Sauceda v. City of San Benito

Case: 19-40904 Document: 00516858401 Page: 1 Date Filed: 08/15/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2023

No. 19-40904 Lyle W. Cayce

Clerk

Ricardo Sauceda,

Plaintiff—Appellant,

versus

City of San Benito, Texas; Hector Lopez, Individually and in

his official capacity as a Peace Officer for the City of San Benito,

Texas Police Department,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:17-CV-135

Before Richman, Chief Judge, and Dennis and Haynes, Circuit

Judges.

James L. Dennis, Circuit Judge:

On June 20, 2015, San Benito police officer Hector Lopez approached

Ricardo Sauceda while Sauceda was standing in the front yard of his property.

Lopez was responding to a call from Marco Cortez, a relative of Sauceda’s

neighbors, who alleged that Sauceda had made rude comments and gestures

toward him from across the street. Lopez spoke to Sauceda and demanded

that he produce identification. Sauceda—speaking to Lopez from behind the

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chain-link fence that enclosed his property—declined and turned to go inside

his house. Undeterred, Lopez pushed open the gate into Sauceda’s yard.

Sauceda told Lopez he needed a warrant and pushed back. Within seconds,

Lopez broke through, telling Sauceda, “I am coming after you, brother,”

and, “You’re going to come with me, brother.” Lopez grabbed Sauceda and

the parties physically struggled, with the fifty-year-old, disabled Sauceda

brought to the ground. At one point, Lopez took out his baton. Sauceda

claims he hit him with it; video evidence is inconclusive. Sauceda was taken

into custody and, after receiving medical attention for his injuries, was

charged with several offenses. All were dismissed. He now seeks

recompense from Defendants Lopez and the City of San Benito for false

arrest and excessive force. 1

The district court granted summary judgment in favor of Defendants.

Contrary to the district court, we conclude that Sauceda has raised genuine

issues of material fact as to his claim for false arrest against Lopez. We

therefore REVERSE and REMAND with respect to the false arrest claim.

We otherwise AFFIRM the district court.

I. Factual and Procedural Background

Sauceda was fifty years old and disabled at the time of the events in

question. Sauceda and his neighbors, the Cortez family, had a fraught

history. Sauceda had lodged numerous complaints against the Cortez family

to the San Benito Police Department.

On June 20, 2015, the Cortez family was having a party across the

street from Sauceda’s home. Marco Cortez alleged that Sauceda made lewd

gestures and comments directed toward him. Cortez recorded three videos

1

Sauceda also sued under the Texas Tort Claims Act. Those claims have been

abandoned on appeal.

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of Sauceda on his cellphone, but deleted one of them “because it didn’t show

anything.” The other two videos show Sauceda standing on his property,

though they lack audio and do not clearly show what gestures (if any) Sauceda

was making.

After recording Sauceda, Cortez called the police. Officer Lopez

arrived and spoke to Cortez, who described his allegations against Sauceda

and showed Lopez the videos he recorded. Lopez then crossed the street and

addressed Sauceda, who was standing behind a gated fence that surrounded

his property. Lopez testified that at that time he had not yet decided to arrest

Sauceda for disorderly conduct.

Lopez’s body camera recorded their interaction. Sauceda denied the

accusations against him, stated that he previously filed police reports against

the grandfather of the Cortez family, and suggested that the Cortezes had

called the police against him in retaliation. Lopez then asked Sauceda for his

driver’s license. Sauceda declined to produce it, stating that he did not wish

to file a report and was just minding his own business. Lopez told Sauceda

that he would be making a report and needed Sauceda’s information.

Sauceda told him, “I’m not going to give you anything,” and began to walk

away. Lopez testified that it was at this point that he decided to arrest

Sauceda. However, as we shall explain later in this opinion, the mere refusal

to identify oneself to a police officer is not a crime in Texas if the person has

not lawfully been placed under arrest. See Tex. Penal Code § 38.02(a).

As Sauceda walked a few steps toward his house, Lopez began to open

Sauceda’s gate. Sauceda noticed what Lopez was doing, turned back, and

attempted to hold the gate closed. He told Lopez, “you don’t get in my

house without a search warrant, no, sir.” Lopez responded, “I’m going after

you, brother,” and forced his way into Sauceda’s yard. Lopez testified that

he “got a hold of [Sauceda’s] left hand” before Sauceda “pulled away.” His

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body camera footage showed Sauceda telling Lopez “don’t touch me” as he

pulled out of Lopez’s grip. Lopez continued to pursue Sauceda further into

the yard, telling him, “You’re going to come with me, brother,” and saying

over his radio, “I got one resisting arrest.” Lopez did not inform Sauceda

why he was being arrested. Lopez then grabbed Sauceda a second time. It is

unclear if Lopez jerked Sauceda forward or if Sauceda lost his balance, but

Sauceda immediately fell to the ground.

