Tarver v. City of Denton, Texas et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
KEVIN TARVER
v.
MICHAEL HERNANDEZ, ET AL.
§
§
§
§
§
CIVIL NO. 4:21-CV-970-SDJ
MEMORANDUM OPINION AND ORDER
In a violent confrontation with four Denton, Texas, police officers, Darius
Tarver was tased, shot, and killed. As Administrator of Tarver’s estate, his father,
Kevin Tarver,1 sued the City of Denton (the “City”) and Officers Michael Hernandez
and Doug Downing under 42 U.S.C. § 1983 for alleged violations of Tarver’s Fourth
Amendment rights.
The City and the officers filed separate dismissal motions under Federal Rule
of Civil Procedure 12(b)(6). (Dkt. #10, #11). The Court granted the City’s motion. See
Tarver v. City of Denton, 633 F.Supp.3d 864, 873 (E.D. Tex. 2022). At that time, the
Court deferred ruling on the officers’ motion pending Kevin’s submission of a Rule
7(a)(7) response to the officers’ qualified immunity defense. Id. Kevin has submitted
the requested response, (Dkt. #28), and the officers replied, (Dkt. #29, #31).
After considering the officers’ Motion to Dismiss, (Dkt. #11), and the parties’
supplemental filings, the Court concludes that the motion should be granted.
1 For clarity, the Court refers to Darius Tarver as “Tarver” and his father as “Kevin.”
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I. B ACKGROUND
The events underlying this suit occurred in January 2020.2 At that time,
Tarver was a twenty-three-year-old student enrolled at the University of North
Texas. (Dkt. #5 ¶ 16). Sometime before the encounter, Tarver was “involved in a
motor vehicle accident which resulted in a head injury and a trip to the hospital.”
(Dkt. #5 ¶ 17). After leaving the hospital, Tarver began acting “strangely” and
“saying things that did not make sense.” (Dkt. #5 ¶ 18). On January 21, 2020,
Tarver’s “condition deteriorated.” (Dkt. #5 ¶ 19). So much so that his roommate called
911 	to 	request 	medical 	assistance 	for 	him. 	(Dkt. #5 	¶ 20). 	Officers 	Michael
Hernandez, Doug Downing, Latrice Pettaway, and Ryan Spivey responded to the call.
(Dkt. #5 ¶ 21). They arrived after dark around 9:00 p.m. The officers’ body cameras
captured the tragic events that followed.
Upon arrival, the officers encountered Tarver standing at the top of a stairwell
near his apartment. (Dkt. #28 ¶ 8). The stairwell was dimly lit and Tarver could only
be 	seen 	by 	flashlight. 	The 	officers 	remained 	at 	the 	base 	of 	the 	stairs 	and
2 The facts described herein are based on Kevin’s Amended Complaint, (Dkt. #5), his
Rule 7(a) Reply, (Dkt. #28), and the facts in the light depicted by the videotape, which Kevin
incorporated by reference, (Dkt. #28 ¶ 1). See Hartman v. Walker, 685 F.App’x 366, 368
(5th Cir. 2017) (per curiam) (citing Scott v. Harris, 550 U.S. 372, 380–81, 127 S.Ct. 1769,
167 L.Ed.2d 686 (2007)). The officers’ body camera video provides the best evidence of the
events outside Tarver’s apartment on the evening of January 21, 2020. Accordingly, where
Kevin’s allegations depart from the video, the Court will consider the video to provide the
most accurate depiction of events. See, e.g., Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011) (noting that courts “need not rely on the plaintiff’s description of the facts
where the record discredits that description but should instead consider the facts in the light
depicted by the videotape” (citation modified)). The Court retains a copy of the body-camera
footage on its server. (Dkt. #33 ¶ 3).
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unsuccessfully tried to initiate a dialogue with Tarver. This interaction lasted just
over a minute.
During this time frame, and a few seconds after initiating contact, one of the
officers stated that he saw something in Tarver’s left hand but that he could not
identify what it was. Overhearing this comment, Tarver responded, “Come up and
find out.” The officer ordered Tarver to “[c]ome out with [his] hands up.” Tarver failed
to comply and again responded: “Come up and find out.” The officer repeated his
order, advising that the officers “just wanted to talk to [Tarver] to figure out what
was going on,” but they needed Tarver to “come out and comply.” Tarver again ignored
the officers’ order and went silent. Twice more the officers attempted to converse with
Tarver, requesting that he confirm his identity. He ignored those questions too and
disappeared into his apartment for the next four minutes.
Meanwhile, the officers gathered and shared intel on Tarver. They assessed
how much of a threat he posed and strategized on how to proceed. One officer noted
that he believed Tarver was “aggressive because he told me to come up and find out
a second ago what he had [in his hand.]” The officers decided to remain at the bottom
of the stairs. Officer Pettaway called Tarver’s roommate and asked him what had
been going on with Tarver. The roommate recounted Tarver’s bizarre behavior that
day—positioning pillows, mattresses, and blankets in front of various doors and
windows. The roommate went on to describe Tarver’s current state, noting that his
“eyes [were] all bugged out.” And although the roommate did not think Tarver would
harm him, he believed that Tarver would “wig out” if he refused to discuss God.
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Tarver then emerged suddenly from the apartment, holding something in his
left hand. He moved to the stairwell and promptly began to descend the stairs,
advancing toward the officers. Although they couldn’t yet identify what Tarver had
in his hand, the officers repeatedly ordered him to put it down or drop it. Tarver
ignored these commands, muttering incoherently about God.
Tarver then paused halfway down the stairs. Using their flashlights, the
officers identified one of the objects in Tarver’s hand—a frying pan. They warned
Tarver that they were going to tase him if he didn’t drop it. “I’m not scared,” Tarver
replied. He continued descending the stairs toward the officers, rambling about God:
“There is only one God. There is only one God above. There is only one God. He’s my
Heavenly Father. He’s the real Heavenly Father. He’s the real Heavenly Father.”
Tarver simultaneously pointed to the sky with his right arm. Although the officers
continued to warn that they would tase him if he didn’t drop the pan, Tarver
remained undeterred. Concerned for their safety, one officer instructed the others to
“back it up.” They complied. Tarver then reached the ground floor, placing him fifteen
feet or more from the nearest officer.3
Tarver remained at the bottom of the stairs for nearly thirty seconds before the
officers took further action. His arms were visible, and he held the frying pan in his
left hand. During this time, Officer Hernandez repeatedly commanded Tarver to drop
what he was carrying, ultimately stating: “I’m going to tell you right now, drop it.
3 Both Kevin and the officers describe Tarver as being fifteen feet or more from the
nearest officer when he reached the bottom of the stairs. In the video he looks closer than
that to the nearest officer, but the Court will assume the 15-plus foot distance recounted in
Kevin’s allegations and affirmed by the officers.
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Drop it or I’m going to tase you. Drop it now or I’m going to tase you. Do you
understand? Last time. Drop it now. Drop it.” Tarver neither acknowledged nor
responded to these commands.
Soon thereafter, another officer spotted a meat cleaver in Tarver’s left hand.4
“He’s got a knife too,” the officer states. “Yeah, I see that,” another officer replies.
Given this new information, the officers each identified whether they’ve “got lethal”—
presumably a loaded firearm. At this time, Officer Hernandez announced that he was
going to tase him. Officer Hernandez then commanded Tarver to “drop it” twice, and
as he gave the second command Officer Hernandez tased Tarver.
The taser struck Tarver in the chest, causing him to drop the frying pan. He
retained control of the meat cleaver, however, and remained upright. Tarver then
lunged toward the source of the taser—Officer Hernandez. He flailed his arms wildly
in that direction—meat cleaver in hand—rapidly closing the gap between them.5 At
4 In the video the officers refer to the cleaver as a “knife,” as does Kevin in his
submissions. However, the video shows that this is not merely a “knife,” but a large meat
cleaver.
5 Although they reacted quickly to evade him, the officers report that Tarver managed
to slash Officer Hernandez in the shoulder, a wound that required treatment at the hospital.
