officers who had deployed a taser. It boggles the mind to think that a
reasonable officer would not perceive Ambler as a meaningful threat.
       Resisting this conclusion, the majority attempts to distinguish Salazar
v. Molina, 

 (5th Cir. 2022), in which, after a considerably less
dangerous chase,
       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.

. Despite the clear surrender, the police tased Salazar. Our court
rejected Salazar’s excessive force claim, holding that
       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




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                                         No. 23-50696


        ploy. That’s especially true when a suspect is unrestrained, in
        close proximity to the officers, and potentially in possession of
        a weapon.

. Here, “[Ambler] ha[d] put officers and bystanders in harm’s way
to try to evade capture.” 

 He was also “is unrestrained, in close proximity
to the officers, and potentially in possession of a weapon.” Id.3
        The majority attempts to distance itself from Salazar: “Distinguish-
ing matters further, Ambler was gasping as he presumably underwent a medi-
cal emergency, all the while repeating ‘I have congestive heart failure,’ and
‘I can’t breathe.’” Op. at 8 (emphasis added). But what the majority labels
a distinction is the central analogy. The majority gets the presumption pre-
cisely backward. In the context of this sort of a chase, when a reasonable
officer hears Ambler’s pleas, he reasonably assumes “ploy,” not “medical
emergency.” See Salazar, 

. Or, at the very least, he is reason-
ably entitled to make that presumption.4
        The majority fixates on one other aspect of Ambler’s situation, that
“a reasonable jury could conclude that Ambler lacked a means to evade cus-
tody when Nissen entered the scene.” Op. at 8 (citation omitted). This falls

        _____________________
        3
          I grant that whether Ambler was “potentially in possession of a weapon” is the
weakest point of comparison. But it is not inconceivable, given Ambler’s size and proximity
to the relatively unsearched car. More importantly, this is just one of many factors that
heighten the already reasonable assumption that Ambler’s actions were a ploy. That’s
especially true when every single one of the other facts mentioned in this holding from
Salazar is on all fours with this case.
        4
           The majority also points to Nissen’s comparatively late arrival, though it admits
the difference between the cases is measured in mere seconds. The majority does not
explain why time of arrival—especially when still so close to the initial contact—matters in
applying the Salazar presumption. The Salazar presumption is that somebody who is will-
ing to flee at great cost to others might also be willing to lie to officers to get out of a tricky
spot. Why that has anything do with a difference in arrival times escapes my imagination.




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                                      No. 23-50696


properly under the third Graham factor, “whether he is actively resisting
arrest or attempting to evade arrest by flight,” 

, so I will
address it there.
        But factor two—“whether the suspect poses an immediate threat to
the safety of the officers or others,” id.—unambiguously favors Nissen.

                                            3.
        Thus far, we are faced with an unrestrained suspect who poses a sub-
stantial threat to officers in the wake of a serious crime indicating a very low
regard for human life. Those factors alone justify Nissen’s light-touch appli-
cation of force to Ambler.
        The final Graham factor is “whether he is actively resisting arrest or
attempting to evade arrest by flight.” 

 (emphasis added). I agree with the
majority that any attempt by Ambler to flee the scene would have likely
failed.5 But the third Graham factor includes “actively resisting arrest.” 

And it’s hard to characterize Ambler’s actions as anything other than that.
Two minutes and fifteen seconds pass between the time the first officer
makes physical contact with Ambler and the time the handcuffs click. In
those two-plus minutes, Ambler ignored command after command, continu-
ously and rather obviously providing physical resistance to the multiple offi-
cers trying to cuff him. It does not get more clear-cut than that.
        Yet the majority proffers two objections to the clarity of this situation.
First, the majority concludes that “a reasonable jury could conclude that
Ambler lacked a means to evade custody when Nissen entered the scene.”
Op. at 8 (citation omitted). Its best authority for the relevance of that

        _____________________
        5
           Though this is only because of multiple officers’ applying to Ambler the precise
sort of force that the majority finds objectionable.




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                                       No. 23-50696


conclusion is an absurdly overbroad reading of Joseph v. Bartlett, 

 (5th Cir. 2020).
        Joseph held that “[i]f the suspect lacks any means of evading
custody—for example, by being pinned to the ground by multiple police
officers—force is not justified.” 