Lopez attempted to handcuff Sauceda. As Sauceda lay on his back,

Lopez stood over him and pinned him with his legs. While in this position,

Lopez drew and extended his baton with his left hand. Sauceda testified that

Lopez struck him with the baton. Lopez testified that he did not. Lopez’s

body camera footage does not show precisely what Lopez did with the baton.

During the struggle, someone placed the palm side of their right hand directly

over the camera, obscuring part of the relevant footage. During the arrest,

Cortez began to make his own recording on his cellphone. Cortez’s video

shows Sauceda lying on his back and an object falling from his pocket. Several

seconds later, Lopez extends his baton by raising it up to head level with his

left hand and making a quick, downward swing in a counterclockwise arc. It

is difficult to tell whether the swing made contact with Sauceda, or whether

it was intended to make such contact. At no point in either video can the

baton be seen or heard coming into contact with Sauceda, and Sauceda said

nothing on the recording about being struck with the baton and does not cry

out as if struck.

Lopez’s body camera captured repeated outcries from both Sauceda

and Sauceda’s wife begging for Lopez to leave him alone. They repeatedly

told Lopez that he was hurting Sauceda because he was disabled and had a

bad back. After he was handcuffed, Sauceda struggled to stand and asked for

an ambulance. Lopez told him to give him his hand. Sauceda said he would

get up himself. Lopez again told Sauceda “Give me your hand” and

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threatened to “spray” him if he did not. Sauceda said, “I think I hurt my

back for real.” Lopez replied, “I don’t care, brother.” By this point, other

officers had arrived on the scene. Sauceda continued to ask for an ambulance

as he was moved to the police car and was told, “once we get to the station.”

Eventually, a different officer agreed to call an ambulance.

Sauceda was told that he was under arrest and read his rights. He was

taken by ambulance to Harlingen Medical Center, where he was diagnosed

with a cervical sprain, a back sprain, and a contusion. Once released from the

hospital, he was taken to the police station for booking. He was charged with

disorderly conduct, failure to identify, resisting arrest, and assault on a public

servant. The Cameron County District Attorney dismissed all charges

against Sauceda in February 2017. Lopez was not disciplined.

II. Discussion

Summary judgment is appropriate only when “the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute

of material fact exists only “if the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). The Court must “view the facts and draw

reasonable inferences ‘in the light most favorable to the party opposing

[summary judgment].’” Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). At the same time,

we do not consider a party’s description of the facts if it is so “blatantly

contradicted” by video evidence “that no reasonable jury could believe it.”

Id. at 380.

Lopez contends that even if a fact issue exists about whether he

arrested Sauceda unlawfully or used excessive force, he is entitled to qualified

immunity. To evaluate whether a government official is entitled to qualified

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immunity, “[w]e must determine (1) ‘whether the facts that a plaintiff has

alleged make out a violation of a constitutional right’ and (2) ‘whether the

right at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.’” Darden v. City of Fort Worth, Tex., 880 F.3d 722, 727 (5th Cir.

2018) (ellipsis omitted) (quoting Pearson v. Callahan, 555 U.S. 223, 232

(2009)). “Law is ‘clearly established’ for these purposes only if ‘the

contours of the right were sufficiently clear that a reasonable official would

understand that what he was doing violated that right.’” Perniciaro v. Lea,

901 F.3d 241, 255 (5th Cir. 2018) (brackets omitted) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). “A right may be clearly established

without ‘a case directly on point,’ but ‘existing precedent must have placed

the statutory or constitutional question beyond debate.’” Darden, 880 F.3d

at 727 (quoting Hanks v. Rogers, 853 F.3d 738, 746-47 (5th Cir. 2017)). “[A]

defendant cannot be said to have violated a clearly established right unless

the right’s contours were sufficiently definite that any reasonable official in

the defendant’s shoes would have understood that he was violating it.”

Plumhoff v. Rickard, 572 U.S. 765, 778 (2014).

In addition to suing Lopez, Sauceda also sued the City of San Benito.

