Gorsky v. Guajardo

Case: 20-20084 Document: 00516766649 Page: 1 Date Filed: 05/26/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

May 26, 2023

No. 20-20084 Lyle W. Cayce

Clerk

Jacob Gorsky; Olesya Gorsky,

Plaintiffs—Appellees,

versus

Deputy Guajardo; Deputy Small; Deputy Berry; Deputy

Rivaux,

Defendants—Appellants.

Appeal from the United States District Court

For the Southern District of Texas

USDC No. 4:16-CV-2877

Before Higginbotham, Smith, and Dennis, Circuit Judges.

Per Curiam:*

*

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

Case: 20-20084 Document: 00516766649 Page: 2 Date Filed: 05/26/2023

Jacob and Olesya Gorsky lived next to the Koczman family in the

Woodlands in Harris County, Texas. The two families did not get along,

calling the police on one another many times. On the evening of February

20, 2016, Defendants-Appellants Deputy Guajardo, Deputy Small, Deputy

Berry and Corporal Rivaux (the “officers”) responded to complaints from

the Koczman family regarding a rowdy pool party at the Gorsky residence

and Mrs. Gorsky’s alleged smashing of an egg on Mr. Koczman’s car. Based

on their ensuing interactions with the officers, the Gorskys brought claims

against the officers under 42 U.S.C. § 1983. The Gorskys filed suit in the

Southern District of Texas alleging violations of their Fourth and

Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 based on the

officers’ unlawful arrest of Mr. Gorsky, illegal entry and search of the

Gorsky home, and use of excessive force against the Gorskys.

The district court partially denied the officers’ motion for summary

judgment and motion to strike certain summary judgment evidence,

ultimately concluding that factual disputes affecting the reasonableness of

the officers’ conduct required denial of the officers’ assertion of qualified

immunity on certain claims. The officers timely appealed. At issue in this

appeal are the Gorskys’ claims for (1) unlawful arrest, (2) illegal entry, (3)

illegal search, (4) excessive force concerning Mr. Gorsky, and (5) excessive

force concerning Mrs. Gorsky. Because we lack jurisdiction to review

certain claims at issue in this appeal as they turn on genuine disputes of

material facts, we DISMISS the officers’ appeal with regard to the

unlawful search, unlawful entry and excessive force claims and otherwise

AFFIRM the district court.

I. Factual and Procedural Background

Prior to the events giving rise to this case, Jacob and Olesya Gorsky

lived next door to the Koczman family for six years. Over these six years,

Case: 20-20084 Document: 00516766649 Page: 3 Date Filed: 05/26/2023

No. 20-20084

the two families placed at least 19 complaint calls about one another to the

local police. The events surrounding this appeal arose in the late evening of

February 20, 2016, when the Koczmans called the police to complain that

the Gorskys were throwing a loud pool party. Two deputies—Berry and

Guajardo—responded around midnight and, after issuing a warning to the

Gorskys1 to “quiet down,” left the home.

Shortly thereafter, the Koczman family reported to the police that

that Mrs. Gorsky had egged their car. Deputies Berry and Guajardo, this

time accompanied by Deputy Small and Corporal Rivaux, arrived at the

Koczman’s home and, after viewing security camera footage of the egging,

returned to the Gorsky residence.

The officers rang the doorbell and Mr. Gorsky opened the door. The

police informed him of the egging complaint and that they needed to speak

to his wife. Mr. Gorsky told the officers that he would get his wife but

attempted to close the door on the police officers who, at that time, were

standing outside. Rivaux and Berry refused to allow Mr. Gorsky to close the

door by placing their feet in the threshold. After refusing to allow Mr.

Gorsky to close the door multiple times, Rivaux told Mr. Gorsky that he

was hindering an investigation and that they had “every legal right to enter

[the] house, put [Mr. Gorsky] in handcuffs, and take [him] to jail.” Mr.

Gorsky again agreed to go get his wife but asked the officers to leave his

home, to which the officers replied, “that is not an option.” Guajardo

handcuffed Mr. Gorsky and placed him in the police car where he remained

1

During this initial interaction, Mr. Gorsky walked towards Berry and Guajardo

with a pool rod in his hand.

3

Case: 20-20084 Document: 00516766649 Page: 4 Date Filed: 05/26/2023

No. 20-20084

for approximately one hour.2 Mr. Gorsky testified that, when placing him in

handcuffs, Guajardo grabbed him, pushed him around, and twisted his arm

enough to cause him “a lot of pain.”

Around this time, Mrs. Gorsky claims she “heard a commotion in

[the] front foyer” and came to the front of the home where she found the

officers standing inside her home. Mrs. Gorsky asserts that the officers then

immediately put her in handcuffs and began aggressively accusing her of the

egging. She stated that, while she was still in handcuffs, the officers pushed

her into a chair, which caused bruising on her legs. Because Mrs. Gorsky

had been sleeping, she was in some state of undress; and she testified that

Rivaux pushed her as she attempted to cover herself and stuck “his fingers

in [her] breasts.” At some point during these events, Small went further

into the house allegedly to check on Mrs. Gorsky’s son. The parties dispute

whether Mrs. Gorsky consented to the officers’ entry into her home and

whether she requested they check on her son. The officers then issued a

criminal citation to Mrs. Gorsky, released Mr. Gorsky, and left the scene.

In their lawsuit, the Gorskys allege violations of their Fourth and

Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 based on the

officers’ alleged unlawful arrest of Mr. Gorsky, illegal entry and search of

the Gorsky home, and use of excessive force against the Gorskys. The

officers moved for summary judgment rejecting these claims based, in part,

on their assertions of qualified immunity. The district court denied the

2

While Mr. Gorsky testified that Rivaux placed him in handcuffs, Rivaux testified

that he told Mr. Gorsky to “[h]ave fun in Harris County” as Guajardo handcuffed Mr.

Gorsky. Berry also testified that it was Guajardo who placed Mr. Gorsky in handcuffs.

4

Case: 20-20084 Document: 00516766649 Page: 5 Date Filed: 05/26/2023

No. 20-20084

motions3 in their entirety, finding that factual disputes precluded it from

granting the motions. The officers timely appealed.

II. Standards of Review

A. Motion to Strike

An appellate court reviews a district court’s ruling on a motion to

strike for abuse of discretion. United States v. Coney, 689 F.3d 365, 379 (5th

Cir. 2012). Our review is a “two-tiered” process when a party asks us to

review both evidentiary rulings and a summary judgment decision. Berry v.

Armstrong Rubber Co., 989 F2.d 822, 834 (5th Cir. 1993). We first “review

the evidentiary rulings under the manifest error standard, then [we] review

the trial court’s summary judgment decision de novo.” Id.

B. Summary Judgment

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). “[T]his court construes

‘all facts and inferences in the light most favorable to the nonmoving

party.’” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (quoting

Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)). The denial of summary

judgment is generally not appealable. Naylor v. State of La., Dep’t of Corr.,

123 F.3d 855, 857 (5th Cir. 1997) (citing Aldy v. Valmet Paper Mach., 74 F.3d

72, 75 (5th Cir. 1996)). According to the collateral order doctrine, however,

orders denying summary judgment based on qualified immunity are

appealable when based on conclusions of law. Id.

3

Small, Berry, and Guajardo filed a motion for summary judgment, and Rivaux

filed a separate motion for summary judgment.