 The only way that might matter in this
case is if one reads the court to be imposing a categorical bar on the use of any
force when a suspect is on the ground. But that is quite clearly not what
Joseph stands for.
        First, the language immediately before this passage makes it plain that
subduing a suspect means that officers must reduce but not necessarily cease
force. Second, it conditions that reduction in force to require the actual
subduing of the suspect. And Ambler was far from subdued. That differs
significantly from the situation in Joseph.6 And third, even if Nissen’s toes
edged beyond the boundary set forth in Joseph, we don’t jettison the other
Graham factors—which obviously and strongly support a robust use of force
in this case.7

        _____________________
        6
           In Joseph, a schizophrenic man who had been seen standing by a middle school
jumped behind a convenience store counter while avoiding the police. He promptly crump-
led into the fetal position. Then, “Officer Martin, weighing 300 pounds, immediately
placed his full weight onto Joseph, who was still lying on the floor with his legs bent toward
his chest.” 

. And the use of force continued for some time, including
“deploy[ing] [a] taser for eleven seconds,” “jabb[ing] [a baton] downward, striking Joseph
at least twice with the pointed end,” tasing for another three seconds, “kick[ing] Joseph
twelve to thirteen times while holding onto the counter,” “punching Joseph in the head
three times,” “drag[ging] Joseph toward [a] wider area,” then “punch[ing] Joseph in the
face [another] three times,” and closing out the “scrum” with “punch[ing] Joseph in the
head [yet another] six times.” 

 at 326–27. Read in context, the court was concerned
about the timing of all this in relation to the initial pinning. See 

.
        7
          Especially relative to Joseph—in which the police used significantly more force
against a significantly less dangerous person because of a far less serious offense. See supra
note 5.




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                                     No. 23-50696


       Second, the majority attempts to distinguish Salazar by appealing to
“the fact specific nature of the excessive force analysis.” Op. at 9. Beyond
this vague handwringing, we get very little. Presumably, the majority means
to impute its attempt to distinguish Salazar under the second Graham factor
here. But that distinction proves the central analogy between the cases on
the third factor, just as it does on the second factor. Indeed, the third Graham
factor also implicates reasonable concerns about the genuineness of a sur-
render. See Salazar, 

. Because Nissen could reasonably doubt
the genuineness of Ambler’s pleas, he could reasonably interpret Ambler’s
attempts to move away from officers as resistance rather than as “a struggle
for his life.” Op. at 10.8
       Because all three Graham factors support Nissen, Ambler’s excessive-
force claim fails on the first prong of qualified immunity.

                                           4.
       The majority separately treats plaintiffs’ claims of deadly force. That
methodology is error as a matter of law.              Though “[c]laims that law
enforcement unreasonably utilized deadly force are treated as a special subset
of excessive force claims,” Aguirre v. City of San Antonio, 

(5th Cir. 2021), the constitutional inquiry is still governed by the Graham
factors.9
       The majority relied on the important decision in Tennessee v. Garner,

 (1985), to obscure the relevant analysis. In particular, the

       _____________________
       8
           And that’s assuming Ambler’s actions were ambiguous. But they were not.
       9
          All that changes is which factors are emphasized. “When an officer uses deadly
force, the second Graham factor is generally the most important.” Singleton v. Casanova,
No. 22-50327, 

, at *31 n.17 (5th Cir. June 10, 2024) (unpublished) (cita-
tion and internal quotation marks omitted).




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                                 No. 23-50696


majority reads Garner to establish some sort of threshold inquiry in deadly-
force cases: “Deadly force is objectively unreasonable ‘unless it is necessary
to prevent [a suspect’s] escape and the officer has probable cause to believe
that the suspect poses a significant threat of death or serious physical injury
to the officer or others.’” Op. at 10 (quoting Garner, 

). That is
error twice over.
       First, the Supreme Court has flatly rejected this errant reading of
Garner. See Scott v. Harris, 

 (2007). Indeed, “Garner did
not establish a magical on/off switch that triggers rigid preconditions when-
ever an officer’s actions constitute ‘deadly force.’” 

 Instead, “Whether
or not [Nissen]’s actions constituted application of ‘deadly force,’ all that
matters is whether [Nissen]’s actions were reasonable.” 

. Having
already applied the Graham factors and found that each one favors Nissen,
that ends our inquiry.
       Second, the majority curiously recontextualizes Garner’s language to
untether it from Garner’s very different set of facts. In full, the passage from
Garner reads,
           This case requires us to determine the constitutionality of
       the use of deadly force to prevent the escape of an apparently
       unarmed suspected felon. We conclude that such force may not
       be used unless it is necessary to prevent the escape and the offi-
       cer has probable cause to believe that the suspect poses a signif-
       icant threat of death or serious physical injury to the officer or
       others.
Garner, 

 (emphasis added). The use of “such” harkens back to
the facts of that case, which involved shooting a fleeing suspect with live
rounds to prevent his escape. See 

. That sort of force that is very
different from what was present here, and consequently it calls for a different
sort of inquiry.




