“From Passive to Active”: Anderson v. Estrada and the Fifth Circuit’s Refined Test for Active Resistance and Drive-Stun Taser Use

Introduction

Anderson v. Estrada, No. 24-20142 (5th Cir. June 13 2025), presents another chapter in the continuing struggle to delimit the permissible use of force by law-enforcement officers under the Fourth Amendment. The case arose from the death of Kenneth Anderson, Jr., after Deputy Mohanad Alobaidi repeatedly drive-stunned him with a Taser during a prolonged roadside detention for suspected driving under the influence (DUI). The decedent’s estate, children, and parents brought § 1983 claims for excessive force and by-stander liability against four deputies; the district court denied qualified immunity on those claims.

On interlocutory appeal, a split Fifth Circuit panel reversed, holding that the drive-stunning did not amount to objectively unreasonable force because Anderson’s conduct constituted active resistance, DUI is a “serious crime,” and the officers used “measured and ascending” steps before resorting to the Taser. Judge King dissented, contending that fact issues concerning threat and resistance should have precluded dismissal.

Summary of the Judgment

The panel held that Deputy Alobaidi’s use of a Taser in drive-stun mode did not violate the Fourth Amendment.
Because no constitutional violation occurred, the court granted qualified immunity to all four deputies and dismissed the associated by-stander liability claims.
The majority emphasised three key points:
1. DUI remains an inherently serious offence for Graham analysis in the Fifth Circuit.
2. “Active resistance” encompasses more than overt attacks and includes sustained physical non-compliance (kicking, thrashing, using body weight) that frustrates officers’ objectives.
3. Drive-stun Taser applications—absent evidence of prong deployment or intent to kill—are not “deadly force,” and, when preceded by negotiation and lesser force, can be reasonable.
The dissent would have allowed the case to proceed past the pleadings, stressing that the video did not “blatantly contradict” plaintiffs’ version and that prolonged drive-stunning causing death could be found excessive.

Analysis

1. Precedents Cited and Their Influence

The opinion is an anthology of Fourth-Amendment excessive-force jurisprudence. Principal cases and how the panel deployed them include:

Graham v. Connor, 490 U.S. 386 (1989) – Framework of three factors (seriousness of crime, immediacy of threat, active resistance). The backbone of the analysis.
Pratt v. Harris County, 822 F.3d 174 (5th Cir. 2016) – Upheld taser use after escalating resistance. Majority analogised Anderson’s conduct to Pratt’s “aggressive evasion.”
Cloud v. Stone, 993 F.3d 379 (5th Cir. 2021) & Betts v. Brennan, 22 F.4th 577 (5th Cir. 2022) – Drew the “active vs. passive” line; the panel synthesised these to craft a detailed taxonomy of resistance.
Griggs v. Brewer, 841 F.3d 308 (5th Cir. 2016); Cooper v. Brown, 844 F.3d 517 (5th Cir. 2016) – Labeled DUI a serious crime; court re-affirmed that characterization.
Scott v. Harris, 550 U.S. 372 (2007) – Standard for accepting video evidence over pleadings (“blatantly contradict”). Used to justify reliance on body-camera footage.
Ashcroft v. Iqbal & Twombly – Pleading plausibility; guided the dismissal standard.
Timpa v. Dillard, 20 F.4th 1020 (5th Cir. 2021) – Distinction between excessive versus deadly force; panel used Timpa to note plaintiffs had not pled a deadly-force theory.
Hale v. Townley, 45 F.3d 914 (5th Cir. 1995) – Duty to intervene; examined by dissent but rendered moot by majority’s no-violation holding.

