author: JAMES E. GRAVES, JR., Circuit Judge:

text:
    Marcus HANKS, Plaintiff-Appellant v. Officer Randall ROGERS, Individually, Defendant-Appellee
    No. 15-11295
    United States Court of Appeals, Fifth Circuit.
    FILED April 5, 2017

      Dan E. Martens, Esq., Christopher R. J. Hillis, Law Office of Dan E. Martens, Dallas, TX, for Plaintiff-Appellant.
    David Lawrence Craft, Esq., Gerald Vincent Bright, Esq., Walker Bright, P.C., Richardson, TX, Defendant-Appellee.
    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.

FACTUAL BACKGROUND

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.”

PROCEDURAL HISTORY

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 objectively unreasonable.” The district court entered a final judgment dismissing Hanks’s claims against Officer Rogers with prejudice on the same day.

On September 3, 2015, Hanks moved for a new trial, challenging the district court’s grant of summary judgment in favor of Officer Rogers. Considering the motion as a motion for reconsideration, the district court denied the requested relief on December 2, 2015.

Hanks appealed from the final order denying his motion for a new trial on ' December 30, 2015.

STANDARD OF REVIEW

“This court reviews de novo the district court’s resolution of legal issues on a motion for summary judgment on the basis of qualified immunity.” Griggs v. Brewer, 841 F.3d 308, 311 (5th Cir. 2016). “Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. at 311-312.

“In reviewing an appeal from summary judgment, we ‘view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.’ ” Id. at 312 (quoting Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009)). However, “[Scott v. Harris] instructs that a plaintiffs version of the facts should not be accepted for purposes of qualified immunity when it is ‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.” Curran v. Aleshire, 800 F.3d 656, 664 (5th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).

ANALYSIS

“A qualified immunity defense alters the usual summary judgment burden of proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the defense, the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct violated clearly established law.” Id.

“In determining qualified immunity, courts engage in a two-step analysis.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016). “First, they assess whether a statutory or constitutional right would have been violated on the facts alleged.” Id. “Second, they determine whether the defendant’s actions violated clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 312-13.

“In excessive force cases, ‘the second prong of the analysis is better understood as two separate inquiries: whether the allegedly violated constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendants was objectively unreasonable in light of that then clearly established law.’ ” Id. at 313 (quoting Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005)). “If officers of reasonable competence could disagree as to whether the plaintiffs rights were violated, the officer’s qualified immunity remains intact.” Id. (quoting Tarver, 410 F.3d at 750).

At the first step, we conclude Hanks has alleged facts which, when viewed in the manner most favorable to him, would establish a violation of Hanks’s Fourth Amendment right to be free from excessive force during a seizure. Turning to the second step, we conclude the constitutional right at issue was clearly established at the time of the incident, and that Officer Rogers’s conduct was objectively unreasonable in light of then-existing clearly established law. We therefore hold that Hanks has met his burden of rebutting Officer Rogers’s qualified immunity defense.

I. Constitutional Violation

“To prevail on an excessive-force claim, [a plaintiff] must show ‘(1) 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.’ ” Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012) and Collier v. Montgomery, 569 F.3d 214, 218 (5th Cir. 2009)). Our precedents recognize that inquiries regarding whether a use of force was “clearly excessive” or “clearly unreasonable ... are often intertwined,” Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012), and we consider those questions together below. We conclude that Hanks has adduced sufficient evidence regarding each element of an excessive force claim to survive summary judgment.

A. Injury

“[W]e no longer require ‘significant injury’ for excessive force claims,” Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir. 2005) (citing Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th Cir. 1994)), but “the injury must be more than de minim- is,” id. (citing Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.1999)).

Officer Rogers contends that Hanks’s injuries “are de minimis, and are thus insufficient to support a claim for excessive force.” Appellee’s Br. at 26. We disagree.

On the night of his encounter with Officer Rogers, Hanks received medical treatment at the Baylor Medical Center at Irving. There, he received a diagnosis noting contusions, acute strains, and bruised ribs. Hanks received two prescriptions for pain medication and a form releasing him from work for two days. According to Hanks, he still experiences pain in his upper back, neck, head, and ribs as a result of the encounter. Hanks’s allegations, read in light of the contemporaneous medical documentation in the record, state more than a de minimis injury.

B. Clearly excessive and clearly unreasonable use of force

“Excessive force claims are necessarily fact-intensive; whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each particular case.’ ” Deville, 567 F.3d at 167 (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). “Factors to consider include ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.’ ” Id. (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).

“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, 109 S.Ct. 1865. “We must adopt ‘the perspective of a reasonable officer on the scene, rather than judge with the 20/20 vision of hindsight.’” Cooper, 844 F.3d at 522 (brackets omitted) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). “Our inquiry is ‘whether the officer’s actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation.’ ” Cooper, 844 F.3d at 522 (brackets and internal quotations omitted) (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865).

We conclude that under the circumstances documented in the recording in this case, a reasonable officer on the scene would have known that suddenly resorting to physical force as Officer Rogers did would be clearly excessive and clearly unreasonable.

1. Severity of violations

Officer Rogers stopped Hanks for driving 20 miles per hour below the posted speed limit. Hanks was unable to produce proof of insurance for the vehicle he was driving in the time Officer Rogers allowed. These “minor traffic violations] ... ma[de] the need for force substantially lower than if [Hanks] had been suspected of a serious crime.” See Deville, 567 F.3d at 167.

2. Immediate safety threat

Mindful that “[w]e must adopt ‘the perspective of a reasonable officer on the scene, rather than judge with the 20/20 vision of hindsight,’ ” Cooper, 844 F.3d at 522 (brackets omitted) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865), we nonetheless perceive little basis in the recording from which Officer Rogers could have reasonably viewed Hanks as “an immediate threat to the safety of [Officer Rogers] or others,” Graham, 490 U.S. at 396, 109 S.Ct. 1865, at the moment Officer Rogers applied the “half spear.” We reach this conclusion even accepting, for the sake of argument, that Officer Rogers might reasonably have feared Hanks had a concealed weapon.

The recording shows that for approximately the last thirty seconds before the blow — more than half of the total time between when Hanks exited his vehicle and when Officer Rogers took him to the ground — Hanks stood facing away from Officer Rogers. Throughout that time, Hanks displayed his empty hands on the trunk of his car, on the back of his head, and then behind his back. During those last thirty seconds, Officer Rogers kept his taser at the ready, trained on Hanks’ back. Hanks’s resistance “was, at most, passive,” Deville, 567 F.3d at 167, and consisted chiefly of remaining on his feet for about twenty seconds after Officer Rogers’ first order to kneel, during which time Hanks twice asked whether he was under arrest. We cannot conclude that a reasonable officer would have, under these circumstances, perceived an “immediate threat” warranting a physical takedown.