5

Case: 20-20084 Document: 00516766649 Page: 6 Date Filed: 05/26/2023

No. 20-20084

While we have jurisdiction to review a denial of summary judgment

based on qualified immunity to the extent that it turns on conclusions of

law, we do not have jurisdiction over a genuine-issue-of-fact-based denial of

qualified immunity.” Naylor, 123 F.3d at 857; Joseph on behalf of Est. of

Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020). In other words, denials

of qualified immunity on summary judgment are “not immediately

appealable when based on sufficiency of evidence.” Naylor, 123 F.3d at 857.

C. Qualified Immunity

“The doctrine of qualified immunity protects government officials

‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[A] good-faith

assertion of qualified immunity alters the usual summary judgment burden

of proof, shifting it to the plaintiff to show that the defense is not available.”

Ratliff v. Aransas Cty., Texas, 948 F.3d 281, 287 (5th Cir. 2020).

Once the defense of qualified immunity has been raised, the plaintiff

has the burden of demonstrating that “(1) the official violated a statutory or

constitutional right, and (2) the right was ‘clearly established’ at the time.”

Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 735 (2011)). Courts therefore evaluate claims of

qualified immunity in a two-prong4 analysis: first, a court must determine

whether the “facts alleged show the officer’s conduct violated a statutory or

constitutional right.” Morgan v. Swanson, 659 F.3d 359, 401 (5th Cir. 2011);

4

“Courts have discretion to decide the order in which to engage these two

prongs.” Tolan v. Cotton, 572 U.S. 650, 656 (2014).

6

Case: 20-20084 Document: 00516766649 Page: 7 Date Filed: 05/26/2023

No. 20-20084

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Second, a court must

determine whether “the right was clearly established . . . in light of the

specific context of the case.” Id. To be clearly established for purposes of

qualified immunity, the contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates that

right. Ashcroft, 563 U.S. at 741.

III. Discussion

A. Motion to Strike

The district court denied the officers’ motion to strike certain

statements in the Gorskys’ affidavits attached to their response to the

officers’ motion for summary judgment. While the officers claimed that

there were contradictions between the Gorskys’ affidavits and their

depositions, the district court found no inconsistency meriting exclusion of

the affidavits.

Under the sham affidavit doctrine, a court may refuse to consider

statements made in an affidavit that are “so markedly inconsistent” with a

prior statement as to “constitute an obvious sham.” Clark v. Resistoflex Co.,

A Div. of Unidynamics Corp., 854 F.2d 767, 767 (5th Cir. 1988). Yet not

“every discrepancy” in an affidavit justifies a district court’s refusal to give

credence to competent summary judgment evidence. Winzer v. Kaufman

County, 916 F.3d 464, 472 (5th Cir. 2010); Kennett-Murray Corp. v. Bone,

622 F.2d 887, 894 (5th Cir. 1980) (sham affidavit rule did not apply where

affidavit was not “inherently inconsistent” with prior testimony). An

affidavit that “supplements rather than contradicts prior . . . testimony”

falls outside the doctrine’s ambit. S.W.S. Erectors, Inc. v Infax, Inc., 72 F.3d

489, 496 (5th Cir. 1996). To apply the sham-affidavit rule, we first

determine if two statements are contradictory. Hacienda Records, L.P. v.

Ramos, 718 F. App’x 223, 235 (5th Cir. 2018) (unpublished) (per curiam). If

7

Case: 20-20084 Document: 00516766649 Page: 8 Date Filed: 05/26/2023

No. 20-20084

a party’s affidavit contains “inconsistent statements,” we then “may refuse

to consider h[er] declaration as competent evidence.” Id.

The officers contend that we should disregard three of the

statements the Gorskys made in their affidavits attached to their response to

the officers’ motion for summary judgment. First, the officers argue that

the district court abused its discretion in failing to disregard Mrs. Gorsky’s

statement that the “officers came into the house before knocking” because

during discovery she said that “two or three deputies were on the front

porch when [she] came to the front foyer of [her] house.” Despite the

officer’s argument that these statements are inconsistent, it is nonetheless

possible that the officers were inside the home before they knocked but

stepped into the foyer before Mrs. Gorsky arrived there. For example, the

officers could have stepped into the foyer to look for Mrs. Gorsky and when

she came into view they may have stepped back onto the porch. While the

tension in the two statements may allow for an intense cross-examination,

the statements are not directly contradictory. Winzer, 916 F.3d at 472.

Second, the officers argue that the district court should have stricken

Mrs. Gorsky’s assertion that Rivaux called her a “bitch” because she later

claimed that she could not hear any officer call her a “bitch” in the audio

recording of the interaction during her deposition. The district court

correctly concluded that this is not an inconsistency as “[i]t is not

inconsistent to insist that something happened but be unable to hear it on an

audio recording of the event.” Thus, the officers have not pointed to any

specific contradiction between Mrs. Gorsky’s statement and her deposition

testimony.

Finally, the officers moved to strike Mr. Gorsky’s statement that he

was in so much pain from the handcuffs that he screamed, because in a later

deposition Mr. Gorsky stated that the handcuffs caused him lots of

8

Case: 20-20084 Document: 00516766649 Page: 9 Date Filed: 05/26/2023

No. 20-20084

“discomfort and pain” but that this was “not an injury.”5 However, it is

not inconsistent for Mr. Gorsky to have stated that he was in discomfort

and pain but that he was not ultimately injured by the handcuffs.

Because the challenged statements in the Gorskys’ affidavits were

not “inherently inconsistent,” the district court’s refusal to apply the

sham-affidavit rule was not manifest error. Winzer, 916 F.3d at 472; Berry,

989 F.2d at 824. Accordingly, we AFFIRM the denial of the motion to

strike.

B. Jurisdiction to Review Qualified Immunity Denials

“Ordinarily, we do not have jurisdiction to review a denial of a

summary judgment motion because such a decision is not final within the

meaning of 28 U.S.C. § 1291.” Palmer v. Johnson, 193 F.3d 346, 350 (5th

Cir. 1999). However, the “denial of qualified immunity on a motion for

summary judgment is immediately appealable if it is based on a conclusion

of law.” Id. (citing Johnson v. Jones, 515 U.S. 304 (1995)). Although we lack

jurisdiction to consider “whether there is enough evidence in the record for

a jury to conclude that certain facts are true,” we do have jurisdiction “to

decide whether the district court erred in concluding as a matter of law that

officials are not entitled to qualified immunity on a given set of facts.”

Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc); see also

Naylor, 123 F.3d at 857 (“[W]e have jurisdiction over law-based denials of

qualified immunity, but do not have jurisdiction over a genuine-issue-of-

fact-based denial of qualified immunity”).

5

When viewed in context, the deposition testimony to which the officers refer

makes clear that Mr. Gorsky stated that it “was not an injury” when describing sitting in

the cramped, cold patrol car.

9

Case: 20-20084 Document: 00516766649 Page: 10 Date Filed: 05/26/2023

No. 20-20084

The Gorskys argue that this appeal is foreclosed because the district

court’s denial of summary judgment was based not on conclusions of law

but rather on the court’s finding genuine disputes of material fact. The

officers do not address the issue of jurisdiction in their briefing, and largely

rely on facts the district court properly found to be disputed and material to

determining whether the officers are entitled to qualified immunity. We

lack jurisdiction to review the denial of summary judgment on the Gorskys’

unlawful entry, unlawful search, and excessive force claims because the

district court’s denial of summary judgment on those claims turned on

genuine disputes of fact that preclude a finding the officers’ entitlement to

qualified immunity.

1. Unlawful Entry

The district court rejected the officers’ assertion of qualified

immunity on the Gorskys’ illegal entry claim6 based on factual disputes

material to Mrs. Gorsky’s consent to the officers’ entry into the Gorsky

residence. Specifically, the district court found disputes of fact material to

determining whether the officers were already inside the home when Mrs.