Kevin responds that the video does not show that Tarver injured Officer Hernandez. The
video depicts rapid and chaotic activity after Tarver was first tased and is not sufficiently
clear to show the cleaver striking Officer Hernandez. But later in the video, Officer
Hernandez describes his injuries. While the officers were rendering aid to Tarver, Officer
Hernandez notes that Tarver “hit me in the shoulder when he had his knife.” And shortly
thereafter, Officer Hernandez repeats himself, noting that “[Tarver] hit me with something,
I can feel it.”
For purposes of resolving this motion, the Court need not conclude that Tarver
wounded Officer Hernandez shortly after being tased. It is enough that the video shows, at a
minimum, that Tarver slashed at Officer Hernandez with a meat cleaver after he was tased.
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this moment, Officer Downing shot Tarver and Tarver fell to the ground, dropping
the meat cleaver.
Once Tarver was on the ground, the officers located the meat cleaver behind
his head. An officer kicked it away. But because Tarver continued to flail in place, the
officers kept their distance. They commanded him to “stay down” nine times and to
“not move” four times.
Ignoring these instructions, Tarver did the opposite. He rose from the ground
and was “immediately tased again” by Officer Hernandez. (Dkt. #28 ¶ 28). But like
the first taser, the second taser strike did not subdue Tarver. Indeed, it does not
appear to have had any effect on him. Tarver moved back to the bottom of the
stairwell, repeatedly shouting, “I am not scared.” He grabbed the frying pan, turned
toward the officers, and charged. Again, the officers retreated before taking further
action. Tarver marched forward rapidly, repeating that he was “not scared.” As he
approached within a few feet of them, Officer Downing shot Tarver twice more.
Tarver then collapsed. Although the officers rendered aid on the scene, Tarver died
shortly thereafter.
All in all, six-and-a-half minutes elapsed between the officers’ first contact and
the final shooting, during which Tarver ignored at least thirty-six officer commands.
Against this backdrop, the Court analyzes Officer Hernandez’s and Officer Downing’s
qualified immunity defenses.
II. LEGAL S TANDARD
Under Federal Rule of Civil Procedure 	12(b)(6), a court may dismiss a
complaint for “failure to state a claim upon which relief can be granted.” F ED. R.
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CIV. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must
provide “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007). The Supreme Court has instructed that although a plaintiff need not establish
a 	favorable 	probability 	that 	the 	defendant 	is 	liable, 	the 	plausibility 	standard
demands “more than a sheer possibility.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
When assessing a motion to dismiss under Rule 12(b)(6), the facts pleaded are
entitled to a presumption of truth, but legal conclusions that lack factual support are
not entitled to the same presumption. Id. To determine whether the plaintiff has
pleaded enough to “nudge his claims . . . across the line from conceivable to plausible,”
a court draws on its own common sense and judicial experience. Id. at 679–80
(citation modified). This threshold is surpassed when a “plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 678.
When, as here, the defendant asserts a qualified immunity defense in a motion
to dismiss, a court has an “obligation . . . to carefully scrutinize [the complaint] before
subjecting public officials to the burdens of broad-reaching discovery.” Jacquez v.
Procunier, 801 F.2d 789, 791 (5th Cir. 1986); see also Wicks v. Miss. State Emp.
Servs., 41 F.3d 991, 995 n.16 (5th Cir. 1995) (“[I]mmunity means more than just
immunity from liability; it means immunity from the burdens of defending a suit,
including the burdens of pretrial discovery.”).
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III. DISCUSSION
Kevin brings this civil rights action under 42 U.S.C. § 1983 for alleged
violations of Tarver’s constitutional rights. Section 1983 creates a private cause of
action for violations of federally secured rights under color of state law. To state a
Section 1983 claim, the plaintiff must establish (1) the deprivation of a right secured
by the Constitution or federal law, (2) that the deprivation occurred under color of
state law, and (3) that it was caused by a state actor. Victoria W. v. Larpenter,
369 F.3d 475, 482 (5th Cir. 2004).
The Fourth Amendment excessive-force questions here arise in the context of
a lawsuit against state officers under Section 1983, where the qualified immunity
doctrine applies. Qualified immunity shields officers from suit unless their actions
violate “clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982). The doctrine ensures that “fear of liability will not unduly
inhibit officials in the discharge of their duties.” Camreta v. Greene, 563 U.S. 692,
705, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (internal quotation marks and citation
omitted).
Once a defendant properly raises a qualified immunity defense, “the burden
shifts to the plaintiff to demonstrate that the defendant is not entitled to the defense’s
protection.” Batyukova v. Doege, 994 F.3d 717, 724 (5th Cir. 2021). To carry that
burden, a plaintiff must show that (1) the official violated a federal statutory or
constitutional right, and (2) the unlawfulness of the conduct was clearly established
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at the time. Cloud v. Stone, 993 F.3d 379, 383 (5th Cir. 2021). Courts have the
discretion to address either or both prongs. Id.
Here, Kevin asserts that Officers Hernandez and Downing—City of Denton
police officers—used excessive force against Tarver, violating his Fourth Amendment
rights. Both officers contend that these claims are precluded under either prong of
qualified immunity. For clarity, the Court addresses both prongs.
A. Constitutional Violations
Prong 	one 	asks 	whether 	an 	officer’s 	use 	of 	force 	violated 	the 	Fourth
Amendment.
“The touchstone of the Fourth Amendment is ‘reasonableness,’ as measured in
objective terms.” Barnes v. Felix, 605 U.S. 73, 79, 145 S.Ct. 1353, 221 L.Ed.2d 751
(2025) (citation modified). An officer violates the Fourth Amendment when an
arrestee “suffers an injury that results directly and only from a clearly excessive and
objectively unreasonable use of force.” Joseph ex rel. Est. of Joseph v. Bartlett,
981 F.3d 319, 332 (5th Cir. 2020); see also Graham v. Connor, 490 U.S. 386, 395–96,
109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The question is “whether the force deployed
was justified from ‘the perspective of a reasonable officer on the scene[.]’” Barnes,
605 U.S. at 79 (quoting Graham, 490 U.S at 396). Courts must therefore “slosh [their]
way through the factbound morass of ‘reasonableness.’” Scott v. Harris, 550 U.S. 372,
383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
For excessive-force claims, courts consider the Graham factors: (1) the severity
of the suspected crime; (2) whether the suspect posed an immediate threat to the
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safety of the officer or others; and (3) whether the suspect was actively resisting arrest
or attempting to evade arrest by flight. Graham, 490 U.S at 396. In evaluating the
Graham factors, courts also consider “the time officers had to make decisions,
whether the force used is ‘measured and ascending’ in accordance with the suspect’s
aggression, whether the suspect signaled that he was armed, and whether he moved
toward or away from law enforcement.” Est. of Parker v. Mississippi Dep’t of Pub.
Safety, 140 F.4th 226, 239 (5th Cir. 2025) (quoting Singleton v. Casanova, No. 22-
50327, 2024 WL 2891900, at *5 (5th Cir. June 10, 2024)).
Reading Kevin’s live complaint liberally, he claims that four separate officer
actions violated Tarver’s Fourth Amendment rights. First, when Officer Hernandez
tased Tarver at the bottom of the stairwell.6 Second, when Officer Downing shot
Tarver after the first tasing. Third, when Officer Hernandez tased Tarver a second
time. And fourth, when Officer Downing shot Tarver after the second tasing. Because
the Court must “assess the reasonableness of each defendant’s actions separately,”7
it evaluates each officer’s actions in turn.
6 It is undisputed that Tarver was tased twice by Officer Hernandez, once at the
bottom of the stairwell and again when he got up and moved to retrieve the frying pan.
However, in his amended complaint Kevin’s excessive-force claim appears to focus only on
Officer Hernandez’s first tasing of Tarver and Officer Downing’s use of lethal force against
Tarver. See (Dkt. #5). Nonetheless, the Court will read the amended complaint liberally and
assume it also charges that the second tasing of Tarver forms part of the excessive-force
claim.
