Johnson v. Salter

Case: 25-50332 Document: 117-1 Page: 1 Date Filed: 05/15/2026

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 25-50332

FILED

May 15, 2026

____________

Lyle W. Cayce

James Edward Johnson, Clerk

Plaintiff—Appellant,

versus

Brandon Salter; Samuel Noble; Katherine Alzola; City

of Austin, Texas,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:22-CV-1050

______________________________

Before Haynes, Higginson, and Ho, Circuit Judges.

Per Curiam: *

James Edward Johnson told his mother, who lived far away, that he

was going to commit suicide, so she contacted the City of Austin’s 911

dispatching unit and asked if someone could go check on him. Three Austin

Police officers reached Johnson’s apartment a short time later. Johnson says

he suffered injuries to his jaw and head. He then sued the officers and the

_____________________

*

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

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No. 25-50332

City of Austin. The district court granted the defendants’ motions for

summary judgment, concluding that the officers were entitled to qualified

immunity and Johnson could not raise a fact issue regarding his claim for

municipal liability. Finding no error, we AFFIRM.

I. Background

Late one night in August 2021, Johnson’s mother called the City of

Austin’s 911 dispatching unit and explained that her son was “suicidal” and

“ha[d] a gun.” Johnson had texted his mother that night, saying “It’s done,

I’m gone for good. One hundred percent,” and sent a picture of his gun.

Johnson’s mother was in California and scared of what her son might do, so

she called the police to ask if they could send someone to her son’s apartment

to check on him. Johnson’s mother explained that Johnson “had a rough

night”—experiencing problems with his girlfriend, he had been

“humiliated.” Officers were immediately sent out to check on Johnson.

Shortly thereafter, three Austin Police Officers, Brandon Salter,

Samuel Noble, and Katherine Alzola (collectively, the “Officers”), arrived

at Johnson’s apartment complex. The Officers made their way to Johnson’s

apartment door, knocked, and announced “Police Department.” Johnson

quickly responded: “Don’t come in or I’m going to shoot myself in the

head.” After receiving the number from dispatch and attempting to call

Johnson’s cell phone, Noble went to prop open the apartment complex’s

doors.

At Noble’s direction, Salter began to talk to Johnson through the

apartment door. Salter asked Johnson what was going on and stated that he

“need[ed] to know that [Johnson] d[id not] have a gun.” Johnson, his voice

muffled through the door, explained that he did “have one,” but stated that

he was “not a threat to anybody.” Salter told Johnson to make sure that the

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gun was not anywhere near him, and Johnson explained that the gun was “on

the ground next to [him], but . . . [he was] going to come outside.”

Johnson opened his apartment door, showing one hand at a time.

Salter and Alzola held their firearms at low ready. Johnson exited his

apartment door but stood at the apartment’s threshold, propping the door

open. Johnson was shirtless, wearing only shorts and socks. After some

discussion, Johnson took a step into the hallway, turned toward Salter and

Alzola, put his hands up, and said that he was not a threat.

At this time, Noble was making his way back to Johnson’s apartment,

approaching down the hallway behind Johnson. The Officers told Johnson to

get on the ground, but he refused. Instead, he moved back inside his

apartment. As Johnson’s apartment door was closing, Noble reached the

doorway and deployed his taser. Salter followed behind, kicked open the

closing door, and Noble again deployed his taser. The Officers again ordered

Johnson to get on the ground. They sought to place him under emergency

detention, for both his and their safety.

Johnson fell to the floor and crouched against the wall. The Officers

entered the dark apartment and ordered Johnson to get on his stomach.

Johnson was exclaiming: “I didn’t do anything.” Salter then kicked Johnson

in the side to knock him onto his stomach and again used his foot to force

Johnson’s chest to the ground. At that point, having holstered her weapon,

Alzola announced that she was “going hands.”

Alzola knelt down, placing one knee on Johnson, and the Officers

ordered Johnson to put his hands behind his back. Alzola began pulling

Johnson’s hands behind his back. Noble placed his taser on Johnson’s left

thigh, and Salter put one hand on Johnson’s head, pressing the side of his

face to the ground. Alzola got Johnson’s left wrist in her handcuffs and then

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grabbed his right wrist. Johnson continued to state that he was “not a threat”

and asked the Officers to “talk to” him.

