“Although qualified immunity is nominally an affirmative defense, the plaintiff bears a heightened burden to negate the defense once properly raised.”
How later courts described this case
- “Although qualified immunity is nominally an affirmative defense, the plaintiff bears a heightened burden to negate the defense once properly raised.”
- “provid[ing] evidence that would allow the jury to disbelieve [the officer’s] testimony” can render summary judgment inappropriate
- “A warrantless arrest must be based on probable cause.”
- facts to establish probable cause must be known to the officer at the time of arrest
Written by the judges who cited it.
The opinion
Case: 23-50879 Document: 74-1 Page: 1 Date Filed: 03/20/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-50879
FILED
March 20, 2025
____________
Lyle W. Cayce
Joshua Timothy McClain, Clerk
Plaintiff—Appellee,
versus
Dustin Delgado,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:22-CV-272
______________________________
Before Jones, Barksdale, and Ho, Circuit Judges.
Per Curiam:
Texas Game Warden Dustin Delgado arrested Joshua McClain for
driving while intoxicated after observing his truck swerve and conducting
field sobriety tests. McClain later sued Delgado for false arrest. The district
court denied Delgado qualified immunity. But because McClain did not
carry his burden to show Delgado violated his constitutional rights, we
reverse.
Case: 23-50879 Document: 74-1 Page: 2 Date Filed: 03/20/2025
No. 23-50879
I.
In March 2020, Delgado pulled McClain over for swerving. He
stopped McClain after observing him “quickly jerk” his truck to the right
shoulder and “cross the solid white line several times.” McClain apologized
and stated, “I’m sorry, I was messing with my radio.” Delgado asked to
perform Standardized Field Sobriety Tests, and McClain agreed.
Delgado performed three tests for “scientifically validated clues of
alcohol impairment.” First, he administered the horizontal gaze nystagmus
(HGN) test, which tracks involuntary jerking of the eyes as they gaze to the
side. Delgado observed all six possible clues of intoxication on this test.
Second, he administered the walk-and-turn test, observing two of eight
possible clues of intoxication. Lastly, he administered the one-leg stand test
and observed no possible clues of intoxication. Delgado placed McClain
under arrest for driving while intoxicated. After the arrest, Texas Trooper
Dallon McKay conducted the HGN test and confirmed Delgado’s results.
McKay remarked that “what [Delgado] saw, is the same thing I just saw;” to
which McClain replied, “I don’t doubt it, maybe I’ve got something going
on.”
McClain was taken to the hospital for a blood test. That test did not
show the presence of any alcohol or drugs. And the County Attorney did not
prosecute McClain.
McClain sued under 42 U.S.C. § 1983. He made claims of false arrest
and malicious prosecution against Delgado. Delgado moved for summary
judgment on both claims, arguing that he was entitled to qualified immunity.
The district court granted the motion for the malicious prosecution claim but
denied it for the false arrest claim. Delgado appealed.
2
Case: 23-50879 Document: 74-1 Page: 3 Date Filed: 03/20/2025
No. 23-50879
II.
The denial of a motion for summary judgment based on qualified
immunity is immediately appealable under the collateral-order doctrine.
Cunningham v. Castloo, 983 F.3d 185, 190 (5th Cir. 2020). “We review legal
conclusions, materiality determinations, and the scope of clearly established
law de novo.” Id. Summary judgment is proper where there is no genuine
dispute of material fact. Fed. R. Civ. P. 56(a).
Once qualified immunity is asserted, the burden “shifts to the
plaintiff, who must rebut the defense by establishing a genuine fact issue as
to whether the official’s allegedly wrongful conduct violated clearly
established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). In
false arrest cases, the plaintiff must show that no reasonable officer would
have made the complained-of arrest. Loftin v. City of Prentiss, 33 F.4th 774,
781 (5th Cir. 2022). When video evidence is available, the court should
consider “the facts in the light depicted by the videotape.” Carnaby v. City
of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (quotation omitted).
McClain cannot establish that a genuine dispute of material fact exists
as to whether Delgado’s conduct violated the Fourth Amendment.
First, Delgado had reasonable suspicion for the traffic stop—
McClain’s swerving toward the right shoulder. See United States v. Estrada,
459 F.3d 627, 630–31 (5th Cir. 2006) (applying the Terry v. Ohio reasonable
suspicion standard to traffic stops). McClain concedes this point in his
complaint, stating “Delgado had only reasonable suspicion to stop” him and
that McClain told “the officer he was messing with his radio which is to his
right, which is the direction the vehicle jerked.” The dissent argues that this
concession is taken out of context. But not so. To argue that Delgado lacked
probable cause for an arrest, McClain offers that he had “only reasonable
suspicion”—the requirement for a constitutional traffic stop.
3
Case: 23-50879 Document: 74-1 Page: 4 Date Filed: 03/20/2025
No. 23-50879
And on bodycam video, McClain did not dispute that he crossed the
line, but more than once offers an excuse for why he might’ve done so—
messing with the radio. McClain nodded in agreement when Delgado
mentioned his “jerking the wheel to the right . . . several times.” While
talking to McKay, McClain repeated the story: “[Delgado] said I was going
across the line, and I told him I might’ve gone across it when I changed the
radio station.” And at the hospital, McClain reaffirmed the radio caused any
jerking.
