Rincon v. City of Laredo

Case: 24-40168 Document: 66-1 Page: 1 Date Filed: 02/25/2025

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 24-40168

____________ FILED

February 25, 2025

Ismael Rincon, Lyle W. Cayce

Clerk

Plaintiff—Appellant,

versus

City of Laredo, Texas; Arturo Benavides; Robert

Fernandez, Jr.; Ernesto Elizondo, III, in his official and

individual capacities,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:21-CV-45

______________________________

Before Smith, Clement, and Duncan, Circuit Judges.

Per Curiam: *

In April 2019, officers from the Laredo Police Department handcuffed

and searched Plaintiff-Appellant Ismael Rincon on his own property, located

on the shoreline of the Rio Grande River, on the U.S. side of the border.

Based on this encounter and proceeding pro se, Rincon sued the officers and

the City of Laredo, Texas, asserting violations of his rights under the First

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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and Fourth Amendments. The district court granted the defendants

judgment on the pleadings as to most of Rincon’s claims, allowing two to

proceed to discovery. After discovery, the defendants moved for summary

judgment on the two remaining claims, and the district court granted the

motion. Rincon appeals the dismissal of his claims. We AFFIRM.

I.

A.

Rincon owns an empty, unimproved plot of land along the northern

shoreline of the Rio Grande River in Laredo, Texas. Rincon regularly parked

his Ford truck at this plot, and in March 2019, the truck was vandalized. To

prevent any further vandalism or trespass, Rincon began patrolling his

property at night, armed with a long rifle. Shortly after midnight on April 27,

2019, Rincon, with his rifle slung over his shoulder, made his usual patrol.

Unbeknownst to Rincon, a gun battle between the Mexican military

and a drug cartel had erupted the day before on the Mexican side of the

border near the Rio Grande. A stray bullet from this firefight struck a U.S.

citizen living in Laredo, prompting Border Patrol and the Laredo Police

Department to initiate Operation Stonegarden to search for criminal suspects

fleeing from Mexico. As part of this operation, Officer Ernesto Elizondo III

was stationed near a public park located next to the empty lot that Rincon was

patrolling.

On April 27, Elizondo observed Rincon, his rifle in hand, walking the

empty lot, which Elizondo believed to be part of the public park. Elizondo

approached Rincon and asked him if he was with Border Patrol; Rincon

replied that he was not. Elizondo asked for identification, which Rincon

refused to provide. Elizondo then called for backup on his radio and aimed

his sidearm at Rincon’s chest. Elizondo took possession of Rincon’s rifle and

holstered his sidearm.

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Additional officers arrived at the scene, including Officer Arturo

Benavides, whose dashcam and bodycam footage Rincon attached to his

complaint. 1 Elizondo stepped away to inspect Rincon’s rifle as additional

officers approached Rincon, who began recording the encounter with his cell

phone. After Rincon repeatedly asked Elizondo for his name, Elizondo

walked back over and tried to grab the cell phone out of Rincon’s hand.

According to Rincon, “[Elizondo] immediately began to push the phone into

[Rincon’s] chest and throat, forcing [Rincon] back several feet, while

attempting to remove the phone out of [Rincon’s] hand.” Once Elizondo

secured the phone, he ordered Officer Robert Fernandez, Jr. to handcuff

Rincon.

In order to handcuff him, Fernandez twisted Rincon’s wrist and arm,

and Rincon responded that this was hurting him. With Fernandez holding the

handcuffs, he and Elizondo searched Rincon’s pockets, and Rincon

continued to protest that he was in pain. Elizondo responded that this was

because Rincon was resisting. Rincon contends that Fernandez continued to

twist the handcuffs until Rincon heard his shoulder pop, causing him to

exclaim in pain. Rincon remained in handcuffs for approximately fifteen

minutes while the officers reviewed Rincon’s identification from his wallet

and ran his name for outstanding warrants. While Rincon was handcuffed,

Benavides told him that “there was a shooting just a little bit ago in this area.”