“To establish municipal liability pursuant to § 1983, a plaintiff must

demonstrate three elements: ‘a policymaker; an official policy; and a

violation of constitutional rights whose “moving force” is the policy or

custom.’” Shumpert v. City of Tupelo, 905 F.3d 310, 316 (5th Cir. 2018)

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

official policy may take ‘various forms,’ including ‘a widespread practice that

is so common and well-settled as to constitute a custom that fairly represents

municipal policy.’” Fennell v. Marion Independent School Dist., 804 F.3d 398,

413 (5th Cir. 2015) (quoting James v. Harris Cty., 577 F.3d 612, 617 (5th Cir.

2009)). The plaintiff must show that the policy “violated federal law[,]

authorized or directed the deprivation of federal rights[,] or … was adopted

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or maintained by the municipality’s policymakers ‘with “deliberate

indifference” as to its known or obvious consequences[.]’” Johnson v. Deep

East Texas Regional Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th

Cir. 2004) (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S.

397 (1997)). The plaintiff must also show that the policymaker had “actual

or constructive knowledge of the official policy or custom.” Fennell, 804

F.3d at 413 (quoting Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)).

Unlike individual officers, municipalities may not assert qualified immunity.

See Brown v. Lyford, 243 F.3d 185, 191 n.18 (5th Cir. 2001); Babb v. Dorman,

33 F.3d 472, 475 n.5 (5th Cir. 1994).

A. Sauceda’s Evidentiary Arguments

We begin with Sauceda’s evidentiary arguments. Sauceda contends

that the district court erred by denying his objections, on hearsay grounds, to

(1) Cortez’s unsworn statement, (2) Lopez’s police report (including a

summary of Cortez’s statements to Lopez, which Sauceda contends are

hearsay-within-hearsay), and (3) the report of Defendants’ expert, Margo

Frasier.

On appellate review of an order granting or denying summary

judgment, this court will reverse only if the error “affects ‘substantial

rights.’” Ratliff v. Aransas Cty., Tex., 948 F.3d 281, 286 (5th Cir. 2020)

(quoting Fed. R. Civ. P. 61). The party asserting error “bears the burden

of proving such prejudice.” Id. In this case, the district court’s opinion and

order granting summary judgment did not cite any of the documents

challenged by Sauceda. Likewise, our conclusion on the merits, which we

address in the following sections, does not depend on whether or not the

challenged documents are deemed to be included in the summary judgment

record. Thus, if there was any error by the district court in overruling

Sauceda’s objections, it was harmless, and we need not explore whether the

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documents were in fact competent summary judgment evidence. With that,

we proceed to the merits.

B. False Arrest

1. Whether Lopez had lawful grounds to arrest Sauceda

The Fourth Amendment, incorporated against the States via the

Fourteenth Amendment’s Due Process Clause, protects the right of persons

to be secure in their “persons, houses, papers, and effects . . . against

unreasonable searches and seizures.” U.S. Const. amend. IV. “A

warrantless arrest must be based on ‘probable cause.’” Deville v. Marcantel,

567 F.3d 156, 164 (5th Cir. 2009) (quoting Resendiz v. Miller, 203 F.3d 902,

903 (5th Cir. 2000)). “Probable cause to arrest exists where the facts and

circumstances within the arresting officers’ knowledge and of which they had

reasonably trustworthy information are sufficient in themselves to warrant a

[person] of reasonable caution in the belief that an offense has been or is being

committed.” United States v. Kye Soo Lee, 962 F.2d 430, 435 (5th Cir. 1992)

(cleaned up; alteration added). “These long-prevailing standards seek to

safeguard citizens from rash and unreasonable interferences with privacy and

from unfounded charges of crime.” Brinegar v. United States, 338 U.S. 160,

176 (1949).

In addition to the probable cause requirement, the Fourth

Amendment limits an officer’s ability to enter a private dwelling to make a

warrantless arrest. See Brigham City, Utah v. Stuart, 547 U.S. 398, 403

(2006) (“It is a basic principle of Fourth Amendment law that searches and

seizures inside a home without a warrant are presumptively unreasonable.”)

(internal quotation marks omitted) (quoting Groh v. Ramirez, 540 U.S. 551,

559 (2004)). As the Supreme Court stated more than six decades ago: “The

Fourth Amendment, and the personal right which it secures, have a long

history. At the very core stands the right of a man to retreat into his own

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home and there be free from unreasonable government intrusion.”

Silverman v. United States, 365 U.S. 505, 511 (1961). See also United States v.

United States District Court for the Eastern District of Michigan, 407 U.S. 297,

313 (1972) (“[P]hysical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed.”). Therefore, absent an

exception to the warrant requirement, warrantless arrests in the home are

prohibited by the Fourth Amendment. See Lange v. California, 141 S. Ct.

