Case: 23-30723 Document: 58-1 Page: 1 Date Filed: 08/27/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-30723
FILED
August 27, 2024
____________
Lyle W. Cayce
Curtis Terrell; Angela Terrell, Clerk
Plaintiffs—Appellees,
versus
Jason Allgrunn; Michael Banta; Jeffery Henderson, Jr.,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:20-CV-999
______________________________
Before Smith, Engelhardt, and Ramirez, Circuit Judges.
Jerry E. Smith, Circuit Judge:
After consuming 10 beers, 4 tramadol pills, 10–15 Tylenols, and half a
gram of methamphetamine, Curtis Terrell began to run erratically up and
down the streets of a residential neighborhood. Angela Terrell, Mr. Terrell’s
wife, was understandably concerned and called the police. When Officer
Jason Allgrunn arrived, he arrested Mr. Terrell, and after Mrs. Terrell went
into the middle of the street to film the incident, arrested her as well. The
Terrells bring a host of federal and state claims against Allgrunn and other
responding officers. The district court denied summary judgment to defendants on every claim. We reverse and render in major part and dismiss the
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No. 23-30723
appeal and vacate and remand in minor part.
I.
On August 11, 2019, Mrs. Terrell called 911 requesting an ambulance
because Mr. Terrell had reportedly taken pain pills: “My husband just took
some pills, I need you to come get him, please.” 1 They had been fighting all
day. Mr. Terrell was outside the house running up a residential street. When
connected to the sheriff’s office, Mrs. Terrell said, “I need an ambulance for
my husband, I don’t need the sheriff’s office.” She continued to convey her
husband’s location to the sheriff’s office as he ran around outside and she
tried to keep up with him. About a minute later, he was still running up and
down the road. The sheriff’s office seemed skeptical that pain pills were
making him run up and down the street. Mrs. Terrell stated that Mr. Terrell
had also been drinking that day. Allgrunn was informed of the nature of the
situation as he was en route.
Allgrunn was the first officer to respond. Allgrunn’s interaction with
the Terrells was largely captured by his dashboard camera. When he arrived,
the Terrells were standing on opposite sides of the road’s edge, each on a cell
phone. Allgrunn parked and exited his vehicle. He approached the pair and
asked Mr. Terrell, “you alright?” to which Mr. Terrell responded, “yes,
sir.” As Mr. Terrell turned and walked away, Allgrunn twice commanded
him to “come here,” while Mr. Terrell accused Mrs. Terrell of “bullshitting.” Mr. Terrell stopped and mumbled an unclear response.
After some back-and-forth discussion, Allgrunn instructed Mr. Terrell to “walk to the front of my vehicle” and warned him that “I am not going
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1
The district court provided a generally adequate outline of the relevant facts.
What follows is a heavily edited and enriched version of the district court’s recounting in
light of our view of the record.
2
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to tell you again.” Mr. Terrell retorted, “Or what?” as he proceeded to walk
to the vehicle. When Mr. Terrell reached the front of the vehicle, he began
to talk to somebody else on his phone and initially turned his back to the
vehicle before finally facing the vehicle and beginning to surrender. Allgrunn
pushed Mr. Terrell forward so that his body rested on the hood of the vehicle,
with his hands outstretched in front of him. Allgrunn frisked Mr. Terrell as
Mr. Terrell spoke to someone off-camera. Mr. Terrell proclaimed, “I ain’t
done nothing wrong,” then pulled away from Allgrunn in an attempt to evade
his control while Allgrunn told Mr. Terrell to put his hands behind his back.
Allgrunn looped his left arm around Mr. Terrell’s shoulder and torso, taking
him to the ground.
At this point, Mrs. Terrell approached, stood about a yard or two from
the men, and began to film the interaction on her cell phone. As the men
audibly tussled, Allgrunn—who appeared to be squatting over Mr. Terrell—
told Mr. Terrell to put his hands behind his back and asked Mrs. Terrell
whether she was the individual who called 911. Mr. Terrell was speaking
loudly throughout. 2 As the altercation continued, Allgrunn struck Mr. Terrell three times. As Allgrunn handcuffed Mr. Terrell, Mrs. Terrell hovered
closely behind Allgrunn. He warned her to back up and told her that she had
misused 911. Mrs. Terrell explained that she had called 911 because she
wanted her husband transported to the hospital.