After about fifteen minutes, the officers removed the handcuffs and

returned the cell phone to Rincon, at which point he began to record the

encounter again. Elizondo held Rincon’s rifle and spoke to him, while

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1

“Where video recordings are included in the pleadings, . . . the video depictions

of events, viewed in the light most favorable to the plaintiff, should be adopted over the

factual allegations in the complaint if the video blatantly contradicts those allegations.”

Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021) (cleaned up).

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Benavides shined his flashlight at Rincon. As Rincon filmed, Elizondo

explained that there was recently a shooting nearby in Mexico that injured

someone on the U.S. side of the border. Elizondo then grabbed Rincon’s

phone from his hand for the second time and returned it to him seconds later.

Once Elizondo returned the rifle, the officers continued conversing with

Rincon, and the encounter ended shortly thereafter.

B.

Proceeding pro se, Rincon filed suit in district court against the City of

Laredo and officers Elizondo, Benavides, and Fernandez under 42 U.S.C.

§ 1983 for various constitutional violations. Rincon asserted the following

claims: (1) a First Amendment claim against Elizondo for infringing on

Rincon’s right to film the police by confiscating his phone twice; (2) an

unreasonable-seizure claim under the Fourth Amendment against Elizondo

for the same confiscations; (3) an unreasonable-search-and-seizure claim

under the Fourth Amendment against Elizondo and Fernandez for

handcuffing Rincon, searching him, and seizing his wallet; (4) an excessive-

force claim under the Fourth Amendment against Elizondo for pushing

Rincon’s phone into his neck and chest while trying to grab it; (5) an

excessive-force claim against Fernandez for hurting Rincon’s wrist and

shoulder; (6) a First Amendment claim against Benavides for preventing

Rincon from filming the police by shining a flashlight into the cell phone

camera; and (7) a failure-to-train claim against the city.

The defendants filed a motion for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c) or, in the alternative, a motion for a

more definite statement under Rule 12(e). The district court granted the

motion for judgment as to claims (3), (5), and (7)—the unreasonable-search-

and-seizure claim against Elizondo and Fernandez, the excessive-force claim

against Fernandez, and the failure-to-train claim, respectively. The court

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dismissed these claims with prejudice. As to the remaining claims, the district

court identified deficiencies in Rincon’s allegations, but recognizing

Rincon’s pro se status, the court gave him sixty days to fix the deficiencies and

file another complaint. 2

Rincon filed his updated complaint, but the district court determined

that he had not corrected all the deficiencies identified. As a result, it

dismissed claims (1) and (6)—the First Amendment claims—leaving only (2)

and (4): respectively, the unreasonable-seizure claim and the excessive-force

claim, both of which were based on the confiscations of Rincon’s cell phone.

Discovery ensued, and the defendants moved for summary judgment

on the remaining two claims. The district court granted this motion,

dismissing Rincon’s final two claims with prejudice. Rincon appealed the

district court’s dismissals and filed briefs before this court pro se.

II.

We start with Rincon’s claims dismissed via judgment on the

pleadings, namely: (A) the unreasonable-search-and-seizure claim, (B) the

First Amendment claims, (C) the excessive-force claim against Fernandez,

and (D) the failure-to-train claim.

“We review a district court’s ruling on a Rule 12(c) motion for

judgment on the pleadings de novo,” using “the same standard as a motion to

dismiss under Rule 12(b)(6) for failure to state a claim.” Gentilello v. Rege,

627 F.3d 540, 543–44 (5th Cir. 2010). This standard requires us to “accept[]

all well-pleaded facts as true and view[] those facts in the light most favorable

to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (per

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2

The district court ordered a third amended complaint, as Rincon had already

amended twice before.

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curiam). “[A] plaintiff must plead sufficient facts to ‘state a claim to relief

that is plausible on its face.’” Gentilello, 627 F.3d at 544 (cleaned up) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

A.