7 Pratt v. Harris Cnty., 822 F.3d 174, 181 (5th Cir. 2016).
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1. 	Officer Hernandez
a. The first tasing of Tarver
To evaluate Kevin’s excessive-force claim against Officer Hernandez, the Court
must examine “the facts and circumstances confronting” him when he deployed his
taser, Graham, 490 U.S. at 397, as well as the “totality of the circumstances,” Barnes,
605 U.S. at 80 (internal quotation marks omitted). Those facts and circumstances
include the following.
Officer Hernandez and his fellow officers were responding to a 911 call from
Tarver’s roommate, requesting medical assistance for Tarver due to his erratic
behavior. During the officers’ first interaction with him, Tarver refused to converse
with the officers, identify himself, or comply with several commands. Tarver spoke
directly to the officers only twice, telling them to “[c]ome up and find out” what he
was holding. These comments made one officer relay to the others that he believed
Tarver was aggressive. When Officer Pettaway made a call to Tarver’s roommate to
gather more information, the roommate recounted Tarver’s bizarre behavior that
day—positioning pillows, mattresses, and blankets in front of various doors and
windows. The roommate went on to describe Tarver’s current state, noting that
Tarver’s “eyes [were] all bugged out,” and the roommate was concerned that Tarver
would “wig out.”
Tarver then reappeared at the top of the stairwell and began advancing down
the steps toward the officers. He was holding what the officers at first believed was
just a frying pan. Fifty-one seconds elapsed before he was tased. During that period,
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Tarver ignored fourteen police commands to drop what he was holding and five
warnings that he would be tased. All the while, Tarver moved down the stairs toward
the officers, rambling incoherently about God. Concerned for their safety, the officers
retreated from the base of the stairs.
When Tarver paused at the bottom of the stairs, he continued to look around
wildly, intonate about God frenetically, and ignore the officers’ warnings and
commands to drop what he was holding or he would be tased. During this time, an
officer noted that Tarver was also holding a meat cleaver. The presence of this second
weapon and Tarver’s behavior, particularly his refusal to drop the cleaver and frying
pan despite multiple commands to do so, left the officers with a difficult choice. They
faced a mentally distressed young man who had approached them with weapons and
ignored their commands. The officers each announced whether they had “lethal,” and
Officer Hernandez stated that he was going to tase Tarver. No officer suggested a
different approach to subduing Tarver, and after again commanding Tarver to drop
what he was holding, Officer Hernandez deployed his taser.
Examining the totality of the circumstances, the Court concludes that Officer
Hernandez’s use of force, namely his deployment of the taser, was objectively
reasonable. On balance, the Graham factors support this conclusion.
The first factor is the severity of the suspected crime. Here, the officers were
dispatched to provide Tarver with medical assistance, not to investigate a crime. The
Officers were “thus equipped with the understanding that [Tarver] was likely
experiencing 	a 	mental 	health 	crisis 	and 	needed 	medical 	assistance.”
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Timpa v. Dillard, 20 F.4th 1020, 1030 (5th Cir. 2021). This factor weighs against
Officer Hernandez.
The second factor is whether the suspect posed an immediate threat to the
safety of the officer and others. Tarver was unstable, noncompliant, had made
threatening comments, and was armed with two deadly weapons—a meat cleaver and
a frying pan—in a public area. He was commanded to drop them multiple times.
Tarver refused. Instead, he continued to advance toward the officers. And although
Tarver paused at the bottom of the stairs for nearly thirty seconds before he was
tased, he still refused to disarm in compliance with the officers’ commands and
ignored their repeated warnings that he would be tased if he did not drop what he
was holding.
Before deploying his taser, Officer Hernandez and his colleagues tried in
multiple ways to de-escalate the situation with Tarver, who they understood to be in
mental 	distress. 	The 	officers 	attempted, 	unsuccessfully, 	to 	communicate 	and
negotiate with Tarver, advising Tarver at the outset that they just wanted to
understand what was going on with him. Tarver’s menacing response was that the
officers could “[c]ome up and find out” what he was holding. Thereafter, when Tarver
advanced toward the officers with two weapons, a meat cleaver and a frying pan, they
repeatedly commanded him to drop these weapons and likewise repeatedly warned
him that he would be tased if he failed to comply. These commands and warnings
were all ignored by Tarver. Given the circumstances, including Tarver’s continued
erratic behavior and his threatening statement when the officers first arrived on
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scene, Officer Hernandez reasonably believed that Tarver “pose[d] a threat of serious
harm to the officer[s] or to others.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.
2009). This factor weighs in favor of Officer Hernandez’s use of force.
The third factor also weighs in favor of Officer Hernandez—whether the
suspect was actively resisting arrest or attempting to evade arrest by flight. As the
Fifth Circuit has explained, “[o]f the Graham factors, the extent of [the suspect’s]
resistance is the most important to analyzing [an officer’s] use of his taser.” Betts v.
Brennan, 22 F.4th 577, 582 (5th Cir. 2022). When faced with an uncooperative
individual, officers must use “measured and ascending actions that correspond to [the
individual’s] escalating verbal and physical resistance.” Joseph, 981 F.3d at 332–33
(citation modified). Indeed, “the speed with which an officer resorts to force is relevant
in determining whether that force was excessive to the need.” Trammell v. Fruge,
868 F.3d 332, 342 (5th Cir. 2017). Also relevant is an individual’s level of resistance,
as the Fifth Circuit has “found tasing not excessive where a suspect ‘resists arrest or
fails to follow police orders’ or ‘resist[s]’ an officer’s attempt to handcuff him.” Betts,
22 F.4th at 583 (alteration in original) (citation omitted); see also Buchanan v.
Gulfport Police Dep’t, 530 F.App’x 307, 314 (5th Cir. 2013) (per curiam) (“[W]here a
suspect resists arrest or fails to follow police orders, officers do not violate his right
against excessive force by deploying their tasers to subdue him.”).
That 	said, 	when 	an 	individual 	offers 	merely 	“passive 	resistance 	or 	no
resistance at all,” an officer’s use of a taser may be excessive. See, e.g., Cloud,
993 F.3d at 385. For example, an officer’s taser use was excessive when a suspect
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“had not committed a crime, attempted flight, or disobeyed any commands, and who
may 	have 	only 	provoked 	police 	with 	an 	‘off-color 	joke.’” 	Id. 	(quoting
Newman v. Guedry, 703 F.3d 757, 762–63 (5th Cir. 2012)). The same is true when a
suspect’s “resistance” is merely pulling their arm away from the arresting officer.
Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013). And, of course, an officer
cannot tase someone who is “facedown in the fetal position, not suspected of
committing any crime, not posing a threat to officers or others, and not actively
resisting arrest.” Joseph, 981 F.3d at 342.
Under this framework, Officer Hernandez’s taser use falls within the Fifth
Circuit’s bounds of reasonableness. Up until this point, no physical force had been
used against Tarver. Although Tarver made aggressive comments and refused to
comply with commands, the officers continued to issue only verbal warnings and
commands. When Tarver advanced toward them with a potential weapon, the officers
escalated their tone and their commands, warning him that he would be tased if he
didn’t drop it and stop. Only after discovering that Tarver also held a meat cleaver—
a large knife—did Officer Hernandez decide to tase him.
All in all, the officers used “measured and ascending” actions in response to
Tarver’s non-compliance and the perceived risk he posed to them and others. E.g.,
Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012). The officers’ belated
awareness of the meat cleaver in Tarver’s hand shows that the situation was “tense,
uncertain, and rapidly evolving.” Graham, 490 U.S. at 397. And because Tarver had
repeatedly “fail[ed] to follow police orders”—seventeen orders and five warnings that
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he would be tased, to be exact—this factor weighs in favor of Officer Hernandez.
Buchanan, 530 F.App’x at 314; see also Betts, 22 F.4th at 583.
With two Graham factors weighing in Officer Hernandez’s favor, his decision
to deploy the taser was reasonable.8 Therefore, considering the totality of the
circumstances, as well as governing precedent, Officer Hernandez is entitled to
qualified immunity on Tarver’s claim regarding the first deployment of his taser. See,
e.g., Poole, 691 F.3d at 629 (taser use reasonable when suspect “persistent[ly]”
resisted arrest and ignored an officer’s verbal commands); Buchanan, 530 F.App’x
at 313–14 (noting that the officer’s “multiple warnings” and the decedent’s “repeated
failure 	to 	comply 	with 	police 	instructions 	would 	be 	enough 	to 	overcome 	[the
decedent’s] claim of excessive force for the tasing”).