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                                       No. 23-50696


        In short, none of the facts raised by the majority in this section mate-
rially bears on whether Nissen’s actions were reasonable in light of the
Graham factors. Whether Nissen heard Ambler does not matter because
Nissen could reasonably disregard Ambler’s complaints in the context of his
flight. Whether Nissen’s actions did or did not in fact lead to Ambler’s death,
as the medical examiner suggested, doesn’t matter because it does not cast
doubt on the reasonableness of Nissen’s split-second decisions at the time of
the accident. Even Nissen’s admission about the risks of the prone position
in the abstract does not matter because of the negligible amount of time Nis-
sen forced Ambler to be quasi-prone in this case. That such a position “could
be” dangerous to “some people” “depending on the situation” is not
enough to send this case to trial.10
        In Nissen’s words,
        In this specific situation, Mr. Ambler's size was certainly a con-
        sideration that I had when I was attempting to take him into
        custody, but the other part of that, what they also teach us at
        the Academy is that you have to weigh those considerations
        against the situation that you are facing. So in this situation,
        where I am assisting trying to take an individual into custody
        who just spent the last 20-or-so minutes driving recklessly
        through the City of Austin, crashing multiple times, I had to
        weigh the risk of not taking him into custody quickly against
        what possible health conditions he may or may not have had.
Nissen’s testimony confirms what the video plainly shows—that he acted
reasonably.


        _____________________
        10
            In this way, the majority arbitrarily denies QI to officers in another category of
situations. As soon as a suspect goes prone, for however long, if the suspect happens to die
later, the case must go to trial. That would be a bizarre result, but seemingly one that the
majority’s reasoning dictates.




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                                  No. 23-50696


                                       B.
       We should also extend qualified immunity because the law is not
clearly established. The majority only gets to “clearly established” by string-
ing together several cases—none of which contains all the major facts in this
case—at an inappropriately high level of generality.          But applying the
appropriate level of generality is central to this part of the QI inquiry:
       What clearly established means depends largely upon the level
       of generality at which the relevant legal rule is to be identified.
       An official does not lose qualified immunity merely because a
       certain right is clearly established in the abstract. Officials
       should receive the protection of qualified immunity unless the
       law is clear in the more particularized sense that reasonable
       officials should be on notice that their conduct is unlawful.
Cantrell v. City of Murphy, 

, 919–20 (5th Cir. 2012) (cleaned up).
Recall the high bar required to deny QI: “Qualified immunity is justified
unless no reasonable officer could have acted as Officer [Nissen] did here, or
every reasonable officer faced with the same facts would” have acted
differently. Mason v. Faul, 

 (5th Cir. 2019).
       The law is not clearly established because there is no case that is fac-
tually similar, even at a low level of generality. The majority fails to identify
a single decision that found an excessive-force violation based on (1) control-
ling a subject in the aftermath of a high-octane chase; (2) let alone an
unhandcuffed subject in the aftermath of a high-octane chase; (3) and a
subject who crashed and resumed his attempt at escape several times; (4) and
whose car had not yet been searched; (5) and who was an exceedingly large
individual (6) who’d been able to avoid being handcuffed despite the efforts
of multiple able-bodied police officers. Keep in mind this was all over a
busted light. Ambler’s desperate attempt to escape suggests any number of
additional facts that justify Nissen’s actions.




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                                 No. 23-50696


       The majority leans on Darden:
       In Darden, officers performed a no-knock raid to execute a
       narcotics warrant inside a residence. During his subsequent
       arrest, arrestee Darden was thrown to the ground, tased,
       choked, and punched. He was obese and died from a heart
       attack during the encounter. Throughout Darden’s arrest
       other people in the residence were repeatedly yelling that Dar-
       den could not breathe. A unanimous panel of this court held it
       clearly established that the degree of force an officer can
       reasonably employ is reduced when an arrestee is not actively
       resisting. Because Darden was issued years before the relevant
       encounter here, the district court held that it applied to this
       case; Nissen, according to the district court, was therefore on
       notice that it was unlawful to use excessive force against a
       person who was on the ground, not resisting, and possibly
       unable to breathe.
Op. at 16–17 (cleaned up).
       But the many differences from Darden are striking. One is sufficient:
Darden never attempted to escape the police. Here’s how the court described
the beginning of that raid:
           When the police first arrived at the house, the entry team
       broke down the front door with a battering ram, yelled that they
       were police, and ordered everyone to get down. A large man,
       later identified as Darden, was kneeling on the seat of a couch
       near the door when the officers first entered, and he
       immediately raised his hands in the air.
Darden v. City of Fort Worth, 