Rincon brought a Fourth Amendment claim against Elizondo and

Fernandez for their allegedly unreasonable detention of Rincon and search of

his wallet “absent [a] warrant, or other valid cause.” The district court

determined that this detention was a valid Terry stop. Under Terry, “the

police can stop and briefly detain a person for investigative purposes if the

officer has a reasonable suspicion supported by articulable facts that criminal

activity ‘may be afoot,’ even if the officer lacks probable cause.” United

States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30

(1968)). “We determine the reasonableness of an investigative stop by

examining: (1) whether the officer’s action of stopping the vehicle was

justified at its inception, and (2) whether the officer’s actions were

reasonably related in scope to the circumstances that justified the stop.”

Davila v. United States, 713 F.3d 248, 258 (5th Cir. 2013) (cleaned up).

“The police officer must have reasonable suspicion to justify the

investigative stop, which requires the police officer . . . to point to specific

and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” Id. (internal quotations

omitted). “This standard requires more than merely an unparticularized

hunch, but considerably less than proof of wrongdoing by a preponderance of

the evidence.” Id. (internal quotations omitted). “We assess the

reasonableness of the stop by conducting a fact-intensive, totality-of-the

circumstances inquiry, and considering the information available to the

officers at the time of the decision to stop a person.” Id. (cleaned up).

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The district court found that Elizondo and Fernandez had reasonable

suspicion to stop and briefly detain Rincon, and we agree. The officers were

actively investigating a recent shooting near the Rio Grande, and Rincon was

seen late at night walking an empty lot near the river, openly carrying a rifle

in his hands. Rincon refused to identify himself, and the officers informed

him multiple times during the detention that they were concerned about a

recent, nearby shooting. The Supreme Court has “noted the fact that the

stop occurred in a ‘high crime area’ [is] among the relevant contextual

considerations in a Terry analysis.” Illinois v. Wardlow, 528 U.S. 119, 124

(2000). We have found reasonable suspicion based on “[an] encounter

occurring in the middle of the night in a reputed high crime area coupled with

[the defendant] carrying a firearm and attempting to flee.” United States v.

Gomez, No. 23-20068, 2024 WL 3842572, at *3 (5th Cir. Aug. 16, 2024).

While Rincon did not attempt to flee, he was carrying a firearm in the middle

of the night near the scene of a shooting, and he refused to identify himself.

On appeal, Rincon argues that Elizondo admitted in his deposition

that he did not suspect Rincon of committing any crime that night and

therefore reasonable suspicion was absent. But the district court’s holding

was based on Rincon’s allegations alone, not on evidence later uncovered

during discovery. In any event, “[r]easonable suspicion and probable cause

are objective inquiries; ‘an officer’s subjective intentions have no impact’ on

either analysis.” Smith v. Heap, 31 F.4th 905, 912 n.6 (5th Cir. 2022) (quoting

United States v. Lopez-Moreno, 420 F.3d 420, 432 (5th Cir. 2005)). The

question is whether the facts available to the officer at the time of the search

or seizure, when viewed objectively, support the officer’s actions. United

States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc). The facts

confronting Elizondo and his fellow officers provided reasonable suspicion.

Thus, as the district court concluded, “[u]nder the totality of the

circumstances, it was reasonable for Elizondo and Fernandez to briefly stop

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and detain [Rincon] while they confirmed his identity and landownership and

ensured that he was not connected to the recent shooting in the area.” United

States v. Brigham, 382 F.3d 500, 507 (2004) (en banc) (“[A] detention must

be temporary and last no longer than is necessary to effectuate the purpose

of the stop, unless further reasonable suspicion, supported by articulable

facts, emerges.”). 3

Lastly, the district court held that Elizondo and Fernandez were

entitled to qualified immunity as to Rincon’s claim that they unreasonably

searched his wallet for identification. 4 More specifically, the district court

found that at the time of Elizondo’s and Fernandez’s search, no controlling

caselaw established that a Terry pat down cannot include a search of the

suspect’s wallet for identification. Morgan v. Swanson, 659 F.3d 359, 371–72

(5th Cir. 2011) (en banc) (“To answer [whether the law is clearly established]

in the affirmative, we must be able to point to controlling authority—or a

robust consensus of persuasive authority—that defines the contours of the

right in question with a high degree of particularity.” (cleaned up)).