For his part, Kevin makes much of the fact that, when Tarver was tased, he
had paused at the bottom of the stairwell and had not physically challenged or
attacked the officers. In Kevin’s view, the deployment of the taser at this time was
unnecessary, unreasonable, and a violation of the Fourth Amendment. Not so.
To be sure, Tarver had not physically engaged the officers at the time he was
first tased. But he had ignored every officer request, command, and warning. And
nothing about Tarver’s behavior suggested that he could be reasoned with. At that
point in time, the officers faced difficult and dangerous alternatives. They knew that
Tarver was mentally unstable and agitated, that he was holding two deadly weapons
8 In fact, the Fifth Circuit has found that qualified immunity applied even when “two
of the Graham factors weigh[ed] against the officers.” Solis v. Serrett, 31 F.4th 975, 983
(5th Cir. 2022) (emphasis added).
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in a public area, and that he had refused all commands to disarm and made
threatening comments to the officers.
Should Officer Hernandez have waited longer before tasing Tarver when he
had paused at the bottom of the stairs, hoping that with additional time Tarver would
become more calm or cooperative rather than more violent? Perhaps. Should Officer
Hernandez 	have 	waited 	for 	more 	officers 	to 	arrive 	or 	attempted 	further
communication with Tarver, or should he and his colleagues have requested the help
of medically trained personnel before taking action to subdue Tarver? Perhaps. But
it was also reasonable for Officer Hernandez to conclude that delay could have the
opposite effect, making the situation more dangerous. Delaying any attempt to
subdue the armed, mentally unwell, and non-compliant Tarver could also have
resulted in Tarver becoming more agitated and assaulting the officers or otherwise
harming himself or others.9 As the Supreme Court has recognized, “the law does not
require officers in a tense and dangerous situation to wait until the moment a suspect
uses a deadly weapon to act to stop the suspect.” Mullenix v. Luna, 577 U.S. 7, 17,
136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (quoting Long v. Slaton, 508 F.3d 576, 581–82
(11th Cir. 2007)). The point being, facing dangerous alternative choices amid a
9 Kevin does not suggest that Officer Hernandez or his colleagues should have
attempted to physically disarm and restrain Tarver before using a taser. The omission is
sensible, as there is no reason to believe this approach would have been safer under the
circumstances. See Ramirez v. Guadarrama, 2 F.4th 506, 512–13 (5th Cir. 2021) (mem.)
(Oldham, J., concurring in the denial of rehearing en banc) (rejecting plaintiffs’ arguments
that the officer could have tackled the decedent or waited on a crisis-intervention team
because both options “would put the lie to Justice Jackson’s admonition that the Constitution
is not ‘a suicide pact.’” (citation omitted)).
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confrontational and stressful situation, Officer Hernandez’s decision to use his taser
was warranted under the totality of circumstances.
But even if Officer Hernandez’s choice were to be viewed as a mistake, the
analysis would not change. As the Supreme Court has made clear, “[t]he Fourth
Amendment standard is reasonableness, and it is reasonable for police to move
quickly if delay would gravely endanger their lives or the lives of others.” City & Cnty.
of S.F. v. Sheehan, 575 U.S. 600, 612, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015) (citation
modified). The Court has underscored this point, stating that “[t]his is true even
when, judged with the benefit of hindsight, the officers may have made some
mistakes,” because “[t]he Constitution is not blind to the fact that police officers are
often forced to make split-second judgments.” Id. (citation modified); see also Graham,
490 U.S. at 396–97 (“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.”). Facing an armed, agitated,
mentally unwell suspect who had made threatening comments and ignored police
commands to drop his weapons, as well as warnings that he would be tased, it was
objectively reasonable for Officer Hernandez to deploy his taser and doing so did not
violate the Fourth Amendment.
b. The second tasing of Tarver
When Officer Hernandez first deployed his taser against Tarver, it failed to
subdue Tarver. To the contrary, although Tarver dropped the frying pan after he was
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tased, he maintained control of the meat cleaver he had been holding and proceeded
to assault Officer Hernandez with this weapon, lunging at him and slashing with the
cleaver. Indeed, Officer Hernandez later remarks on the video that Tarver wounded
him with the cleaver at that time. In response, Officer Downing shot Tarver and he
fell to the ground, dropping the cleaver.
At that time, the officers repeatedly commanded Tarver to stay on the ground
and not to move. Tarver ignored these commands. About thirty seconds after falling
to the ground, and in defiance of the officers’ commands, Tarver stood up and began
moving toward the frying pan, rambling about God being his “shield.” Officer
Hernandez tased Tarver a second time as he stood and moved toward the frying pan,
but the taser had no effect on Tarver. Tarver picked up the frying pan and charged
the officers, resulting in Officer Downing’s second use of lethal force.
All of the Graham factors support Officer Hernandez’s second use of his taser
on Tarver. As to the first factor, the severity of the suspected crime, when Officer
Hernandez deployed his taser the second time, Tarver had already assaulted him
with a meat cleaver. At a minimum, Tarver’s actions constituted both an assault and
an assault on a public servant or peace officer under Texas law. See T EX . P ENAL CODE
ANN. § 22.01(a)(2) (West 2025) (“A person commits an offense if the person: . . .
intentionally or knowingly threatens another with 	imminent bodily 	injury[.]”);
id. § 22.01(b)(1) (third-degree felony to assault a public servant who is “lawfully
discharging an official duty, or in retaliation or on account of an exercise of official
power or performance of an official duty as a public servant”); id. § 22.01(b-2) (second-
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degree felony to assault “a person the actor knows is a peace officer . . . while the
officer . . . is lawfully discharging an official duty or in retaliation or on account of an
exercise of official power or performance of an official duty as a peace officer”). The
second factor, whether the suspect posed an immediate threat to the safety of the
officer and others, also weighs in favor of Officer Hernandez. If there was any doubt
that Tarver presented an immediate threat to the officers, the public, and himself, it
was dispelled when Tarver assaulted Officer Hernandez with the meat cleaver.
Although unsuccessful, Officer Hernandez’s second tasing of Tarver was another
attempt to subdue an unstable and dangerous suspect.
The third Graham factor also supports Officer Hernandez’s second use of his
taser—whether the suspect was actively resisting arrest or attempting to evade
arrest by flight. When Officer Hernandez tased Tarver the second time, Tarver had
already responded to the first attempt to subdue and restrain him by attacking
Officer Hernandez with a meat cleaver. After being brought to the ground by Officer
Downing’s gunshot, Tarver ignored repeated police commands to stay down and not
to move, standing up and moving toward the frying pan. There can be no doubt that
Tarver was not only resisting arrest but doing so with potentially deadly acts of
violence.
In sum, under the Graham factors and the totality of the circumstances, Officer
Hernandez’s decision to use his taser a second time against Tarver was objectively
reasonable, warranted, and did not violate the Fourth Amendment.
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2. Officer Downing
As 	with 	Officer 	Hernandez, 	the 	Court 	must 	review 	“the 	facts 	and
circumstances 	confronting” 	Officer 	Downing 	when 	he 	shot 	Tarver, 	Graham,
490 U.S. at 397, as well as the “totality of the circumstances,” Barnes, 605 U.S. at 80
(internal quotation marks omitted). Because the facts leading up to the first tasing
are discussed in detail above, see supra Part III.A.1.a, the Court recaps the events
just after Officer Hernandez deployed his taser.
Officer Downing shot Tarver the first time just seconds after Tarver was tased.
Although Tarver convulsed and dropped the frying pan when he was struck by the
taser, he quickly overcame the taser’s effects, maintained control of the meat cleaver,
and lunged toward Officer Hernandez, slashing at him with the cleaver.10 When the
taser failed to subdue Tarver and he assaulted Officer Hernandez with the cleaver,
Officer Downing shot Tarver once in the stomach. Tarver then fell to the ground and
dropped the cleaver.