Before Alzola could handcuff Johnson’s right wrist, he pulled his right

arm away from her and put his hand under the right side of his chest. Alzola

began struggling to pull Johnson’s right arm back. Salter then punched

Johnson in the jaw area four times, in rapid succession. While Salter was

striking Johnson, Noble was repeating “stand clear” and had his taser ready.

After Salter struck Johnson in the jaw, Alzola was able to pull

Johnson’s arm out from under him, but his arm was still to his side, not

behind his back. Noble announced: “Get back. I’m gonna [sic] tase him.”

Noble then tased Johnson in his right glute (i.e., a “drive stun”), and Alzola

was able to pull Johnson’s right arm behind him and handcuff his right wrist.

Once Johnson was handcuffed, he contended that he was “bleeding a

lot,” and Alzola explained that emergency medical services were on the way.

Salter explained: “We’re trying to help you man, but you, you had a gun; I

don’t know what you’re gonna [sic] do with that.” Noble then walked over

to Johnson, crouched down, and explained that Johnson was being put under

emergency detention. At that time, the Officers noticed Johnson’s gun on the

floor of his living room, approximately ten feet away from where he was

laying on the ground. Alzola picked up the firearm, unloaded it, and placed it

on Johnson’s coffee table.

Noble and Salter helped Johnson up and walked him out of the

apartment complex. An ambulance arrived and began treating Johnson.

Johnson contends that he was severely hurt. He received emergency surgery

to repair his jaw.

Johnson filed this lawsuit in October 2022, asserting claims under 42

U.S.C. § 1983. Johnson asserts claims against: (1) Salter and Noble for

excessive force under the Fourth and Fourteenth Amendments of the United

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States Constitution for Salter’s strikes to Johnson’s head and Noble’s drive

stun; and (2) Salter, Noble, and Alzola for bystander liability under the

Fourth and Fourteenth Amendments for failing to intervene during the

alleged use of excessive force. He also asserts (3) a Monell 1 claim against the

City of Austin alleging, inter alia, a pattern and practice of failing to discipline

officers who fail to intervene and stop the use of excessive force and failing to

train that head strikes should be used only when deadly force is necessary.

In August 2024, the City moved for summary judgment. A few days

later, the Officers moved for summary judgment as well. The district court

granted the Officers’ motion because it determined that the Officers were

entitled to qualified immunity with respect to both Johnson’s excessive force

claim and bystander claim. The district court also granted the City’s motion

because it concluded that Johnson had failed to identify a fact issue regarding

any of his theories of municipal liability. Johnson timely appealed.

II. Jurisdiction & Standard of Review

We have jurisdiction to consider this appeal under 28 U.S.C. § 1291,

as the district court entered final judgment in this case.

We review de novo the district court’s grant of summary judgment.

Deville v. Marcantel, 567 F.3d 156, 163 (5th Cir. 2009) (per curiam). Summary

judgment is appropriate where “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). Though, of course, “we review

evidence in the light most favorable to the nonmoving party, we assign

greater weight, even at the summary judgment stage, to the facts evident

from video recordings taken at the scene.” Carnaby v. City of Houston, 636

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1

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

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F.3d 183, 187 (5th Cir. 2011) (citing Scott v. Harris, 550 U.S. 372, 380–81

(2007)).

III. Discussion

Johnson contends that the district court erred by holding that the

Officers are entitled to qualified immunity in all respects—as to Salter’s head

strikes, Noble’s drive stun, and bystander liability. He then asserts that the

district court also erred by dismissing his claims against the City because, in

his view, material fact disputes remain regarding whether his constitutional

rights were violated. In the end, we disagree on both counts. The district

court properly granted both the Officers’ and the City’s motions for

summary judgment. We address (A) Johnson’s claims against the Officers

and then (B) his claim against the City.