Indeed, in Emesowum v. Cruz, officers stopped the plaintiff and

searched his wallet during a Terry stop. 756 F. App’x 374, 376–77 (5th Cir.

2018). This court determined that that search did not violate the plaintiff’s

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3

The district court concluded that handcuffing Rincon was reasonable given “the

reasonable inference that [Rincon] could have been concealing another weapon on his

person,” and in light of this court’s recognition that handcuffing can be reasonable during

an investigatory stop, Heap, 31 F.4th at 911. Rincon does not address this point on appeal.

“A party forfeits an argument by failing . . . to adequately brief the argument on appeal.”

Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021).

4

Elizondo and Fernandez were entitled to demand Rincon’s identification

because, as the district court noted, “[u]nder the Fourth Amendment, police officers may

not require identification absent an otherwise lawful detention or arrest based on reasonable

suspicion or probable cause.” See Johnson v. Thibodaux City, 887 F.3d 726, 733 (5th Cir.

2018).

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clearly established rights, citing the proposition that “[a]n officer may check

an individual’s identification in his wallet during a [Terry] stop.” Id. at 381

n.3 (quoting United States v. Brown, 366 F.3d 456, 461 (7th Cir. 2004)); see

also McCullough v. Wright, 824 F. App’x 281, 287 (5th Cir. 2020) (per

curiam) (“McCullough has failed to show that it is clearly established that a

limited search for the sole purpose of procuring identification, after an

uncooperative arrestee refuses numerous requests to identify herself, violates

the Fourth Amendment.”). We therefore agree that Elizondo and Fernandez

are entitled to qualified immunity for searching Rincon’s wallet. We affirm

the district court’s dismissal of Rincon’s unreasonable-search-and-seizure

claim.

B.

Next, we consider Rincon’s First Amendment claims. “As a general

matter, the First Amendment prohibits government officials from subjecting

an individual to retaliatory actions for engaging in protected speech.” Nieves

v. Bartlett, 587 U.S. 391, 398 (2019) (cleaned up). We have held that “a First

Amendment right to record the police does exist, subject only to reasonable

time, place, and manner restrictions.” Turner v. Lieutenant Driver, 848 F.3d

678, 688 (5th Cir. 2017). “If an official takes adverse action against someone

based on that forbidden motive, and ‘non-retaliatory grounds are in fact

insufficient to provoke the adverse consequences,’ the injured person may

generally seek relief by bringing a First Amendment claim.” Nieves, 587 U.S.

at 398 (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)).

For a First Amendment retaliation claim, a plaintiff must

demonstrate: (1) she was engaged in constitutionally protected

activity; (2) the officer’s action caused her to suffer an injury

that would chill a person of ordinary firmness from continuing

to engage in that activity; and (3) the officer’s adverse actions

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were substantially motivated against her exercise of

constitutionally protected activity.

Batyukova v. Doege, 994 F.3d 717, 730 (5th Cir. 2021).

The district court considered and dismissed three possible bases for

Rincon’s First Amendment claims: (1) Elizondo’s first confiscation of

Rincon’s cell phone, (2) Elizondo’s second confiscation, and (3) Benavides’s

shining his flashlight into the cell phone camera.

1.

With respect to Elizondo’s first confiscation of Rincon’s cell phone,

lasting approximately fifteen minutes, the district court held that “the

current allegations do not plausibly show the shoving or the confiscation was

substantially motivated by the recording.” According to the district court,

this was because “other circumstances unfolding at the time indicate

Elizondo may have had other reasons to forcefully confiscate [Rincon’s]

phone.” But the applicable standard is not whether the plaintiff’s allegations

rule out every motivation for the officer’s actions besides retaliatory animus;

it is whether “the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rincon alleged that once

he began recording and asking Elizondo for his name, the officer walked over

and tried to grab the phone, shoving Rincon and his phone in the process.