S. Resistance or evasion

As just discussed, Hanks displayed, at most, passive resistance and made no attempt to flee. In the moment before Officer Rogers administered the “half spear,” the recording shows that Hanks took a small lateral step with his left foot. It is not clear from the recording whether Officer Rogers rushed towards and made eon-tact with Hanks in response to, or merely simultaneously with, Hanks’s lateral step. It is clear, however, that Hanks’s step was not accompanied by any obvious signs of violence or flight: Hanks did not turn his body or move his hands, which remained folded behind his back and plainly visible to Officer Rogers. Under the circumstances reflected in the recording, we cannot conclude that a reasonable officer would have perceived active resistance or an attempt to flee.

Having considered the Graham factors, as instructed by Deville, 567 F.3d at 167, we conclude that Officer Rogers applied clearly excessive and unreasonable force when he employed the “half spear” take-down against Hanks.

In sum, we hold that Hanks adequately pled a constitutional violation and has offered sufficient evidence to survive summary judgment.

II. Clearly established law

Because we conclude Hanks has sufficiently alleged an excessive force claim, we next consider “whether [Officer Rogers’s] use of force, though a violation of the Fourth Amendment, was nevertheless objectively reasonable in light of clearly established law at the time the challenged conduct occurred.” See Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008). “Qualified immunity attaches when an official’s conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” White v. Pauly, — U.S. -, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (quoting Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015)). A right may be clearly established without “a case directly on point,” but “existing precedent must have placed the statutory or constitutional question beyond debate.” See id. (quoting Mullenix, 136 S.Ct. at 308).

“[C]learly established law must be ‘particularized’ to the facts of the case,” id. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)), and “should not be defined ‘at a high level of generality,’ ” id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). In other words, outside of “an obvious case,” the law is only “clearly established” if a prior case exists “where an officer acting under similar circumstances ... was held to have violated the Fourth Amendment.” Id. In “an obvious case,” Graham and Gamer may supply the “clearly established law.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam)); see also Cooper, 844 F.3d at 524.

In this case, we conclude that on the night Officer Rogers stopped Hanks, clearly established law demonstrated that an officer violates the Fourth Amendment if he abruptly resorts to overwhelming physical force rather than continuing verbal negotiations with an individual who poses no immediate threat or flight risk, who engages in, at most, passive resistance, and whom the officer stopped for a minor traffic violation. See Deville, 567 F.3d at 167-69 (finding qualified immunity inappropriate where, taking the facts in the light most favorable to the plaintiff, an officer making a minor traffic stop overpowered an individual who displayed, at most, passive resistance, and presented no safety threat or flight risk); see also Doss v. Helpenstell, 626 Fed.Appx. 453, 459-60 (5th Cir. 2015) (unpublished) (construing Deville as clearly establishing that an officer should receive no qualified immunity if he “quickly escalate[s]” an encounter with a non-threatening, passively-resisting driver who posed little risk of escape by employing overwhelming force “rather than continuing] to negotiate”); Brothers v. Zoss, 837 F.3d 513, 520 (5th Cir. 2016) (“In denying qualified immunity, we have placed weight on the quickness with which law enforcement personnel have escalated from negotiation to force.”) (citing Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012) and Deville, 567 F.3d at 167-68). This is, moreover, an “obvious case” in which the Graham’s standards independently and clearly establish the basis for our decision.

A. Prior cases clearly established the contours of the right at issue

“Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (1989). But even an officer who may lawfully use or threaten force must appropriately calibrate the amount of force he employs to the need for force he confronts. See Deville, 567 F.3d at 167.

Officer Rogers faced an individual who, at times, did not immediately comply with instructions. “Officers may consider a suspect’s refusal to comply with instructions during a traffic stop in assessing whether physical force is needed to effectuate the suspect’s compliance.” Id. (citations omitted). “However, officers must assess not only the need for force, but also ‘the relationship between the need and the amount of force used.’ ” Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir.1999)). Where, as here, an individual stopped for a minor traffic offense offers, at most, passive resistance and presents no threat or flight risk, abrupt application of physical force rather than continued verbal negotiating (which may include threats of force) is clearly unreasonable and excessive. See Deville, 567 F.3d at 167-69.

In Deville, for example, the facts, taken in the manner most favorable to the plaintiff, showed: (1) the plaintiff was “stopped for a minor traffic violation — exceeding the 40 mph speed limit by 10 mph ...;” (2) the plaintiff showed no signs of flight or threat, despite still sitting behind the wheel of a vehicle; and (3) the plaintiffs “resistance was, at most, passive in that she merely refused to leave her grandchild and exit the vehicle until [her husband] came to get the child.” Id. at 167. We identified sufficient evidence in the plaintiffs deposition testimony from which “[a] reasonable jury could infer ... that [the officer] engaged in very little, if any, negotiation with [the plaintiff] — and find that he instead quickly resorted to breaking her driver’s side window and dragging her out of the vehicle.” Id. at 168. Both parties’ experts agreed “that continued negotiations are more appropriate than actual force where the suspect is only stopped for a minor traffic offense and is making no attempt to flee.” Id.

Similarly, in this case, Officer Rogers stopped Hanks for a minor traffic violation (driving 20 miles per hour under the speed limit), the recording does not suggest that Hanks posed a threat or flight risk, and Hanks’s resistance to instructions was, at most, passive. By actually exiting his car, Hanks offered more compliance than the Deville plaintiff. He also lowered the risk that he might flee in the vehicle or produce a concealed weapon from within it. For the last thirty seconds before Officer Rogers administered the “half spear,” Hanks stood facing away from Officer Rogers, presenting his empty hands on the trunk of his car, the back of his head, and finally behind his back. Officer Rogers kept his taser at the ready and trained on Hanks’s back the entire time. Under such circumstances, which favor the plaintiff even more than those presented in Deville, our case law clearly establishes that Officer Rogers should have continued to verbally negotiate — including by threatening force, if necessary — rather than abruptly resorting to “actual” physical force. See Deville, 567 F.3d at 168.

Our decision in Poole is not to the contrary. The Poole majority stated that the plaintiff had “in response to [one officer’s] command to turn around and [a second officer’s] attempt to handcuff him, back[ed] away from the officers and then actively resisted] their efforts to turn him around.” 691 F.3d at 631 (5th Cir. 2012). Hanks presented his hands behind his back, did not move away from Officer Rogers, and offered no active physical resistance even after Officer Rogers applied the “half spear.” The Poole majority concluded that the officers responded with “ ‘measured and ascending’ actions that corresponded to [the plaintiffs] escalating verbal and physical resistance.” Id. at 629 (quoting Galvan v. City of San Antonio, 435 Fed.Appx. 309, 311 (5th Cir. 2010)). Officer Rogers, in contrast, escalated his actions at a point where Hanks’s verbal and passive physical resistance was on the decline.