Gorsky entered the foyer, and whether Mrs. Gorsky voluntarily consented

to the officers’ entry into her home. The officers argue on appeal that they

are entitled to qualified immunity because the record establishes that Mrs.

Gorsky consented to their entry and that there is no clearly established law

suggesting that the officers had reason to believe her consent was

involuntary.

6

The district court granted the officers’ motion for summary judgment on the

Gorskys’ illegal entry claim based on the officers’ placing their feet in the Gorskys’

doorframe. The officers thus solely appeal the denial of summary judgment on the illegal

entry claim based on the officers’ entry in the Gorskys’ home after handcuffing and

removing Mr. Gorsky from the front-door area.

10

Case: 20-20084 Document: 00516766649 Page: 11 Date Filed: 05/26/2023

No. 20-20084

The officers’ challenge to the district court’s denial of qualified

immunity on this claim is premised entirely7 on persuading this court that

the record supports their factual contention that Mrs. Gorsky consented to

their entry into her home. For example, the officers challenge the

sufficiency of Mrs. Gorsky’s evidence that the officers were already in her

home when she told them they could come into the dining room. Yet as the

district court noted, the audio recording to which the officers point to

support their narrative does not make clear whether the officers were inside

or outside of the Gorsky residence at the time Mrs. Gorsky said “yeah,

yeah” to Rivaux’s suggestion that the officers enter the dining room. These

are precisely the type of factual arguments—material to determining the

reasonableness of the officers’ actions—that we lack jurisdiction to evaluate

on appeal. Morris v. Leblanc, 674 F. App’x 374, 377 (5th Cir. 2016)

(unpublished) (per curiam) (this court “lack[s] jurisdiction to review the

district court’s decision that a fact issue is genuine.”).

Although the officers also attempt to make the legal argument that

there is no clearly established law defining how consent is to be given to a

warrantless entry, we cannot reach that issue without resolving the factual

dispute as to whether Mrs. Gorsky consented to the officers’ entry before or

after the officers entered her home. Edwards v. Oliver, 31 F.4th 925, 932

(5th Cir. 2022) (“Because an analysis of the clearly established prong is

fact-intensive, courts must take care not to define a case’s ‘context’ in a

7

The officers argue for the first time in their reply brief that “[e]ven if the

officers stepped into the foyer during the process of detaining or arresting Mr. Gorsky,

they would still be entitled to qualified immunity” because exigent circumstances

warranted their entry into the Gorsky home. We will not consider this argument since it

was raised for the first time in their reply brief. Sahara Health Care, Inc. v. Azar, 975 F.3d

523, 528 n.5 (5th Cir. 2020) (“[W]e ordinarily disregard arguments raised for the first

time in a reply brief.”).

11

Case: 20-20084 Document: 00516766649 Page: 12 Date Filed: 05/26/2023

No. 20-20084

manner that imports genuinely disputed factual propositions.”) (internal

citation removed). Viewing the facts in a light most favorable to Mrs.

Gorsky, as we must, any conversation about consent took place after the

officers had already entered the home, which would violate clearly

established law from this circuit holding that a warrantless entry into a

home without consent is presumptively unreasonable. United States v.

Santiago, 410 F.3d 193, 198 (5th Cir. 2005) (“A warrantless entry into and

search of a dwelling is presumptively unreasonable unless consent is given

or probable cause and exigent circumstances justify the encroachment.”)

(internal citation removed). As this purely factual dispute precludes any

analysis of the officers’ legal argument, this court is deprived of jurisdiction

to review the district court’s denial of summary judgment on the unlawful

entry claim. We DISMISS the officers’ appeal of the district court’s

denial of summary judgment as to the illegal entry claim.

2. Unlawful Search

The district court denied Small’s8 motion for summary judgment on

the Gorskys’ unlawful search claim. In rejecting Small’s plea for qualified

immunity, the district court again relied on factual disputes as to whether

Mrs. Gorsky consented to the officers’ entry into her home and asked the

officers to go check on her son further inside the house. On appeal, the

officers contend that Mrs. Gorsky “directed” or “request[ed]” that Small

go further into the home to check on Mrs. Gorsky’s son and that “[n]o one

has identified any clearly established law that prevented Deputy Small from

spending a minute to honor a mother’s request.” 9 As Mrs. Gorsky denies

8

The district court dismissed the illegal search claims against Guajardo, Berry

and Rivaux.

9

The officers cite no record evidence demonstrating that Mrs. Gorsky asked

Small to go check on her son, though the audio recording of the interaction reveals Mrs.

12

Case: 20-20084 Document: 00516766649 Page: 13 Date Filed: 05/26/2023

No. 20-20084

having made that request, this argument similarly relies on a disputed fact

material to assessing the reasonableness of Small’s conduct.

Although the officers also aver that “[n]o one has identified any

clearly established law that prevented Deputy Small from spending a

minute to honor a mother’s request,” that purportedly law-based argument

nonetheless impermissibly requires that we assume that Mrs. Gorsky

requested that Small go further into the home to check on Mrs. Gorsky’s

son. We cannot assume disputed facts against Mrs. Gorsky, and the officers

do not otherwise ask this court to assume all facts in favor of the Gorskys in

support of their legal argument. Edwards, 31 F.4th at 932; Lytle v. Bexar

County., Tex., 560 F.3d 404, 409 (5th Cir. 2009) (“[A] defendant

challenging the denial of a motion for summary judgment on the basis of

qualified immunity must be prepared to concede the best view of the facts

to the plaintiff and discuss only the legal issues raised by the appeal.”)

(internal citation removed). Assuming all facts in favor of Mrs. Gorsky, we

cannot say that it was objectively reasonable for Small to conduct a further

search of the residence without a warrant or Mrs. Gorsky’s consent, and in

the absence of exigent circumstances. Santiago, 410 F.3d at 198; Brigham

City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (“Warrants are generally

required to search a person’s home . . . unless the exigencies of the situation

make the needs of law enforcement so compelling that the warrantless

search is objectively reasonable under the Fourth Amendment.”) (cleaned

up).

Gorsky inquiring as to the well-being of her son and Small asking Mrs. Gorsky where her

son was sleeping.

13

Case: 20-20084 Document: 00516766649 Page: 14 Date Filed: 05/26/2023

No. 20-20084

Because we are unable to review the illegal search claim due to a lack

of jurisdiction, we DISMISS the officers’ appeal of the district court’s

denial of summary judgment on this claim

3. Excessive Force

The Gorskys claim that the officers10 used excessive force against the

couple during their interaction. The district court denied the officers’

motion for summary judgment on the excessive force claims as to officers

Guajardo and Rivaux. In denying the motion as to Guajardo and Rivaux, the

district court concluded that factual disputes as to the reasonableness of

their actions precluded a finding that they were entitled to qualified

immunity. On appeal, Guajardo and Rivaux challenge the severity of the

Gorskys’ injuries and the circumstances surrounding the officers’ use of

force.

As to Mr. Gorsky, the officers attack the sufficiency of Mr. Gorsky’s

injury and argue that given the circumstances, their use of force against Mr.

