“We lack jurisdiction to reconsider the district court’s factual determinations on an appeal from denial of summary judgment on qualified immunity.”
How later courts described this case
- “We lack jurisdiction to reconsider the district court’s factual determinations on an appeal from denial of summary judgment on qualified immunity.”
- “A party forfeits an argument by failing to raise it in the first instance in the district court—thus raising it for the first time on appeal . . . .”
Written by the judges who cited it.
The opinion
Case: 22-50948 Document: 00516815197 Page: 1 Date Filed: 07/10/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50948
Summary Calendar FILED
____________ July 10, 2023
Lyle W. Cayce
Fabrizio Bisetti, Clerk
Plaintiff—Appellee,
versus
Officer Brendan McMorrow, Austin Police Department,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-616
______________________________
Before Clement, Southwick, and Engelhardt, Circuit Judges.
Per Curiam: *
Brendan McMorrow, an officer with the Austin Police Department,
appeals his denial of qualified immunity. Because we lack jurisdiction to hear
this matter, the appeal is DISMISSED.
* * *
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50948 Document: 00516815197 Page: 2 Date Filed: 07/10/2023
No. 22-50948
Fabrizio Bisetti alleges that—following a domestic disturbance
investigation—officer Brendan McMorrow violated his Fourth Amendment
rights. Specifically, he contends that McMorrow arrested him despite
“kn[owing] that he lacked probable cause to make an arrest” as evidenced by
sworn statements McMorrow later made in Bisetti’s divorce proceedings. In
response, McMorrow filed a motion for summary judgement insisting that
he had probable cause to arrest Bisetti. But, the district court denied that
motion, finding there’s a “fact issue” as to whether McMorrow violated
clearly established law, namely whether McMorrow truthfully attested to the
facts behind Bisetti’s arrest in a probable cause affidavit, and the impact of
those statements on a hypothetical probable cause determination. 1
For an “appeal of denial of summary judgment on the basis of
qualified immunity, our jurisdiction is limited to examining the materiality of
factual disputes that the district court determined were genuine.” Cole v.
Carson, 935 F.3d 444, 452 (5th Cir. 2019) (en banc). Importantly, we can’t
“consider a different set of facts” from those identified by the district court,
and we don’t “challenge the district court’s assessments [on] the sufficiency
of the evidence.” Id at 452–53 (citations omitted). Because McMorrow’s
appeal only challenges the genuineness of the factual disputes recognized by
the district court, whether by advancing more favorable (but unrecognized)
_____________________
1
Notably, McMorrow points this court to a video of the incident. But, the district
court relied on “McMorrow’s testimony” in Bisetti’s divorce proceeding “[as] evidence
that he did indeed harbor serious doubts about the probable cause to arrest Bisetti.” Due
to the nature of the evidence (i.e., McMorrow’s subjective belief via statements made long
after the arrest), video evidence would not resolve, or speak to, that factual dispute.
2
Case: 22-50948 Document: 00516815197 Page: 3 Date Filed: 07/10/2023
No. 22-50948
allegations or attacking the “sufficiency” of the evidence, he fails to present
any issue that we can rule upon at this time. 2 See id. at 453 (“We lack
jurisdiction to reconsider the district court’s factual determinations on an
appeal from denial of summary judgment on qualified immunity.”).
Consequently, the appeal is DISMISSED for lack of jurisdiction.
_____________________
2
Viewing the disputed material facts in Bisetti’s favor, including whether
McMorrow believed his statements in the probable cause affidavit, we can’t say that the
district court erred in its qualified immunity determination. After all, the right to be “free
from police arrest without a good faith showing of probable cause” is clearly established.
Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018); Franks v. Delaware, 438 U.S. 154
(1978). Notably, McMorrow raises two alternative arguments. But, those fail, too. First, he
argues that “[t]he law was not clearly established [at the time of the arrest] that an affidavit
articulating probable cause for an uncharged offense would not validate legal process
secured on insufficient probable cause for a charged offense identified in the affidavit.”
But, McMorrow didn’t make that argument below. So, it’s waived. See Rollins v. Home
Depot USA, Inc., 8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an argument by failing
to raise it in the first instance in the district court—thus raising it for the first time on
appeal . . . .”). Next, he argues that his statements in the probable cause affidavit would
support another crime in Texas, assault under Texas Penal Code § 22.01(a)(3). However,
taking the facts in a light most favorable to Bisetti, the affidavit doesn’t support such a
charge at this stage.
3