2011, 2017 (2021); Brigham City, 547 U.S. at 403. And the “curtilage” of the

home—that is, “the area ‘immediately surrounding and associated with the

home’”—is “‘part of the home itself for Fourth Amendment purposes.’”

Florida v. Jardines, 133 S. Ct. 1409, 1414-15 (2013) (quoting Oliver v. United

States, 466 U.S. 170, 180 (1984)).

The district court held, and the parties do not dispute, that Lopez

arrested Sauceda in his front yard without a warrant. Defendants have

identified five offenses for which they claim Lopez could have lawfully

arrested Sauceda: (i) disorderly conduct; 2 (ii) failure to identify; 3 (iii) evading

2

A person commits the offense of disorderly conduct in Texas “if he intentionally

or knowingly: (1) uses abusive, indecent, profane, or vulgar language in a public place, and

the language by its very utterance tends to incite an immediate breach of the peace; (2)

makes an offensive gesture or display in a public place, and the gesture or display tends to

incite an immediate breach of the peace; … [or] (4) abuses or threatens a person in a public

place in an obviously offensive manner.” Tex. Penal Code § 42.01(a). Texas courts have

held that these provisions apply only to “fighting words or acts.” Ross v. State, 802 S.W.2d

308, 314-15 (Tex.App.—Dallas 1990, no pet.); see generally Chaplinsky v. State of New

Hampshire, 315 U.S. 568, 572 (1942) (recognizing the State’s authority, consistent with the

First Amendment, to proscribe “fighting words”).

3

A person commits the offense of failure to identify in Texas “if he intentionally

refuses to give his name, residence address, or date of birth to a peace officer who has

lawfully arrested the person and requested the information.” Penal Code § 38.02(a).

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arrest or detention; 4 (iv) resisting arrest; 5 and (v) assault on a public servant. 6

We examine each theory in turn.

i. Disorderly conduct

Lopez claims that Sauceda’s allegedly vulgar language and gestures

toward Cortez constituted disorderly conduct under Texas law, furnishing

probable cause to arrest him.

We need not decide whether Sauceda’s actions—as described by

Cortez—fit the statutory definition of disorderly conduct under § 42.01(a),

or whether an officer would have probable cause to make an arrest where the

alleged misconduct occurred outside of the officer’s presence, was based on

an uncorroborated statement by one witness, and was immediately denied by

the alleged offender. It suffices to conclude that that, even if probable cause

existed to arrest Sauceda for disorderly conduct, Lopez lacked authority to

enter the curtilage of Sauceda’s home to arrest him for this purpose.

4

A person commits the offense of evading arrest in Texas “if he intentionally flees

from a person he knows is a peace officer or federal special investigator attempting lawfully

to arrest or detain him.” Tex. Penal Code § 38.02(a).

5

A person commits the offense of resisting arrest in Texas “if he intentionally

prevents or obstructs a person he knows is a peace officer … from effecting an arrest … by

using force against the peace officer[.]” In the context of determining whether probable

cause exists to arrest an individual for resisting arrest, “[i]t is no defense … that the arrest

… was unlawful.” Tex. Penal Code § 38.03(b).

6

A person commits assault in Texas if he “(1) intentionally, knowingly, or

recklessly causes bodily injury to another … ; or (3) intentionally or knowingly causes

physical contact with another when the person knows or should reasonably believe that the

other will regard the contact as provocative or offensive.” Tex. Penal Code § 22.01(a).

Such an offense is a third degree felony if “committed against … a person the actors knows

is a public servant while the public servant is lawfully discharging an official duty[.]” Id. §

22.01(b)(1).

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To the extent Lopez contends that Sauceda’s front yard was not part

of the “home” for Fourth Amendment purposes, our review of the summary

judgment record leads us to reject that contention. The videos clearly show

what appears to be a single-family home on a normal-sized lot in a residential

neighborhood. The sides of the lot that are visible are enclosed by a chain-

link fence that is almost as tall as an average adult. There are also bushes

behind the fence that obscure parts of the yard from street view. The only

apparent access point is a gate, which Sauceda was seen closing in one of the

videos, and which was not opened again until Lopez forced his way through

it.

“[I]t is plain that the fence surrounding the residence serves to

demark a specific area of land immediately adjacent to the house that is

readily identifiable as part and parcel of the house.” United States v. Dunn,

480 U.S. 294, 302 (1987). A case factually similar to this one was Fixel v.

Wainwright, 492 F.2d 480 (5th Cir. 1974), in which our Court held that an

apartment’s backyard, which was inaccessible to others and “completely

removed from the street and surrounded by a chain link fence,” was

“sufficiently removed and private in character” to constitute part of the

curtilage. Id. at 484. As the Supreme Court has noted, “for most homes, the

boundaries of the curtilage will be clearly marked; and the conception

defining the curtilage—as the area around the home to which the activity of

home life extends—is a familiar one easily understood from our daily

experience.” Oliver, 466 U.S. at 182 n.12. In this case, Sauceda has, at

minimum, raised genuine issues of fact as to his yard’s curtilage status.