Gorsky was reasonable and they would have even “been entitled to tackle

Mr. Gorsky” because he had been holding a pool rod during their first

interaction of the evening. Guajardo and Rivaux argue that the video

footage does not demonstrate that Mr. Gorsky screamed in pain while being

arrested, but regardless of whether Mr. Gorsky screamed, he testified that

the officers grabbed him, pushed him around, and twisted his arm hard

enough to cause him “a lot of pain.” Even if Mr. Gorsky’s injury is

“relatively insignificant,”11 it is nonetheless cognizable if it resulted from

10

The remaining excessive force claims are only against Guajardo and Rivaux

given that the district court granted summary judgment to the other officers on those

claims.

11

While the injury caused by an allegedly excessive use of force “must be more

than de minimis,” it need not be significant. Tarver v. City of Edna, 410 F.3d 745, 752 (5th

14

Case: 20-20084 Document: 00516766649 Page: 15 Date Filed: 05/26/2023

No. 20-20084

“an officer’s unreasonably excessive force.” Brown v. Lynch, 524 Fed.

App’x 69, 79 (5th Cir. 2013) (unpublished).

The officers also contend that they reasonably feared Mr. Gorsky

might arm himself if left unrestrained because he had grabbed and raised a

pool rod during his previous interaction with police. But viewing the evi-

dence in the light most favorable to the Gorskys, Mr. Gorsky never threat-

ened the officers or resisted arrest, and the officers’ use of force caused him

pain. These disputed facts are precisely the ones that prevented the district

court from granting Guajardo and Rivaux 12 qualified immunity as a matter

of law, and are not issues of law reviewable on appeal. Byrd v. Cornelius, 52

F.4th 265, 270 (5th Cir. 2022) (“A district court’s determination that a fac-

tual dispute exists in the record is not an issue of law that we can address

during an interlocutory appeal.”). Moreover, assuming all facts in the light

most favorable to Mr. Gorsky, we cannot conclude that the officers’ use of

force was objectively reasonable given the minimal severity of the underly-

ing crime, the lack of threat Mr. Gorsky posed to the officers, and his ab-

sence of resistance to them. Tarver, 410 F.3d at 753; see also Heitschmidt v.

Cir. 2005) (citing Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). The dissent

cites Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007), Glenn v. City of Tyler, 242 F.3d

307, 314 (5th Cir. 2001), and Templeton v. Jarmillo, 28 F.4th 618, 623 (5th Cir. 2022) for

the proposition that the use of force associated with handcuffing can never form the basis

of an excessive force claim. Yet the plaintiffs in those cases all alleged injuries related to

“tight handcuffing” whereas here Mr. Gorsky’s excessive force claim is not based on the

tightness of the handcuffs used to arrest him but rather the officers use of force in pushing

and grabbing him. Freeman, 483 F.3d at 417 (“the most substantial injury claimed by

[plaintiff] is that she suffered bruising on her wrists and arms because the handcuffs were

applied too tightly when she was arrested”); Glenn, 242 F.3d at 314 (“[plaintiff’s] sole

contention is that the officer put the handcuffs on her too tightly”); Templeton, 28 F.4th

618, 623 (5th Cir. 2022).

12

As noted above, the parties presented conflicting evidence as to who even

arrested Mr. Gorsky by placing him in handcuffs. See supra note 2.

15

Case: 20-20084 Document: 00516766649 Page: 16 Date Filed: 05/26/2023

No. 20-20084

City of Houston, 161 F.3d 834, 839 (5th Cir. 1998) (reversing dismissal of ex-

cessive force claim based on injuries related to handcuffing where based on

record court was “unable to conclude that either the force exerted or the

officers’ conduct was reasonable as a matter of law).13

The district court’s denial of summary judgment as to Mr. Gorsky’s

excessive force claim did not turn on an issue of law, and on appeal

Guajardo and Rivaux impermissibly ask this court to construe facts in their

favor that the district court properly found to be in dispute and material to

the legal question of whether their use of force was objectively reasonable.

As to Mrs. Gorsky, Rivaux14 similarly challenges the severity of her

injuries, once again arguing that Mrs. Gorsky was not subject to

unreasonable force because the alleged force cannot be heard in a video

recording of the interaction. Rivaux also appears to argue that he was

threatened enough by the situation—an investigation into an alleged

“egging” of a car—that use of force against Mrs. Gorsky was warranted.

But these arguments rely on fact-based disputes regarding the extent of

Mrs. Gorsky’s injuries and the level of threat to the officers, which the

district court correctly found to be material to the question of

reasonableness so as to preclude a finding that Rivaux was entitled to

13

The district court found that factual disputes as to the circumstances

surrounding Mr. Gorsky’s arrest and resulting injuries are material because the objective

reasonableness of an officer’s use of force is determined in relation to “the severity of the

crime at issue, whether the suspect posed an immediate threat to the safety of the officers

or others, and whether he [was] actively resisting arrest or attempting to evade arrest by

flight.” Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008); Alexander v. City of Roundrock,

854 F.3d 298, 309 (5th Cir. 2017) (“the extent of injury necessary to satisfy the injury

requirement is directly related to the amount of force that is constitutionally permissible

under the circumstances”).

14

Mrs. Gorsky’s excessive force claim appears to be brought against Rivaux only

based on his handcuffing her and pushing her into a chair, which caused her bruising.

16

Case: 20-20084 Document: 00516766649 Page: 17 Date Filed: 05/26/2023

No. 20-20084

qualified immunity as a matter of law. See Tarver, 410 F.3d at 753; Brown,

524 Fed. Appx at 79 (“Any force found to be objectively unreasonable

necessarily exceeds the de minimis threshold[.]”). Because Rivaux disputes

the sufficiency of Mrs. Gorskys’ evidence with regard to her injuries and

resistance to the officers, he has not articulated a legitimate basis for an

interlocutory appeal of the denial of qualified immunity on Mrs. Gorsky’s

excessive force claim. See Byrd, 52 F.4th at 270; Cooley v. Grimm, 272 F.

App’x 386, 392 (5th Cir. 2008) (unpublished) (per curiam) (dismissing appeal

for lack of jurisdiction where appellant “merely dispute[d] the sufficiency”

of appellees’ evidence). Assuming all facts in favor of Mrs. Gorsky, we

cannot find that Rivaux’s use of force against her was objectively reasonable

in light of established precedent. Bush v. Strain, 513 F.3d 492, 501 (5th Cir.

2008) (“a defendant’s violation of constitutional rights can still be

objectively reasonable if the contours of the constitutional right at issue are

sufficiently unclear”).

Because we lack jurisdiction to review the district court’s fact-based

denials of summary judgment on the excessive force claims, we DISMISS

Guajardo and Rivaux’s appeal in this regard.

C. Unlawful Arrest

While we lack jurisdiction to review the denial of the officers’

motion for summary judgment as to the Gorskys’ unlawful entry, unlawful

search, and excessive force claims, we can review the legal questions

presented in the officers’ appeal of the district court’s rejection of their

assertion of qualified immunity as to the unlawful arrest claim. 15

15

The unlawful arrest claim is against Guajardo and Rivaux only after the district

court granted summary judgment to the other officers on this claim.

17

Case: 20-20084 Document: 00516766649 Page: 18 Date Filed: 05/26/2023

No. 20-20084

The Fourth Amendment prohibits government officials from making

“unreasonable . . . seizures.” U.S. Const. amend. IV. A warrantless arrest

violates that Fourth Amendment right “if the arresting officer lacks

probable cause to believe that the suspect has committed a crime.” Bodzin

v. City of Dallas, 768 F.2d 722, 724 (5th Cir. 1985). Because we are

analyzing an assertion of qualified immunity on an unlawful-arrest claim, we

must, therefore, determine (1) whether the officers had probable cause to

arrest Mr. Gorsky for any crime, or (2) whether “the officers’ behavior was

reasonable in light of the clearly established law at the time of the incident.”

Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (cleaned up). After the

officers raised the qualified immunity defense, “the burden then shifts to

the plaintiff.” Brown, 623 F.3d at 253. Although “[t]he plaintiff bears the

burden of negating qualified immunity,” we still draw “all inferences . . . in

[her] favor.” Id.

The district court denied the officers’ request for qualified immunity

on Mr. Gorsky’s unlawful arrest claim due to factual disputes impacting the

objective reasonableness of the officers’ actions. While the parties disputed

whether Mr. Gorsky was in fact arrested, the district court determined

that—when viewing the facts in the light most favorable to the Gorskys—

Mr. Gorsky was arrested, and the officers lacked probable cause to

effectuate that arrest. While we lack jurisdiction to review the district

court’s conclusion that there was sufficient evidence to support Mr.

Gorsky’s claim that he was arrested, we may review the district court’s

denial of qualified immunity to the officers assuming all facts in favor of Mr.

Gorsky.

Guajardo and Rivaux argue that, even assuming Mr. Gorsky was

arrested, the district court erred in rejecting their assertion of qualified

immunity because they reasonably believed there was probable cause to

arrest Mr. Gorsky based on his failure to follow instructions and because

18

Case: 20-20084 Document: 00516766649 Page: 19 Date Filed: 05/26/2023

No. 20-20084

they requested and complied with legal advice from the Harris County

District Attorney’s Office. To determine whether the officers were in fact

entitled to qualified immunity on the unlawful arrest claim, we assess

whether the defendants violated the plaintiff’s constitutional rights, and

whether the defendants’ actions were objectively unreasonable in light of

clearly established law. Harris, 745 F.3d at 772.

First, the officers violated Mr. Gorsky’s constitutional rights by

arresting him without probable cause. It is axiomatic that “[a] warrantless

arrest violates” that Fourth Amendment right “if the arresting officer lacks

probable cause to believe that the suspect has committed a crime.” Bodzin,

768 F.2d at 724. As noted above, we lack jurisdiction to review the district

court’s determination that Mr. Gorsky presented sufficient evidence that he

was arrested without probable cause. Mr. Gorsky has thus overcome

Guajardo’s and Rivaux’s assertion of qualified immunity as to the first

prong of the qualified immunity analysis since, assuming all facts in his

favor, he was arrested without probable cause for interfering with public

duties because such an offense require more than merely speech and

argument with officers conducting an investigation.16

Second, even if Mr. Gorsky’s constitutional rights were violated

when Guajardo and Rivaux arrested him without probable cause for

interfering with their investigation, the officers may still be entitled to

16

Texas Penal Code § 38.15 provides, “[a] person commits an offense if the

person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes

with ... a peace officer while the peace officer is performing a duty or exercising authority

imposed or granted by law.” Id. § 38.15(a)(1). To violate the statute, a person’s

interference must consist of more than speech alone, id. § 38.15(d), and we have held that

“merely arguing with police officers about the propriety of their conduct . . . falls within

the speech exception to section 38.15” and thus does not constitute probable cause to

arrest someone for interference, Freeman v. Gore, 483 F.3d 404, 414 (5th Cir. 2007).

19

Case: 20-20084 Document: 00516766649 Page: 20 Date Filed: 05/26/2023

No. 20-20084

qualified immunity if a reasonable officer could have believed she had

probable cause to arrest Mr. Gorsky for failure to comply with instructions

to get his wife from inside the house as part of a criminal mischief

investigation. Voss v. Goode, 954 F.3d 234, 239 (5th Cir. 2020) (“An officer

is entitled to qualified immunity even if [s]he did not have probable cause to

arrest a suspect, if a reasonable person in h[er] position would have believed

that h[er] conduct conformed to the constitutional standard in light of the

information available to h[er] and the clearly established law.”) (cleaned

up). The officers argue that Mr. Gorsky did not have the right to leave their

sight to go get his wife inside his own home, or to decline to get his wife

from inside his home because the officers were in the midst of an

investigation into the egging of the Koczman’s car. They also argue that

their consultation with the district attorney after the arrest entitles them to

qualified immunity.17

Yet the cases the officers cite in support of their contention that they

reasonably believed probable cause existed to arrest Mr. Gorsky all involved

factual scenarios where the interference consisted of physical obstruction or

commands to act in a way that interfered with instructions made with legal

authority. See Voss, 954 F.3d at 237 (granting qualified immunity where

arrestee “instructed her child to physically disobey an officer and the child

complied.”); Pearlman v. City of Fort Worth, Tex., 400 F. App’x 956, 959

(5th Cir. 2010) (unpublished) (per curiam) (officer “indisputably” had

17

While “advice obtained from a prosecutor prior to making an arrest should be

factored into the totality of the circumstances and considered in determining the officer’s

entitlement to qualified immunity,” Kelly v. Borough of Carlisle, 622 F.3d 248, 255 (3d Cir.

2010) (emphasis added), here the officers did not speak to the prosecutor until after they

arrested Mr. Gorsky and the prosecutor advised them to release Mr. Gorsky. The officers

are not entitled to qualified immunity based on seeking advice from the Harris County

District Attorney’s office after arresting Mr. Gorsky.

20

Case: 20-20084 Document: 00516766649 Page: 21 Date Filed: 05/26/2023

No. 20-20084

probable cause where arrestee “physically intervened in an attempt to keep

[the subject of investigation] away from” the officer); Childers v. Iglesias,

848 F.3d 412, 415 (5th Cir. 2017) (reasonable officer could have believed

probable cause existed where arrestee “failed to comply with an officer’s

instruction, made within the scope of the officer’s official duty and

pertaining to physical conduct rather than speech”).

Those cases thus stand for the proposition that an officer may

reasonably believe that probable cause exists to make an arrest for

interference with public duties where an arrestee physically obstructs an

officer or fails to comply with an instruction made within the scope of the

officer’s lawful command. Voss, 954 F.3d at 237 (“[A]ctions such as making

physical contact with any of the officers or physically obstructing them from

performing their legally authorized duties could constitute interference.”)

(cleaned up); Childers, 848 F.3d at 414 (arrestee’s failure to move truck

could have led reasonable officer to believe probable cause existed where

arrestee called police to his property and arrestee did not dispute that the

officers were “performing duties authorized by law.”). 18

Here, in contrast, Mr. Gorsky’s failure to comply was limited to

failing to immediately retrieve his wife from inside his home at the officers’

request because the officers did not have the authority to enter the Gorskys’

home to retrieve Mrs. Gorsky themselves. The district court properly relied

on Freeman in determining that Mr. Gorsky did not interfere with the

exercise of lawful authority when he tried to close his front door, did not

18

The dissenting opinion ignores that while in Childers the plaintiff asked police

to enter his property to effectuate an eviction and then physically blocked their entry, Mr.

Gorsky did not invite officers to his property, did not physically obstruct their

investigation, and had no duty to retrieve his wife from inside merely because the police

wanted to talk to her about an alleged crime that, as the dissent acknowledges, was “as

minor as they come.” See Childers, 848 F.3d at 414.

21

Case: 20-20084 Document: 00516766649 Page: 22 Date Filed: 05/26/2023

No. 20-20084

allow the officers into his home, and failed to immediately produce his wife.

