Diaz v. Cantu

Case: 24-50088 Document: 72-1 Page: 1 Date Filed: 12/13/2024

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

____________

December 13, 2024

No. 24-50088 Lyle W. Cayce

____________ Clerk

Enriqueta Diaz,

Plaintiff—Appellee,

versus

Ramsey English Cantu, Maverick County Judge; Roxanna Rios,

Commissioner Precinct 2; Olga Ramos, Commissioner Precinct 3;

Roberto Ruiz, Commissioner Precinct 4,

Defendants—Appellants.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:23-CV-60

______________________________

Before Dennis, Southwick, and Engelhardt, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Enriqueta Diaz sought damages under Section 1983 for false impris-

onment and bystander liability against Maverick County Judge English Cantu

and three Maverick County commissioners in their official and individual ca-

pacities. The Defendants raised various defenses, but the district court held

that each of them failed. The Defendants brought this interlocutory appeal.

We disagree only with the district court’s denial of a motion to dismiss the

claims against the county commissioners for bystander liability. We

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No. 24-50088

REVERSE the district court to that limited extent but otherwise AFFIRM.

The case is REMANDED to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2023, the Maverick County 1 Commissioners Court — the body that

manages that county’s administrative affairs, Tex. Const. art. V, § 18(b)

— sought to issue certificates of obligation to finance water and sewer im-

provements. Enriqueta Diaz, a former county judge and a resident of Mav-

erick County, opposed the plan and collected signatures on a petition to force

an election on the issue. 2 The commissioners court met and decided to issue

the certificates without holding an election, despite Diaz’s petition. Maver-

ick County Judge English Cantu presided over this meeting as prescribed by

Texas law. Tex. Const. art. V, § 18(b); Tex. Loc. Gov’t Code

§ 81.001(b). Commissioners Rios, Ramos, and Ruiz were three of the four

Maverick County commissioners who were present. Diaz watched from the

gallery.

Once Diaz became convinced that her petition was not going to be

honored, she began heckling. English Cantu threatened to hold her in con-

tempt if she continued. The fourth commissioner (who is not a party to this

suit) sought to prevent English Cantu from holding Diaz in contempt. Eng-

lish Cantu thought that Diaz continued to speak, so he held her in contempt

and ordered her removed from the meeting. According to her complaint,

Diaz was detained outside in the rain for three to four hours. While Diaz was

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1

The seat of Maverick County, Texas is Eagle Pass, located on the Rio Grande

with an international bridge into Mexico.

2

The facts are taken from the operative complaint. Because this is an interlocutory

appeal from the denial of a motion to dismiss, “[w]e accept as true all well-pleaded facts

and construe the complaint in the light most favorable to the plaintiff.” Norsworthy v.

Houston Indep. Sch. Dist., 70 F.4th 332, 336 (5th Cir. 2023).

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detained, English Cantu sought advice from the county attorney on whether

he had the authority to hold Diaz in contempt. After that discussion, and still

acting on his own, English Cantu signed a contempt order sentencing Diaz to

24 hours in a Maverick County jail. Diaz was booked and released without

being confined in the jail.

Diaz, initially acting pro se, brought suit under 42 U.S.C. § 1983 in the

United States District Court for the Western District of Texas. She sued

County Judge English Cantu and Commissioners Rios, Ramos, and Ruiz for

retaliating against her for exercising her First Amendment rights at the meet-

ing. Diaz sought an injunction barring the issuance of the certificates and the

use of contempt against her and others who signed the petition. On Novem-

ber 21, 2023, after thirteen hours of testimony over two days, 3 the district

court, by agreement of the parties, entered a preliminary injunction prohibit-

ing the Defendants from issuing the certificates of obligation until after a trial

and ordered dismissal of the Defendants’ related suit in state court for de-

claratory relief. 4 As part of the agreement, Diaz was ordered to amend her

complaint “in accordance with the deadlines to be announced” in a schedul-

ing order. Diaz replaced her previous claim seeking injunctive relief with

Section 1983 claims seeking damages. This time, she brought a false impris-

onment claim against County Judge English Cantu and bystander claims

against Commissioners Rios, Ramos, and Ruiz in their official and individual

capacities.