Officer Downing’s second shots came about thirty-five seconds later. Tarver
was on the ground for most of that time, flailing and continuing to invoke God as “his
shield.” All the while, Tarver ignored every officer command, including nine orders to
“stay down” and four orders to “not move.” Tarver then suddenly got up. Although he
was immediately tased a second time by Officer Hernandez, this taser strike
10 Officer Downing’s use of lethal force was reasonable regardless of whether Tarver
wounded Officer Hernandez with the cleaver. Merely lunging toward the officers with a
deadly weapon is sufficient for officers to use deadly force. See, e.g., Tennessee v. Garner,
471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“[I]f the suspect threatens the officer with
a weapon . . . deadly force may be used if necessary to prevent escape[.]”).
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appeared to have no effect. Tarver moved back to the stairs and grabbed the frying
pan. He then turned and charged the officers, who backed away. But within seconds,
Tarver had closed in on them. After issuing one final order to “stay down,” Officer
Downing shot Tarver twice.
As the Supreme Court made clear in Barnes, the analysis for excessive-force
claims 	involving 	deadly 	force 	still 	“requires 	analyzing 	the 	‘totality 	of 	the
circumstances.’” Barnes, 605 U.S. at 80 (quoting Cnty. of Los Angeles v. Mendez,
581 U.S. 420, 427–28, 137 S.Ct. 1539, 198 L.Ed.2d 52 (2017)). “Of course, the
situation at the precise time of the shooting will often be what matters most; it is,
after all, the officer’s choice in that moment that is under review.” Id. That said,
courts must consider the events leading up to the use of deadly force, for “‘in-the-
moment’ facts ‘cannot be hermetically sealed off from the context in which they
arose.’” Id. (citation omitted). Put another way, “[t]he history of the interaction, as
well 	as 	other 	past 	circumstances 	known 	to 	the 	officer, 	. . . 	may 	inform 	the
reasonableness of the use of force.” Id. at 80–81.
The 	Fifth 	Circuit 	has 	instructed 	that 	the 	use 	of 	deadly 	force 	“is 	not
unreasonable when an officer would have reason to believe that the suspect poses a
threat of serious harm to the officer or others.” Ramirez v. Knoulton, 542 F.3d 124,
129 (5th Cir. 2008) (citation modified). Courts must be careful, however, “to avoid
second-guessing a police officer’s assessment, made on the scene, of the danger
presented by a particular situation.” Batyukova, 994 F.3d at 725 (citation modified).
That is especially true in cases involving deadly force, when officers often make “life-
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or-death decisions that must be made in a few seconds in highly stressful and
unpredictable circumstances.” Barnes, 605 U.S. at 89 (Kavanaugh, J., concurring).
While it’s “one thing to dissect and scrutinize an officer’s actions with the ‘20/20 vision
of hindsight,’ ‘in the peace of a judge’s chambers,’” it’s another “to make ‘split-second
judgments’ on the ground, ‘in circumstances that are tense, uncertain, and rapidly
evolving.’” Id. at 89–90 (quoting Graham, 490 U.S. at 396–97).
Under the Graham factors, the Court concludes that Officer Downing’s uses of
deadly force were objectively reasonable. As to the first factor—the severity of the
crime—the Court notes that Tarver’s actions precipitating Officer’s Downing’s first
and second uses of lethal force, attacking a police officer with a meat cleaver and later
charging officers with a frying pan, constituted both assault and assault on a public
servant or peace officer under Texas law. See T EX . P ENAL CODE ANN. § 22.01(a)(2)
(West 2025) (assault); id. § 22.01(b)(1) (assault on a public servant); id. § 22.01(b-2)
(assault on a peace officer); see also supra Part III.A.1.b. Thus, before each use of
lethal force by Officer Downing, he and the other officers had witnessed Tarver
commit at least one felony. The first factor weighs in Officer Downing’s favor.
Turning to the second Graham factor, Tarver posed an immediate threat to the
officers’ safety both times Officer Downing shot Tarver.11 The first time, Tarver had
just lunged toward Officer Hernandez and slashed at him with a meat cleaver.
Because he appeared unaffected by the taser, it’s unclear what harm Tarver may
11 The Fifth Circuit considers the second factor to be the most “critical” in a deadly
force case. Parker, 140 F.4th at 240; see also Singleton, 2024 WL 2891900, at *12 n.17 (“When
an officer uses deadly force, the second Graham factor is generally the most important.”
(citation modified)).
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have 	caused 	if 	Officer 	Downing 	had 	not 	shot 	him. 	Considering 	the 	“past
circumstances known to the officer”12—Tarver’s erratic behavior, noncompliance with
officer commands, and prior threatening comments—Officer Downing had “reason to
believe that [Tarver] pose[d] a threat of serious harm to the officer[s] or others.”
Ramirez, 542 F.3d at 129 (citation modified). In short, Officer Downing’s decision to
shoot Tarver was exactly the type of “life-or-death decision[] that must be made in a
few seconds in highly stressful and unpredictable circumstances.” Barnes, 605 U.S.
at 89 (Kavanaugh, J., concurring). The Court therefore finds that this factor favors
Officer Downing for the first shooting.
The intervening events between Officer Downing’s first shot and his later shots
further demonstrate that Tarver remained an immediate threat. After falling to the
ground as a result of Officer Downing’s first shot, Tarver not only ignored all officer
commands to stay down and to not move, he disobeyed them by doing the opposite:
he stood up and moved to retrieve the frying pan. He then charged directly at the
officers with renewed fervor, yelling that he “was not scared.” Taken together with
the preceding context—Tarver’s continuing violent behavior, failure to comply with
officer demands, and unaffected demeanor after being tased twice and shot once—
Officer Downing had ample “reason to believe that [Tarver] pose[d] a threat of serious
harm to the officer[s] or others.” Ramirez, 542 F.3d at 129 (citation modified). As a
result, this factor also favors Officer Downing as to the reasonableness of his second
use of deadly force.
12 Barnes, 605 U.S. at 81.
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The third Graham factor is much the same. When Tarver was tased, it was
obvious that the officers were attempting to subdue and detain him. But Tarver didn’t
respond by dropping his weapons, going to the ground, or allowing the officers to
restrain him. Instead, Tarver retained the meat cleaver in one hand and lunged
toward Officer Hernandez. If refusing to follow police orders and resisting being
handcuffed constitutes resisting arrest, e.g., Betts, 22 F.4th at 583 (quoting Cloud,
993 F.3d at 385), then lunging at an officer with a deadly weapon, after that officer
had deployed his taser, surely is too. In short, Tarver actively resisted arrest when
he responded violently to Officer Hernandez’s attempt to restrain him by deploying
the taser. In this regard, Kevin’s amended complaint concedes that Tarver was
resisting arrest. See (Dkt. #5 ¶ 35) (“[Tarver] then tried to resist the unlawful assault
by Defendants Hernandez and Downing and was shot at least twice more by
Defendant Downing.”).
A similar analysis applies to Officer Downing’s second use of lethal force:
Tarver actively resisted arrest by ignoring commands to stop moving and to stay on
the ground, by retrieving a weapon, and then charging toward the officers with that
weapon. This factor also weighs in favor of the reasonableness of Officer Downing’s
final use of lethal force.
With all three Graham factors supporting the reasonableness of Officer
Downing’s actions, and considering the totality of circumstances preceding both
shootings, the Court concludes that Officer Downing’s uses of deadly force were
reasonable. Officer Downing is therefore entitled to qualified immunity.
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* 	* 	* 	*
Because 	Kevin’s 	excessive-force 	claims 	against 	Officers 	Hernandez 	and
Downing fail under prong one of the qualified immunity analysis, prong two need not
be addressed. However, Kevin’s claims also fail under prong two.
B. Clearly Established Law
Prong two asks whether an officer’s actions violated clearly established law.
Betts, 22 F.4th at 584. This requirement “shields an officer from suit when she makes
a decision that, even if constitutionally deficient, reasonably misapprehends the law
governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198,
125 S.Ct. 596, 160 L.Ed.2d 583 (2004); see also Saucier v. Katz, 533 U.S. 194, 206,
121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (explaining that qualified immunity operates
“to protect officers from the sometimes hazy border between excessive and acceptable
force” (citation modified)).