483 F.3d at 413 (“Freeman’s refusal to consent to a warrantless search of

her home could neither itself justify an arrest nor create probable cause to

arrest Freeman for another offense.”). Because the officers did not have the

legal authority to enter Mr. Gorsky’s home or to compel Mr. Gorsky to

produce his wife—and in fact interfered with his ability to close his own

front door—Mr. Gorsky’s noncompliance did not interfere with the

exercise of “any authority granted to the deputies by law.” Id. at 414 (“[A]

reasonable officer would have known that he could not lawfully search

Freeman’s home, and Freeman was not, therefore, interfering with the

exercise of any authority granted to the deputies by law.”). The district

court was correct in concluding that the record—taken in the light most

favorable to the Gorskys—and relevant law did not warrant a finding of

qualified immunity in favor of the officers.

Because the Gorskys rebutted the officers’ assertion of qualified

immunity for wrongfully arresting Mr. Gorsky, we AFFIRM the district

court’s denial of the officers’ motion for summary judgment on Mr.

Gorsky’s false arrest claim.

IV. Conclusion

Based on the foregoing, we DISMISS the officers’ appeal of the

district court’s denial of their motion for summary judgment on the

Gorskys’ unlawful entry, unlawful search, and excessive force claims for

lack of jurisdiction, and AFFIRM the district court’s order denying the

officers’ motion to strike and motion for summary judgment on all of the

Gorskys’ remaining claims.

22

Case: 20-20084 Document: 00516766649 Page: 23 Date Filed: 05/26/2023

No. 20-20084

Jerry E. Smith, Circuit Judge, dissenting:

By dismissing the officers’ appeal in an unpublished per curiam opin-

ion, the majority gives the impression that this case is easy. In that respect,

my colleagues are right. It should have been.

Instead, after taking more than two years from oral argument, the

majority delivers a patchwork opinion. It correctly resolves the evidentiary

dispute. Supra III.A. And it properly dismisses the appeal of plaintiffs’

§ 1983 claims for unlawful entry and illegal search. Supra III.B.1–2.

On the other § 1983 claims, however, the majority loses the forest for

the trees. Citing a bevy of immaterial factual disputes, the majority insists

that we lack jurisdiction over the appeal of the excessive-force claims.

Nonsense. The officers have qualified immunity (“QI”)—even construing

the facts in favor of the Gorskys, we can dispense with the meritless § 1983

claims because the officers did not violate clearly established law. Yet the

majority gives clearly established law little more than lip service. When it

finally grapples with clearly established law on the false-arrest claim, it ren-

ders our jurisprudence unrecognizable.

This is just one more example of the majority’s willingness to skirt

the strictures of QI.19 I respectfully dissent from parts III.B.3 and III.C.

I.

We have no jurisdiction over certain QI appeals. “In deciding an

interlocutory appeal of a denial of [QI], we can review the materiality of any

factual disputes, but not their genuineness.” Wagner v. Bay City, 227 F.3d

316, 320 (5th Cir. 2000); accord Craig v. Martin, 49 F.4th 404, 408–09 (5th

19

See, e.g., Spikes v. McVea, 8 F.4th 428, 430 (5th Cir. 2021) (Higginbotham and

Dennis, JJ.), on reh’g, 12 F.4th 833 (5th Cir. 2021), reh’g denied, No. 19-30019, 2021 WL

4978586 (5th Cir. Oct. 13, 2021); see also id. at 440 (Smith, J., dissenting).

23

Case: 20-20084 Document: 00516766649 Page: 24 Date Filed: 05/26/2023

No. 20-20084

Cir. 2022). Thus, where officers’ QI depends on the resolution of genuine

factual disputes, we cannot hear their appeal from the denial of summary

judgment.

Plaintiffs’ unlawful-entry and illegal-search claims are good

examples. The Fourth Amendment prevents police from entering or

searching a home without a warrant or an exception to the warrant

requirement, such as the homeowner’s consent. Fernandez v. California,

571 U.S. 292, 298 (2014). The Gorskys allege that police entered their

house without Mrs. Gorsky’s consent, while defendants insist that they had

her express approval. Similarly, the Gorskys claim that police searched the

house for the Gorskys’ son without Mrs. Gorsky’s consent; again,

defendants maintain they acted at her direction. Whether the officers

violated the Fourth Amendment depends entirely on the resolution of those

factual disputes, which we cannot review at this stage of the litigation.

It helps, of course, that those issues involve a bright-line rule. Both

the constitutionality of the search and the application of QI hinge on the

existence of consent. Because that fact is contested, the majority rightly

dismisses the officers’ appeals on the unlawful-entry and illegal-search

claims. So far, so good.

II.

Once the majority gets to the excessive force claims, however, it

loses its way. Even assuming the facts in the light most favorable to the

plaintiffs, we decide de novo whether the defendants’ actions violated the

Constitution and—critically—whether they acted reasonably in light of

clearly established law. See Kokesh v. Curlee, 14 F.4th 382, 391 (5th Cir.

2021). Instead, the majority sketches a few fact disputes, throws up its

hands, and ignores the second half of the analysis. That is not our law.

24

Case: 20-20084 Document: 00516766649 Page: 25 Date Filed: 05/26/2023

No. 20-20084

A.

Start with Mr. Gorsky’s excessive-force claim. To survive summary

judgment, he had to defeat the officers’ claim of QI. That is no small feat.

He had the burden to establish both (1) that his constitutional rights were

violated and (2) that “the law so clearly and unambiguously prohibited” the

defendant’s conduct that every reasonable official would have known his

actions were illegal. Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011)

(en banc). Mr. Gorsky has proven neither.

1.

First, Mr. Gorsky was not subjected to excessive force.

To violate the Fourth Amendment, police must inflict injury with

objectively unreasonable force. Graham v. Connor, 490 U.S. 386, 396–97

(1989). We assess reasonableness by considering, among other things,

(1) “the severity of the crime at issue,” (2) “whether the suspect poses an

immediate threat to the safety of the officers or others,” and (3) “whether

he is actively resisting arrest or attempting to evade arrest by flight.” Id. at

396. De minimis injuries are not objectively unreasonable, although whether

the police are justified in causing minor injuries depends on the facts.

Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017).

The majority attests that Gorsky suffered objectively unreasonable

harm while being handcuffed because he was in “a lot of pain” and did not

pose a threat to officers or resist arrest. Supra III.B.3. But whence does the

majority’s confidence come? The majority discusses no supporting

caselaw.20 The “a lot of pain” test appears nowhere in our jurisprudence.

20

It quotes Brown v. Lynch, 524 F. App’x 69 (5th Cir. 2013), for a generic propo-

sition, but the facts of that unpublished case do not help the majority. In Brown, id. at 81,

we found excessive force where police punched a nonthreatening arrestee eight times in

25

Case: 20-20084 Document: 00516766649 Page: 26 Date Filed: 05/26/2023

No. 20-20084

In its slapdash attempt to balance the Graham factors, the majority

completely ignores our settled precedent. This court has made certain that

“minor, incidental injuries that occur in connection with the use of

handcuffs to effectuate an arrest” are de minimis and therefore “do not give

rise to a constitutional claim for excessive force.” Freeman v. Gore, 483

F.3d 404, 417 (5th Cir. 2007) (Dennis, J.). For example, in Freeman, the

plaintiff alleged that the police twisted her arms, “jerked her all over the

carport,” and applied handcuffs so tightly that it bruised her wrists and

arms. Id. at 416–17. In Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.

2001), the plaintiff alleged that handcuffs were applied too tightly and

caused one of her wrists to swell. And in Templeton v. Jarmillo, 28 F.4th

618, 623 (5th Cir. 2022), the plaintiff alleged that a tight handcuffing caused

pain in his shoulder. In each of those cases, we held that the use of force

incident to handcuffing was constitutional, so the officers were entitled to

QI.