A. Claims against the Officers

With respect to Johnson’s excessive force and bystander claims

against the Officers, the district court concluded that the Officers were

entitled to qualified immunity. We agree.

“Qualified immunity protects government officials from civil liability

in their individual capacity to the extent that their conduct does not violate

clearly established statutory or constitutional rights.” Cass v. City of Abilene,

814 F.3d 721, 728 (5th Cir. 2016) (per curiam) (citation omitted). Once a

defendant makes a good-faith assertion of qualified immunity, the ordinary

summary judgment burden of proof is altered; the burden shifts to the

plaintiff to demonstrate that the defense is unavailable. Id.

There are two steps in our qualified-immunity inquiry. “A plaintiff

seeking to defeat qualified immunity 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.” Trent v. Wade, 776 F.3d

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368, 377 (5th Cir. 2015) (citation modified). We have discretion to address

both or only one of these steps. Morrow v. Meachum, 917 F.3d 870, 874 (5th

Cir. 2019). Here, when it comes to Johnson’s claims against the Officers, we

begin and end with the second step.

At the second step, the plaintiff’s burden is quite heavy. Id. To satisfy

step two, the plaintiff must demonstrate that the law “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) (per curiam)

(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Although the plaintiff

need not cite “a case directly on point, . . . existing precedent must have

placed the statutory or constitutional question beyond debate.” Id. at 12

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

What is more, in this context, “we must frame the constitutional

question with specificity and granularity.” Morrow, 917 F.3d at 874–75. That

is, “clearly established law should not be defined at a high level of

generality,” but instead it “must be particularized to the facts of the case.”

White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam) (citation modified). “In

other words, outside of an obvious case, the law is only clearly established if

a prior case exists where an officer acting under similar circumstances was

held to have violated the Fourth Amendment.” Hanks v. Rogers, 853 F.3d

738, 747 (5th Cir. 2017) (citation modified).

Without needing to decide whether the Officers’ conduct constituted

a constitutional violation, we conclude below that the law was not clearly

established at the time of the Officers’ conduct. We address below

(1) Salter’s head strikes, (2) Noble’s drive stun, and (3) bystander liability.

1. Salter’s head strikes

When it comes to Salter’s head strikes, Johnson contends that his

“right to be free from the excessive force of Salter’s head strikes was clearly

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established,” and he points to multiple of our prior cases 2 that, in his view,

place this issue beyond debate. 3 The Officers, however, argue that the district

court properly distinguished the authorities Johnson relies on because these

cases primarily involved facts where there were no allegations that the

suspect posed an immediate threat to officers’ safety. The question here is

whether the authority Johnson relies on accounts for these circumstances, as

it “must be particularized to the facts of the case.” White, 580 U.S. at 79

(citation modified). We agree with the Officers. Johnson’s cited authority is

readily distinguishable.

We start with Johnson’s chief authority. The primary case on which

Johnson relies is Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319 (5th

Cir. 2020). In Joseph, officers physically struck Joseph twenty-six times all

over his body and tased him twice. Id. at 326–27. During the use of force, the

plaintiff was not actively resisting and was lying in the fetal position. Id. at

336. Furthermore, the plaintiff did not make any threatening movements, and

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2

Johnson also points to a few of our cases that are unpublished. See Scott v. White,

810 F. App’x 297, 299 (5th Cir. 2020) (per curiam); Chacon v. Copeland, 577 F. App’x 355,

362 (5th Cir. 2014) (per curiam); Brown v. Lynch, 524 F. App’x 69, 81 (5th Cir. 2013) (per

curiam). But “[b]ecause nonprecedential opinions do not establish any binding law for the

circuit, they cannot be the source of clearly established law for qualified immunity

analysis.” Salazar v. Molina, 37 F.4th 278, 286 (5th Cir. 2022) (citation omitted).