So we are not determining whether McClain jerked, how many times,
or the significance of any lane departures, as the dissent contends we do. We
are merely taking McClain at his word on video and in the pleadings. And by
doing so, we find it undisputed that Delgado had reasonable suspicion for the
stop.
Second, during the stop, Delgado developed probable cause to arrest
McClain. “A warrantless arrest is reasonable if the officer has probable cause
to believe that a criminal offense has been committed.” Loftin, 33 F.4th at
780 (quotation omitted). This standard “is not a high bar” and “requires
only a probability or substantial chance of criminal activity, not an actual
showing of such activity.” Id. Here, McClain must prove that no reasonable
officer could have believed that Delgado had probable cause for his arrest.
See Loftin, 33 F.4th at 781–82 (“The onus is on the plaintiff to show that the
law is so clearly established that every reasonable official in the defendant-
official’s shoes would know not to engage in the complained-of conduct.”).
See also District of Colombia v. Wesby, 583 U.S. 48, 63 (2018) (“The rule’s
contours must be so well defined that it is “clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.”). He is unable to
do so.
4
Case: 23-50879 Document: 74-1 Page: 5 Date Filed: 03/20/2025
No. 23-50879
Delgado observed all six possible clues on the HGN test and two of
eight possible clues on the walk-and-turn test. Record evidence from the
National Highway Traffic Safety Administration—and a concession from
McClain’s counsel at oral argument that the tests have a high accuracy rate
for alcohol impairment—shows that the clues observed by Delgado would
indicate with a high likelihood that McClain was under the influence of
alcohol.
McClain does not dispute that his performance on the HGN and walk-
and-turn tests would support probable cause. And it is undisputed that
Trooper McKay confirmed Delgado’s results on the HGN test.
Instead of challenging that McClain’s performance on the tests would
create probable cause or that McKay confirmed Delgado’s results, McClain
(and the dissent) raises multiple immaterial fact disputes. McClain relies on
an expert report alleging errors in the performance of the test. But this
assertion does not create a factual dispute sufficient to deny summary
judgment. Officers may rely on reasonable mistakes of fact and still receive
qualified immunity. See Crostly v. Lamar Cnty., 717 F.3d 410, 423 (5th Cir.
2013). See also Loftin, 33 F.4th at 781-82. And McClain’s expert does not
conclude that no reasonable officer could have found anything other than
sobriety. McClain also raises a challenge to Delgado’s credibility as an officer
with evidence of two of Delgado’s previously-dismissed arrests. But this
argument ignores that McKay confirmed Delgado’s findings. And finally,
McClain argues that potentially false statements in Delgado’s probable cause
affidavit prevent qualified immunity. But these alleged false statements are
all immaterial. Like the alleged errors in the test administration and
McClain’s arguments about Delgado’s credibility, the contents of the
probable cause affidavit do not “affect the outcome of the suit under the
governing law.” Crostly, 717 F.3d at 422.
5
Case: 23-50879 Document: 74-1 Page: 6 Date Filed: 03/20/2025
No. 23-50879
Because it is undisputed that Delgado had reasonable suspicion to stop
McClain and probable cause to arrest him, there is no violation of his
constitutional rights. Thus, McClain has not carried his burden to overcome
Delgado’s assertion of qualified immunity by establishing a genuine dispute
of material fact.
Accordingly, we reverse the district court’s denial of Delgado’s
motion for summary judgment.
6
Case: 23-50879 Document: 74-1 Page: 7 Date Filed: 03/20/2025
No. 23-50879
Rhesa Hawkins Barksdale, Circuit Judge, dissenting:
Pursuant to this interlocutory appeal’s contesting the denial of a
summary-judgment motion, the majority holds movant Dustin Delgado, a
Texas game warden, is entitled to qualified immunity, based on its deciding
Joshua McClain did not meet his burden to show, inter alia, that Delgado
violated McClain’s Fourth Amendment right against false arrest (the first of
the two-prong test for qualified immunity; the second is whether the right
was clearly established when the conduct at issue occurred).
To the extent Delgado challenges the district court’s conclusions
regarding genuinely disputed facts, we lack jurisdiction to review those
conclusions. And because those genuinely disputed facts are material to the
existence of probable cause, we lack jurisdiction over this interlocutory
appeal. The majority, however, for unknown and perplexing reasons, chooses
not to address this critical issue.
In the alternative, genuine disputes of material fact attach to both
prongs of the qualified-immunity test, precluding summary judgment for
Delgado. Despite paying lip service to this controlling standard for summary
judgment vel non, the majority treats McClain’s burden as if a judgment for a
trial, rather than a summary judgment, is being reviewed.
I dissent.
I.
McClain filed this civil-rights action under 42 U.S.C. § 1983
against Delgado, claiming false arrest and malicious prosecution, in violation
of the Fourth Amendment (made applicable to the States through the
Fourteenth). Delgado moved for summary judgment, asserting qualified
immunity against both claims. The district court granted summary judgment
against the malicious-prosecution claim but denied it for the false-arrest
7
Case: 23-50879 Document: 74-1 Page: 8 Date Filed: 03/20/2025
No. 23-50879
claim, concluding, for that claim, that genuine disputes of material fact
precluded granting qualified immunity to Delgado.