“The 	clearly 	established 	inquiry 	is 	demanding, 	especially 	in 	claims 	for
excessive force.” Harmon v. City of Arlington, 16 F.4th 1159, 1167 (5th Cir. 2021).
Such claims often involve officers making “split-second decisions,” and the “results
depend ‘very much on the facts of each case.’” Id. at 1166 (quoting Kisela v. Hughes,
584 U.S. 100, 104, 138 S.Ct. 1148, 200 L.Ed.2d 449 (2018) (per curiam)). Therefore,
“a 	right 	is 	clearly 	established 	only 	if 	preexisting 	precedent 	has 	placed 	the
constitutional question beyond debate.”13 Id. at 1165 (citation modified). In other
13 The Court assumes that Fifth Circuit precedent alone can clearly establish the law.
See Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5, 142 S.Ct. 4, 211 L.Ed.2d 164 (2021)
(per curiam) (“assuming” that “controlling Circuit precedent clearly establishes law for
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words, the contours of the right must be “sufficiently definite [so] that any reasonable
official in the [officer’s] shoes would have understood that he was violating it.”
Plumhoff v. Rickard, 572 U.S. 765, 779, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014). “Put
simply, qualified immunity protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Mullenix, 577 U.S. at 12 (quoting Malley v. Briggs,
475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
When conducting this inquiry, courts must “frame the constitutional question
with specificity and granularity,” Morrow v. Meachum, 917 F.3d 870, 874–75
(5th Cir. 2019), rather than “at a high level of generality,” Ashcroft v. al-Kidd,
563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). An officer loses qualified
immunity 	only 	when 	“the 	violative 	nature 	of 	particular 	conduct 	is 	clearly
established . . . in light of the specific context of the case, not as a broad general
proposition.” Mullenix, 577 U.S. at 12 (citation modified).
There are two ways to demonstrate clearly established law. Under the first
approach, the plaintiff may “identify a case” or “body of relevant case law” in which
“an officer acting under similar circumstances . . . was held to have violated the
[Constitution].” Joseph, 981 F.3d at 330 (quoting District of Columbia v. Wesby,
583 U.S. 48, 64, 138 S.Ct. 577, 199 L.Ed.2d 453 (2018)). This approach “do[es] not
require a case directly on point,” but “existing precedent must have placed the
statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. In the
excessive-force context, “officers are entitled to qualified immunity unless existing
purposes of § 1983”); Betts, 22 F.4th at 585 n.6 (“We assume that circuit precedent can clearly
establish law for purposes of § 1983.” (citation modified)).
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precedent ‘squarely governs’ the specific facts at issue.” Kisela, 584 U.S. at 104
(quoting Mullenix, 577 U.S. at 13).
Under the second approach, “there can be the rare ‘obvious case,’ where the
unlawfulness of the officer’s conduct is sufficiently clear even though existing
precedent does not address similar circumstances.” Wesby, 583 U.S. at 64 (quoting
Brosseau, 543 U.S. at 199).
As with its analysis under the first prong, see supra Part III.A.1–2, the Court
reviews each officer’s actions separately.
1. Officer Hernandez
Even if a Fourth Amendment violation occurred, Officer Hernandez would still
be entitled to qualified immunity because his taser use did not violate clearly
established law. In this regard, Kevin has not met his “burden to find a case in
[Tarver’s] favor that does not define the law at a high level of generality.” Rich v.
Palko, 920 F.3d 288, 294 (5th Cir. 2019) (quoting Vann v. City of Southaven, 884 F.3d
307, 310 (5th Cir. 2018) (per curiam)); see also Ontiveros v. City of Rosenberg, 564 F.3d
379, 383 n.1 (5th Cir. 2009) (“Excessive force incidents are highly fact-specific and
without 	cases 	squarely 	on 	point, 	officers 	receive 	the 	protection 	of 	qualified
immunity.”).
To overcome Officer Hernandez’s qualified immunity in this case as to the first
deployment of his taser against Tarver, Kevin must show that clearly established law
prohibited Officer Hernandez from using the taser against a mentally distressed,
agitated person, armed with a meat cleaver and a frying pan, who had made
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threatening comments and repeatedly ignored police commands to drop his weapons,
as well as related warnings that he would be tased if he failed to comply. As to Officer
Hernandez’s 	second 	deployment 	of 	his 	taser, 	Kevin 	faces 	a 	similar 	burden,
heightened by the fact that, when Officer Hernandez deployed his taser the second
time, he did so after Tarver had assaulted him with the meat cleaver and been shot,
and Tarver had then ignored officer commands to remain on the ground and stood up
again.
Kevin identifies three Fifth Circuit cases that involved the use of tasers:
Joseph, Darden, and Anderson.14 See (Dkt. #21 at 8–9); (Dkt. #30 at 6–7). Taken
together, Kevin believes that these cases compel the conclusion that tasing Tarver—
unstable, armed, and refusing to comply with officer demands—violated clearly
established law. The Court disagrees.
At the outset, the Fifth Circuit decided Joseph on November 20, 2020, nearly
ten months after the events underlying this suit occurred. Because “the unlawfulness
of the conduct [must be] ‘clearly established at the time’” of the alleged violation,
Joseph cannot clearly establish the law as to Tarver’s claims. Cloud, 993 F.3d at 383.
But even if it could, Joseph is inapt: The officers there immediately resorted to
tasing and striking an individual who was not suspected of committing a crime, was
not armed, was experiencing a mental-health crisis, was in the fetal position, and had
not 	offered 	active 	resistance 	but 	had 	merely 	disobeyed 	officer 	commands.
14 Kevin also cites Bush v. Strain, 513 F.3d 492 (5th Cir. 2008), which is inapposite
because it did not involve tasing, but rather involved “forcefully slamm[ing] [the plaintiff’s]
face into a vehicle” while “handcuffed and subdued.” See id. at 501. These facts alone show
why it could not clearly establish the law as to Officer Hernandez’s tasing.
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Joseph, 981 F.3d at 326–27, 342. By contrast, the Court has concluded that the
officers here used measured and ascending actions in response to Tarver’s non-
compliance 	and 	the 	perceived 	risk 	he 	posed 	to 	them 	and 	others.
See supra Part III.A.1. What’s more, Kevin admits in his Rule 7(a) response that
Tarver was armed with “a frying pan and knife in his left hand” as he “descended the
stairs” toward the officers. (Dkt. #28 ¶ 12). Joseph therefore did not put Officer
Hernandez’s use of force beyond constitutional debate. See Harmon, 16 F.4th at 1165.
Moving next to Darden,15 Kevin is correct that “a constitutional violation
occurs when an officer tases, strikes, or violently slams an arrestee who is not actively
resisting arrest.” 880 F.3d at 731. But the facts in Darden cabin—or at least color—
this precept.
The officers in Darden were investigating “claims that cocaine was being sold
from a private residence.” Id. at 725. They “broke down the front door with a battering
ram, yelled that they were police, and ordered everyone to get down.” Id. Darden “was
kneeling on the seat of a couch near the door” and “immediately raised his hands in
the air” when the officers entered. Id. Even though Darden had made no threatening
gestures, an officer threw him to the ground. Id. at 726. And although Darden
appeared to comply with officer demands, an officer “proceeded to choke Darden and
to repeatedly punch and kick Darden in the face.” Id. After that, he was tased. Id.
Darden then pushed himself up because “he could not breathe,” but he put “his hands
in the air.” Id. He was then tased “a second time.” Id.
15 Darden v. City of Fort Worth, 880 F.3d 722 (5th Cir. 2018).
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None of the Darden facts resemble the circumstances at issue here. Tarver was
tased only because he refused to obey police commands, was armed with two deadly
weapons, was standing near the officers, and had made threatening comments. In
addition, no officer imposed physical force on Tarver before Officer Hernandez
deployed his taser. In short, Darden is inapposite—not “squarely on point.” Ontiveros,
564 F.3d at 383 n.1.
The Fifth Circuit’s gloss on Darden further supports the Court’s conclusion.