3

Johnson asserts that his right to be free from the excessive force of Salter’s head

strikes was also clearly established because this is an obvious case. “‘[I]n an obvious case,’

the Graham [v. Connor, 490 U.S. 386, 397 (1989)] excessive-force factors themselves ‘can

clearly establish the answer [to whether the right was clearly established], even without a

body of relevant case law.’” Newman v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012) (quoting

Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). That is the case where “[n]one of the

Graham factors justifies” the force used. Id. But this is far from an obvious case. Just to

name one of the Graham factors, Johnson is unable to demonstrate that he “did not resist”

or complied with all of the Officers’ commands. Id. Rather, the record demonstrates that

Johnson was on the floor and did not comply with the Officers’ repeated instruction to keep

his hands behind his back while Alzola attempted to place handcuffs on him for the purpose

of emergency detention.

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there was no indication that he possessed a firearm or that there was one near

him. Id. at 326. Here, Johnson had retreated into his dark apartment,

disobeyed numerous of the Officers’ commands, and pulled his arm away

while being handcuffed, all while the location of Johnson’s firearm was

unknown. Our decision in Joseph is not sufficiently analogous to have put

Salter on notice that his conduct was unlawful.

The other cases Johnson cites also present distinct factual situations

and do not demonstrate that Salter’s conduct violated clearly established law.

See, e.g., Darden v. City of Fort Worth, 880 F.3d 722, 725, 730–33 (5th Cir.

2018) (involving, inter alia, an individual who had not threatened suicide and

who, evidence demonstrated, was following instructions when officers

engaged in excessive force); Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008)

(similar); see also Bailey v. Ramos, 125 F.4th 667, 682–83 (5th Cir. 2025)

(distinguishing Darden and noting that “Bush does not clearly establish that

use of takedown procedures is unlawful when law enforcement hasn’t yet

gained control of the suspect”), reh’g denied, No. 23-50185 (5th Cir. Feb. 10,

2025). For example, in Newman v. Guedry, after a passenger in a stopped car

made an off-color joke during a pat-down, officers severely beat and tased the

passenger. 703 F.3d 757, 760 (5th Cir. 2012). There was no evidence that the

passenger failed to comply with the officers’ commands before officers began

to strike and tase him. Id. That is not the case here. Further, in Hanks, we

held “that an officer violates the Fourth Amendment if he abruptly resorts to

overwhelming physical force rather than continuing verbal negotiations with

an individual who poses no immediate threat or flight risk, who engages in, at

most, passive resistance, and whom the officer stopped for a minor traffic

violation.” 853 F.3d at 747; see also id. at 746 (“Hanks did not turn his body

or move his hands, which remained folded behind his back and plainly visible

to Officer Rogers.”). Like Newman, Hanks does not closely resemble the

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circumstances at issue here. 4 Then, in Trammell v. Fruge, we held that it was

“clearly established that it was objectively unreasonable for several officers

to tackle an individual who was not fleeing, not violent, not aggressive, and

only resisted by pulling his arm away from an officer’s grasp.” 868 F.3d 332,

343 (5th Cir. 2017). But, unlike this case, there was no indication that the

plaintiff was suicidal and had a gun somewhere near him.

All told, the circumstances presented in the cases Johnson relies on,

“unlike an attempt to restrain . . . a suicidal individual, do[] not carry with

[them] the same inherent danger or risk to human life.” Cambre v. Gottardi,

No. 19-30715, 2025 WL 1304592, at *8 (5th Cir. May 6, 2025)

(unpublished). 5 Johnson has failed to satisfy his burden to show that it was

clearly established at the time of his arrest that Salter’s head strikes were an

unlawful use of force. The district court was thus correct to conclude that

Salter is entitled to qualified immunity on this claim.

2. Noble’s drive stun

As for Noble’s drive stun, Johnson argues that our binding precedent

put Noble on notice that his final use of the taser was excessive. The Officers,

on the other hand, say that the district court correctly held that each of

Johnson’s cases is distinguishable. We again conclude that Johnson has failed

to demonstrate that Noble’s conduct violated clearly established law.

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4

Throughout his briefing, Johnson characterizes his resistance as “at most”

passive, as opposed to active resistance. See generally Cambre v. Gottardi, No. 19-30715,

2025 WL 1304592 (5th Cir. May 6, 2025) (unpublished). However, Johnson “has not

identified a case that accounts for the unique circumstances present here,” notably, a free

arm and an unknown gun, to support his claim that his resistance was merely passive. Id. at

*8.