2. Legal Reasoning of the Majority

Qualified Immunity Framework – The court exercised discretion to decide only the first prong (constitutional violation) of the two-step test from Pearson v. Callahan.
Applying the Graham Factors
- Seriousness: DUI is serious per circuit precedent; facts (crash, car facing traffic) reinforce it.
- Threat: Despite handcuffs, Anderson’s size, PCP ingestion, and erratic kicking posed safety risks.
- Resistance: Court pronounced a refined rule: any physical action beyond non-threateningly pulling a hand back crosses into active resistance. Anderson’s repeated leg-hooking, thrashing, and refusal to enter the SUV satisfied that rule.
Proportionality of Force – Emphasised officers’ “measured and ascending” escalation: verbal requests → negotiation (water) → physical pushing/pulling → warning clicks of Taser → brief ground manoeuvre → then drive-stuns.
Drive-Stun ≠ Deadly Force – Noting the plaintiffs expressly disclaimed a deadly-force theory, the court also stated no precedent equates drive-stunning to deadly force; death alone does not retroactively convert force into deadly.
Video Supremacy – Because complaints embedded screenshots and referenced the footage, the court deemed the video part of the pleadings and found it “blatantly contradicts” allegations of minimal resistance.
Bystander Liability Falls – Without a predicate violation, fellow officers could not be liable for non-intervention.

3. Impact of the Decision

Clarifies “Active Resistance” – The panel aggregated and explicated prior holdings into a more concrete continuum, likely to guide district courts evaluating Rule 12 and summary-judgment motions.
Re-Affirms DUI Seriousness – Litigants arguing that DUI is “minor” in other circuits will face an uphill battle in the Fifth; prosecutors may cite the decision when force is used during DUI arrests.
Drive-Stun Not Presumed Deadly – Absent prong deployment or special facts, drive-stun episodes will probably be analysed as less-than-lethal, shifting plaintiffs back to an “excessive-force” (not deadly-force) burden.
Video Pleading Strategy – Plaintiffs who attach or quote body-camera footage risk empowering courts to override their narrative at the motion-to-dismiss stage.
Inter-Circuit Dialogue – The decision diverges from circuits that construe taser drive-stuns more skeptically (e.g., Fourth and Eleventh), potentially setting up future Supreme Court review.

Complex Concepts Simplified

Drive-Stun vs. Probe Mode: A Taser can fire barbed probes (creating a neuromuscular lock) or be pressed directly (drive-stun), producing pain but less incapacitation.
Qualified Immunity (QI): A shield for government officials unless (1) they violate a constitutional right and (2) that right is “clearly established” such that every reasonable officer would know.
Graham Factors: The Supreme Court’s tri-part test for excessive force—seriousness, threat, resistance—applied from the perspective of a reasonable on-scene officer.
Active vs. Passive Resistance:
- Passive: Verbal dissent, mild tension, non-compliance without physical struggle.
- Active: Physical movements (kicking, writhing, pulling away) that obstruct officers or threaten safety.
Bystander Liability: An officer who observes another using excessive force must intervene if there is (a) knowledge of the violation and (b) a realistic opportunity to act.
“Blatantly Contradict” Standard: Courts may credit video over pleadings only when footage is so clear that no reasonable fact-finder could accept the plaintiff’s version.

Conclusion

Anderson v. Estrada crystallises the Fifth Circuit’s view that how a suspect resists—and the officer’s step-by-step response—dominates the Fourth-Amendment reasonableness inquiry. The decision tightens the definition of active resistance, cements DUI’s status as a “serious” offence, and removes drive-stun Tasers from the realm of presumptively deadly force. For litigants, the case is a double-edged sword: it supplies clearer analytic tools, yet it also broadens qualified immunity where video shows escalating, chaotic encounters.

Ultimately, the ruling underscores a recurring judicial theme: The constitutional calculus is performed not in hindsight nor in the quiet of chambers, but in the split-second reality confronting officers on the street. Whether the Supreme Court will accept this refinement—or cabin it—remains to be seen, but for now, the Fifth Circuit has redrawn the map that guides both civil-rights plaintiffs and law-enforcement defendants in excessive-force litigation.