For example, the court has noted that Darden is “cited by every tasing plaintiff” and
perhaps is “cited too much.” Cobbins v. Sollie, No. 22-30692, 2023 WL 4015303, at *6
(5th Cir. June 14, 2023) (per curiam) (quoting Henderson v. Harris Cnty., 51 F.4th
125, 134 (5th Cir. 2022)). And in Henderson v. Harris County, the Fifth Circuit
remarked that Darden is an “extreme example[] that do[es] nothing to clearly
establish the law for less-extreme tasings[.]” 51 F.4th at 134. Because the facts and
circumstances surrounding Officer Hernandez’s use of his taser to attempt to subdue
Tarver are markedly different than those presented in Darden, Kevin is mistaken in
asserting that Officer Hernandez’s actions ran afoul of law “clearly established” by
Darden.
Kevin’s reliance on Anderson v. McCaleb, 480 F.App’x 768 (5th Cir. 2012) (per
curiam), is also misplaced. Anderson is an unpublished decision and “cannot clearly
establish 	the 	law.” 	See Joseph, 	981 F.3d at 341 n.105. 	Even looking 	past 	that,
Anderson established at most that once a subject has been subdued, no longer poses
any threat to officer safety, and is not actively resisting arrest, reasonable officers
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would know that they cannot continue to beat or tase the subject. Anderson,
480 F.App’x at 773. But Tarver was not subdued when Officer Hernandez deployed
his taser the first time or the second time. When Officer Hernandez tased him the
first time Tarver was armed with two weapons and posed a palpable threat to officer
safety, and when Officer Hernandez tased Tarver the second time Tarver had already
assaulted him with a meat cleaver and had ignored officer commands to stay on the
ground after he was shot. For the additional reason that the facts of Anderson are
unlike the circumstances here, Anderson cannot “clearly establish” the law applicable
to Officer Hernandez’s use of force.
In sum, none of the cases Kevin cites clearly establishes that any reasonable
officer in Officer Hernandez’s shoes would have known that his uses of force against
Tarver were unlawful. “That alone dooms his case here.” Vann, 884 F.3d at 310.
Finally, Kevin has not argued, much less shown, that a “robust consensus of
persuasive authority” exists “that defines the contours of the right in question with a
high degree of particularity.” Rich, 920 F.3d at 294 (citation modified). Nor has Kevin
argued or demonstrated that this case involves an “obvious” constitutional violation
by Officer Hernandez, such that Kevin “need not identify an on-point case to overcome
qualified immunity[.]” Salazar v. Molina, 37 F.4th 278, 285 (5th Cir. 2022).
For these reasons, Officer Hernandez is entitled to qualified immunity under
prong two of the inquiry.
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2. Officer Downing
Kevin’s claims against Officer Downing similarly fail because he did not carry
his “burden to find a case in [Tarver’s] favor that does not define the law at a high
level of generality.” Rich, 920 F.3d at 294.
To overcome Officer Downing’s qualified immunity in this case as to the first
use of lethal force against Tarver, Kevin must show that clearly established law
prohibited Officer Downing from using lethal force when, after being tased by Officer
Hernandez, Tarver maintained control of the meat clever he held and assaulted
Officer Hernandez with the cleaver. Of course, such clearly established law would
also need to encompass the circumstances preceding Officer Hernandez’s first
deployment of the taser, as described herein.
As to Officer Downing’s second use of lethal force against Tarver, Kevin faces
a similar burden, heightened by the following additional facts: when Officer Downing
used lethal force the second time, Tarver had already (1) been brought to the ground
by Officer Downing’s first use of lethal force, but ignored repeated commands to stay
on the ground and stood up; (2) been tased by Officer Hernandez a second time with
no effect; and then (3) retrieved the frying pan he had been holding and charged the
officers with it.
Kevin cites two cases involving the use of deadly force—Batyukova and
Romero v. City of Grapevine, 888 F.3d 170 (5th Cir. 2018). See (Dkt. #21 at 7, 9);
(Dkt. #30 at 6–7). The Court takes each in turn.
Batyukova, like Joseph, was decided after Tarver’s encounter with the officers.
It therefore cannot clearly establish the law. See supra Part III.B.1. Setting this aside,
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Kevin asserts that Batyukova established that force may not be used when “an
individual is no threat to any other individual.” (Dkt. #30 at 6) (citing Batyukova,
994 F.3d at 727). True enough. But that’s not the case here. The first time Officer
Downing shot Tarver, he was assaulting Officer Hernandez with a meat cleaver. The
second time Officer Downing used lethal force, Tarver was charging at the officers
with a frying pan. In each circumstance, Tarver posed a threat to his own safety, the
officers’ safety, and the safety of those nearby, so Batyukova does not apply.
The analysis under Kevin’s other cited authority—Romero—is much the same.
Kevin cites Romero for the general proposition that the use of deadly force violates
the Fourth Amendment “unless the officer has probable cause to believe that the
suspect poses an immediate threat of serious physical harm, either to the officer or
others.” 	(Dkt. #30 	at 6) 	(citing 	Romero, 	888 F.3d 	at 176). 	But 	“broad 	general
proposition[s]” will not do, for “the violative nature of particular conduct [must be]
clearly established.” Mullenix, 577 U.S. at 12 (citation modified). Moreover, as the
Court noted under its analysis for Batyukova, Officer Downing had ample cause to
believe that Tarver posed a threat of serious physical harm before each use of lethal
force. At both times, Tarver, armed with a deadly weapon, was assaulting one or more
police 	officers. 	And 	at 	both 	times, 	Tarver 	was 	resisting 	arrest. 	See, 	e.g.,
Flores v. Harris, No. H-17-3817, 2019 WL 1426313, at *17 (S.D. Tex. Mar. 29, 2019)
(“The majority of Fifth Circuit cases concluding that an officer’s use of deadly force
was objectively reasonable have involved situations in which the victim was actively
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resisting arrest, ignoring verbal commands, or was identified . . . as posing a safety
risk to others.”). As a result, Romero also does not apply.
Because Kevin has not provided a case that is “squarely on point,” or otherwise
shown that Officer Downing violated a clearly established right, Officer Downing
“receive[s] the protection of qualified immunity” under prong two. Ontiveros, 564 F.3d
at 383 n.1.16
C. Tarver’s Mental Distress
The fact that Kevin’s excessive-force claims arise from a violent encounter
involving a person in mental distress does not alter the result here. The Court
recognizes that “the legal significance of an officer’s awareness of a suspect’s mental
health is murky.” Joseph, 981 F.3d at 334. But the reasoning and arc of excessive-
force cases involving mentally unwell suspects only confirms the conclusion that
Officers Hernandez and Downing are entitled to qualified immunity.
A decade ago, in Sheehan, the Supreme Court considered police officers’ use of
deadly force to subdue a mentally ill woman during an armed confrontation. 575 U.S.
at 603–06. Specifically, the Court addressed the question whether, notwithstanding
the dangerous circumstances created by the mentally unwell suspect, the officers
were required to “attempt[] to accommodate her disability.” Id. at 613. Applying the
second prong of the qualified immunity inquiry, the Court held that established law
16 As with Officer Hernandez, as to Officer Downing, Kevin has not argued or shown
that a “robust consensus of persuasive authority” exists “that defines the contours of the right
in question with a high degree of particularity.” Rich, 920 F.3d at 294 (citation modified). Nor
has Kevin argued or shown that this case involves an “obvious” constitutional violation by
Officer Downing, such that Kevin “need not identify an on-point case to overcome qualified
immunity[.]” Salazar, 37 F.4th at 285.
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as of 2008 did not require officers to accommodate a suspect’s mental illness. “If
anything, the opposite may be true.” Id. at 617. At that time, the Supreme Court cited
with approval cases from several circuits upholding the application of qualified
immunity in excessive-force cases involving mentally ill subjects who posed a danger
to themselves, officers, or the public. See id. (first citing Bates v. Chesterfield Cnty.,
216 F.3d 367, 372 (4th Cir. 2000) (“Knowledge of a person’s disability simply cannot
foreclose officers from protecting themselves, the disabled person, and the general
public.”), then citing Sanders v. Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007)
(same), and then citing Menuel v. Atlanta, 25 F.3d 990 (11th Cir. 1994) (upholding
use of deadly force to try to apprehend a mentally ill man who had a knife and was
hiding behind a door)).