This interlocutory appeal concerns only his being denied qualified
immunity against the false-arrest claim. The following recitation is based on
the summary-judgment record, including Delgado’s lengthy body-camera
video. (His vehicle did not have a dashboard camera.)
The underlying circumstances giving rise to this appeal involve game
warden Delgado’s arresting McClain on 24 March 2020 for driving while
intoxicated (DWI). According to Delgado, he stopped McClain when he
observed McClain’s vehicle “jerk” to the right and cross the solid white line
onto the shoulder of the road several times. The approximately one-hour-
and-25-minute body-camera video, however, does not begin until Delgado
stopped to approach McClain’s stopped vehicle. In other words, the video
does not show the “jerking” reason Delgado provided McClain for stopping
him.
As the majority notes at 2, McClain apologized and stated he was
adjusting his radio as a possible explanation for any erratic driving. Whether,
and to what degree, McClain jerked his vehicle is disputed, as discussed infra.
Delgado asked McClain if there were any alcoholic beverages in his
vehicle or whether he had recently consumed any alcohol, and McClain said
no. In his incident report prepared on 7 April 2020, two weeks after the
arrest, Delgado noted that, during this initial encounter, he observed
McClain’s eyes were bloodshot and his speech slurred. The state of
McClain’s eyes are not readily apparent in the video from Delgado’s body
camera; but, as shown in the video, his speech was extremely clear and
coherent.
After asking McClain for the second time whether he had consumed
any intoxicating substances and receiving the same response (“no”),
8
Case: 23-50879 Document: 74-1 Page: 9 Date Filed: 03/20/2025
No. 23-50879
Delgado asked McClain if he would perform the Standardized Field Sobriety
Tests (SFSTs), and McClain agreed. Delgado concluded that McClain failed
the horizontal-gaze nystagmus (HGN) test and the walk-and-turn (WAT)
test, exhibiting six of six possible clues and two of eight possible clues,
respectively. Delgado observed no possible clues for the one-leg stand test.
Despite concluding that McClain failed the HGN and WAT tests,
Delgado did not arrest him immediately after administering them. Instead,
he asked McClain for the third time whether he had consumed any
intoxicating substances, which McClain again denied. Following this
exchange, Delgado returned to his vehicle and called Trooper McKay, with
the Texas Department of Public Safety (TDPS), for backup. Although
Delgado testified in his deposition that he had already decided to arrest
McClain at this point, he explained that he called for backup because he had
never “run into a situation like this where a possible [DWI subject had no]
. . . odor of alcohol or alcohol emitting from the subject or even a visible . . .
alcoholic beverage[]”.
While waiting for backup, Delgado returned to McClain and asked to
search his vehicle, to which McClain consented. For the fourth time,
Delgado asked McClain whether he had consumed any intoxicating
substances, and McClain again said no. Shortly thereafter, Delgado stated to
McClain that, regardless of whether he searched McClain’s vehicle, he did
not believe McClain could safely operate the vehicle, and informed him he
was under arrest for DWI. Delgado then asked McClain whether he would
consent to a blood test, and he agreed.
Around this time, but after McClain had been arrested, Trooper
McKay arrived. Like Delgado, McKay was equipped with a body camera.
Delgado informed McKay that he administered the SFSTs and concluded
McClain was intoxicated. Delgado asked McKay to re-administer the HGN
9
Case: 23-50879 Document: 74-1 Page: 10 Date Filed: 03/20/2025
No. 23-50879
test to confirm Delgado’s conclusions while Delgado searched McClain’s
vehicle. After conducting the test, McKay confirmed Delgado’s results.
Meanwhile, Delgado’s search of McClain’s vehicle yielded no alcoholic
beverages, illegal drugs, or prescription medication.
After concluding his search of McClain’s vehicle, Delgado took him
to a nearby hospital for a blood test. Delgado’s body camera stopped
recording approximately 17 minutes after arriving at the hospital. Again, the
video lasted almost an hour and 25 minutes. While waiting for the hospital
to administer the test (and while Delgado’s body camera was still recording),
McClain informed Delgado that he regularly took an antidepressant, and that
he had taken the medication the previous night. (As stated in Delgado’s
opening brief on appeal, after the body camera stopped recording, McClain
called his wife to confirm that the medication was Sertraline (a generic brand
of Zoloft).) Once the hospital obtained a blood sample (approximately one
hour after the arrest), Delgado took McClain to the Limestone County jail.
On 24 April 2020, a month after McClain was arrested, TDPS issued
the results for his alcohol screening to Delgado, which did not show the
presence of alcohol. And, almost nine months after the arrest, TDPS on 16
January 2021 issued the results for the toxicology screening to Delgado; the
results were negative for any drugs. On 19 January 2021, just two days after
receiving these results for the two screenings, the Limestone County
Attorney declined to prosecute the DWI due to lack of evidence.
II.
As noted, Delgado challenges the district court’s denial of his
qualified-immunity-based-summary-judgment motion against the false-
arrest claim. The denial of a summary-judgment motion based on qualified
immunity is “immediately appealable under the collateral order doctrine to
the extent that it turns on an issue of law”. Lytle v. Bexar Cnty., 560 F.3d 404,
10
Case: 23-50879 Document: 74-1 Page: 11 Date Filed: 03/20/2025
No. 23-50879
408 (5th Cir. 2009) (emphasis added) (citation omitted). “Accordingly, we
have jurisdiction for this interlocutory appeal if it challenges the materiality
of factual issues, but lack jurisdiction if it challenges the district court’s
genuineness ruling—that genuine issues exist concerning material facts.”
Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001)
(emphasis in original) (citation omitted).
“Where the district court has determined that genuine issues of
material fact preclude a determination of qualified immunity”, as it did in this
instance, “we have jurisdiction only to address the legal question of whether
the genuinely disputed factual issues are material for the purposes of
summary judgment”. Lytle, 560 F.3d at 408 (emphasis added). Stated
differently, the only issue before our court on this interlocutory appeal is
“whether the district court erred in assessing the legal significance of the
conduct that the district court deemed sufficiently supported for the
purposes of summary judgment”. Buehler v. Dear, 27 F.4th 969, 979 (5th Cir.
2022).
For the reasons that follow, the genuine factual disputes identified by
the district court are material to the determination of Delgado’s qualified
immunity vel non. And as McClain correctly asserts in his brief, because the
genuinely disputed facts are material, “we lack jurisdiction to consider the
propriety of the summary judgment denial”. Bazan, 246 F.3d at 493. As
noted, the majority does not address this jurisdictional bar, despite it being
the threshold question in determining whether this appeal truly presents a
reviewable “final decision” under 28 U.S.C. § 1291. E.g., id. at 490–91.
In the alternative, genuine disputes of material fact attach to both
prongs of the qualified-immunity test, precluding summary judgment for
Delgado. Along this line, and as also noted, the majority, e.g. at 1 and 5,
11
Case: 23-50879 Document: 74-1 Page: 12 Date Filed: 03/20/2025
No. 23-50879
instead treats this appeal as if it’s reviewing a judgment for a trial, not the
denial of a summary-judgment motion.
A.
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) (emphasis added). In denying
Delgado’s qualified-immunity-based-summary-judgment motion, the
district court concluded that “the parties disagree on every material fact
required to resolve the probable cause question”. In particular, the court
concluded there were genuine factual disputes regarding the premise for the
initial traffic stop (McClain’s alleged swerving); Delgado’s administration
and interpretation of the SFSTs; and Delgado’s credibility.
In keeping with this summary-judgment standard, “we review de novo
the district court’s legal determinations as to the materiality of factual
disputes, but lack jurisdiction to review its determinations that factual disputes
are genuine”. Buehler, 27 F.4th at 979 (emphasis added) (citation omitted).
In that regard, “[a] fact is ‘material’ if it ‘might affect the outcome of the suit
under the governing law’”. Bazan, 246 F.3d at 489 (emphasis in original)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue
is ‘genuine’ if it is real and substantial, as opposed to merely formal,
pretended, or a sham.” Id. (emphasis in original).
Restated, our court cannot revisit factual disputes determined by the
district court to be genuine by our second-guessing the strength or existence
of these disputes; we only possess jurisdiction to determine whether the
factual disputes identified by the court are material to the outcome of the suit
based on the substantive law underlying plaintiff’s claim (and, in this
instance, any asserted affirmative defenses, like qualified immunity). E.g.,
Lytle, 560 F.3d at 408 (“If the determination of qualified immunity would
12
Case: 23-50879 Document: 74-1 Page: 13 Date Filed: 03/20/2025
No. 23-50879
require the resolution of a genuinely disputed fact, then that fact is material and
we lack jurisdiction over the appeal.”) (emphasis added). Although the line
between “permissible materiality review and impermissible genuineness
review can be hazy in practice”, Buehler, 27 F.4th at 979 (emphasis in
original), making this distinction is critical, as it determines the scope of our
review.
This jurisdictional rule is firmly established in both fifth circuit and
Supreme Court precedent. See, e.g., Bazan, 246 F.3d at 490 (providing
comprehensive overview of rationale for rule); Johnson v. Jones, 515 U.S. 304,
313–16 (1995) (discussing factors like delay, lack of finality, and comparative
expertise of trial and appellate judges in ruling on existence of triable issues
of fact in support of rule). As noted in 2001 in Bazan, “[i]t is helpful to
retrace the reasons for this jurisdictional rule”. 246 F.3d at 490.
Johnson held, simply, that determinations of evidentiary
sufficiency at summary judgment are not immediately
appealable merely because they happen to arise in a qualified-
immunity case; if what is at issue in the sufficiency
determination is nothing more than whether the evidence could
support a finding that particular conduct occurred, the question
decided is not truly “separable” from the plaintiff’s claim, and
hence there is no “final decision” under Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949), and Mitchell [v.
Forsyth, 472 U.S. 511, 526 (1985)]. Johnson reaffirmed that
summary judgment determinations are appealable when they
resolve a dispute concerning an “abstract issue of law” relating
to qualified immunity, typically, the issue whether the federal
right allegedly infringed was “clearly established[, the second
of the two-prong qualified-immunity test]”.
13
Case: 23-50879 Document: 74-1 Page: 14 Date Filed: 03/20/2025
No. 23-50879
Id. at 490–91 (emphasis in original) (quoting Behrens v. Pelletier, 516
U.S. 299, 313 (1996)). In short, “we adopt the district court’s articulation of
genuinely disputed facts when determining whether these disputes are material
to a finding of qualified immunity”. Id. (emphasis in original) (citation
omitted).