While it is possible Elizondo acted in this fashion with non-retaliatory

motives, one could reasonably infer that he was substantially motivated by

Rincon’s recording. 5 We find Rincon has plausibly alleged a claim for First

Amendment retaliation.

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5

Considering possible non-retaliatory reasons for Elizondo’s confiscation, the

district court questioned, “Was [Rincon] aggressively approaching Elizondo as Elizondo

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However, Elizondo asserted the defense of qualified immunity, and

“we can affirm the lower court’s decision on any grounds supported by the

record.” United States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995). “[A]

plaintiff seeking to overcome qualified immunity must plead specific facts

that both allow the court to draw the reasonable inference that the defendant

is liable for the harm he has alleged and that defeat a qualified immunity

defense with equal specificity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir.

2012). With respect to Elizondo’s first confiscation, Rincon adequately

pleaded a violation of his First Amendment rights.

The next step in the qualified-immunity analysis is whether the

plaintiff has shown that the right violated was “clearly established” at the

time of the challenged conduct. Morgan, 659 F.3d at 371. “A clearly

established right is one that is ‘sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.’” Mullenix

v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)).

The Supreme Court has “repeatedly told courts . . . not to

define clearly established law at a high level of generality. The

dispositive question is whether the violative nature of particular

conduct is clearly established. This inquiry must be undertaken

in light of the specific context of the case, not as a broad general

proposition.”

Guerra v. Castillo, 82 F.4th 278, 285 (5th Cir. 2023) (cleaned up) (quoting

Mullenix, 577 U.S. at 12).

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was examining [Rincon’s] weapon?” But puzzlingly, the dashcam footage that the district

court reviewed depicts Rincon standing still and Elizondo approaching him prior to

confiscation, not vice versa. Additionally, Rincon alleged that Elizondo walked over to

him—an allegation the district court had to credit as true when considering the motion for

judgment on the pleadings. Stokes, 498 F.3d at 484.

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Rincon has not presented, and we are unaware of, either controlling

authority or a robust consensus of persuasive authority clearly establishing,

at the time of Elizondo’s actions, that an officer violates the First

Amendment by confiscating the phone of an armed, unidentified, and

uncooperative criminal suspect for fifteen minutes while he is handcuffed

during a Terry stop. See Morgan, 659 F.3d at 371–72. While our Turner

decision clearly established a First Amendment right to record the police,

848 F.3d at 688, the facts of that case are significantly different and therefore

shed no light on “the violative nature of [Elizondo’s] particular conduct.”

Mullenix, 577 U.S. at 12 (internal quotations omitted); Kinney v. Weaver, 367

F.3d 337, 350 (5th Cir. 2004) (“Qualified immunity should not be denied

unless the law is clear in the more particularized sense that reasonable

officials should be on notice that their conduct is unlawful.” (internal

quotations omitted)); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam) (“It is important to emphasize that this [clearly-established] inquiry

‘must be undertaken in light of the specific context of the case, not as a broad

general proposition.’” (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001))).

In Turner, officers arrested an unarmed plaintiff who was videotaping a police

station from a public sidewalk across the street and who refused to identify

himself. 848 F.3d at 683–84, 694. Here, Elizondo confiscated the phone of an

armed individual suspected of being connected with a nearby shooting,

before handcuffing him as part of a valid Terry stop. 6 Although a case directly

on point is unnecessary, we cannot say that, based on Turner alone, the

constitutional question here is “beyond debate.” See White v. Pauly, 580 U.S.

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6

Notably, the Turner court did not determine whether the officers had reasonable

suspicion. 848 F.3d at 691 (“Even if we assume arguendo that Grinalds and Dyess violated

Turner’s Fourth Amendments rights by detaining him without reasonable suspicion

. . . .”). Here, we have affirmed the district court’s finding of reasonable suspicion. See

supra Section II.A.

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73, 79 (2017). Therefore, Elizondo is entitled to qualified immunity as to

Rincon’s First Amendment claim based on the initial confiscation.

2.