The Defendants moved to dismiss the complaint. Relevant here, they

argued: (1) state sovereign immunity bars the official-capacity claim against

County Judge English Cantu; (2) judicial immunity and qualified immunity

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3

An attorney was appointed to represent Diaz after the first day of testimony.

4

No issue about the injunction is raised here.

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bar the individual-capacity claim against County Judge English Cantu;

(3) qualified immunity bars the individual-capacity claims against the com-

missioners; and (4) the official-capacity claims are insufficiently pled under

Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

The district court rejected each argument and denied the motion. The De-

fendants timely brought this interlocutory appeal.

DISCUSSION

I. County Judge English Cantu

County Judge English Cantu argues the claim against him in his offi-

cial capacity is barred by state sovereign immunity. He argues the individual-

capacity claim is barred by both judicial and qualified immunity.

We have jurisdiction to review the refusal to dismiss those claims un-

der the collateral order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993) (state sovereign immunity);

Holloway v. Walker, 765 F.2d 517, 521–22 (5th Cir. 1985) (judicial immunity);

Mitchell v. Forsyth, 472 U.S. 511, 528–30 (1985) (qualified immunity based on

a lack of clearly established law); Plumhoff v. Rickard, 572 U.S. 765, 773 (2014)

(lack of a constitutional violation in an individual-capacity suit); Ashcroft v.

Iqbal, 556 U.S. 662, 672–75 (2009) (pleading sufficiency in an individual-ca-

pacity suit). We will separately consider each argument.

a. Sovereign Immunity under the Eleventh Amendment

First, English Cantu argues he is entitled to the immunity that would

apply to a suit against a State, an immunity signified by the Eleventh Amend-

ment, because Texas judges are arms of the state.

“Whether an entity is entitled to Eleventh Amendment sovereign im-

munity is a question of law reviewed de novo.” Bonin v. Sabine River Auth.,

65 F.4th 249, 253 (5th Cir. 2023). “[A]n entity [or person] asserting

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sovereign immunity bears the burden of demonstrating that it is an arm of the

state.” Id. (quotation marks omitted). Official-capacity suits are not

“against the official personally, for the real party in interest is the entity.”

Kentucky v. Graham, 473 U.S. 159, 166 (1985). For purposes of state sover-

eign immunity, the relevant question is whether “the state is the real, sub-

stantial party in interest.” Edelman v. Jordan, 415 U.S. 651, 663 (1974) (quot-

ing Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S. 459, 464 (1945),

overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Georgia,

535 U.S. 613 (2002)).

Diaz claims state sovereign immunity is inapplicable because of an ul-

tra vires exception to that immunity. Under the doctrine established by Ex

parte Young, 209 U.S. 123 (1908), the state is not treated as the real party in

interest if an official acted wholly ultra vires or in violation of federal law.

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11, 104–06

(1984). That doctrine applies only when the plaintiff seeks prospective in-

junctive relief, not retrospective damages. Florida Dep’t of State v. Treasure

Salvors, Inc., 458 U.S. 670, 689 (1982) (plurality opinion); Edelman, 415 U.S.

at 677. 5 Diaz seeks only retrospective damages, so Ex parte Young does not

pierce any state sovereign immunity English Cantu may have in his official

capacity.

When a plaintiff seeks retrospective damages, we consider six factors

to determine if the official or entity is an arm of the state and therefore im-

mune from a suit for damages:

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5

To the extent Diaz relies on Texas ultra vires cases, those do not govern federal

claims in federal court. Even if they did, those cases make the same prospective–

retrospective distinction as the federal cases. City of El Paso v. Heinrich, 284 S.W.3d 366,

373–77 (Tex. 2009).

