Shefeik v. Busby

S
Case: 20-40335     Document: 00515743085         Page: 1     Date Filed: 02/12/2021




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

                                                                             FILED
                                                                     February 12, 2021
                                  No. 20-40335
                                                                        Lyle W. Cayce
                                                                             Clerk
   Michael Leeroy Shefeik, II,

                                                           Plaintiff—Appellant,

                                       versus

   Vernon Busby; Michael Krucenski,

                                                         Defendants—Appellees.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 6:18-CV-112


   Before Haynes, Duncan, and Engelhardt, Circuit Judges.
   Per Curiam:*
          Michael Leeroy Shefeik sued two Goliad County sheriff’s deputies,
   Vernon Busby and Michael Krucenski, for excessive force under 42 U.S.C.
   § 1983. Following a lengthy car chase and brief foot pursuit, Shefeik claims
   he surrendered to the deputies but they nevertheless beat him in the face with
   a flashlight, causing severe injuries. The district court granted the deputies


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-40335      Document: 00515743085           Page: 2     Date Filed: 02/12/2021




                                     No. 20-40335


   summary judgment based on qualified immunity, concluding a dashcam
   video “substantially contradicted” Shefeik’s testimony. That conclusion
   was error. The video does not show what happened when the deputies caught
   Shefeik and so could not have “contradicted” Shefeik’s account. We vacate
   and remand for further proceedings.
          A police dashcam video from the early morning hours of December
   27, 2016, shows the deputies stopping Shefeik, running a background check,
   and asking him to exit his vehicle. Shefeik refuses and drives away. After a
   nearly twenty-minute chase, Shefeik pulls off the road, gets out, and runs
   away into the dark woods. At that point, Shefeik is no longer visible in the
   video. For several minutes, the viewer can see only Shefeik’s truck and
   trailer, bathed in flashing red and blue lights, and can hear only garbled yelling
   and cursing over the blare of a siren. The deputies eventually bring Shefeik
   back to the cruiser, his face bloodied.
          During the minutes not captured on video, Shefeik claims, in a sworn
   declaration, that he surrendered to the deputies but that they used force to
   apprehend him anyway, striking him repeatedly in the face with a flashlight
   and “stomp[ing]” on his forehead. Shefeik states that he suffered multiple
   orbital fractures, a broken nose, and a chipped tooth and that he “now ha[s]
   a permanent metal plate in [his] face.” The record does not contain medical
   records confirming or corroborating the nature and extent of Shefeik’s
   injuries. The deputies do not, however, dispute that he was injured during
   the encounter. In any event, the record supports Shefeik’s contention that he
   was transported to the hospital by ambulance, and photographs of him in the
   aftermath of the incident—which are labeled DeTar Hospital and identify
   him as a patient—show readily apparent facial injuries. But the deputies do
   contest Shefeik’s account of the arrest, asserting they used reasonable,
   escalating force in response to Shefeik’s resistance, specifically his refusal to
   present his hands and lack of submission to being handcuffed.



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Case: 20-40335      Document: 00515743085           Page: 3    Date Filed: 02/12/2021




                                     No. 20-40335


          Shefeik sued the deputies under § 1983 for using unconstitutionally
   excessive force to arrest him. The deputies moved for summary judgment,
   asserting qualified immunity. The district court granted summary judgment.
   Relying heavily on the dashcam footage, the court held that the video
   “substantially contradict[ed]” Shefeik’s account and showed he “resisted
   being cuffed.” In light of that, the court could “not say that the actions of the
   [deputies] were not necessary for apprehension and did not correspond with
   the plaintiff’s escalating physical resistance.” Shefeik timely appealed.
          We agree with Shefeik that the dashcam footage does not justify dis-
   counting Shefeik’s version of his arrest for summary judgment purposes. It
   is true that, on summary judgment, a court need not credit a plaintiff’s ver-
   sion of events if it is “blatantly contradicted” or “utterly discredited” by a
   video such “that no reasonable jury could have believed him.” Poole v. City
   of Shreveport, 

691 F.3d 624

, 631 (5th Cir. 2012) (quoting Scott v. Harris, 

550 U.S. 372

, 380 (2007)); see also Carnaby v. City of Houston, 

636 F.3d 183

, 187
   (5th Cir. 2011). That principle does not apply here, however. Far from “con-
   tradicting” or “discrediting” Shefeik’s version of the arrest, the video does
   not even depict the crucial moments when the deputies seized and allegedly
   beat Shefeik. Cf. Curran v. Aleshire, 

800 F.3d 656

, 664 (5th Cir. 2015) (de-
   clining to rely on video evidence that did “not resolve the parties’ dispute”);
   

Poole, 691 F.3d at 629

(“[I]n addressing the officers’ claims of qualified im-
   munity, our focus is necessarily on the force used during his arrest.”). We
   are therefore left with Shefeik’s declaration, which describes the deputies se-
   verely beating him in the face after he surrendered and was partially hand-
   cuffed. That evidence, which we must view in Shefeik’s favor, creates a




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Case: 20-40335         Document: 00515743085                Page: 4        Date Filed: 02/12/2021




                                            No. 20-40335


   material fact dispute as to whether the deputies 1 used excessive force to sub-
   due Shefeik. See, e.g., Joseph ex rel. Estate of Joseph v. Bartlett, 

981 F.3d 319

,
   332 (5th Cir. 2020) (“While a suspect’s refusal to comply with instructions
   may indicate that physical force is justified, officers must also select the ap-
   propriate degree of force.” (quoting Deville v. Marcantel, 

567 F.3d 156

, 167–
   68 (5th Cir. 2009)) (cleaned up)). 2
           We therefore VACATE the summary judgment and REMAND for
   further proceedings consistent with this opinion.




           1
             We consider qualified immunity as to each defendant individually. See Meadours
   v. Ermel, 

483 F.3d 417

, 421 (5th Cir. 2007); Stewart v. Murphy, 

174 F.3d 530

, 537 (5th Cir.
   1999). Shefeik’s declaration contains allegations of excessive force implicating both Busby
   and Krucenski. While the deputies dispute Shefeik’s account, viewed in the light most
   favorable to Shefeik, the declaration creates a genuine dispute of material fact regarding the
   propriety of the force employed by each deputy and therefore precludes summary judgment
   as to both.
           2
              Summary judgment in a qualified immunity case may still be warranted if the
   plaintiff’s version of events “does not implicate clearly established law.” Johnston v. City
   of Houston, 

14 F.3d 1056

, 1061 (5th Cir. 1994). That is not the case here. Shefeik claims to
   have surrendered before the deputies cuffed him and began beating him with a flashlight,
   and he further claims they continued applying force despite his lack of resistance. Our
   precedent clearly establishes that “once a suspect has been handcuffed and subdued, and
   is no longer resisting, an officer’s subsequent use of force is excessive.” Carroll v. Ellington,
   

800 F.3d 154

, 177 (5th Cir. 2015); see also Darden v. City of Fort Worth, 

880 F.3d 722

, 731–
   32 (5th Cir. 2018).




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