The majority dismisses our precedents addressing handcuffing in a

single footnote, citing the thinnest of factual distinctions and ignoring Free-

man’s core holding. Instead of following our directly applicable caselaw,

the majority falls back on the general maxim that even insignificant injuries

can be unlawful if they result from excessive force. Supra III.B.3. But that

tells us nothing about whether Mr. Gorsky’s injuries resulted from

excessive force. At most, he alleges that, while being handcuffed, police

pushed him around and twisted his arm, and he screamed. 21 Those are the

the body and face with closed fists. Then, with no explanation, the majority cites Tarver

v. City of Edna, 410 F.3d 745, 753 (5th Cir. 2005), conveniently leaving out that Tarver

involved an officer who allegedly slammed a police car door on an arestee’s head and foot.

21

Seemingly for the first time on appeal, Mr. Gorsky alleges he was bruised, but

that appears nowhere in the record. The majority rightly declines to credit that

accusation. Even if he was bruised, this case would be like Freeman.

26

Case: 20-20084 Document: 00516766649 Page: 27 Date Filed: 05/26/2023

No. 20-20084

insifignificant injuries associated with handcuffing that we have held are not

excessive. The majority gives no reason to treat this case differently.22

So what is the basis for the majority’s finding of a constitutional

violation? Given the circumstances, it “cannot conclude that the officers’

use of force was objectively reasonable.” Supra III.B.3. But that gets the

burden entirely backwards. It is not the officers’ job to prove their conduct

was reasonable. They have QI. It is the plaintiffs’ burden to prove that the

use of force was objectively unreasonable. Brown v. Callahan, 623 F.3d 249,

253 (5th Cir. 2010). Mr. Gorsky failed to do so, and it’s not even close.

2.

Worse still, the majority completes its discussion of Mr. Gorsky’s

excessive-force claim without even a suggestion that officers violated clearly

established law. See supra III.B.3. That is a grave deficiency, because even

if the use of force in handcuffing Mr. Gorsky was objectively unreasonable,

he had to prove that it was so clearly excessive under our law that any

reasonable officer would have been on notice. Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018) (per curiam). The majority neglects to show as much—

nor could it if it wanted to. The appropriate degree of force in this

particular situation was not clearly established by any precedent.

22

The district court suggested that Alexander requires us to walk through the

Graham factors afresh in each case, and we cannot rely on past cases holding that

incidental handcuffing injuries are de minimis. See Alexander, 854 F.3d at 309. Yet I was

on the panel in Alexander, and that wildly overreads the case. Although Alexander

clarified that whether an injury is de minimis or objectively unreasonable is the same

inquiry, it did not sweep away our precedents holding that certain injuries are de minimis

(i.e., not objectively unreasonable). See id. Since Alexander, we have not hestitated to

reaffirm our handcuffing precedents. See, e.g., Templeton, 28 F.4th at 622–23; Lansdell v.

Miller, 817 F. App’x 27, 27 (5th Cir. 2020) (per curiam). Alexander does not change the

inescapable conclusion that minor injuries incident to handcuffing—without more—are

not objectively unreasonable.

27

Case: 20-20084 Document: 00516766649 Page: 28 Date Filed: 05/26/2023

No. 20-20084

QI protects “all but the plainly incompetent or those who knowingly

violate the law.” White v. Pauly, 580 U.S. 73, 79 (2017) (quotation

omitted). Especially in the realm of excessive force, the lawfulness of an

officer’s conduct “depends very much on the facts of each case, and thus

police officers are entitled to [QI] unless existing precedent squarely

governs the specific facts at issue.” Kisela, 138 S. Ct. at 1153 (internal

citations and quotation marks omitted). Both in 2016 and now, there was

no controlling precedent putting every reasonable officer on notice that it is

unconstitutional for a suspect to experience incidental pain while being

handcuffed. That should have ended the QI analysis on Mr. Gorsky’s

excessive-force claim.

B.

The majority’s analysis of Mrs. Gorsky’s claim fares no better. She

contends that Officer Rivaux used excessive force by grabbing her

shoulders, turning her around while handcuffing her, and then pushing her

down into a chair while handcuffing her. She alleges that afterward, she

developed bruises on her legs and wrists. The district court identified

several factual disputes over the nature and degree of Rivaux’s use of force.

The majority insists that those disputes rob us of jurisdiction over the

appeal. In other words, it shrugs and says: “Our hands are tied.”

What self-forged fetters. Of course we cannot alter the district

court’s determination that there is a genuine dispute about the extent of

Mrs. Gorsky’s injuries and how roughly she was handled. Nevertheless,

factual disputes are not a get-out-of-QI-free card. We can still assume the

facts in Mrs. Gorsky’s favor and determine whether those injuries resulted

from excessive force. Kokesh, 14 F.4th at 391–92. Plus, we must decide

whether the violation, to the extent one has been alleged, contradicts clearly

established law. The majority does neither.

28

Case: 20-20084 Document: 00516766649 Page: 29 Date Filed: 05/26/2023

No. 20-20084

Reasonable minds might differ on whether the officers used

excessive force on Mrs. Gorsky. As noted above, bruising from handcuffing

is a de minimis injury. Freeman, 483 F.3d at 417. And “not every push or

shove, even if it may later seem unnecessary in the peace of a judge’s

chambers, violates the Fourth Amendment.” Graham, 490 U.S. at 396

(cleaned up). It should also not escape consideration that the police had a

long history with the Gorkys and may have feared escalation.23 Still, Mrs.

Gorsky posed no immediate safety risk to the officers, she did not resist

arrest, and her underlying crime—egging her neighbor’s car—was as minor

as they come. But under Graham, it was still her burden to show that

Rivaux arrested her with excessive force. It is far from certain that she has

carried that burden, even if she is right on the facts.

There is no debate, however, that the officer’s conduct did not

violate clearly established law. Mrs. Gorsky cannot point to a single case

holding that pushing an arrestee into a chair—or something even remotely

comparable—was excessive force. Nor does the majority supply one for

her. A survey of our caselaw shows the weakness of its position. For

example, we have held that police used excessive force on nonthreatening

23

The Gorskys were in a drawn-out dispute with their nextdoor neighbors, the

Koczmans. Police were dispatched to the Gorskys’ house nineteen times between 2013

and 2018 because of feuding between the families. Even excluding all the altercations

after the egging, the Koczmans had accused the Gorskys of noisy gatherings, public

nudity, malicious prosecution, property damage, and a variety of offensive behavior

including swinging a shovel at Mr. Koczman while calling him a Nazi and shouting “Heil

Hitler.” The Gorskys, in turn, called the cops on the Koczmans for putting dog feces into

their pool, throwing a tree limb into their yard, putting up supposedly offensive religious

signs (such as a sign with the word “Pray”), and digging a draining ditch between the two

properties. Why those families despised each other so greatly is unclear, but, as they say,

“every unhappy family is unhappy in its own way.” Leo Tolstoy, Anna

Karenina 5 (Constance Garnett trans., Barnes & Noble Classics 2003). Regardless,

police may have had a reasonable fear of escalation in their interactions with Mr. and Mrs.

Gorsky.

29

Case: 20-20084 Document: 00516766649 Page: 30 Date Filed: 05/26/2023

No. 20-20084

arrestees when they pulled a plaintiff from her car and threw her against the

vehicle,24 forced a plaintiff’s jaw into a window and broke teeth, 25 or

“mashed” a plaintiff’s face into the concrete.26 But none of Mrs. Gorsky’s

allegations comes close to that kind of objective unreasonableness.