 (5th Cir. 2018). Darden made
no effort to run at any point. That stands in striking contrast to Ambler’s
prolonged flight with reckless disregard for the lives of others.
       The majority pushes back by insisting that Nissen’s argument de-
pends on the premise that “Ambler continued fleeing throughout the en-




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                                       No. 23-50696


counter, despite the clear video evidence suggesting otherwise.” Op. at 17.
Even were that portrayal of facts correct, that misses the point: Ambler’s
immediately prior flight fundamentally changes the analysis, particularly be-
cause he was not yet restrained.
        That’s where Salazar comes in. Salazar stands for the proposition
that lack of restraint after an extended attempt to escape justifies a height-
ened used of force. See 

. The majority faults the analogy to
Salazar, because unlike as in Salazar,
        Nissen entered the arrest scene nearly one minute after the
        chase. On arrival, Nissen witnessed several officers surround-
        ing Ambler’s body with one officer pointing a taser to Ambler’s
        neck. Distinguishing matters further, Ambler was gasping as
        he presumably underwent a medical emergency, all the while
        repeating “I have congestive heart failure,” and “I can’t
        breathe.”
Op. at 8. But these distinctions are not as extreme as the majority makes
them out to be.11 And, more importantly, it tiptoes away from the relevant
standard here. Salazar creates enough ambiguity that the law is not clearly
established. At the time of the officers’ respective arrivals, both subjects
remained unrestrained. Sure, officers were hovering over Ambler, but that
hardly constitutes restraint, given Ambler’s size, proximity to the un-
searched car, and demonstrated hostility to arrest.12


        _____________________
        11
          For example, the gap between the arrival of the officers in Salazar (eight sec-
onds), 

, and Nissen here (“nearly one minute”), is still a matter of seconds.
        12
            For what it’s worth, the chase here was also substantially longer and more
dangerous than that in Salazar (in which the chase lasted 5 minutes and topped out at 70
mph). 

 So, even if the treatment of the suspects between the cases were meaningfully
different, the discrepancy would be justified because officers could reasonably believe that
Ambler was considerably more dangerous than Salazar.




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                                       No. 23-50696


                                             III.
        For largely similar reasons, the failure-to-intervene claim fails at both
prongs of the analysis. Taser deployment easily gets expanded leeway after
a high-speed chase. See Salazar, 

. If the officers were not
clearly committing a constitutional violation, then Nissen cannot be faulted
for failing to intervene.13 And Nissen gets even broader leniency because of
his late arrival.14 Neither the majority nor the briefing serves up a case that
overcomes the doubt raised by Salazar as to the law in these circumstances.
Indeed, neither Ramirez v. Martinez, 

 (5th Cir. 2013), nor
Newman v. Guedry, 

 (5th Cir. 2012), involved a flight from
justice at all.
                                         *****
        The majority’s opinion serves nobody but this plaintiff. Police will be
unduly subject to litigation because of circumstances completely beyond their
control. Suspects face greater danger because police now have an incentive
to use deadly force instead of de-escalating.
        Because Officer Nissen acted as would any reasonable officer in this
tricky, high-stakes, split-second situation, I respectfully dissent.


        _____________________
        13
          Though not legally relevant here, it’s worth noting that the officers were acquit-
ted of manslaughter, criminally negligent homicide, and assault by a jury. See Serena Lin
& Tony Plohetski, Former sheriff’s deputies found not guilty of all charges in death of Javier
Ambler,     Austin       Am.-Statesman,            Mar.      7,     2024,      available    at
https://tinyurl.com/94aprsxj.
        14
            “Clearly established federal law does not prohibit a reasonable officer who ar-
rives late to an ongoing police action in circumstances like this from assuming that proper
procedures, such as officer identification, have already been followed.” White v. Pauly, 

 (2017). Cf., e.g., Otkins v. Gilboy, 

 at *3–4 (5th Cir. Oct. 5,
2023) (per curiam) (unpublished) (affirming QI for late-arriving officers with limited
information while vacating as to first responder).




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