In another case decided only months after Sheehan, the Supreme Court cited
with approval an Eleventh Circuit decision, Long v. Slaton, 508 F.3d 576 (11th Cir.
2007), involving the use of lethal force against a mentally ill suspect. See Mullenix,
577 U.S. at 17. In Long, the Eleventh Circuit held “that a sheriff’s deputy did not
violate the Fourth Amendment by fatally shooting a mentally unstable individual
who was attempting to flee in the deputy’s car, even though at the time of the shooting
the individual had not yet operated the cruiser dangerously.” Id. The Supreme Court
highlighted with approval the Long court’s explanation for its decision: “the law does
not require officers in a tense and dangerous situation to wait until the moment a
suspect uses a deadly weapon to act to stop the suspect.” Id. (quoting Long, 508 F.3d
at 581–82).
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Sheehan and Mullenix endorse two related principles of importance to the
qualified immunity inquiry here. The first is that police officers confronting a tense
situation with an armed suspect are not required to wait for the suspect to use a
deadly weapon before taking preemptive action to subdue the suspect. The second is
that police officers are not required to alter their approach to such circumstances
when the suspect is mentally unwell.
Since Sheehan and Mullenix were decided, neither Supreme Court nor Fifth
Circuit precedent departs from the sensible lessons of those cases. Nor is there any
precedent 	binding 	on 	this 	Court 	that 	“clearly 	establishes” 	a 	requirement 	to
accommodate 	the 	mental 	disability 	of 	a 	suspect 	under 	otherwise 	dangerous
circumstances rendering the use of force, including lethal force, reasonable. To the
contrary, more recent decisions from the Supreme Court and persuasive decisions
from other courts are consistent with Sheehan and Mullenix.
For example, a few years after Sheehan, in Kisela, the Supreme Court
considered a case involving the non-fatal shooting of a mentally unwell suspect by a
law enforcement officer. 584 U.S. at 101–02. The Court recounted the circumstances
of the confrontation that precipitated the shooting: a knife-armed, threatening
suspect, whose bizarre behavior had been called into 911, and who disobeyed officer
commands to disarm for up to one minute before the officer felt compelled to shoot.
Id. at 105–06. The Court concluded, “[t]his is far from an obvious case in which any
competent officer would have known that shooting [the suspect] to protect [a third
party] would violate the Fourth Amendment.” Id. The same is true here, where
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Officers Hernandez and Downing, responding to a 911 call, confronted a threatening,
non-compliant suspect armed with two deadly weapons. Indeed, in this case—unlike
Kisela—the officers initially attempted to subdue Tarver through the use of non-
lethal force. Accordingly, the rationale for granting qualified immunity in Kisela
applies with even greater force here.
Similarly, in Frederick v. Motsinger, 873 F.3d 641 (8th Cir. 2017), the Eighth
Circuit considered a case involving a fatal encounter between several police officers
and a mentally unwell woman. Id. at 643–45. After officers were called to a
convenience 	store 	in 	Rogers, 	Arkansas, 	they 	encountered 	the 	suspect, 	Fallon
Frederick, who was “holding a four-inch folding knife and erratically pacing back and
forth.” Id. at 643. Frederick, who identified herself as a “paranoid schizophrenic,” and
who was later determined to have been under the influence of methamphetamine at
the time, refused to comply with one officer’s repeated commands to drop the knife,
which resulted in another officer discharging his taser at her. Id. at 643–45. Frederick
blocked one of the taser probes with her purse, was not subdued, and “charged the
officers.” Id. at 643. A third officer then shot and killed her. Id.
A lawsuit followed, which included claims against both the officer who tased
Frederick and the officer who shot her. Id. The district court held that the officers
were objectively reasonable in tasing Frederick and then shooting her when she
charged them, and that the officers were entitled to qualified immunity because they
had not violated Frederick’s clearly established Fourth Amendment rights. Id. at 645.
On appeal, no argument was made that it was objectively unreasonable to use deadly
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force against a suspect “who was charging a fellow officer with a knife raised in a
stabbing position.” Id. at 646. Nonetheless, in dicta the Eighth Circuit commented
that its “prior cases support[ed] the district court’s conclusion” that the “use of deadly
force in this situation was reasonable.” Id.
However, on appeal Frederick’s estate “vigorously pursued” the argument that
the attempted tasing of her was objectively unreasonable and violated her clearly
established Fourth Amendment rights. Id. The Eighth Circuit rejected this argument
and upheld the district court’s decision. The court’s analysis is instructive. The Eighth
Circuit began its discussion by noting that “[n]umerous cases have upheld use of
tasers to control potentially violent, defiant detainees who pose a safety risk to the
officers or others, particularly when the officer warns that a taser will be used,” as
the tasing officer did in Frederick. Id. The court went on to agree with the district
court that the tasing officer’s decision to use non-lethal force, his taser, in an attempt
to disarm Frederick “after she refused repeated warnings to drop a four-inch knife,”
was objectively reasonable. Id. at 647; see also id. (explaining that “Frederick was in
a small commercial space, in front of restrooms that might have been occupied, and
brandishing a weapon that posed a danger to the officers and store customers”).
In reaching this conclusion, the court was unpersuaded by the argument that,
because Fredrick had not “directly threatened” the officers with her knife before being
tased, the deployment of the taser was unreasonable. Rejecting this argument, the
Eighth Circuit noted that Frederick “was acting erratically, expressing irrational
thoughts, holding a knife in a stabbing position, challenging the officers’ authority,
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and disobeying commands to drop her knife.” Id. And, “[w]hile Frederick did not lunge
at the officers prior to being tased, [the officers] reasonably perceived she was ready
to use her knife against them or others.” Id. Comparing the case to Scott v. Harris,
the Eighth Circuit concluded that “‘it is clear from the videotape that [Frederick]
posed an actual and imminent threat’ of harm to the officers and others in the store.”
Id. (quoting Scott, 550 U.S. at 384). “The officers did not need to wait until Frederick
attacked them. ‘[I]t is reasonable for police to move quickly if delay would gravely
endanger their lives or the lives of others.’” Id. (quoting Sheehan, 575 U.S. at 612).
Citing several prior cases involving encounters with mentally ill suspects, the court
went on to explain that, “[e]ven if [Frederick] was suffering from mental illness or
other impairment, the relevant inquiry is whether she posed a threat, not what
prompted her threatening conduct.” Id.
The Eighth Circuit also agreed with the district court that the officers were
entitled to qualified immunity because “it was certainly not clearly established that
tasing a person standing in a public area who refused several commands to drop a
knife would violate that person’s constitutional rights.” Id. (internal quotation marks
omitted).
The Frederick decision, involving a fact pattern similar to the instant case, is
consistent with the Supreme Court’s guidance in Sheehan, Mullenix, and Kisela. The
Court understands that guidance to confirm that, when law enforcement officers
confront mentally distressed suspects, they are not hamstrung from employing
appropriate force, including lethal force, when a non-compliant, armed suspect poses
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a threat to himself, the officers, or others. Nor are officers expected or required under
the Fourth Amendment to somehow “accommodate” a mentally unwell suspect under
such circumstances, or to wait for the suspect to use a deadly weapon, before taking
action to subdue the suspect. Kevin has not pointed to any Fifth Circuit precedent,
and the Court is unaware of any such precedent, that departs from these lessons of
Sheehan, Mullenix, and Kisela.
* 	* 	* 	*
Officers Hernandez and Downing are entitled to qualified immunity under
both prongs of the qualified immunity inquiry because their uses of force were
reasonable and did not violate a clearly established right. Kevin’s claims must be
dismissed.
IV. C ONCLUSION
The officers’ Motion to Dismiss, (Dkt. #11), is GRANTED.
It is therefore ORDERED that all claims against Officers Hernandez and
Downing are DISMISSED with prejudice.
The Court will enter a final judgment by separate order.
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