B. Graham clearly establishes the violation in this obvious case

Though we conclude Deville clearly proscribed Officer Rogers’s actions, we also view this as an “obvious” instance of excessive force in light of the factors set forth in Graham. Graham directs us to consider the “facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is- actively resisting arrest or attempting to evade arrest by flight.” Cooper, 844 F.3d at 522 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). As noted above, all of these factors strongly favor Hanks. No reasonable officer who is aiming a taser at the back of an individual such as Hanks— i.e., an individual who (1) was stopped for a minor traffic violation; (2) exited his car and has his hands displayed behind his back, thus presenting no immediate threat or flight risk; and (3) has displayed, at most, passive resistance, including asking whether he was under arrest — would escalate the situation via a physical takedown only seconds after ordering that individual to kneel.

We hold that on Feb. 26, 2013, clearly established law demonstrated, and Graham makes obvious, that it was clearly unreasonable and excessive for Officer Rogers to abruptly escalate the encounter via a physical takedown where (1) Officer Rogers stopped Hanks for a minor traffic offense; (2) immediately before the take-down, Officer Rogers had his taser aimed at Hanks’s back while Hanks stood against his vehicle, facing away from Officer Rogers, with his empty hands displayed behind his back, presenting no immediate threat or flight risk; and (3) Hanks offered, at most, passive resistance, including asking whether he was under arrest.

CONCLUSION

Accordingly, we REVERSE and REMAND to the district court for further proceedings consistent with this opinion.

      . This court has previously denied Hanks’s motion to file out of time a motion for reconsideration in his separate appeal of the district court’s dismissal of claims against the City of Grand Prairie, Texas. We therefore decline to consider arguments raised in Hanks's initial brief regarding those claims.

      . The record on appeal contains an audiovisual recording of the encounter captured by a camera in Officer Rogers's police vehicle. The recording may be accessed via the following internet link: http://www.ca5.uscourts.gov/ opinions/pub/15/15-11295.mp4.

      . The Grand Prairie Police Department's investigation of this incident concluded that "Mr. Hanks was not given sufficient time to attempt to locate his proof of insurance...

      . Officer Rogers later stated that he "intended to perform a Terry frisk for weapons,” and Hanks briefly placed a hand into his pants pocket while walking to the back of his car.

      . Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

      . As previously noted, the Grand Prairie Police Department’s investigation viewed Hanks as a "compliant subject.”

      . A vehicle may be a means of flight, see, e.g., Scott v. Harris, 550 U.S. 372, 374, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), a weapon, see, e.g., Brothers v. Zoss, 837 F.3d 513, 519 (5th Cir. 2016) ("A motor vehicle can be used as a dangerous weapon....”), or may conceal weapons, see id. ("[A] reasonable officer could have feared that [the arrestee] might have a weapon ... in the pickup.”).

      . Officer Rogers escalated this encounter from his first verbal command to kneel to the application of overwhelming physical force in the space of just twenty seconds. During those twenty seconds, Hanks twice asked, to no avail, whether he was under arrest. The fact that our law clearly establishes the unreasonableness of such a sudden escalation does not, of course, suggest that police may never employ some degree of force against a nonthreatening, passively-resisting individual who presents no flight risk. This case merely requires us to recognize that if police cannot abruptly resort to actual force where such an individual has refused instructions to exit her vehicle for a long enough period of time for the officer who initiated the traffic stop to call for and obtain backup, see Deville, 567 F.3d at 161-62, Officer Rogers could not suddenly deploy actual force in response to Hanks’s briefer reluctance to kneel.

      . Immediately before Officer Rogers produced a taser, Hanks was leaning back against the trunk of his car with his hands near his pockets, despite Officer Rogers’s repeated commands for Hanks to place his hands on the car. After Officer Rogers produced the taser, Hanks complied with the instruction. Seconds later, Hanks complied with Officer Rogers’s directive to place his hands behind his head. When Officer Rogers told Hanks to "go to [his] knees,” Hanks folded his hands behind his back (Officer Rogers stood behind Hanks) and asked whether he was under arrest. Though Hanks did not immediately drop to his knees, the recording shows that Hanks had assumed a more compliant, unthreatening position than had been displayed before Officer Rogers produced his taser.

      . Officer Rogers notes that the record contains a letter from a Grand Prairie personnel and training officer that states Officer Rogers "would have been ok with a Taser Deployment” during the encounter. That letter does not trump our analysis of the objective reasonableness of Officer Roger’s actions for the same reasons that the district court correctly acknowledged its prerogative to reject the Grand Prairie Police Department's conclusion that Officer Rogers’s use of force was “not objectively reasonable.”


source: Caselaw Access Project

author: EDITH H. JONES, Circuit Judge:

license: Public Domain

text:
    H. Kenneth LEFOLDT, Jr., in his capacity as Trustee FOR the NATCHEZ REGIONAL MEDICAL CENTER LIQUIDATION TRUST, Plaintiff-Appellant v. Donald RENTFRO; Charles Mock; William Heburn; Leroy White; John Serafin; Linda Godley; Lionel Stepter; Lee Martin; William Ernst; Jennifer Russ, Defendants-Appellees
    No. 16-60491
    United States Court of Appeals, Fifth Circuit.
    Filed April 6, 2017

      Brent Bennett Barriere, Alysson Leigh Mills, Esq., Degan Skylar Rosenbloom, Esq., Rebecca Sha, Fishman Haygood, L.L.P., Douglas Scott Draper, Esq., Heller, Draper, Patrick, Horn & Dabney, L.L.C., New Orleans, LA, for Plaintiff-Appellant.
    Michael Franklin Myers, Esq., Currie Johnson & Myers, P.A., Roy Allen Smith, Jr., Esq., Steven James Griffin, Esq., Daniel, Coker, Horton & Bell, P.A., Jackson, MS, for Defendants-Appellees.
    Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District Judge.

         District Judge of the Eastern District of Louisiana, sitting by designation.

   EDITH H. JONES, Circuit Judge:

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF MISSISSIPPI, PURSUANT TO MISSISSIPPI RULE OF APPELLATE PROCEDURE 20.

TO THE SUPREME COURT OF MISSISSIPPI AND THE HONORABLE JUSTICES THEREOF:

The above-styled diversity case involves outcome-determinative questions of Mississippi law. We have not been able to identify clear controlling precedents from the Supreme Court of Mississippi that would resolve this case. This Court hereby certifies questions of law to the Supreme Court of Mississippi for instructions concerning said questions of law, based on the facts recited herein, pursuant to Mississippi Rule of Appellate Procedure 20.