Allgrunn at least twice commanded Mr. Terrell to stand up and
then—after he did not comply—to roll over on to his side. Mr. Terrell began
to make louder unintelligible sounds. Allgrunn then punched Mr. Terrell a
fourth time and shouted, “don’t f****** bite me.” As Allgrunn lifted Mr.
Terrell to his knees, he told him, “now you’re really under arrest” before
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2
Though what he is saying is hard to decipher from the video.
3
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turning to inform Mrs. Terrell that she would also be arrested. Mrs. Terrell
and Allgrunn argued about whether Mrs. Terrell had interfered with Mr.
Terrell’s arrest. Mrs. Terrell had hovered close to the two men throughout
the arrest, mostly out of Allgrunn’s line of sight. Allgrunn later explained to
Mr. Terrell that he was “under arrest for resisting a police officer and battery
on a police officer for biting me.”
When emergency responders arrived, Allgrunn explained that Mr.
Terrell was “bleeding from the mouth because when I took him in custody,
he tried to bite my ankle and he got socked.” Mrs. Terrell tried to interrupt
from the background as Allgrunn recounted what had transpired. Allgrunn
asked Mrs. Terrell to be quiet and move so that he could speak with the
emergency responders. The responders began to evaluate Mr. Terrell as Mrs.
Terrell stood a few steps away. By this point, Mr. Terrell’s mouth and chin
were bloodied. The responders continued to evaluate Mr. Terrell for eleven
minutes, during which time Officers Michael Banta and Jeffery Henderson
arrived.
During Mr. Terrell’s evaluation, Allgrunn asked what Mrs. Terrell
was recording, “that the medics are here?” Mrs. Terrell and Allgrunn then
exchanged words about whether she was interfering. She said something
about talking to her brother. Allgrunn questioned her videotaping efforts and
called her “uncooperative.” Then, after asking Mrs. Terrell repeatedly to
move out of the way, Allgrunn told her to put down her belongings because
she was under arrest. Mrs. Terrell stood in place, even as Allgrunn grasped
her elbow to walk her toward his vehicle. Allgrunn then grabbed Mrs. Terrell
and walked her to the back door of his vehicle and out of the video frame.
Allgrunn instructed Mrs. Terrell to “get in the car,” and the two sound as
though they are struggling over Mrs. Terrell’s phone. Mrs. Terrell screamed
at Allgrunn, “Let go of my f****** head,” and “I am not resisting I am trying
to get in the f****** vehicle if you would let go.” Still out of frame, Mrs.
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Terrell seems to surrender her cell phone and get in the car. She was released
by Allgrunn about eleven minutes later.
At the hospital, Mr. Terrell was hostile and uncooperative and admitted to having consumed half a gram of meth, at least 10 beers, 4 tramadol
pills, and 10-15 Tylenols. His blood test confirmed high levels of alcohol and
the presence of meth.
The Terrells brought a host of federal and state claims against Allgrunn, Banta, and Henderson. The defendants moved for summary judgment largely based on qualified immunity (“QI”). The district court denied
summary judgment, and defendants appeal.
II.
“This court reviews de novo the district court’s resolution of legal
issues on a motion for summary judgment on the basis of qualified immunity.” Griggs v. Brewer, 841 F.3d 308, 311 (5th Cir. 2016) (citation omitted).
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Although we review
evidence in the light most favorable to the nonmoving party, we assign
greater weight, even at the summary judgment stage, to the facts evident
from video recordings taken at the scene.” Carnaby v. City of Hous.,
636 F.3d
183, 187 (5th Cir. 2011) (citing Scott v. Harris,
550 U.S. 372 (2007)).
Defendants assert QI from several of plaintiffs’ claims.
To defeat qualified immunity, the plaintiff must show that
the official’s conduct was objectively unreasonable in light of a
clearly established rule of law. This is a demanding standard:
Because qualified immunity protects all but the plainly incompetent or those who knowingly violate the law, we do not deny
its protection unless existing precedent places the constitutional question beyond debate. The court must ask whether the
5
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law so clearly and unambiguously prohibited the official’s conduct that every reasonable official would understand that what
he is doing violates the law.
Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015) (cleaned up).
“We do ‘not require that an official demonstrate that he did not violate
clearly established federal rights; our precedent places that burden upon
plaintiffs.’” Pierce v. Smith,
117 F.3d 866, 872 (5th Cir. 1997) (quoting Salas
v. Carpenter,
980 F.2d 299, 306 (5th Cir. 1992)).
This court has jurisdiction over interlocutory appeals from a denial of
QI. “[A] district court’s rejection of a defendant’s qualified-immunity defense is a ‘final decision’ subject to immediate appeal under the general
appellate jurisdiction statute, 28 U.S.C. § 1291.” Behrens v. Pelletier,
516 U.S.
299, 301 (1996).
“[O]ur jurisdiction is generally limited to examining the materiality
(i.e., legal significance) of factual disputes the district court determined were
genuine, not their genuineness (i.e., existence). But an exception exists: we
are permitted to review genuineness where, as here, video evidence is available.” Argueta v. Jaradi, 86 F.4th 1084, 1088 (5th Cir. 2023) (citations
omitted).
III.
The district court denied Allgrunn summary judgment on the Terrells’ false arrest claims. We reverse and render judgment for Allgrunn on
both.
A.
“The defense of probable cause negates a [42 U.S.C.] § 1983 claim
based on an alleged false arrest.” Howell v. Tanner, 650 F.2d 610, 614 (5th
Cir. Unit B July 1981) (citations omitted). We view the existence of probable
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cause according to the totality of the circumstances. See District of Columbia
v. Wesby, 583 U.S. 48, 60–61 (2018). “Probable cause is not a high bar” but
“requires only a probability or substantial chance of criminal activity, not an
actual showing of such activity.”
Id. at 57 (citations and internal quotation
marks omitted). “To determine whether an officer had probable cause for
an arrest, we examine the events leading up to the arrest, and then decide
whether these historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to probable cause.”
Id. at 56–57 (citation
and internal quotation marks omitted).
The district court erroneously applied a subjective standard:
Defendants cannot simply assert a list of violations for which,
with the benefit of hindsight, a reasonable officer could have
had probable cause to arrest Mr. Terrell; instead, they must
instead demonstrate that Allgrunn believed that he actually had
probable cause to take Mr. Terrell into protective custody
based on the facts known to him at the time.[ 3]
But that is diametrically opposite our caselaw. “There must not even arguably be probable cause for the search and arrest for immunity to be lost. That
is, if a reasonable officer could have concluded that there was probable cause
upon the facts then available to him, qualified immunity will apply.” Brown
v. Lyford, 243 F.3d 185, 190 (5th Cir. 2001) (cleaned up and emphasis added).
Moreover, the relevant inquiry is not into the officer’s actual beliefs at the
time. “Our cases make clear that an arresting officer’s state of mind (except
_____________________
3
The error is repeated later in the district court’s analysis:
In this case, Plaintiffs have provided sufficient summary judgment
evidence to call into question whether Allgrunn actually believed that Mr.
Terrell was disturbing the peace, that Mrs. Terrell was obstructing his
investigation, or that Mrs. Terrell was impeding the responders’ medical
evaluation.
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for the facts that he knows) is irrelevant to the existence of probable cause.”
Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (citations omitted).
B.
Defendants point to six offenses for which Allgrunn had probable
cause to arrest Mr. Terrell and additionally suggest probable cause existed to
take Mr. Terrrell into protective custody. We only need to address La. R.S.
14:103(A)(3) because there is no genuine dispute of material fact as to
whether Allgrunn had arguable probable cause to arrest Mr. Terrell for
(1) “[a]ppearing in an intoxicated condition” (2) “in such a manner as would
foreseeably disturb or alarm the public.” The district court did not find a
genuine dispute of material fact as to the first element. But, as to the second
element, the court found “too many factual disputes that remain answered,”
including
1. “whether the neighbors were disturbed or felt threatened by Mr. Terrell’s behavior and had reported these concerns to Allgrunn or the 911
dispatcher prior to the arrest”;
2. “what specific actions Mr. Terrell exhibited that led Allgrunn to
believe he posed a threat to his neighbors”; and
3. “whether the combination of drugs and alcohol that Mr. Terrell consumed resulted in unlawful behavior.”