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1. Whether state statutes and case law view the agency as an

arm of the state;

2. The source of the entity’s funding;

3. The entity’s degree of local autonomy;

4. Whether the entity is concerned primarily with local as op-

posed to statewide problems;

5. Whether the entity has the authority to sue and be sued in

its own name; and

6. Whether the entity has the right to hold and use property.

Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999). Of those

factors, funding is the most important, and the final two are of minimal sig-

nificance. Id. at 682.

This circuit has not determined whether a county judge whose office

was created by the Texas Constitution serves as an arm of the state. 6 The

precedents cited by English Cantu concern Texas district judges, not consti-

tutional county judges. 7 Admittedly, there is language in some of our opin-

ions similar to this: “Texas judges are entitled to Eleventh Amendment im-

munity.” Davis v. Tarrant County, 565 F.3d 214, 228 (5th Cir. 2009). Con-

text matters, and that opinion and the ones it cited all dealt with Texas dis-

trict judges. Id. at 216; Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir.

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6

We refer to this office as that of a “constitutional county judge” to distinguish it

from that of a county judge whose court and position were created by statute. The latter

courts are usually called county courts at law.

7

Davis v. Tarrant County, 565 F.3d 214, 216 (5th Cir. 2009); Warnock v. Pecos

County, 88 F.3d 341, 343 (5th Cir. 1996); De Los Santos v. Bosworth, No. 21-10323, 2022 WL

738673, at *1 (5th Cir. Mar. 11, 2022); Gutierrez v. Dallas County, No. 3:23-CV-244, 2023

WL 8881483, at *1 (N.D. Tex. Nov. 28, 2023), report and recommendation adopted, No. 3:23-

CV-244, 2023 WL 8881822 (N.D. Tex. Dec. 22, 2023).

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1996); Holloway v. Walker, 765 F.2d 517, 520 (5th Cir. 1985). The question

here concerns an official who, though having the title of “judge” and the au-

thority to act in a judicial capacity, also has substantial other authority and

duties. Thus, even if most or all other Texas judges are entitled to state sov-

ereign immunity, we still must determine if this judge–administrator also en-

joys that immunity. A fresh arm-of-the-state analysis is necessary.

We now consider the six factors for evaluating whether an entity or

person is acting as an arm of the state. The first factor — how the office is

treated by Texas law — weighs in favor of finding that constitutional county

judges are not state officers. The Texas Constitution creates the position of

a single county judge for each county. Tex. Const. art. V, § 15. Regard-

less of whether that single judge exercises state judicial power, the judge also

presides over the commissioners court that handles “county business.” 8 Id.

art. V, §§ 1, 18(b). The commissioners court exercises significant control

over constitutional county judges. Id. art. V, § 29 (setting terms); Tex.

Gov’t Code § 26.017 (filling vacancies); Tex. Loc. Gov’t Code

§§ 152.011, 152.013 (setting “the salary, expenses, and other allowances of

elected county . . . officers”). Further, constitutional county judges are listed

among “other county officers” removable by district judges. Tex. Const.

art. V, § 24; Tex. Loc. Gov’t Code § 87.012(3). We conclude that

Texas law regards constitutional county judges as county officers.

The second factor is funding, which is the most important factor in

this analysis. Hudson, 174 F.3d at 682. The commissioners court sets “the

salary, expenses, and other allowances” of constitutional county judges, to

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8

See Tex. Const. art. V, § 18(b) (“The County Commissioners . . . , with the

County Judge as presiding officer, shall compose the County Commissioners Court, which

shall exercise such powers and jurisdiction over all county business, as is conferred by this

Constitution and the laws of the State, or as may be hereafter prescribed.”).

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be paid from general county funds. Tex. Loc. Gov’t Code §§ 152.001,

152.011, 152.013. 9 Certain constitutional county judges receive a salary sup-

plement from the state, but the bulk of the funding appears to come from the

county. See Tex. Gov’t Code § 26.006.