STYLE OF THE CASE

The style of this case is Lefoldt, Jr. v. Rentfro, 16-60491, in the United States Court of Appeals for the Fifth Circuit. The case is on appeal from a judgment of the United States District Court for the Southern District of Mississippi.

STATEMENT OF FACTS

Natchez Regional Medical Center (“NRMC”) is a public, not-for-profit, community hospital owned by Adams County, Mississippi. In 2014, NRMC filed bankruptcy under Chapter 9 of the Bankruptcy Code, and a Trustee (Lefoldt) was appointed for the liquidation trust and given the right to pursue all claims or causes of action on behalf of NRMC.

Appellant, the Trustee, sued the former directors and officers (collectively, “Officers”) of NRMC alleging that the Officers breached their fiduciary duty of care, loyalty, and good faith. The Trustee’s claims against the Officers arise from the performance of their duties on behalf of NRMC. In his complaint the Trustee asserts that the defendants were grossly negligent or abdicated their responsibilities in failing to bill patients for services rendered, respond to federal audits, and properly oversee the credentialing of its doctors. Among other allegations, the Trustee contends that NRMC’s Chief Financial Officer did not have the formal training or experience in regulatory matters necessary to serve as the hospital’s CFO. As a result of the Officers’ misfeasance, the Trustee states that the hospital lost millions of dollars in revenue.

The Trustee seeks to recover damages for the benefit of NRMC’s creditors. The parties do not dispute that: (1) NRMC qualifies as a “government entity” under the MTCA, (2) the defendants qualify as “employees” of NRMC, and (3) the “act or omissions” complained of occurred within the course and scope of the defendants’ employment with NRMC.

The Officers moved to dismiss, arguing that they are immune from liability under the Mississippi Tort Claims Act (“MTCA”), Miss. Code Ann. § 11-46-1, et seq. The district court granted the motion to dismiss, determining that the plain language of the MTCA bars the Trustee’s claims against the Officers. The Trustee appealed.

DISCUSSION

The MTCA protects employees of a governmental entity from being held personally liable for acts or omissions that occur within the course and scope of their employment. The Trustee does not dispute that the relevant acts or omissions occurred within the course and scope of the Officers’ employment, but he insists that the Officers were grossly negligent in the execution of, or failed to perform, their duties.

The Trustee argues that the purpose behind the MTCA and the legislative intent of the statute are to “provid[e] relief to injured citizens,” Reaves ex rel. Rouse v. Randall, 729 So.2d 1237, 1240 (Miss. 1998), and to “conserv[e] state funds.” Vortice v. Fordice, 711 So.2d 894, 896 (Miss. 1998). The scope of the MTCA should accordingly not bar public entities from suing their own employees. The Trustee also contends that applying the MTCA against the public entity leads to absurd results, e.g. rendering meaningless the statute’s requirements for exhaustion or remedies and notice to the affected government entity. Miss. Code Ann. § 11-46-1(1), (2). The Officers counter that the statute unambiguously bars the Trustee’s suit. The Officers further argue that the Trustee’s allegations do not support a claim for breach of fiduciary duty but at most support a claim for negligence or mismanagement.

In 1982, the Supreme Court of Mississippi abolished the judicially created doctrine of sovereign immunity, reasoning that the “control and policing” of sovereign immunity is a legislative responsibility. Pruett v. City of Rosedale, 421 So.2d 1046, 1047 (Miss. 1982). The legislature responded to this decision by enacting the Mississippi Tort Claims Act, a comprehensive tort claims act that provides for a limited waiver of sovereign immunity. Jackson v. Daley, 739 So.2d 1031, 1040 (Miss. 1999).

The MTCA provides in relevant part:

An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.

Miss. Code Ann. § 11-46-7(2). The MTCA is the exclusive remedy against a governmental entity or employee pursuant to its specific terms. § 11-46-7(1). “Employee” is defined to include “any officer [of] ... a political subdivision of the state ... including elected or appointed officials.” § 11-46-1(f). A community hospital is considered a “governmental entity” and a “political subdivision” under the MTCA. § ll-46-l(g) & (i). Community hospitals are governed by the MTCA for “any cause of action which accrues ... on account of any wrongful or tortious act or omission ...” § 41-13-11(5).

Some states’ courts have held that a claim for breach of fiduciary duty is not subject to the applicable state tort claims act. Randich v. Lockport Twp. Firefighters’ Pension Bd., 2012 IL App (3d) 120032-U, ¶ 41, 2012 WL 6859329. (“The [Illinois] Tort Immunity Act does not apply to breach of fiduciary duty claims because they are not torts.”). Mississippi may not be such a state. Mississippi courts have described claims for breach of fiduciary duty and gross negligence as torts that are subject to the MTCA. Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1180 (Miss. 2004) (describing breach of fiduciary duty as a tort); Hardy v. City of Senatobia, Miss., No. 2:06CV81-P-A, 2007 WL 3245163, at *3 (N.D. Miss. Nov. 1, 2007).

In any event, we have not identified a Mississippi decision that resolves whether the MTCA bars a governmental entity from suing its own employees. But see People ex rel. Harris v. Rizzo, 214 Cal.App.4th 921, 939, 154 Cal.Rptr.3d 443, 460 (2013) (holding that “[i]t would turn the Tort Claims Act on its head” to apply the Act to a public entity suing its employees for acting outside of their scope of employment). Nor have the Mississippi courts considered whether the MTCA shields employees when they are not sued in regard to acts or omissions “for which the governmental entity may be liable.” Miss. Code Ann. § 11-46-7(2). For the Trustee’s suit to proceed, it is necessary to determine whether the MTCA ties the hands of the sovereign from pursuing claims against its servants.

“Because this case raises important questions concerning the scope of sovereign immunity in Mississippi, we defer decision in the cause and certify our questions to that Court.” Anderson v. Jackson Mun. Airport Auth., 645 F.2d 401, 401 (5th Cir. 1981).

CERTIFICATION

We certify two questions to the Mississippi Supreme Court:

1) Does the MTCA furnish the exclusive remedy for a bankruptcy trustee standing in the shoes of a public hospital corporation against the employees or directors of that public corporation?

2) If the answer to the foregoing question is affirmative, does the MTCA permit the trustee to pursue any of the claims identified in his complaint against the officers and directors of NRMC in their personal capacity?

We disclaim any intention or desire that the Supreme Court of Mississippi confine its reply to the precise form or scope of the question certified. The answer provided by the Supreme Court of Mississippi will determine the issues on appeal in this case. The record in this case and copies of the parties’ briefs are transmitted herewith.

The panel retains cognizance of the appeal in this case pending response from the Supreme Court of Mississippi, and the Court hereby certifies to the Supreme Court of Mississippi the above questions of law.

QUESTIONS CERTIFIED TO THE SUPREME COURT OF MISSISSIPPI.