All three of these are immaterial as to whether Allgrunn had arguable probable cause to arrest Mr. Terrell, under La. R.S. 14:103(A)(3), because
1. The statute only requires that Mr. Terrell’s behavior “foreseeably
disturb . . . the public.” The public’s actual reaction is of no import.
Nor is there any reason to believe that Mrs. Terrell, who quite evidently was disturbed enough to call the police, does not count as “the
public” for these circumstances.
2. The statute does not require any actions to “pose[] a threat to his
neighbors.”
3. The statute does not require a causal relationship between drugs and
alcohol and the unlawful behavior. Moreover, appending “unlawful
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behavior” here is both circular and asking a legal, not factual,
question.
Aside from the district court’s faulty analysis, Allgrunn quite clearly
had arguable probable cause to arrest Mr. Terrell. There is no dispute that
Allgrunn was aware Mrs. Terrell had reported that Mr. Terrell was running
up and down residential streets having taken drugs and alcohol. That call,
especially in the context of Terrell’s noticeable intoxication, is enough to
clear the low bar of arguable probable cause. Nor are those the only facts
supporting probable cause. The Louisiana courts have affirmed a conviction
under La. R.S. 14:103(A)(3) for much less. See State v. Trepagnier, 07-749,
(La. App. 5th Cir. 3/11/08), 982 So. 2d 185. Since Allgrunn had probable
cause, he is entitled to QI from Mr. Terrell’s false arrest claim.
C.
Defendants contended, in the district court and here, that Allgrunn
had probable cause to arrest Mrs. Terrell for multiple offenses. We address
two here.
1.
First, Allgrunn had arguable probable cause to arrest Mrs. Terrell for
simple obstruction of a highway under La. R.S. 14:97. 4
Plaintiffs fail to identify a single genuine dispute of material fact that
remains with respect to La. R.S. 14:97. Indeed, they concede that Mrs. Terrell “walked into the middle of the street for about a minute to record Officer
_____________________
4
Plaintiffs argue that this is waived for inadequate briefing. It is not. In the district
court, defendants walked through the relevant facts and quoted the relevant portion of La.
R.S. 14:97. They expand that explanation on appeal. Given the simplicity of the Louisiana
statute, detail with which defendants explain the underlying facts, and apparent absence of
any caselaw complicating the legal analysis, defendants have provided enough to avoid
waiver.
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Allgrunn.” Whether that constitutes arguable probable cause to arrest under
La. R.S. 14:97 is a purely legal question.
We bypass the first prong of the QI inquiry and ask whether the law
was so clearly established that “every reasonable official would understand
that what he is doing violates the law.” Vincent, 805 F.3d at 547 (cleaned up).
Where, as here, the complained-of arrest is pursuant to state law that “might
be reasonably read as not condemning the conduct of a reasonable officer in
[the officer’s] position,” such that it would not “give[] the officer fair warning that, if he elected to arrest [the plaintiff], he would be doing so without
probable cause,” then the officer’s actions would be “reasonable—even if
mistaken” and the plaintiff would have failed to “satisfy her clearly-established-law burden.” A.M. ex rel. F.M. v. Holmes,
830 F.3d 1123, 1149
(10th Cir. 2016) (cleaned up). 5
Mrs. Terrell fails to demonstrate that Allgrunn did not even arguably
have probable cause to arrest her under La. R.S. 14:97. She asserts that since
she “could easily have moved had a car approached . . . no obstruction occurred,” but she provides no legal support for that interpretation of the statute. Section 14:97 covers “intentional . . . performance of any act on any
. . . road . . . which will render movement thereon more difficult.” Mrs. Terrell’s walking into and remaining in the middle of the road unambiguously
rendered movement on the road more difficult, even if no cars attempted to
circumnavigate her. At the very least, the law does not appear to be clearly
established to the contrary.
_____________________
5
See Club Retro LLC v. Hilton, 568 F.3d 181, 207 n.24 (5th Cir. 2009) (suggesting
that both legal and factual indeterminacies might supply officers with arguable probable
cause within the context of the QI analysis).
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2.