The third and fourth factors, the degree of local autonomy and a focus

on local and not statewide problems, favor treating constitutional county

judges as local rather than state officers for many of the same reasons we just

discussed. Because of the commissioners court’s authority over the consti-

tutional county judge, and due to the county judge’s administrative role for

the county, the position is primarily a local one. We do not know how often

this county judge used judicial powers in court, but when presiding over the

commissioners court, the “judge” is not a judicial officer but a county ad-

ministrator handling “county business.” Tex. Const. art. V, §§ 1, 18(b).

Indeed, “the county judge principally serves as the chief executive of a Texas

county.” Cutrer v. Tarrant Cnty. Loc. Workforce Dev. Bd., 943 F.3d 265, 267

n.1 (5th Cir. 2019) (emphasis added). However often English Cantu presides

as a judge, he does not argue that presiding over the county court is his prin-

cipal function.

The fifth and sixth factors, capacity to sue and be sued and hold prop-

erty, are inconclusive; the parties have not identified anything in Texas law

to indicate whether constitutional county judges can sue and be sued or hold

property in their capacity as constitutional county judges. These factors are

the least important in the analysis, though, and the other factors strongly

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9

The statutes refer to elected county officers, but another provision makes clear

that constitutional county judges receive salaries set by the commissioners court. See Tex.

Loc. Gov’t Code § 152.904 (regulating the salaries set by commissioners courts for

certain constitutional county judges).

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support a conclusion that constitutional county judges are local rather than

state officers. Hudson, 174 F.3d at 682.

We conclude that Texas’s constitutional county judges are not arms

of the state and are therefore not entitled to state sovereign immunity. The

district court correctly denied English Cantu state sovereign immunity on his

official-capacity claim.

b. Judicial Immunity

Next, English Cantu argues he is entitled to judicial immunity because

(1) he is a judge, (2) the commissioners court is a court, and (3) holding some-

one in contempt is an inherently judicial act. Of course, titles — like “judge”

or “court” — do not control; function does. Forrester v. White, 484 U.S. 219,

227 (1988). In response to that reality, English Cantu argues that even if

commissioners courts are more administrative than judicial, he was a judicial

officer engaged in a judicial act when he held Diaz in contempt. No longer

simply presiding over a county administrative meeting, he argues he was

transformed into a judicial officer by virtue of holding an attendee of the

meeting in contempt. We examine that contention, starting with our stand-

ard of review.

“The district court’s application of judicial immunity is a question of

law, subject to de novo review.” Kemp ex rel. Kemp v. Perkins, 324 F. App’x

409, 411 (5th Cir. 2009) (citing Mays v. Sudderth, 97 F.3d 107, 110 (5th Cir.

1996)). Judges do not receive judicial immunity for “actions not taken in the

judge’s judicial capacity” or “actions, though judicial in nature, taken in the

complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12

(1991). We consider four factors in this analysis:

(1) whether the precise act complained of is a normal judicial

function;

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(2) whether the acts occurred in the courtroom or appropriate

adjunct spaces such as the judge’s chambers;

(3) whether the controversy centered around a case pending

before the court; and

(4) whether the acts arose directly out of a visit to the judge in

his official capacity.

Davis, 565 F.3d at 222.

The first factor favors judicial immunity because punishing for con-

tempt is a normal judicial function. Malina v. Gonzales, 994 F.2d 1121, 1124

(5th Cir. 1993). Although some legislative bodies and agencies in Texas are

given the power to punish for contempt, 10 punishing for contempt is typically

a judicial function. The remaining three factors depend on whether the com-

missioners court is a court of law. The events took place during a meeting of

the commissioners and dealt with an issue the commissioners had authority

to consider, namely, whether to order an election before creating substantial

debts for the county. If the commissioners court is a court in the relevant

sense, these factors favor judicial immunity; if the commissioners court is a

court in name only, these factors weigh against such immunity.