      . See, e.g., Natchez Reg’l Med. Ctr. v. Quorum Health Res., LLC, No. 5:09-CV-207-DCB-JMR, 2010 WL 3324955 (S.D. Miss. Aug. 20, 2010) ("This Court can find no authority for applying the MTCA to a case in which the state is suing a private corporation [that was hired by NRMC to provide management services]”).


author: JERRY E. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Milton HENRY, Also Known as Milton James Henry, Also Known as Milton J. Henry, Defendant-Appellant.
    No. 16-30731
    United States Court of Appeals, Fifth Circuit.
    FILED April 10, 2017

      Mary Patricia Jones, Michael J. Jefferson, Esq., Assistant U.S. Attorneys, U.S. Attorney’s Office, Middle District of Louisiana, Baton Rouge, LA, for Plaintiff-Ap-pellee.
    Richard Mark Upton, Federal Public Defender’s Office, Middle & Western Districts of Louisiana, Baton Rouge, LA, for Defendant-Appellant.
    Before SMITH, ELROD, and HAYNES, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Milton Henry appeals his convictions of possession of a firearm by a felon and possession of marihuana, contending that all of the evidence should have been suppressed. He asserts that the officers who stopped his vehicle had no reasonable suspicion that he had engaged in any illegal activity. The officers aver that they believed Henry was in violation of Louisiana law because his license-plate frame obstructed the expiration date on his registration sticker. Because the officers’ interpretation of the law was objectively reasonable, we affirm.

I.

While patrolling in Baton Rouge, police officers Carl Trosclair and Marty Freeman noticed that Henry’s license-plate frame obstructed the view of the expiration date on the plate’s registration sticker. Believing that the obstruction violated Louisiana law, they pulled Henry over. Trosclair approached the vehicle and asked for Henry’s license. While talking to Henry, Tros-clair noticed a strong odor of marihuana and instructed Henry and his passenger to exit the vehicle. Trosclair advised Henry of his Miranda rights and asked whether he had any marihuana. Henry admitted that he had a marihuana blunt in the ashtray; he also informed Trosclair that his wife’s gun was in the center console.

Henry consented to a search of his vehicle, which produced two bags of marihuana, a digital scale, and a loaded handgun. Henry acknowledged that the marihuana and scale belonged to him. After the officers had detained Henry in the back of their police car, Henry’s wife arrived. She denied ownership of anything in the car, including the gun, and consented to a search of her and Henry’s house, where officers discovered additional bags of marihuana, a bag of cocaine, and drug paraphernalia.

Henry was indicted for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and for possession of marihuana in violation of 21 U.S.C. § 844(a). He moved to suppress evidence seized as a result of the traffic stop, but the court denied the motion, concluding that the stop was not unreasonable, even if based on a mistake of law. After a bench trial, the court convicted Henry on both counts.

II.

Henry contends that the court erred in denying his motion to suppress. He maintains that the traffic stop was unlawful because Freeman and Trosclair did not have reasonable suspicion that he had engaged in any illegal activity. The officers averred that they believed Henry’s obstructed registration sticker violated Louisiana Statutes Annotated § 32:53(A)(3), which provides that “[e]very permanent registration license plate ... shall be maintained free from foreign materials and in a condition to be clearly legible.” Henry counters that Section 32:53 does not apply to obstructed registration stickers and that the officers’ interpretation of the statute was unreasonable.

A.

“In reviewing a district court’s denial of a motion to suppress, we review the district court’s findings of fact for clear error and its conclusions of law de novo. In reviewing findings of fact, we view the evidence in the light most favorable to the party prevailing below, which in this case is the Government.” United States v. Andres, 703 F.3d 828, 832 (5th Cir. 2013) (citations omitted). When determining whether the facts provided reasonable suspicion, “we must ‘give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.’ ”

B.

“Traffic stops are deemed seizures for the purposes of the Fourth Amendment.”

We analyze the constitutionality of traffic stops under the two-part inquiry of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). First we determine whether the stop was justified at its inception. If the initial stop was justified, we determine whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place. For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle.

Andres, 703 F.3d at 832 (citations, heading, and paragraph break omitted). Reasonable suspicion can rest on a mistake of law or fact if the mistake is objectively reasonable.

C.

Henry contends that the initial stop was not justified. He does not contest the district court’s finding that his license-plate frame obstructed the view of the expiration date on his registration sticker. Instead, he asserts that Section 32:53(A)(3) does not cover obstructed registration stickers. He maintains that the statute, which provides that “[ejvery permanent registration license plate ... shall be maintained free from foreign materials and in a condition to be clearly legible,” requires only that the letters and numbers on the plate itself be clearly legible. The government disagrees, asserting that Section 32:53 prohibits obstruction of attached registration stickers by a license-plate frame, which the government categorizes as a “foreign material! ].”

We need not opine on the proper interpretation of Section 32:53, because Louisiana caselaw establishes that the officers’ interpretation, even if mistaken, was objectively reasonable. In State v. Pena, 988 So.2d 841, 844 (La. App. 2 Cir. 7/30/08); 988 So.2d 841, 844, the court considered whether an officer had reasonable suspicion to stop a vehicle based on, among other things, improper display of a license plate. “The photographs introduced into evidence revealed that although the numbers and letters on the license plate were clearly visible, the top and bottom portions of the plate were partially obscured by a license plate frame.” Id. at 846. After citing Louisiana Statutes Annotated 47:507(B), the predecessor to Section 32:53(A)(3), the court concluded that the officer “had reasonable suspicion that a traffic violation had occurred” because, in part, “the photographs introduced into evidence revealed that the license plate was partially obscured....” Id. at 846-47.

Given Pena, Freeman and Trosclair’s belief that Section 32:53(A)(3) prohibited an obscured registration sticker was objectively reasonable. Pena directly rejects Henry’s position that Section 32:53 applies only to the lettering and numbering on the plate itself. To the contrary, the court held that a license-plate frame that obscured part of the plate violated the statute, even though the lettering and numbering on the plate was “clearly visible.” Id. Though Pena does not specifically address obscured registration stickers, its broad construction of the statute can reasonably be construed to apply to them.

In sum, we take no position on the correct interpretation of Section 32:53(A)(3). We conclude only that, given Pena, the officers’ belief that Henry’s obstructed registration sticker violated Section 32:53, even if mistaken, was objectively reasonable. Thus, they had reasonable suspicion, which justified the traffic stop.

The judgments of conviction are AFFIRMED.

      .At the time of the stop, the quoted language was located in Section 47:507(B). In 2014, Section 47:507(B) was repealed and its contents added to Section 32:53. We follow the parties' practice of referring to the current statute.

        . United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

      . Id. (citing United States v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001)).

      . United States v. Alvarado-Zarza, 782 F.3d 246, 249 (5th Cir. 2015) (first citing Heien v. North Carolina, - U.S. -, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014); and then citing Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)).