Second, even if Allgrunn did not have arguable probable cause to
arrest Mrs. Terrell under La. R.S. 14:97, he had arguable probable cause
under La. R.S. 14:329(A), which provides,
Interfering with a law enforcement investigation is the intentional interference or obstruction of a law enforcement officer
conducting investigative work at the scene of a crime or the
scene of an accident by refusing to move or leave the immediate
scene of the crime or the accident when ordered to do so by the
law enforcement officer when the offender has reasonable
grounds to believe the officer is acting in the performance of his
official duties.
After Allgrunn took Mr. Terrell down to the ground, Mrs. Terrell
approached Allgrunn from behind, and he twice ordered her to “back up.”
She does, but encroaches about 30 seconds later and tells Mr. Terrell, “Baby,
just put your hands behind your back.” Allgrunn tells her, “You need to back
up too because you’re gonna be charged for misuse of 911.” She does not
meaningfully back away and asks, “How did I misuse 911?” She then walks
around the pair to pick something off the floor and backs away again, this time
out of the view of the camera. He tells her again, “You need to back off
because you’re going too.” She says, “Okay.” He repeats, “Back off, that
way,” points behind him, and repeats, “That way or you’re going in cuffs.”
She moves behind him in the direction that he pointed. After the EMTs arrive and start checking out Mr. Terrell’s injuries, Mrs. Terrell moves to the
right side of the EMTs. Allgrunn tells her to, “Go back this way,” multiple
times, but she ignores him as she speaks on the phone, and he arrests her.
Based on the video footage, it seems Allgrunn had probable cause to
arrest Mrs. Terrell for interfering with a law enforcement investigation.
Either way, plaintiffs have failed to demonstrate that Allgrunn’s actions here
were in violation of clearly established law.
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IV.
The district court denied Allgrunn QI from the excessive-force claims.
We reverse and render judgment for Allgrunn as to Mrs. Terrell, but we
dismiss the appeal as to Mr. Terrell.
A.
“To overcome [an officer’s] claim of qualified immunity on [a] claim
of excessive force, [a plaintiff] must show (1) an injury, (2) which resulted
directly and only from a use of force that was clearly excessive, and (3) the
excessiveness of which was clearly unreasonable.” Poole v. City of Shreveport,
691 F.3d 624, 628 (5th Cir. 2012) (citation and internal quotation marks omitted). “[T]he right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or threat thereof to
effect it.” Graham v. Connor,
490 U.S. 386, 396 (1989) (citation omitted).
Our review “requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.”
Id. (citation omitted). “[O]ur focus is on the officers’ reasonable perception
of the events at issue, as they happened, without the aid of hindsight, multiple
viewing angles, slow motion, or the ability to pause, rewind, and zoom.”
Tucker v. City of Shreveport,
998 F.3d 165, 176 (5th Cir. 2021).
B.
The district court found (1) that “[d]efendants failed to present any
evidence that would indicate that Mr. Terrell was dangerous and posed an
immediate threat to Allgrunn, Mrs. Terrell, or any of the off-camera neighbors” and (2) that there was a genuine factual dispute as to whether “Mr.
Terrell was actively resisting arrest while on the ground.” After watching the
video and listening to the 911 call, we agree that there is a genuine dispute of
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material fact but only as to the period during which Mr. Terrell is on the
ground and out of the field of vision of the camera. 6
Mr. Terrell provides three cases that, he says, clearly establish the law.
But they are all readily distinguishable from most of the aspects of Mr. Terrell’s situation. Estate of Aguirre v. City of San Antonio, 995 F.3d 395, 402 (5th
Cir. 2021), involved the death of the suspect. Sam v. Richard,
887 F.3d 710,
712 (5th Cir. 2018), involved an apparently sober minor who the police officer
admitted was not resisting. And Alexander v. City of Round Rock,
854 F.3d
298, 302 (5th Cir. 2017), also involved an apparently sober suspect who “did
not physically resist the officers in any way.”
On the other hand, defendants mainly rely on Griggs v. Brewer,
841 F.3d 308 (5th Cir. 2016). The court was clear that a “‘takedown’
maneuver—against a drunken, erratic suspect who is resisting arrest” was
not constitutionally unreasonable in light of clearly established law.
