Hanks v. Rogers
853 F.3d 738 (5th Cir. 2017)
Holding
An officer was not entitled to qualified immunity where he used a physical 'half spear' takedown against a passively resisting motorist who posed no immediate threat, had his empty hands displayed behind his back, and was stopped for only a minor traffic violation.
What This Case Is About
Marcus Hanks was driving slowly on Interstate 30 in Grand Prairie, Texas, searching for a lost cell phone when Officer Randall Rogers stopped him. After Hanks questioned the officer’s commands, Rogers physically took Hanks down with a “half spear” blow to the upper back despite Hanks standing with his empty hands displayed behind his back. The Fifth Circuit reversed summary judgment for the officer, holding that qualified immunity did not protect the use of physical force against a passively resisting motorist stopped for a minor traffic violation who posed no immediate threat.
The Facts
On the evening of February 26, 2013, Hanks was driving on I-30 with his hazard lights on, approximately 20 miles per hour below the speed limit, searching for a cell phone he had accidentally left on top of his car. Officer Rogers stopped him.
Rogers asked for Hanks’s license and insurance. Hanks produced his license immediately but couldn’t find insurance for the borrowed vehicle. After waiting silently for almost a minute, Rogers told Hanks to “step out of the vehicle and come to the back.” Hanks questioned this but eventually complied.
Outside the car, Rogers issued a rapid series of escalating commands: stand at a spot, take hands out of pockets, put hands on the car, put hands behind his head, get on his knees. Hanks largely complied — he placed his hands on the car, moved them behind his head, and then folded them behind his back. But when told to get on his knees, Hanks asked twice, “Am I under arrest?” Rogers never answered.
For approximately the last 30 seconds before the takedown, Hanks stood facing away from Rogers with his empty hands visible behind his back. Rogers had his taser trained on Hanks the entire time. When Hanks took a small lateral step — hands still behind his back, still facing away — Rogers rushed him and administered a “half spear” to his upper back, driving his body onto the trunk and then to the ground. Hanks offered no resistance while being handcuffed.
Hanks received treatment for contusions, strains, and bruised ribs. The Grand Prairie Police Department’s own investigation concluded the half spear “was not objectively reasonable” and that Rogers “fail[ed] to communicate” that Hanks was under arrest. The department suspended Rogers indefinitely.
What the Court Decided
The Fifth Circuit reversed summary judgment and held Rogers was not entitled to qualified immunity. The court conducted a thorough Graham v. Connor analysis:
Severity of the crime: Hanks was stopped for a minor traffic violation — driving under the speed limit. This substantially lowered the need for force.
Immediate threat: For the last 30 seconds, Hanks stood with his empty hands displayed behind his back, facing away from Rogers, with a taser trained on him. The court found little basis for Rogers to perceive an “immediate threat.”
Resistance: Hanks’s resistance was “at most, passive” — he questioned commands and briefly delayed compliance, but never physically resisted and increasingly complied over time.
The court held this was an “obvious case” under Graham where the use of force was clearly excessive. Existing precedent, particularly Deville v. Marcantel, clearly established that an officer may not abruptly resort to overwhelming physical force against a non-threatening, passively resisting individual stopped for a minor traffic violation, rather than continuing verbal negotiation.
Why This Case Matters for Your § 1983 Case
Hanks is one of the strongest Fifth Circuit cases for plaintiffs in excessive force claims arising from traffic stops. It establishes that:
- Passive resistance does not justify physical takedowns. Questioning commands, brief delays in compliance, and asking “Am I under arrest?” are passive — not active — resistance.
- Officers must continue verbal negotiation. When someone is not threatening and not fleeing, the officer should keep talking rather than escalating to physical force.
- The speed of escalation matters. Rogers went from first command to kneel to physical takedown in just 20 seconds — without even telling Hanks he was under arrest. This rapid escalation weighs heavily against the officer.
- Video evidence can support the plaintiff. The dashcam recording, available in the court’s opinion, documented the entire encounter and supported Hanks’s account.
Key Takeaway
An officer who physically takes down a passively resisting person who poses no immediate threat, has not attempted to flee, and is stopped for a minor traffic violation — without even telling the person they are under arrest — violates clearly established law. The Fourth Amendment requires officers to use “measured and ascending” responses that correspond to the level of resistance, and to continue verbal negotiation before resorting to physical force when the situation allows.