      . Henry does not contest the district court's conclusion that, assuming the initial stop was justified, the officers’ subsequent actions were justified by Trosclair’s detection of a marihuana odor. See United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989) (”[T]he detection of the odor of marihuana justifie[s] a search of the entire vehicle, including the locked compartment that [is] a likely place to conceal contraband.”); United States v. Banuelos-Romero, 597 F.3d 763, 767 (5th Cir. 2010) (”[I]f additional reasonable suspicion arises in the course of the stop and before the initial purpose of the stop has been fulfilled, then the detention may continue until the new reasonable suspicion has been dispelled or confirmed.”).

      . See Heien, 135 S.Ct. at 540 (holding that an officer’s mistake of law was objectively reasonable because, in part, North Carolina appellate courts had not previously interpreted the state provision); Alvarado-Zarza, 782 F.3d at 250 (holding that an officer’s mistake of law was not objectively reasonable because, in part, the Texas Court of Criminal Appeals had rejected the officer’s interpretation).

      . As explained above, Section 47:507 was repealed in 2014, and its contents were inserted verbatim into Section 32:53.

      . The court additionally held that the officer had reasonable suspicion of a window-tint violation. Pena, 988 So.2d at 847.

      . Indeed, Pena states only that "the top and bottom portions of the plate were partially obscured by a license plate frame.” Id. at 846. It does not indicate that any particular text was obscured. Pena's broad construction of the Louisiana statute distinguishes this case from United States v. Flores, 798 F.3d 645 (7th Cir. 2015), in which the officer's interpretation of a similar Illinois statute was unreasonable in light of state-court decisions that had construed it narrowly.


text:
    Kwame A. ROCKWELL, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
    No. 16-70022
    United States Court of Appeals, Fifth Circuit.
    Filed April 10, 2017

      David R. Dow, University of Houston Law Center, Houston, TX, for Petitioner-Appellant.
    Stephen M. Hoffman, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.
    Before JONES, SMITH, and DENNIS, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Kwame Rockwell seeks a certificate of appealability (“COA”) to challenge the denial of habeas corpus relief. Because reasonable jurists would not debate that the district court acted properly in denying Rockwell’s claims, we deny his application for a COA.

I.

A Texas jury convicted Rockwell of murdering a gas-station clerk, Daniel Rojas, in the course of a robbery. The jury sentenced Rockwell to death. The Texas Court of Criminal Appeals affirmed the conviction and death sentence. Rockwell filed a state petition for writ of habeas corpus, which was denied. He filed a federal habeas petition, which the district court denied.

“A state prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not enjoy an absolute right to appeal. Federal law requires that he first obtain a COA from a circuit justice or judge.” Buck v. Davis, - U.S. -, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017) (citing 28 U.S.C. § 2253(c)(1)). “A COA may issue ‘only if the applicant has made a substantial showing of the denial of a constitutional right.’ ” Id. (quoting 28 U.S.C. § 2253(c)(2)). “Until the prisoner secures a COA, the Court of Appeals may not rule on the merits of his case.” Id. (citing Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

“The COA inquiry ... is not coextensive with a merits analysis. At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’” Id. (quoting Miller-El, 537 U.S. at 327, 123 S.Ct. 1029). Federal courts cannot grant habeas relief if a claim was. adjudicated on the merits in state court unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Rockwell claims that reasonable jurists would debate (1) whether his trial counsel’s decision not to present evidence that he suffers from schizophrenia constitutes ineffective assistance of trial counsel (“IATC”), (2) whether his trial counsel’s decision not to present evidence of his steroid use constitutes IATC, (3) whether he is eligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in light of his purported mental illness, and (4) whether Texas’s death-penalty statute unconstitutionally forbids juries from considering mitigating evidence. The state habeas court and the district court rejected each of these claims.

II.

A.

Rockwell first brings two IATC claims, on which he must show “both that counsel performed deficiently and that counsel’s deficient performance caused him prejudice.” Buck, 137 S.Ct. at 775 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Strickland’s first prong sets a high bar.” Id. Trial counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Cullen v. Pinholster, 563 U.S. 170, 189, 131 5.Ct. 1388, 179 L.Ed.2d 557 (2011) (citation and internal quotation marks omitted). In federal habeas proceedings, a petitioner must also show that “the state court’s application of the Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

1.

Rockwell’s first claim is that his lawyers were ineffective because they failed adequately to investigate his purported schizophrenia and present evidence of it to the jury. Rockwell began exhibiting symptoms of mental illness shortly after his incarceration. Jail medical staff examined him and monitored his symptoms. Ultimately, Rockwell was diagnosed with schizophrenia and was prescribed Haloperidol, an anti-psychotic drug.

Trial counsel chose not to highlight those facts at sentencing but, instead, focused on Rockwell’s character. Jurists of reason could not debate that that decision met the standard for effective representation.

Over the course of the litigation, trial counsel retained several mental-health professionals to examine Rockwell. Those experts either found evidence that Rockwell was exaggerating his symptoms, or they failed to find evidence that he suffered from schizophrenia. Their findings comported with the evidence trial counsel gathered from interviewing Rockwell and his family members, friends, and acquaintances.

Even the two mental-health experts whom Rockwell cites favorably, psychologist Dr. Holly Miller and psychiatrist Dr. Michael Fuller, found evidence that Rockwell was malingering. If trial counsel had portrayed Rockwell as mentally ill, the prosecution would have presented evidence of such apparent malingering. Moreover, Rockwell’s suggested approach would have made damaging information discoverable, including information about his past violent acts.

The state habeas court rejected the claim of failure to investigate and present evidence of schizophrenia. No reasonable jurist would find the district court’s assessment of this claim debatable or wrong.

2.

Rockwell’s second claim is that his lawyers were ineffective because they did not adequately investigate his steroid use or present evidence of it to the jury. Trial counsel retained Dr. Dwain Fuller, a forensic toxicologist, for advice on whether to present evidence of steroid use. Fuller advised against it, explaining that steroids do not cause people to commit the sorts of crimes that Rockwell committed. That advice, combined with concerns that Rockwell’s suggested witnesses would be subject to devastating cross-examination and that information about his use of illegal steroids would undermine the defense’s character arguments, convinced counsel not to pursue the steroid theory.

Counsel could have retained a more supportive expert but was not required to do so. Nor was counsel required to call witnesses to testify about the effect steroids may have had on Rockwell’s behavior. Accordingly, jurists of reason could not debate the district court’s decision to defer to the state habeas court’s ruling on this claim.

B.