As to Elizondo’s second confiscation of Rincon’s cell phone, lasting a

matter of seconds and followed by no adverse consequences, the district

court held that Rincon failed to allege that this act “would have chilled the

recording activity of an individual of ordinary firmness.” We have stated that

“some retaliatory actions—even if they actually have the effect of chilling the

plaintiff’s speech—are too trivial or minor to be actionable as a violation of

the First Amendment.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002);

see also Johnson v. Bowe, 856 F. App’x 487, 492–93 (5th Cir. 2021) (dismissing

retaliation claim because enduring criticism and being followed by a police

officer were not substantial enough injuries to chill a person of ordinary

firmness). In fact, Benavides’s bodycam footage shows that Rincon

continued filming the police after Elizondo returned the cell phone to him,

suggesting that the brief, six-second confiscation had no chilling effect. We

affirm the district court’s grant of judgment on the pleadings as to this claim.

3.

Lastly, Rincon brought a First Amendment claim against Benavides

for shining his flashlight at the cell phone camera. The district again

determined that Rincon had failed to allege an action that would chill a person

of ordinary firmness, and Rincon does not dispute this determination on

appeal. See Rollins, 8 F.4th at 397. We affirm.

C.

Next, Rincon asserted a Fourth Amendment claim of excessive force

against Fernandez for injuring Rincon’s wrist and shoulder while handcuffing

him. “To prevail on an excessive-force claim, a plaintiff must show ‘(1) an

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injury (2) which resulted from the use of force that was clearly excessive to

the need and (3) the excessiveness of which was objectively unreasonable.’”

Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 275 (5th Cir. 2015)

(quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)). “Fourth

Amendment jurisprudence has long recognized that the 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). Factors that inform the need for force include “the

severity of the crime at issue, whether the suspect posed an immediate threat

to the safety of officers or others, and whether the suspect was actively

resisting arrest or attempting to evade arrest by flight.” Id.

The district court concluded that Rincon’s allegations failed to show

that Fernandez’s actions were clearly excessive or objectively unreasonable.

First, the court observed that Rincon admitted to resisting arrest by

conceding that “[he] suffered injury to his wrists and shoulder when he

attempted to turn away and prevent the search and seizure.” Second, the court

referenced Benavides’s bodycam footage, which depicts Rincon jerking his

hands away from Fernandez, followed by officers telling Rincon he was

resisting and should “settle down.” These facts are relevant to the third

factor above: whether the suspect was resisting arrest. Graham, 490 U.S. at

396. Next, considering the first factor, the court noted that Rincon was under

suspicion for “possible involvement in a cross-border shooting, which

implicates serious criminal activity.” Based on these considerations, the

district court dismissed Rincon’s excessive-force claim against Fernandez.

Rincon fails to challenge the district court’s reasoning on appeal.

Instead, Rincon reiterates that his shoulder was injured, but he

simultaneously acknowledges that the “core judicial inquiry” in the context

of excessive force has shifted “from the extent of the injury to the nature of

the force.” Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (per curiam). Indeed,

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“the objective reasonableness of the force, in turn, depends on the facts and

circumstances of the particular case, such that the need for force determines

how much force is constitutionally permissible.” Bush v. Strain, 513 F.3d 492,

501 (5th Cir. 2008).

We have held that “[r]esisting while being handcuffed constitutes

active resistance and justifies the use of at least some force.” Hutcheson v.

Dallas County, 994 F.3d 477, 480 (5th Cir. 2021). In Collier v. Montgomery,

we determined that the plaintiff’s resistance, captured in video evidence,

justified the officer’s use of force in grappling with the plaintiff and pushing

him onto the hood of a police car. 569 F.3d 214, 219 (5th Cir. 2009). As the

district court found here, Rincon conceded to resisting, and the video

evidence confirms as much. We affirm the district court’s dismissal of

Rincon’s excessive-force claim against Fernandez.

D.