We conclude that the commissioners court is an administrative body

without substantial judicial functions. See Daves v. Dallas County, 22 F.4th

522, 537 (5th Cir. 2022) (en banc) (referring to the commissioners court as

the “county’s chief administrative body, [which] is not generally, if ever, ex-

ercising judicial power”). The commissioners court is tasked with managing

“county business,” setting budgets and the like. Tex. Const. art. V,

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10

Tex. Gov’t Code § 665.005(3) (House); Id. § 665.027(3) (Senate); Tex.

Nat. Res. Code §§ 81.053(5), 81.064(c) (Railroad Commission); Tex. Loc. Gov’t

Code § 143.120(g) (Fire Fighters’ and Police Officers’ Civil Service Commission).

10

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§ 18(b). The agenda for the meeting contained no judicial items. Even

though a constitutional county judge may also conduct judicial business in

court, no such proceedings were occurring when English Cantu found Diaz

in contempt.

The commissioners court, at least at this meeting, was a court in name

only, and English Cantu was acting as an administrative official, not a judge,

when presiding over it. Therefore, the final three Davis factors weigh against

judicial immunity. The district court properly denied judicial immunity.

c. Qualified Immunity (Individual Capacity)

Finally, English Cantu argues he is entitled to qualified immunity be-

cause, first, his lack of authority to hold Diaz in contempt was unclear, and

second, there was probable cause to believe Diaz was in contempt of court.

“[R]eview of the denial of a motion to dismiss predicated on a defense

of qualified immunity is de novo.” Lincoln v. Barnes, 855 F.3d 297, 300–01

(5th Cir. 2017). “We must take the complaint’s factual allegations as true

and view them in the light most favorable to the plaintiff.” Id. at 301 (quota-

tion omitted). The plaintiff “must plead specific facts that both allow the

court to draw the reasonable inference that the defendant is liable for the

harm [s]he has alleged and that defeat a qualified immunity defense with

equal specificity.” Id. (quotation omitted). Qualified immunity bars individ-

ual-capacity liability for “government officials performing discretionary

functions . . . insofar as their conduct does not violate clearly established stat-

utory or constitutional rights.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). For a right to be clearly established, “a case directly on point” is not

required, “but existing precedent must have placed the statutory or consti-

tutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). The “right must be sufficiently clear that every reasonable official

would [have understood] that what he is doing violates that right.” Reichle v.

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Howards, 566 U.S. 658, 664 (2012) (quoting al-Kidd, 563 U.S. at 741) (quota-

tion marks omitted). Qualified immunity thus protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341 (1986).

Subordinate but present in our just-stated array of legal principles is a

threshold question of whether an official was acting within discretionary au-

thority, which we will refer to as an issue of the scope of authority for the

official. Sweetin v. Texas City, 48 F.4th 387, 392 (5th Cir. 2022). There is

little precedent in this circuit that addresses the effect of a lack of clarity in

the scope of authority. Whether the law is clear usually arises at a different

point — the authority exists but was its use in clear violation of law?

The parties disagree about the existence of English Cantu’s contempt

authority under Texas law. English Cantu argues he has inherent contempt

authority, apart from any statute. If so, a statute granting a county judge con-

tempt authority when conducting judicial proceedings is superfluous. See

Tex. Gov’t Code § 21.002(a) (expressly granting Texas judges the

power to punish contempt).

Contrasting the statutory right for a county judge to act alone in court,

statutorily it is the commissioners court, as a body, that may punish someone

for contempt. Tex. Loc. Gov’t Code § 81.023. Here, punishment was

imposed by the county judge alone, without any commissioners-court vote.

The relevant statute states that “[t]he commissioners court shall punish a

person held in contempt by a fine of not more than $25 or by confinement for

not more than 24 hours.” Id. 11 Elsewhere, the commissioners court is

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11

This authority — and the same penalties — date back at least to 1876, the same

year the current Texas Constitution was adopted:

The Commissioners’ Court shall have like power to punish contempts as the

District and County Courts have, or may have, by law; provided, that said

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defined as comprising “the county judge and the county commissioners.”