5

Although Cambre is not “controlling precedent,” it “may be [cited as] persuasive

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R.

47.5.4).

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To start, Johnson again relies on Joseph, Darden, and Newman. Again,

those cases are different from this one. Johnson’s other cited authority

likewise fails to clearly establish that Noble’s conduct was unlawful. 6 For

example, in Ramirez v. Martinez, we denied qualified immunity where

officers tased the plaintiff twice, once while he was handcuffed, subdued, and

lying face down on the ground, even though he posed no threat to the officers.

716 F.3d 369, 379–80 (5th Cir. 2013). But Ramirez is distinct. “Unlike here,

Ramirez found deputies at his business and questioned them,” and officers

did not seek to detain him based on a threat that he would commit suicide.

Salazar v. Molina, 37 F.4th 278, 287 (5th Cir. 2022) (identifying material

distinctions). Further, “unlike here, the officers tased Ramirez even after he

was restrained with handcuffs.” Id.

None of these cases demonstrates that Noble’s conduct was clearly

unlawful. Indeed, when looking at some of these cases and others like them,

the district court acknowledged that a key distinction in those cases is that

none of the officers had reason to believe the detainees were unstable, armed,

or posed a significant threat. Noble deployed his taser immediately after

Salter struck Johnson, while Johnson was still failing to comply with

commands and his hand was near his shoulder. All of this occurred within

seconds of Johnson pulling his arm away from Alzola. Johnson was suicidal,

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6

Yet again, Johnson’s citations to our unpublished cases do not provide clearly

established law. See Chacon, 577 F. App’x at 362; Cobbins v. Sollie, No. 22-30692, 2023 WL

4015303, at *6 (5th Cir. June 14, 2023) (per curiam) (unpublished); Autin v. City of Baytown,

174 F. App’x 183, 186 (5th Cir. 2005) (per curiam); Clark v. Massengill, 641 F. App’x 418,

421 (5th Cir. 2016); Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per

curiam). See Salazar, 37 F.4th at 286. On a related note, Johnson’s citation to Peña v. City

of Rio Grande City, 879 F.3d 613, 619–20 (5th Cir. 2018), is futile. Not only are its

circumstances quite different, but we also decided that case at the pleading stage and

remanded to the district court without resolving issues related to qualified immunity. Id. at

621.

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repeatedly refused the Officers’ commands, and the Officers remained in

Johnson’s dark apartment all the while knowing that Johnson’s gun was

somewhere around them. At all times, Noble “faced a ‘tense, uncertain, and

rapidly evolving’ situation.” 7 Ramirez v. Escajeda, 44 F.4th 287, 294 (5th Cir.

2022) (quoting Plumhoff v. Rickard, 572 U.S. 765, 775 (2014)).

Johnson has again failed to satisfy his burden to show that it was clearly

established at the time of his arrest that Noble’s drive stun constituted an

unlawful use of force. The district court correctly concluded that Noble is

entitled to qualified immunity on this claim.

3. Bystander liability

Johnson next contends that the district court erred by dismissing his

bystander claim against Salter and Alzola. 8 The Officers maintain that they

are entitled to qualified immunity. Once again, we agree with the Officers.

“An officer may be liable under § 1983 under a theory of bystander

liability where the officer (1) knows that a fellow officer is violating an

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7

Johnson also makes references to a few other cases. In Roque v. Harvel, we held

that it was clearly established “that an officer violates the Fourth Amendment if he shoots

an unarmed, incapacitated suspect who is moving away from everyone present at the

scene.” 993 F.3d 325, 339 (5th Cir. 2021). In Cooper v. Brown, an officer deployed a dog

rather than a taser, the plaintiff was “not actively resisting arrest or attempting to flee,”

and the officer did not order the dog to release the bite until after the plaintiff was

handcuffed. 844 F.3d 517, 521, 523–24 (5th Cir. 2016). Then, in Mason v. Lafayette City-

Parish Consolidated Government, after an officer had shot a suspect five times and the

suspect was face down on the ground, the officer—claiming that the suspect made a

threatening movement—fired two more shots into the suspect’s back. 806 F.3d 268, 273–

74 (5th Cir. 2015). But each of these cases present factual circumstances that are wholly

distinct from the circumstances surrounding Noble’s use of his taser, and, as a result, these

cases did not put Noble on notice that his conduct was unlawful.