The last claim dismissed via judgment on the pleadings was the

failure-to-train claim against the City of Laredo. “Under the decisions of the

Supreme Court and this court, municipal liability under section 1983 requires

proof of three elements: a policymaker; an official policy; and a violation of

constitutional rights whose ‘moving force’ is the policy or custom.”

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). The district court

found that Rincon failed to plead the existence of a policymaker. While we

agree, we also note that Rincon failed to describe any official policy with

concrete facts. See Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 167

(5th Cir. 1997) (“The description of a policy or custom and its relationship

to the underlying constitutional violation, moreover, cannot be conclusory;

it must contain specific facts.”). Rincon attempts to identify a policy for the

first time on appeal, but “[a] party forfeits an argument by failing to raise it

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in the first instance in the district court—thus raising it for the first time on

appeal.” Rollins, 8 F.4th at 397. We affirm the district court’s dismissal of

Rincon’s failure-to-train claim.

III.

We now consider Rincon’s claims dismissed via summary judgment:

(A) the Fourth Amendment unreasonable-seizure claim against Elizondo for

confiscating Rincon’s phone twice, and (B) the Fourth Amendment

excessive-force claim against Elizondo for allegedly shoving Rincon’s phone

into his throat and chest.

A grant of summary judgment is reviewed de novo. Nickell v. Beau

View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment

is proper “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).

A.

As outlined above, Elizondo confiscated Rincon’s phone twice as part

of the Terry stop. The reasonableness of such a stop turns on “(1) whether

the officer’s action of stopping the vehicle was justified at its inception, and

(2) whether the officer’s actions were reasonably related in scope to the

circumstances that justified the stop.” Davila, 713 F.3d at 258 (internal

quotations omitted). The district court found that Elizondo’s first

confiscation was reasonably related to the scope of the stop because it allowed

the officers to properly detain and identify Rincon.

As for the second confiscation, lasting a matter of seconds, the district

court doubted whether this even constituted a seizure but nevertheless

determined that even if it did, Elizondo is entitled to qualified immunity. A

seizure of property within the meaning of the Fourth Amendment occurs

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No. 24-40168

when “there is some meaningful interference with an individual’s possessory

interests in that property.” Soldal v. Cook County, 506 U.S. 56, 61 (1992)

(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Some district

courts have doubted whether a seconds-long confiscation of a cell phone,

returned immediately after, constitutes a meaningful interference with the

owner’s possessory interest. See, e.g., Blakely v. Andrade, 360 F. Supp. 3d 453,

481 (N.D. Tex. 2019) (finding no seizure when officers returned phone to

plaintiff “in less than 30 seconds”); Harris v. City of Lubbock, No. 5:17-CV-

010, 2017 WL 4479950, at *4 (N.D. Tex. June 16, 2017) (finding no violation

where an officer briefly confiscated the plaintiff’s cell phone but returned it

“only moments later without searching its contents”); Ordonez v. Gonzalez,

No. EP-23-CV-99, 2024 WL 1250181, at *12 (W.D. Tex. Mar. 25, 2024).

On appeal, Rincon does not address his Fourth Amendment claim

based on Elizondo’s confiscations. Rincon’s only mention of an “unlawful

. . . seizure of . . . his cell phone” appears in the conclusion section of his brief.

Rincon failed to adequately brief this claim on appeal and has therefore

forfeited it. See Rollins, 8 F.4th at 397; Cinel v. Connick, 15 F.3d 1338, 1346

(5th Cir. 1994) (“A party who inadequately briefs an issue is considered to

have abandoned the claim.”). We affirm on that basis alone.

B.

Lastly, the district court considered Rincon’s excessive-force claim

against Elizondo for allegedly shoving him in the chest and throat while

grabbing his cell phone. The district court cited deposition testimony

presented by the defendants that Rincon did not experience any bruising or

abrasions to his chest or neck area after the encounter. This shifted the

burden to Rincon to come forward with some evidence of injury, which the

district court found he failed to do. Rincon has not identified any record

evidence indicating an injury on appeal. We affirm.

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IV.

For the foregoing reasons, we AFFIRM the district court’s

dismissals of Rincon’s claims.

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