Id. at 314
(citation omitted). Moreover, given that the suspect was on the ground and
the officer was trying to handcuff him, the officer’s continued punching did
not violate clearly established law.
Id. at 315. Finally, a retaliatory punch in
the face in response to a kick from the handcuffed suspect “was not objectively unreasonable.”
Id. at 316. 7
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6
Of course, “an assessment of whether a suspect’s physical actions amount to
threatening behavior bearing on an excessive-force claim is a question of law.” Argueta,
86 F.4th at 1090.
7
Though the first two findings in Griggs were on the second prong of the QI analysis, it seems that the final finding was on the first. See id. Even though much of Griggs
resolves that case based on QI’s second prong rather than assessing whether there was an
actual constitutional violation, Griggs retains its probative value here. When Griggs was
written, clearly established law did not prohibit conduct very similar to what happened
here. Plaintiffs have failed to demonstrate that any clearly established law condemning this
sort of conduct has come about since.
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Griggs indicates that clearly established law in 2016 did not infringe on
the wide berth given to officers when dealing with unruly, intoxicated suspects. Plaintiffs have failed to demonstrate the law has changed. Even so,
the ability of police officers to wield force in these situations is not unlimited.
The genuine disputes of fact about what Mr. Terrell did while he was on the
ground that materially bear on whether the force used in this situation was
reasonable in light of clearly established law.
Since the video provides insufficient grounds for us effectively to
review the district court’s genuineness determination for the time when Mr.
Terrell is out of sight, this part of this case does not fall within the exception
articulated in Argueta. See 86 F.4th at 1088. Thus, because we are without
jurisdiction to review a finding of a genuine dispute, we dismiss the appeal
only for the denial of summary judgment to Allgrunn insofar as any excessive
force may or may not have occurred while Mr. Terrell is out of the video’s
frame.
C.
Mrs. Terrell’s excessive force claim is easily resolved on the second
prong of the QI analysis. In short, plaintiffs can identify no case remotely
resembling Mrs. Terrell’s claim. The only case that even mentions psychological injury was raised by the district court. See Flores v. Palacios, 381 F.3d
391, 397 (5th Cir. 2004). But an abstract statement that psychological injury
is not per se to be excluded from Fourth Amendment claims is not enough.
Plaintiffs do no work to show any case established a right to be free from this
sort of psychological injury (even generally defined) based on this sort of
conduct (even generally defined). 8 Therefore, we reverse and render judg-
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8
Cf. Cantrell v. City of Murphy, 666 F.3d 911, 919–20 (5th Cir. 2012) (noting that
the clearly-established inquiry required the law to be particularized); Mason v. Faul,
929 F.3d 762, 764 (5th Cir. 2019) (per curiam) (tying the reasonableness of actions to “the
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ment for Allgrunn on Mrs. Terrell’s excessive force claim.
V.
The district court denied Allgrunn summary judgment on the Terrells’ malicious prosecution claims. 9 We reverse and render judgment in
favor of Allgrunn.
Fifth Circuit case law between 2003 . . . and 2021 . . . explicitly
denied the possibility of a constitutional malicious prosecution
claim. When evaluating whether [Allgrunn] violated clearly established law for purposes of our qualified immunity analysis,
we consider whether the law was clearly established at the time
of the defendant’s alleged misconduct.
Guerra v. Castillo, 82 F.4th 278, 289 (5th Cir. 2023) (cleaned up). Since the
events here occurred in 2019, the law putatively supporting the Terrells’
claims was not clearly established at the time.
Plaintiffs maintain that Bledsoe v. Willis, No. 23-30238, 2023 U.S.
App. LEXIS 31326, at *15–16,
2023 WL 8184814 (5th Cir. Nov. 27, 2023)
(per curiam) (unpublished), distinguishes Guerra. And indeed, it purports
to. But Bledsoe’s attempt to convince us that Guerra does not say what it
unambiguously does say is unconvincing. Bledsoe is unpublished and therefore not binding precedent. We decline to follow it, and, instead, we reverse
and render judgment for Allgrunn.
VI.
The district court denied Allgrunn summary judgment on the Terrells’ First Amendment retaliation claims. We reverse and render judgment
_____________________
same facts” as the case at hand (citation omitted)).