8

In his briefing on appeal, Johnson only presses this claim against Salter and Alzola,

though he also asserts this claim against Noble in his complaint. Nonetheless, for the same

reasons discussed herein, Johnson’s bystander claim fails against all the Officers.

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individual’s constitutional rights; (2) has a reasonable opportunity to prevent

the harm; and (3) chooses not to act.” Whitley v. Hanna, 726 F.3d 631, 646

(5th Cir. 2013) (citation modified). Then, because the Officers have asserted

qualified immunity, Johnson is also required to “identify clearly established

law requiring an officer” to intervene under similar circumstances. Id. at 647

n.13. In other words, Johnson bears the burden to demonstrate that, at the

time the conduct at issue took place, “any reasonable officer would have

known that the Constitution required them to intervene in this

circumstance.” Timpa v. Dillard, 20 F.4th 1020, 1038–39 (5th Cir. 2021)

(citation modified).

Johnson’s bystander claim must fail. Where each specific instance of

claimed excessive force did not violate clearly established law at the time of

its occurrence, a plaintiff is unable to maintain a bystander claim rooted in

the same conduct. Terrell v. Allgrunn, 114 F.4th 428, 440 (5th Cir. 2024)

(“All the specific instances, listed by plaintiffs as points at which Henderson

and Banta failed to intervene, were not violations of clearly established

constitutional law. That ends the inquiry.”), reh’g denied, No. 23-30723 (5th

Cir. Jan. 7, 2025). That is, because Noble’s use of force did not violate clearly

established law, Johnson’s bystander claim relating to this instance cannot

survive.

B. Claim against the City

Last, we reach Johnson’s claim against the City. The district court

concluded that Johnson’s Monell claim must fail for two reasons. For one, his

claim failed because the Officers’ force was reasonable. But for another, the

district court held that its review of the parties’ evidence revealed that

Johnson failed to establish municipal liability against the City in any event.

Specifically, the district court held that Johnson failed to establish that the

City: had a policy or custom of excessive force; inadequately trained its

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officers; had a policy of failing to enforce its intervention policy that was also

the moving force behind the Officers’ conduct; could be liable for its alleged

failure to discipline; and was deliberately indifferent in its post-incident

conduct.

Because Johnson fails to challenge the district court’s alternative

justifications for dismissing his claim against the City, we must affirm.

Indeed, Johnson addresses none of the district court’s alternative grounds for

dismissal on appeal. He simply asserts that there are fact issues as to whether

his constitutional rights were violated, and, as a result, the district court could

not evaluate his Monell claim. Not so. The district court addressed the merits

of Johnson’s Monell claim even though it found no underlying constitutional

violation.

Johnson has forfeited any arguments regarding this analysis. “A party

forfeits a claim or argument by failing to raise it at the appropriate time. For

example, forfeiture occurs when the party fails . . . to adequately brief it on

appeal.” Indigenous Peoples of Coastal Bend v. U. S. Army Corps of Eng’rs, 132

F.4th 872, 882 (5th Cir. 2025); United States v. Ogle, 415 F.3d 382, 383 (5th

Cir. 2005) (per curiam) (“[A]n argument not raised in appellant’s original

brief as required by Fed. R. App. P. 28 is waived.”). That is the case here.

Further, and in any event, even if we were to consider Johnson’s belated

arguments on this point, he has failed to demonstrate that the district court’s

analysis of his Monell claim was erroneous. Dixon v. Toyota Motor Credit

Corp., 794 F.3d 507, 508 (5th Cir. 2015) (“Arguments raised for the first time

in a reply brief are waived.”).

IV. Conclusion

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

the Officers’ and the City’s motions for summary judgment.

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