Turning to the standard for the affirmative defense of qualified
immunity, the “defense alters the usual summary judgment burden of
proof”. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). When, as in
this instance, defendant asserts qualified immunity, the burden shifts to
plaintiff to “rebut the defense by establishing a genuine fact issue as to
whether the official’s allegedly wrongful conduct violated clearly established
law”. Id.; see Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012)
(“Although qualified immunity is nominally an affirmative defense, the
plaintiff bears a heightened burden to negate the defense once properly
raised.”) (citation omitted). But, notwithstanding plaintiff’s bearing the
burden of rebutting the defense, the standard for reviewing a summary-
judgment motion remains: “[w]e view the facts in the light most favorable to
the non[movant] and draw all reasonable inferences in [his] favor”. Bagley v.
Guillen, 90 F.4th 799, 802 (5th Cir. 2024) (citation omitted).
To overcome a qualified-immunity defense, plaintiff “must show: (1)
that the official violated a statutory or constitutional right, and (2) that the
right was clearly established at the time of the challenged conduct”. Converse
v. City of Kemah, 961 F.3d 771, 774 (5th Cir. 2020) (citation omitted).
Because the claimed constitutional violation at hand involves the Fourth
Amendment right against false arrest, McClain “must show [Delgado]
lacked probable cause” to establish the first prong of the qualified-immunity
test. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (“A warrantless
arrest must be based on probable cause.”) (citation omitted). And, if
McClain can show Delgado lacked probable cause to arrest, he will also
14
Case: 23-50879 Document: 74-1 Page: 15 Date Filed: 03/20/2025
No. 23-50879
satisfy the second prong of the qualified-immunity test, because it has long
been clearly established that “an arrest is unlawful unless it is supported by
probable cause”. Id. at 156. Therefore, as it relates to the summary-judgment
standard, if McClain can establish a genuine factual dispute regarding
whether Delgado possessed the requisite probable cause to arrest, then the
dispute is material to both prongs of the qualified-immunity determination.
Again, when the district court determines there are genuine factual
disputes—as it did in this case—“we are limited to reviewing the materiality
(i.e., legal significance) . . . not their genuineness (i.e., existence)”. Dilley v.
Domingue, 118 F.4th 671, 673 (5th Cir. 2024) (emphasis in original). “Put
another way, this court lacks jurisdiction to determine whether the defendant
did, in fact, engage in a certain course of conduct; it only possesses
jurisdiction to examine whether that conduct would, as a matter of law, be
objectively unreasonable in light of clearly established law.” Samples v.
Vadzemnieks, 900 F.3d 655, 660 (5th Cir. 2018) (citation omitted).
Accordingly, we are limited to reviewing the materiality of the following,
earlier-referenced genuine factual disputes identified by the district court:
the factual premise for the initial traffic stop (McClain’s alleged swerving);
Delgado’s administration and interpretation of the SFSTs; and Delgado’s
credibility.
Along that line, there is an exception to this general prohibition on our
genuineness review: “we are permitted to review genuineness where, as
here, video evidence is available”. Argueta v. Jaradi, 86 F.4th 1084, 1088
(5th Cir. 2023), cert. denied, No. 23-1257, 2024 WL 4654965 (U.S. 4 Nov.
2024) (citing Scott v. Harris, 550 U.S. 372, 380–81 (2007)). Accordingly,
Delgado’s almost 85-minute body-camera video is of extreme importance in
reviewing the genuine factual disputes because, as discussed infra, the video
evidence supports the existence (i.e., genuineness) of several of these
disputes.
15
Case: 23-50879 Document: 74-1 Page: 16 Date Filed: 03/20/2025
No. 23-50879
B.
As discussed supra, because the claimed constitutional violation at
hand involves the Fourth Amendment right against false arrest, McClain
“must show [Delgado] lacked probable cause”. Deville, 567 F.3d at 164.
Further, “evidence that the arrestee was innocent of the crime is not
necessarily dispositive of whether the officer had probable cause to conduct
the arrest because ‘probable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such activity’”. Id. at
165 (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)).
The majority concludes at 5 that McClain failed to establish a genuine
dispute of material fact for whether Delgado possessed the requisite probable
cause to make the warrantless arrest, seemingly ignoring the district court’s
concluding numerous genuine factual disputes exist and instead accepting
Delgado’s version of the facts: he observed McClain swerving multiple times
before pulling him over; and concluded he failed the SFSTs. But this is not
the proper summary-judgment standard. Again, we view the facts in the light
most favorable to the nonmovant—in this instance, McClain—and draw all
reasonable inferences in his favor. E.g., Bagley, 90 F.4th at 802. Moreover,
as discussed at length supra, we cannot review the district court’s
determination that a particular factual dispute is genuine. E.g., Dilley, 118
F.4th at 673. (To the extent we can review the genuineness of available video
evidence, that evidence supports the district court’s genuineness
determinations regarding the factual disputes captured on video.)
Viewing the facts in the requisite light most favorable to McClain, and
as stated supra, the district court identified numerous genuine factual
disputes, which, taken in their entirety, are material to the existence of
probable cause. E.g., Crostley v. Lamar Cnty., 717 F.3d 410, 423 (5th Cir.
2013) (“To determine the presence or absence of probable cause to arrest,
16
Case: 23-50879 Document: 74-1 Page: 17 Date Filed: 03/20/2025
No. 23-50879
one must consider the totality of the circumstances surrounding the arrest.”)