9
Though the complaint and briefing suggest that this might be just Mr. Terrell’s
claim, we characterize it, as per the district court, as both plaintiffs’ claim.
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for Allgrunn. “The presence of probable cause should generally defeat a
First Amendment retaliatory arrest claim.” Nieves v. Bartlett, 587 U.S. 391,
405 (2019). Since there is probable cause for the arrests here, see supra, the
Terrells’ First Amendment retaliation claims are defeated.
VII.
The district court denied summary judgment to Officers Henderson
and Banta on the Terrells’ failure-to-intervene claims. We reverse and render judgment for the officers.
A.
Plaintiffs assert that the officers waived their QI defense to this claim.
It is true that the words “qualified immunity” do not appear in the portion
of the officers’ motion, in the short section tailored specifically to failure to
intervene. Even so, it is evident that the officers were asserting QI as to this
claim. In multiple places the officers asserted QI as to all the claims in this
case, with varying degrees of explicitness. See, e.g., ROA. 396 (“Probable
cause and qualified immunity bar all of plaintiffs’ claims under both federal
and state law.”). The officers devoted a freestanding section of their memorandum to QI, which—though it focused on false arrest—in passing seems
to assert QI against claims from “multiple [c]onstitutional provisions, including the First, Fourth, and Fourteenth Amendments.” And the officers contended that there was no unconstitutional failure to intervene, which is part
of the QI analysis.
Moreover, it is quite possible that the strictures of waiver are relaxed
in the context of invoking QI because “[o]nce the defense . . . has been raised,
the plaintiff has the burden of demonstrating that (1) the official violated a
statutory or constitutional right, and (2) the right was ‘clearly established’ at
the time.” McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996, 1005 (5th Cir.
2023) (cleaned up). But we need not explore the bare minimum required to
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No. 23-30723
invoke QI properly in this case. The officers’ relevant pleadings in the district court do not waive the QI defense as to failure to intervene. 10
B.
“[A]n officer may be liable under § 1983 under a theory of bystander
liability where the officer (1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the
harm; and (3) chooses not to act.” Whitley v. Hanna, 726 F.3d 631, 646 (5th
Cir. 2013) (internal quotation marks and citations omitted). “Clearly established federal law does not prohibit a reasonable officer who arrives late to an
ongoing police action in circumstances like this from assuming that proper
procedures . . . have already been followed.” White v. Pauly,
580 U.S. 73, 80
(2017) (per curiam). Moreover, officers need not “accept a suspect’s innocent explanation at face value.” District of Columbia v. Wesby,
583 U.S. 48,
68 (2018).
Considering these principles and our holdings above, this issue is easy
to resolve. All the specific instances, listed by plaintiffs as points at which
Henderson and Banta failed to intervene, were not violations of clearly established constitutional law. That ends the inquiry.
VIII.
In this posture, we may exercise our pendent jurisdiction over the
Louisiana state law claims. See Morin v. Caire, 77 F.3d 116, 119–20 (5th Cir.
1996). Judicial economy is a central consideration in deciding whether to do
that. See
id.
_____________________
10
The plaintiffs make an analogous waiver contention in favor of their First Amendment retaliation claims. That is even less convincing because the officers do explicitly
invoke QI in the First Amendment retaliation section of their district court memorandum.
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No. 23-30723
Because QI under Louisiana law closely relates to QI under federal
law, 11 the state law claims are under-briefed before our court, and the district
court erred on most of the federal claims, we vacate the order denying summary judgment on the state law claims so that the district court might consider them again in light of this opinion.
…
We REVERSE and RENDER judgment for the defendants on all
federal claims except for Mr. Terrell’s excessive force claim. We
DISMISS, for want of jurisdiction, the appeal insofar as it pertains to the
denial of summary judgment on Mr. Terrell’s excessive force claim to the
extent that the conduct in question occurred when Mr. Terrell was out of the
video frame. We VACATE the denial of summary judgment on the Louisiana state law claims and REMAND for reconsideration in light of this
opinion.
_____________________
11
See, e.g., Moresi v. Dept. of Wildlife & Fisheries, 567 So. 2d 1081, 1093 (La. 1990).
18
