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

FILED August 31, 2022 No. 17-40996 Lyle W. Cayce Clerk

Robert A. Byrd,

Plaintiff—Appellant,

versus

Tony Harrell; Kelli Ward; Michael Black,

Defendants—Appellees.

Appeal from the United States District Court for the Eastern District of Texas USDC 6:14-CV-986

Before Wiener, Graves, and Duncan, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: While violently resisting several prison guards, prisoner Robert Byrd’s arm was broken by one guard’s baton strikes. Byrd sued for excessive force. The district court granted the guard summary judgment based on qualified immunity. We affirm. Case: 17-40996 Document: 00516454624 Page: 2 Date Filed: 08/31/2022

No. 17-40996

I. In July 2014, Byrd was serving concurrent life and 99-year sentences for capital murder and organized crime convictions in the Texas Department of Criminal Justice’s Coffield Unit in Tennessee Colony, Texas. 1 On the morning of July 15, Byrd was cited for a disciplinary violation for throwing water on an officer, Jeanenne Dehart. Just after noon he was cited again for throwing water on another officer. At approximately 2:45 P.M., prison officials authorized the use of chemical agents and a five-man force move team, led by Sergeant Tony Harrell, to gain Byrd’s compliance with the prison’s restraint procedure for a strip search. Dehart witnessed with a handheld video camera. A hallway surveillance camera also captured the ensuing altercation. Harrell approached Byrd’s cell and asked Byrd to comply with a strip search. When Byrd refused, Harrell sprayed a chemical agent into Byrd’s cell. In response, Byrd wrapped his face in a jacket and towels, rendering the spray ineffective. Byrd hollered, “Is that all you got?” The five-man force team then moved into the hallway. Harrell asked again, “Are you going to comply?” Byrd responded, “No.” For nearly a minute, Harrell waited in vain for the chemical agent to take effect. Harrell initiated the force team and radioed “open 20”—Byrd’s cell. As the cell door edged open, Byrd pushed out and into the force team shields. The team pushed back, and Harrell swung his riot baton at Byrd’s legs. At this point, the handheld camera went dark, though the sound

1 See Byrd v. State, No. 2-08-124-CR, 2009 WL 672390, at *1 (Tex. App. Mar. 12, 2009); Byrd v. State, No. 10-08-390-CR, 2009 WL 3048612, at *1 (Tex. App. Sept. 23, 2009).

2 Case: 17-40996 Document: 00516454624 Page: 3 Date Filed: 08/31/2022

No. 17-40996

continued to record. 2 From the view of the surveillance camera, Byrd fell to one knee and then to the ground. Harrell swung his baton at Byrd’s arm, as Dehart twice announced that the camera had stopped working. Over the next 20 seconds, Harrell stepped back and observed the force team wrestle to restrain Byrd. One officer yelled, “Put your arm out!” Another officer grabbed Byrd in a cho