(citation omitted). It bears repeating that we are limited to reviewing the
materiality of factual disputes on an interlocutory appeal from the denial of
summary judgment; we do not have jurisdiction to assess the genuineness (i.e.,
existence) of such disputes. E.g., Dilley, 118 F.4th at 673.
1.
First, McClain disputes the factual predicate for the initial stop—
whether, and to what degree, he swerved his vehicle. Again, McClain’s
driving was not captured on video as Delgado’s vehicle was not equipped
with a dashboard camera. Delgado contends this fact is not disputed because
McClain never explicitly denies swerving his vehicle; but, McClain also never
explicitly admits to doing so. To the extent McClain acknowledges any
erratic driving, he offers adjusting his radio as a possible explanation. Along
that line, the magistrate judge’s report and recommendation (adopted by the
district court) stated this fact was in dispute: “Delgado’s belief that McClain
does not dispute that he departed his lane several times while driving is
incorrect. In the body cam footage submitted by both parties, McClain
disputed that he crossed the line at all”. (The district court adopted what it
termed the magistrate judge’s “findings and recommendation”.) (Emphasis
added.)
As noted, although “[t]he distinction between permissible materiality
review and impermissible genuineness review can be hazy in practice”,
Buehler, 27 F.4th at 979 (emphasis in original), the majority’s conclusion at 4
that this fact is not in dispute amounts to an improper assessment of whether
the disputed swerving occurred (i.e., whether the dispute is genuine), which
falls outside the ambit of our jurisdiction on an interlocutory appeal from the
denial of summary judgment. Moreover, to the extent we can evaluate the
genuineness of this factual dispute using Delgado and McClain’s exchange
17
Case: 23-50879 Document: 74-1 Page: 18 Date Filed: 03/20/2025
No. 23-50879
(captured on Delgado’s body camera) as circumstantial evidence, the video
evidence supports the contention that the swerving is genuinely disputed.
Whether this factual dispute is material (i.e., legally significant)
presents a closer question; but, for the reasons provided below, the dispute
is material. As the majority correctly notes at 4, the standard for a traffic stop
is reasonable suspicion, which is a low threshold. E.g., Rucker v. Marshall, 119
F.4th 395, 400 (5th Cir. 2024). The majority states at 4 that McClain’s
complaint concedes Delgado possessed reasonable suspicion for the stop, but
this “concession” is taken out of context. Both the district court and
McClain erroneously referred to the standard for a traffic stop (not arrest) as
probable cause, and it was in this context that McClain stated, “Delgado had
only reasonable suspicion to stop him”. (Emphasis added.)
Regardless of whether the statement amounts to a concession,
conceding Delgado possessed such reasonable suspicion does not render the
factual dispute irrelevant to the ultimate determination of probable cause vel
non. As noted, a probable-cause determination requires consideration of a
totality of the circumstances surrounding the arrest. E.g., Crostley, 717 F.3d at
423. Instead of evaluating probable cause as a “practical, nontechnical
conception” that is “not readily, or even usefully, reduced to a neat set of
legal rules” as precedent requires, Gates, 462 U.S. at 231–32 (citation
omitted), the majority’s swift disposition of the swerving dispute at 4 treats
the test for probable cause like a technical and discrete checklist. The
majority concludes at 5 that it is “undisputed that Delgado had reasonable
suspicion for the stop”. But even if that is true, the dispute is still relevant
to the totality of the circumstances surrounding McClain’s arrest. For example,
the level of suspicion one slight swerve over the white line would engender
versus, simply, six significant swerves over the line over a period of one
minute is significantly different, and therefore relevant to whether Delgado
ultimately possessed the requisite probable cause at the time of McClain’s
18
Case: 23-50879 Document: 74-1 Page: 19 Date Filed: 03/20/2025
No. 23-50879
arrest. In short, and particularly when considered in the light of the
remaining factual disputes, this dispute is material. Therefore, this genuinely
disputed material fact precludes our having jurisdiction.
2.
Next, McClain disputes Delgado’s administration and interpretation
of the SFSTs—in particular, the HGN (eye) test and the WAT (walk) test.
In determining this assertion does not create a factual dispute sufficient to
deny summary judgment, the majority concludes at 5 that McClain did not
meet his burden to “prove that no reasonable officer could have believed that
Delgado had probable cause for his arrest”. But, again, this is not a correct
statement of his burden. His burden for summary judgment is quite different:
simply to show there are genuine disputes of material fact. The underlying
question in this instance is whether “the law is so clearly established that
every reasonable official in [Delgado’s] shoes would know not to engage in the
complained-of conduct”. E.g., Loftin v. City of Prentiss, 33 F.4th 774, 781 (5th
Cir. 2022) (emphasis added). The complained-of conduct is Delgado’s
arresting McClain when he did not reasonably believe he possessed the
requisite probable cause, and “[t]here can be no doubt that the right not to
be arrested absent probable cause was clearly established at the time of
[McClain’s] arrest”. Green v. Thomas, No. 24-60314, 2025 WL 670451, at
*4 (5th Cir. Mar. 3, 2025). In fact, “[i]t is hard to imagine a right more clearly
established”. Id. Put simply, every reasonable official knows that probable
cause is required to make a warrantless arrest.
