Whether Petitioner's initial non-compliance followed by surrender permitted Respondent to reject the then-existing circumstances and slam Petitioner's face into the street?

QUESTION PRESENTED No dispute exists that Petitioner was intoxicated when Respondent assaulted him, but the police tried to stop Petitioner for a broken taillight. Petitioner initially failed to yield to the police. Petitioner did, however, stop his car and surrender to police authority. Police body cameras established Petitioner got out of his car, put his hands in the air, and followed instructions to “drop to his knees.” Petitioner, who speaks Spanish, complied, but after receiving further instructions, Petitioner stood up and then—at officer to his knees. Petitioner received no further instructions and Respondent approached Petitioner from behind and slammed Petitioner’s face into the concrete street. The act was so violent Petitioner’s foot went above the trunk of the car. The analysis for this use of force should have occurred under Graham v. Connor. 490 U.S. 386 (1989). Nominally the Fifth Circuit used Graham. But more than Graham, the Fifth Circuit used its recent opinion in Salazar v. Molina. 37 F.4th 278, 282 (5th Cir. 2022). The result of Salazar is that if an arrestee is ever noncompliant with the police, then the police can use “intermediate force” (such as a taser or dog bite) without recrimination. Petitioner asks whether his initial non-compliance followed by surrender permitted Respondent to reject the then-existing circumstances and slam Petitioner’s face into the street? Salazar is before this Court in cause number 22564.