Rockwell’s third claim is that At-. kins bars states from executing mentally ill persons. The state habeas court’s rejection of this claim was reasonable. In Atkins, 536 U.S. at 320-21, 122 S.Ct. 2242, the Court held that executing “mentally retarded” persons violates the Eighth Amendment’s prohibition on “cruel and unusual” punishment. Nothing in Atkins, however, bars states from executing those who are mentally ill, and “Fifth Circuit precedent ... forecloses” the notion “that the Eighth Amendment prohibits ... execution [of the] mentally ill.” Mays v. Stephens, 757 F.3d 211, 219 (5th Cir. 2014). The state habeas court did not misapply Supreme Court precedent by refusing to extend Atkins to Rockwell’s case, nor did it violate any other clearly established federal law. No reasonable jurist would debate this conclusion.

c.

Finally, Rockwell claims that a Texas statute unconstitutionally bars juries from considering mitigating evidence that does not reduce a defendant’s “moral blameworthiness.” See Tex. Code Crim. Proc. art 37.071, § 2(f)(4). We have rejected similar arguments multiple times. The statute does not unconstitutionally restrict the mitigating evidence that Texas juries are allowed to consider. In fact, the jury instructions required the jury to “consider all evidence admitted at the guilt or innocence stage and the punishment stage,” a line that comes directly from the statute. See id. § 2(d)(1). No reasonable jurist would debate the district court’s ruling on this claim.

The application for a COA is DENIED.

      . That court's opinion includes a thorough discussion of the facts. See Rockwell v. State, No. AP-76,737 slip op., 2013 WL 6529575 (Tex. Crim. App. Dec. 11, 2013) (not designated for publication), cert. denied, — U.S. -, 134 S.Ct. 2724, 189 L.Ed.2d 768 (2014).

      . See Ex Parte Rockwell, No. WR-80,232-01 slip op. (Tex. Crim. App. Dec. 17, 2014) (per curiam) (not designated for publication), cert. denied, - U.S. -, 136 S.Ct. 36, 193 L.Ed.2d 49 (2015).

      . See Rockwell v. Davis, 4:14-CV-1055-O, 2016 WL 4398378 (N.D. Tex. Aug. 18, 2016).

      . In deciding whether to grant a COA, we engage in "an overview of the claims in the habeas petition and a general assessment of their merits,” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029, but "without 'full consideration of the factual or legal bases adduced in support of the claims.' " Buck, 137 S.Ct. at 773 (quoting Miller-El, 537 U.S. at 336, 123 S.Ct. 1029).

      .Rockwell also asserts that the state habeas court’s failure to adhere to Texas criminal procedural laws deprived him of due probess. But "[i]t is well-settled that 'infirmities in state habeas proceedings do not constitute grounds for federal habeas relief.’ ” Henderson v. Cockrell, 333 F.3d 592, 606 (5th Cir. 2003) (quoting Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)).
      Rockwell additionally claims that the alleged procedural deficiencies deprive the state habeas court’s findings of fact and conclusions of law of the deference due under Section 2254. But because our precedent does not require a full and fair hearing, see Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001), and because the record reflects that Rockwell had ample opportunity to "develop his claims” before the state habeas court, see Tercero v. Stephens, 738 F.3d 141, 148 (5th Cir. 2013), reasonable jurists would not debate whether the district court properly applied Section 2254 deference in its review of the state habeas court's findings of fact and conclusions of law.

      . See Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (“Surmounting Strickland’s high bar is never an easy task.”).

      . Trial counsel called 52 witnesses to testify on Rockwell’s behalf during the sentencing phase.

      . See Smith v. Cockrell, 311 F.3d 661, 676-77 (5th Cir. 2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (“Counsel should be permitted to rely upon the objectively reasonable evaluations and opinions of expert witnesses without worrying that a reviewing court will substitute its own judgment, with the inevitable hindsight that a bad outcome creates, and rule that his performance was substandard for doing so.”).

      . Trial counsel retained a psychologist, Dr. Kelly Goodness, who reported that "[a]ll mental health professionals worth anything have identified Rockwell as malingering [mental illness]. It would only be more hurtful than helpful to have mental health testimony.” Trial counsel retained a clinical psychologist and neuropsychologist, Dr. Michael Chafetz, who found some indications of psychosis but also reported that “this does not fit the usual symptomology, and there is some mild evidence of over-reporting.” At the urging of the state trial court, psychologist Dr. Antoinette McGarrahan also examined Rockwell and reported that his supposed hallucinations “were all highly suspect.” Jail psychiatrist Dr. Xiaoy-an Wu examined him as well and reached the same conclusion.
      That said, not all of the mental-health professionals who examined Rockwell found evidence that he was over-reporting his symptoms. Trial counsel retained a forensic psychologist, Dr. Barry Norman, to determine whether Rockwell was competent to stand trial. Dr. Norman did not find evidence of over-reporting. He also determined that though Rockwell “displayed no evidence of a disorder which would significantly impair his current understanding of reality,” he may have been suffering from adjustment disorder.

      . -For example, the prosecution could have learned that Rockwell once choked a woman until she lost consciousness.

      . As noted above, Rockwell must show that trial counsel’s representation was not only deficient but also prejudiced Rockwell’s defense — and that the state trial court’s rulings on these matters were unreasonable. Because we find that the state habeas court reasonably held that trial counsel’s decision not to pursue the mental-illness theory did not constitute deficient representation, we do not need to reach the prejudice prong of the Washington test.

      . See Perry v. Quarterman, 314 Fed.Appx. 663, 668 (5th Cir. 2009) (explaining that trial counsel is not required to “shop for an expert”).

      . Because the state habeas court reasonably held that trial counsel's decision not to pursue the steroid theory was not deficient representation, we do not need to reach the prejudice prong of the Washington test.

      . Execution of the mentally ill is carefully distinguished from execution of the insane. Mays, 757 F.3d at 219 n.24.

      . See, e.g., Blue. Thaler, 665 F.3d 647, 665-66 (5th Cir. 2011); Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir. 2001).


text:
    Javier CABRAL, Plaintiff-Appellant, v. Megan J. BRENNAN, United States Postmaster General, Defendant-Appellee.
    No. 16-50661
    United States Court of Appeals, Fifth Circuit.
    Filed April 10, 2017

      Arthur Gonzales Vega, Esq., Law Office of Arthur G. Vega, San Antonio, TX, for Plaintiff-Appellant.
    Joseph Cuauhtemoc Rodriguez, Robert Keith Shaw-Meadow, Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Defendant-Appellee.
    Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.

       District Judge of the Western District of Texas, sitting by designation.

   JERRY E. SMITH, Circuit Judge:

Javier Cabral appeals the dismissal of his Title VII retaliation claim. According to Cabral, his employer suspended him for two days because he complained of workplace discrimination and harassment. Because the district court’s procedural error was harmless, and Cabral’s two-day suspension did not constitute a materially adverse action, we affirm.

I.