McClain’s expert provided a report stating that Delgado improperly
administered the HGN test and erroneously interpreted the WAT test. In
addressing the report, the majority concludes at 6 that reasonable mistakes of
fact do not preclude the defense of qualified immunity. E.g., Crostley, 717
F.3d at 423 (“In the context of Fourth Amendment false arrest claims and
19
Case: 23-50879 Document: 74-1 Page: 20 Date Filed: 03/20/2025
No. 23-50879
the issue of probable cause, even law enforcement officials who reasonably,
but mistakenly, conclude that probable cause is present are entitled to
immunity.”) (emphasis added) (citation omitted). This premise is correct;
but, based on the prior, erroneous DWI arrests by Delgado, discussed infra,
any mistakes in the administration of the SFSTs were arguably not
reasonable.
Although the majority at 5 notes a “concession” made at oral
argument in our court by McClain’s counsel—that the tests have a high
accuracy rate for alcohol impairment—this “concession” is premised on the
tests’ being performed and/or interpreted correctly, which is precisely what
McClain is disputing. Additionally, the district court concluded this fact was
genuinely disputed, noting that the parties “do not agree as to whether
Delgado could have reasonably believed that he conducted any of the SFSTs
properly[,] [n]or do they agree with Delgado’s interpretation of the results of
the SFSTs”.
Moreover, Trooper McKay’s asserted confirmation of Delgado’s
interpretation of the HGN test is immaterial. McKay did not arrive until after
McClain was arrested; therefore, McKay’s confirmation of the results has no
effect on whether Delgado reasonably believed he possessed probable cause
at the time of arrest. E.g., Sibron v. New York, 392 U.S. 40, 62–63 (1968)
(facts to establish probable cause must be known to the officer at the time of
arrest). Among the numerous references to McKay’s involvement, the
majority notes at 2 that when McKay commented that he saw the “same
thing” as Delgado, McClain replied, “I don’t doubt it, maybe I’ve got
something going on”. Presumably, the majority includes this exchange to
imply that Delgado’s administration of the test is not truly disputed, but as
noted, any statements made to McKay have no bearing on whether Delgado
reasonably believed he possessed probable cause at the time of arrest.
Arguably, Delgado’s decision to call McKay and request that he confirm
20
Case: 23-50879 Document: 74-1 Page: 21 Date Filed: 03/20/2025
No. 23-50879
Delgado’s results after he had already decided to arrest McClain supports
the contention that Delgado’s actions were not reasonable, see, e.g., Crostley,
717 F.3d at 423, particularly when viewed in the light of the following facts
calling Delgado’s credibility into question.
3.
Generally, at the summary-judgment stage, a court must “refrain
from making credibility determinations or weighing the evidence”. Turner
v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
“Nevertheless, when the circumstances are conducive to lying, well-
supported suspicion of mendacity may serve as a legitimate basis for the
factfinder’s reasonable inferences concerning the ultimate facts at issue.”
Deville, 567 F.3d at 165 (quoting Thomas v. Great Atl. & Pac. Tea Co., 233 F.3d
326, 331 (5th Cir. 2000)). In other words, “[s]ummary judgment is not
appropriate when questions about the credibility of key witnesses loom large
and the evidence could permit the trier-of-fact to treat their testimony with
skeptical scrutiny”. Id. (citation omitted); see also Bazan, 246 F.3d at 492
(“Cases that turn crucially on the credibility of witnesses’ testimony in
particular should not be resolved on summary judgment.”) (emphasis in
original) (citation omitted). In this regard, it bears repeating that Delgado is
a game warden, not a police officer.
In that regard, the district court concluded McClain raised genuine
factual disputes regarding Delgado’s credibility: “Clearly, the circumstances
here are conducive to Delgado lying”. In calling Delgado’s credibility into
question, the court pointed to disputes including: the “evidence of at least
two other [factually similar] examples of DWI arrests made by Delgado that
were later dismissed”, as in this instance, due to insufficient evidence; and,
most importantly, “evidence that Delgado made false statements in his
probable cause affidavit”, prepared after McClain’s arrest, but on the same
21
Case: 23-50879 Document: 74-1 Page: 22 Date Filed: 03/20/2025
No. 23-50879
day. The majority summarily concludes these disputes are immaterial at 6,
despite Delgado’s version of the facts providing the only evidence that could
support a probable-cause determination. Put simply, Delgado’s version of
the facts determines “the outcome of the suit under the governing law”, i.e.,
the very definition of materiality. Bazan, 246 F.3d at 489.
a.
Delgado stated twice in his deposition that, prior to stopping McClain,
he had never encountered a possible DWI in which he found no alcoholic
beverages nor observed the odor of alcohol on the driver. This statement,
however, is incorrect, concerning the following, above-referenced two prior
arrests by Delgado.
i.
First, in November 2019, just four months before McClain’s arrest,
Delgado arrested an individual for DWI under similar circumstances. As was
the case with McClain, Delgado neither smelled alcohol on the individual nor
observed any alcoholic beverages in his vehicle, but nonetheless decided to
arrest him after concluding he failed the SFSTs. Most importantly, the
results of that individual’s consensual blood test were negative for alcohol
and drugs—a fact known to Delgado at the time of McClain’s arrest.
ii.