Without unambiguous precedent, it cannot be clearly established

that pushing an arrestee into a chair with enough force to cause bruising is

objecttively unreasonable force. Kisela, 138 S. Ct. at 1152–53. Nor is this

one of the rare cases where, in the absence of a governing precedent, the

illegality would be so obvious that any thinking officer would be on notice

that his actions were unconstitutional. See, e.g., Taylor v. Riojas, 141 S. Ct.

52, 54 (2020).

So, once again, the underlying factual disputes do not end this

appeal. No matter how favorably to Mrs. Gorsky we view the record, she

has not demonstrated that Rivaux violated clearly established law. At best,

she has shown that Rivaux’s actions were disputably illegal, but only by

applying general Fourth Amendment rules to a new situation. How many

times must the Supreme Court admonish us that such allegations are

insufficient? See, e.g., Mullenix v. Luna, 577 U.S. 7, 18–19 (2015).

III.

Finally, the majority wrongly allows Mr. Gorsky’s claim for false

arrest to proceed. We can assume arguendo that Mr. Gorsky was falsely

arrested. Even if there is a constitutional violation, officers retain QI unless

they violated clearly established law. And once again, the majority’s

analysis of clearly established law is shockingly scant.

24

Deville v. Marcantel, 567 F.3d 156, 162, 169 (5th Cir. 2009).

25

Bush v. Strain, 513 F.3d 492, 496 (5th Cir. 2008).

26

Alexander, 854 F.3d at 309.

30

Case: 20-20084 Document: 00516766649 Page: 31 Date Filed: 05/26/2023

No. 20-20084

A warrantless arrest is constitutional if the officer has “probable

cause to believe that the suspect has committed a crime.” Bodzin v. City of

Dallas, 768 F.2d 722, 724 (5th Cir. 1985). The officers arrested Mr. Gorsky

for refusing to cooperate with their attempts to investigate Mrs. Gorsky’s

supposed egging.27 Under Texas law, it is a criminal misdemeanor to

obstruct a law enforcement investigation.28 That includes disregarding an

officer’s lawful orders or instructions. Childers v. Iglesias, 848 F.3d 412, 415

(5th Cir. 2017).

The police specifically asked Mr. Gorsky “to wake up [his] wife and

have her come downstairs.” And as was true for the plaintiff in Childers,

Mr. Gorsky “did not immediately comply” with the officers’ instructions.

Childers, 848 F.3d at 413. Instead, he asked the officers for the time, said

“[y]ou’re the one kidding,” said “[g]et out” several times, asked to close

the door, and appeared to say that it was “[n]ot . . . my wife” who egged the

vehicle. Mr. Gorsky stalled for over a minute, never complying with the

instruction to retreive his wife. He even conceded in the district court that

he “refused” their requests to get Mrs. Gorsky. That is plausibly a

violation of § 38.15.

Yet, after adverting to the rule that the officers are “still . . . entitled

to [QI] if a reasonable officer could have believed she had probable cause to

arrest Mr. Gorsky,” supra III.C, the majority faults the officers for failing to

identify a case in which an officer had probable cause based on similar facts.

But, again, that notion turns the law upside down. It is Mr. Gorsky who has

27

Notably, that was not merely defendants’ claim on appeal—the officers told

Mr. Gorsky, at the time, they were arresting him for obstructing an investigation.

28

A person commits that offense if he, “with criminal negligence interrupts, dis-

rupts, impedes, or otherwise interferes with . . . a peace officer while the peace officer is

performing a duty or exercising authority imposed or granted by law.” Tex. Penal

Code § 38.15(a)(1).

31

Case: 20-20084 Document: 00516766649 Page: 32 Date Filed: 05/26/2023

No. 20-20084

the burden to show that the officers’ conduct was clearly unlawful under

“controlling authority—or a robust consensus of persuasive authority—

that defines the contours of the right in question with a high degree of

particulari-ty.” Morgan, 659 F.3d at 371–72 (internal quotation marks and

citations omitted). Without such guidance, QI protects an officer’s

reasonable judgment calls.

Furthermore, the majority misapplies the precedents it does cite.

Take Freeman, for example. Although the majority relies heavily on the

case, it does not clearly undermine the officers’ probable cause. In that

case, officers explicitly asked a homeowner whether they could search her

home, and she refused. An officer responded that he could arrest her if she

continued resisting, but she did not budge. So police put her into handcuffs

and placed her into a patrol car. Freeman, 483 F.3d at 408–09. There, the

analysis was easy: Police demanded to search a home without a warrant.

That was not a lawful request, so the homeowner “was not . . . interfering

with the exercise of any authority granted to the deputies by law.” Id. at

414. Here, by stark contrast, the officers did not unlawfully ask to enter the

home without a warrant; they asked Mr. Gorsky to wake his wife.

Neither does Voss help the majority. There, an officer approached a

house in the middle of the night to do a welfare check on a fourteen-year-old

girl who had expressed suicidal thoughts. Voss v. Goode, 954 F.3d 234, 236

(5th Cir. 2020). Her mother answered the door and permitted the police to

interview her daughter. After the daughter admitted to suicidal ideation,

the officer requested a mental-health professional and ordered the daughter

to wait in the patrol car until the counselor arrived. At that point, the

mother protested and ordered the daughter to get into the family car. After

the mother argued with police for a few minutes and resisted instructions to

provide identifying information, the officers arrested her under § 38.15. Id.

at 236–37, 239–40. The court eventually granted the officers QI.

32

Case: 20-20084 Document: 00516766649 Page: 33 Date Filed: 05/26/2023

No. 20-20084

The majority claims Voss does not squarely support the officers’

arrest of Mr. Gorsky. Nevermind the important similarities between Voss

and this case: The majority’s misreading is more fundamental. In Voss, we

took no position on whether the officer had probable cause to arrest because

the officer’s conduct was “reasonable in light of the clearly established law

at the time of the incident.” Id. at 239. A reasonable officer could think he

had probable cause to arrest the mother because she told her child to

disobey the officer’s orders. Id. at 239–40. Without a violation of clearly

established law, the officers had QI.

The same is true here. We do not need to decide whether Mr.

Gorsky violated § 38.15; we do not even need to address whether the police

actually had probable cause to arrest Gorsky under that section. The statute

and the caselaw permit a reasonable officer to believe that he could arrest

Mr. Gorsky for failing to follow police orders made during a lawful

investigation. And, yet again, Mr. Gorsky has failed to point to a single law

or case that puts a reasonable officer on notice that he cannot arrest a

suspect that he reasonably believes he has probable cause to arrest.

IV.

By dismissing the officers’ appeal in an unpublished per curiam opin-

ion, the majority implies that this case is unremarkable. That is far from

true. The majority needlessly subjects the officers to plenary trial. Worse,

it sends the message that with the right panel majority, our longstanding

rules about QI will quietly but perniciously fall by the wayside.

That the defendants may yet win at trial is cold comfort: QI is

immunity from suit, not just from ultimate liability. See Ashcroft v. Iqbal,

556 U.S. 662, 672 (2009). Law enforcement officers who act within the

scope of their legal duties should not worry about being haled into court for

making a reasonable (even if not optimal) choice in the field. Today’s

33

Case: 20-20084 Document: 00516766649 Page: 34 Date Filed: 05/26/2023

No. 20-20084

decision shakes that certainty.

We should reverse the judgment on the excessive-force and false-

arrest claims and should remand with instruction to enter summary

judgment for the officers based on QI. Because the majority mocks the law

of QI, I respectfully dissent.

34