Cabral is a letter carrier for the United States Postal Service (the “Postal Service”). In 2012 and 2013, he complained repeatedly of discrimination, harassment, and retaliation at the hands of his supervisors, filing three Equal Employment Opportunity (“EEO”) complaints and numerous union grievances. The Postal Service portrays Cabral as a difficult employee and alleges that he struck one of his supervisors with a postal vehicle and engaged in various acts of insubordination.

Cabral sued the Postal Service under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. See 42 U.S.C. § 2000e; 29 U.S.C. § 621 et seq. Cabral alleged that the Postal Service created a hostile work environment, harassed him, retaliated against him, and discriminated against him on the basis of his race, national origin, and age, though he later withdrew some of those claims. Cabral is Mexican-American and was in his mid-40s when the alleged misconduct occurred.

The district court granted summary judgment for the Postal Service on all remaining claims except for one: that the Postal Service had retaliated against Cabral by placing him on unpaid leave on September 9, 2013. That retaliation claim is the subject of this appeal.

Most of the relevant conduct occurred in September 2013. On September 3, Cabral returned to work after a suspension related to the incident in which he allegedly struck a supervisor with a postal vehicle. Cabral contends that upon his return, a supervisor began “badgering” him with questions. On September 9, Cabral was placed on unpaid leave after a supervisor asked him to produce a valid driver’s license and he failed to do so. After two days, he was allowed to return to work. A few-weeks later, he was reimbursed for any lost pay.

Although Cabral claims that he was placed on leave in retaliation for filing complaints, the Postal Service claims it was because his supervisors believed he was operating his postal vehicle with a suspended driver’s license. Cabral admits that his license had been suspended for a DWI conviction and that he failed to notify his supervisors of the suspension, in violation of Postal Service rules. Though Cabral did have an occupational license, which would have permitted him to drive postal vehicles despite the suspension, his occupational license may have been invalid at the time because of his failure to pay an administrative fee. In any event, when Cabral was asked to produce a valid license, he failed to do so.

After the court had denied summary judgment on the retaliation claim, the Postal Service moved for reconsideration. It challenged the ruling on the ground that Cabral had failed to present sufficient evidence that the two-day suspension amounted to a “materially adverse action” under Title VII. The court granted the motion and dismissed the retaliation claim. Cabral appeals that order.

II.

Cabral raises two issues. First, he claims that the district court erred by analyzing the Postal Service’s motion for reconsideration under Federal Rule of Civil Procedure 59(e) instead of Rule 54(b), which allows district courts to revise interlocutory orders. Cabral is correct: Because the order granting partial summary judgment was interlocutory, the court should have analyzed the motion for reconsideration under Rule 54(b) instead of Rule 59(e), which applies to final judgments.

The Postal Service agrees that this was error. It was, however, harmless. The court acted within its authority to revise interlocutory orders. Though it applied the wrong rule of procedure, the rule it applied carried with it a standard more exacting than the one that the court should have applied. Cabral does not explain how he could have been harmed by the procedural error, so there is no reason to reverse on procedural grounds.

III.

Second, Cabral claims that the district court erred in holding that he had failed to state a claim. To state a claim for retaliation under Title VII, a plaintiff must show that “(1) he engaged in conduct protected by Title VII; (2) he suffered a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action.”

Our focus is on the second element. For an employer’s act to qualify as a materially adverse action, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citation and internal quotation marks omitted).

In its initial order denying summary judgment on the retaliation claim, the district court found that Cabral had suffered a materially adverse action when he was placed on unpaid leave for two days. In a footnote, the court suggested that White announced a per se rule that a suspension without pay constitutes a materially adverse action. In fact, White, 548 U.S. at 72-73, 126 S.Ct. 2405, established that a suspension without pay could constitute a materially adverse action, depending on the particular circumstances.

The. Postal Service made this point in its motion for reconsideration. The court agreed that it had misinterpreted White and, after examining the record, determined that it had erred in denying summary judgment. Accordingly, it dismissed Cabral’s retaliation claim.

We agree with the district court’s analysis. The plaintiff in White was placed on unpaid leave for thirty-seven days, causing her to fall into a deep depression. Id. The Court, focusing on the physical, emotional, and economic burdens borne by the plaintiff as a result of her suspension, decided that she had established sufficient evidence of a materially adverse action to defeat summary judgment. Id. at 70-73, 126 S.Ct. 2405.

Cabral’s situation is easily distinguishable. Unlike the plaintiff in White, Cabral has not shown that his suspension exacted a physical, emotional, or economic toll. He offers conclusional statements attesting to the emotional or psychological harm he suffered because of the two-day suspension, but he provides no documentation of any alleged harm. He points to the number of grievances he has filed against the Postal Service related to purported discrimination, harassment, and retaliation, but those complaints are not relevant to whether the two-day suspension in September 2013 constituted a materially adverse action.

Cabral has not stated a claim for retaliation under Title VIL The judgment of dismissal is AFFIRMED.

      . Cabral brought two retaliation claims, one related to an earlier suspension and one related to the September 9, 2013, suspension. For ease of reference, we refer to the retaliation claim rooted in the September 9 suspension as “the retaliation claim.” The other retaliation claim was dismissed in the initial summary judgment order.

      . See Calpetco 1981 v. Marshall Expl., Inc., 989 F.2d 1408, 1414-15 (5th Cir. 1993) (stating that “a partial summary judgment is interlocutory in nature”) (citation omitted).

      . Rule 59(e) "serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence,” and it is "an extraordinary remedy that should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (alteration in original) (quoting Waitman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). In contrast, under Rule 54(b), "the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (citing Fed. R. Civ. P. 54(b)), abrogated on other grounds, Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en banc); see also Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015) (explaining that the higher standard in Rule 59(e) reflects the fact that judgment has already been entered, while the "more flexible” Rule 54(b) standard reflects the district court's inherent power to grant relief from interlocutory orders "as justice requires.”).

        .Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519-20 (5th Cir. Unit A Jan. 1981) (explaining that "[t]he major policy underlying the harmless error rule is to preserve judgments and avoid waste of time").

      . Jenkins v. City of San Antonio Fire Dep't, 784 F.3d 263, 269 (5th Cir. 2015) (citing Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008)).

      . See Wheat v. Fla. Par. Juvenile Justice Comm’n, 811 F.3d 702, 707 (5th Cir. 2016) ("A bare-bones allegation that an assignment of janitorial duties is a materially adverse action is only an unsupported conclusory claim. Such a bare allegation fails to provide the contextual detail that is required for materially adverse actions.” (citation omitted)).

      .We generally consider a suspension to be a discrete event. See Battle v. United Parcel Serv., Inc., No. EP-10-CV-0361-KC, 2011 WL 8202606, at *6 (W.D. Tex. Dec. 21, 2011).