Second, in August 2019, seven months before McClain’s arrest,
Delgado arrested a different individual for DWI, making nearly identical
observations with regard to his “bloodshot eyes” and alleged failure of the
SFSTs as he did for both McClain and the November 2019 arrest. As was
22
Case: 23-50879 Document: 74-1 Page: 23 Date Filed: 03/20/2025
No. 23-50879
the case with both McClain’s arrest and the November 2019 arrest, the
blood-test results were negative for alcohol and drugs.
In sum, McClain’s arrest was game warden Delgado’s third DWI arrest
in less than one year in which blood-test results exonerated the arrestee. This
evidence greatly undermines Delgado’s credibility, as it lends support to
McClain’s contention that, in the best light, Delgado was subjectively aware
of his incompetence in administering SFSTs. It also supports McClain’s
alternative contention in his brief on appeal—that Delgado intentionally
fabricated the results to bolster his arrest record. The majority at 6 attempts
to undermine the significance of this dispute by noting that “McKay
confirmed Delgado’s findings”. But, again, McKay’s confirmation of the
HGN results is irrelevant, as it occurred post-arrest.
b.
In addition to the credibility issues raised by the above-described two
DWI arrests prior to McClain’s, the district court concluded: “McClain has
presented evidence that Delgado made false statements in his probable-cause
affidavit [(PCA)]”. This further undermines his credibility.
i.
Although the National Highway Traffic Safety Administration
guidance clearly provides that SFSTs “are not a pass/fail test”, Delgado
stated in his PCA that McClain “failed” the SFSTs, neglecting to mention
that McClain exhibited zero out of four clues on the one-leg stand test.
Delgado neither specifies which tests he administered nor details their
results, despite admitting in his deposition that he was aware that
characterizing SFST results as a “fail” is inaccurate.
ii.
23
Case: 23-50879 Document: 74-1 Page: 24 Date Filed: 03/20/2025
No. 23-50879
Additionally, Delgado stated in his PCA that McClain regularly took
Sertraline, implying that this information contributed to having probable
cause to arrest, even though Delgado admitted in his deposition, as well as in
his opening and reply briefs on appeal, that he did not learn this information
until after McClain’s arrest (as shown in part in Delgado’s body-camera
video). As discussed supra, it is well-established that information learned
post-arrest cannot retroactively support a probable-cause determination.
E.g., Sibron, 392 U.S. at 62–63. Presumably, the majority adopted Delgado’s
position that this factual dispute is not material to supporting the probable-
cause determination as it is not mentioned in its opinion. Although Delgado,
and presumably the majority, are correct in taking the position that this
factual dispute has no bearing on whether Delgado possessed the requisite
probable cause (as he was unaware of this fact at the time of arrest), it is
material in the sense that it undermines Delgado’s “reasonable belief” that he
possessed the requisite probable cause to arrest, as it is further summary-
judgment evidence that calls Delgado’s credibility greatly into question. See
Deville, 567 F.3d at 165 (“provid[ing] evidence that would allow the jury to
disbelieve [the officer’s] testimony” can render summary judgment
inappropriate).
It is also worth noting that Delgado stated in both his summary-
judgment motion and brief on appeal that McClain “was never tested for
Sertraline”, but this is not true. Although Sertraline is apparently not one of
the drugs typically tested-for in a toxicology screening, Delgado specifically
requested that McClain be tested for Sertraline in Delgado’s Toxicology
Request Submission Form.
***
In the light of the above-described, genuinely disputed facts, as well as
McClain’s having provided evidence that raises very serious questions
24
Case: 23-50879 Document: 74-1 Page: 25 Date Filed: 03/20/2025
No. 23-50879
regarding Delgado’s credibility, “[s]ummary judgment is not appropriate”.
Id. Moreover, the above-addressed factual disputes are material “because
the determination of qualified immunity would require the resolution of a
genuinely disputed fact”. Lytle, 560 F.3d at 408. Accordingly, our court
lacks jurisdiction over this appeal.
C.
In the alternative, to the extent our court can exercise
jurisdiction to determine the materiality of these factual disputes, and for the
reasons provided above, the disputes are material to the probable-cause
determination. Accordingly, McClain has met his summary-judgment
burden to establish genuine disputes of material fact regarding the first prong
of the qualified-immunity test: the official’s violation of a statutory or
constitutional right. E.g., Converse, 961 F.3d at 774.
Moreover, as discussed supra, because it has long been clearly
established that “an arrest is unlawful unless it is supported by probable
cause”, Deville, 567 F.3d 156, McClain’s establishing material factual
disputes regarding the existence of probable cause likewise satisfies his
summary-judgment burden on the second prong of the qualified-immunity
test—whether the official’s conduct was objectively unreasonable in the light
of clearly established law. E.g., Samples, 900 F.3d at 660. And, because the
objective reasonableness of Delgado’s conduct is a question of law, which
“cannot be decided if there are genuine [disputes] of material fact”, Bazan, 246
F.3d at 490 (emphasis in original), the district court did not err in denying
Delgado’s qualified-immunity-based-summary-judgment motion.
25
Case: 23-50879 Document: 74-1 Page: 26 Date Filed: 03/20/2025
No. 23-50879
III.
For the foregoing reasons, we lack jurisdiction over this appeal; in the
alternative, genuine disputes of material fact preclude granting summary
judgment based on qualified immunity to Delgado. I dissent.
26