Id. § 81.001. The only case law interpreting the statute that we discovered is

the district court opinion in the case before us on appeal. The plain text of

the statute seems clear — regardless of who has authority to find someone in

contempt in a commissioners court meeting, it is the entire court, as a body,

that is authorized to impose punishment. The injury claimed here is Diaz’s

being held for several hours, then being taken to the police station and

booked. At some point, there was an arrest for contempt. We have been

shown no basis to hold that when a statute is clear that a collective body

makes a decision on the punishment for contempt, the presiding officer of

that body also has the power to act alone.

Although English Cantu suggests that his county judge contempt

powers allow him to punish Diaz for contempt apart from the commissioners

court contempt statute, the wording of the general contempt statute notably

focuses on the court, not the judge. Tex. Gov’t Code § 21.002(a). We

reject that a county judge’s contempt powers are portable — English Cantu

may use his county court contempt powers for contempt related to his county

court, but not for contempt in the commissioners court. We conclude that

English Cantu acted entirely without authority.

We now consider whether it matters that the lack of authority may not

have been clear. The record supports that English Cantu sought additional

legal advice on the scope of his authority from the county attorney before

continuing with his course of action on the alleged contempt. A sister circuit

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punishment shall be by fine or imprisonment, and in no case by fine exceeding

twenty-five dollars, or by imprisonment beyond twenty-four hours . . . .

1876 Tex. Gen. Laws 53; see also 1879 Tex. Rev. Civ. Stat. art. 1514(11) (granting

commissioners courts the power “[t]o punish contempts by fine not to exceed twenty-five

dollars, or by imprisonment not to exceed twenty-four hours”).

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has held that lack of discretionary authority must be clearly established to

strip an official of qualified immunity. In re Allen, 106 F.3d 582, 593–94 (4th

Cir. 1997). We have neither explicitly accepted nor rejected that idea. In-

deed, we have not been cited to any occasion in which this court considered

the question.

On the other hand, our articulation of the standard for qualified im-

munity leaves little room for implying a “clearly-established” modifier:

“The defendant official must first satisfy his burden of establishing that the

challenged conduct was within the scope of his discretionary authority.”

Cherry Knoll, L.L.C. v. Jones, 922 F.3d 309, 318 (5th Cir. 2019). A later opin-

ion was more explicit: “To even get into the qualified-immunity framework,

the government official must ‘satisfy his burden of establishing that the chal-

lenged conduct was within the scope of his discretionary authority.’”

Sweetin, 48 F.4th at 392 (quoting Cherry Knoll, 392 F.3d at 318). 12

To the extent the issue is open because no precedential opinion of this

court has explicitly made any holding on the need for clarity, we make a hold-

ing now. We have been provided little assistance in the briefing on the ques-

tion of whether the official’s scope of authority must be clear. We conclude

that our court’s articulation, at least our recent expressions in Cherry Knoll

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12

Different circuits have reached different conclusions about the need for clarity in

the scope of authority. See Pat Fackrell, A Call to Clarify the “Scope of Authority” Question

of Qualified Immunity, 68 Cleveland St. L. Rev. 1, 11–21 (2019). The article identifies

the different approaches; we consider its brief description to be outdated that the Fifth

Circuit has no requirement that an official have “acted within the scope of his authority

under state law.” Id. at 11 (citing Gagne v. City of Galveston, 805 F.2d 558, 560 (5th Cir.

1986)). The 2019 article may have been written before our 2019 opinion in Cherry Knoll.

Another review of the circuit split on the issue is discussed in a petition for a writ of

certiorari in a recent Eighth Circuit case. See generally Petition for Writ of Certiorari,

Central Specialties, Inc. v. Large, 143 S. Ct. 369 (2022) (No. 21-1552), 2022 WL 2119484.

The Supreme Court has not clarified the proper approach.

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and Sweetin, have validly been explicit that the discretionary authority must

be held to exist. Considering the broad reach of qualified immunity in pro-

tecting officials from claims even when they have violated rights, we see no

justification for extending this immunity even further. Thus, it is immaterial

whether it was clearly established that a county judge had no unilateral au-

thority to punish someone for contempt at a meeting of the commissioners

court. We hold that such authority does not exist, making qualified immunity

inapplicable.

Because English Cantu acted without discretionary authority, he does

not “even get into the qualified-immunity framework.” Sweetin, 48 F.4th at

392. For that reason, we need not determine whether Diaz stated a valid con-

stitutional claim against him — that is an issue within the qualified-immunity

framework. Id. at 391–92. Our jurisdiction on interlocutory appeal is sharply

limited; having determined that there is no qualified immunity, we go no fur-

ther. We thus agree with another circuit’s explanation of the same point. See

Estate of Cummings v. Davenport, 906 F.3d 934, 943–44 (11th Cir. 2018). The

district court properly denied English Cantu qualified immunity.

II. The Commissioners

The individual defendant commissioners argue that the individual-ca-

pacity claims brought against them are barred by qualified immunity because

our bystander liability cases are restricted to the law-enforcement context.

We have jurisdiction over this argument under the collateral order doctrine.

Mitchell, 472 U.S. at 528–30 (qualified immunity based on a lack of clearly

established law); Plumhoff, 572 U.S. at 773 (lack of a constitutional violation

in an individual-capacity suit); Iqbal, 556 U.S. at 672–75 (pleading sufficiency

in an individual-capacity suit).

Diaz argues (1) the right against false imprisonment is clearly estab-

lished; (2) the contempt statute’s plain text put the commissioners on notice

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that English Cantu acted without authority; and (3) bystander liability ex-

tends to all government officials, not just law-enforcement officers. The law,

however, is not clearly established on the third point. Although we have gen-

erally used the term “officer” and not “law-enforcement officer,” past by-

stander liability cases have dealt exclusively with law-enforcement officers.

E.g., Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013). True, we have

stated that bystander liability may apply beyond “the context of excessive

force claims,” but we interpret that language to refer to the kind of constitu-

tional violations that qualify, not the officials who have a duty to intervene.

Id. at 646 n.11 (citing cases dealing with law-enforcement officers).

The parties have not identified any bystander liability cases dealing

with officials other than law-enforcement officers. At oral argument, Diaz’s

counsel all but conceded that we would have to “extend” existing case law

to reach the commissioners. Accordingly, these officials were not on notice

that they had a duty to intervene even if they might have had clear notice

(which we are not holding) that Diaz’s rights were being violated. Id. at 647

n.13 (focusing on whether it was clearly established that the official needed

to intervene).

The district court erred in denying qualified immunity based on a sup-

posed duty to intervene.

III. Monell Arguments

The Defendants argue the official-capacity claims against them are in-

sufficiently pled under Monell. We do not have appellate jurisdiction to re-

view Monell arguments on interlocutory appeal. Swint v. Chambers Cnty.

Comm’n, 514 U.S. 35, 43 (1995); Trent v. Wade, 776 F.3d 368, 388–89 (5th

Cir. 2015). No party has argued that we should exercise pendent appellate

jurisdiction to reach these issues, and our resolution of the other issues has

not necessarily disposed of the official-capacity claims. Exercising pendent

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Case: 24-50088 Document: 72-1 Page: 17 Date Filed: 12/13/2024

No. 24-50088

appellate jurisdiction to reach the Monell arguments here would be inappro-

priate under our precedents. See Escobar v. Montee, 895 F.3d 387, 392–93 (5th

Cir. 2018) (outlining situations justifying pendent appellate jurisdiction).

* * *

We AFFIRM the district court’s order with respect to its rulings on

the various claims of immunity by English Cantu. We REVERSE and

RENDER for the commissioners the portion of the district court’s order

that denied qualified immunity on bystander liability claims. We DISMISS

the portion of the appeal that presented Monell arguments. We REMAND

for further proceedings.

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