Because Lopez entered the curtilage of Sauceda’s home without a

warrant, we must next determine whether an exception to the warrant

requirement applies. See Lange, 141 S. Ct. at 2017; Brigham, 547 U.S. at 403.

Relying on what is commonly known as the hot pursuit exception, Lopez

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asserts that he acted lawfully in attempting to stop Sauceda from walking

back into his house.

Under the hot pursuit exception, “the pursuit of a suspect [is an]

exigent circumstance[] that may excuse an otherwise unconstitutional

intrusion into a residence.” United States v. Jones, 239 F.3d 716, 720 (5th

Cir. 2001). But for the exception to apply, the suspect must be retreating

from a “public place” to a “private place.” United States v. Santana, 427

U.S. 38, 43 (1976); Fontenot v. Cormier, 56 F.3d 669, 674 (5th Cir. 1995);

United States v. Varkonyi, 645 F.2d 453, 457 (5th Cir. Unit A 1981). A

suspect’s movement from one point inside his home to another cannot

trigger this exception. See Hogan v. Cunningham, 722 F.3d 725, 733 (2013)

(holding that “[o]fficers [could not] justify their warrantless entry based

upon their hot pursuit” because the suspect “did not retreat into his

apartment from a public place” and “was fully inside his apartment at all

times”). And that is all Sauceda attempted to do here: move from the

curtilage of his property—a part of the home, Jardines, 133 S. Ct. at 1414-

15—to another point inside the home.

Lopez and the district court relied on language in Varkonyi stating that

“law enforcement officers may enter upon private property to make

warrantless arrests, provided the arrest is based on probable cause and the

person is in ‘plain view.’” 645 F.2d at 457 (citing Santana, 427 U.S. at 42-

43; Hester v. United States, 265 U.S. 57, 59 (1924)). In our view, Lopez and

the district court read this passage too literally. A suspect might be in “plain

view” of the officers if he stands by an open window or on an upper

balcony—surely this would not authorize the police to dispense with the

warrant requirement if they wish to pass through the front door to arrest

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him. 7 We think the same is true when a suspect stands within the curtilage

of their house from behind a closed gate, albeit visible to the public.

The better way to interpret Varkonyi’s reference to “plain view” is as

part of its overall discussion of what constitutes a “public place”; that is,

“an[] area where there is no expectation of privacy.” 645 F.2d at 457. As

Varkonyi held, an area may technically be “private property,” yet be a

“public place” for Fourth Amendment purposes. See id. at 457-58 (holding

that a private scrap metal yard located behind a fence but with its gate open

was a public place); see also Santana, 427 U.S. at 42-43 (holding that the

threshold of an open doorway was a public place); Hester, 265 U.S. at 58-59

(holding that private land near the home and accessible to federal agents was

a public place). However, six years after Varkonyi was decided, the Supreme

Court clarified that the “steps taken … to protect [an] area from observation

by people passing by” are just one of several factors used to determine

whether an area constitutes part of the curtilage protected by the Fourth

Amendment. Dunn, 480 U.S. at 301. Notably, courts must also consider

“whether the area is included within an enclosure surrounding the home.”

Id. In Santana, Hester, and Varkonyi, the places in question were either

unenclosed or accessible through an open door or gate. Here, by contrast,

Sauceda’s yard was fenced off and his gate was closed. This case is therefore

much closer to Fixel than Varkonyi. See Fixel, 492 F.2d at 484.

Because the hot pursuit exception does not apply (and because Lopez

has not identified any other applicable exception to the warrant requirement),

7

Of course, in some such situations—such as a suspect firing a rifle from his gated

yard into the street—the police are justified in making a warrantless entry and arrest. But

those cases do not rely on the hot pursuit exception; they rely on other exceptions to the

warrant requirement. For example, in the hypothetical just described, the officers’ entry

would be justified by the “immediate safety risks to officers and others.” Jones, 239 F.3d

at 720.

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Sauceda has raised genuine issues of fact as to whether Lopez had authority

to enter his property to arrest him for disorderly conduct.

ii. Failure to identify

Defendants’ failure-to-identify argument can be dismissed quickly. A

person’s mere refusal to identify themselves to a police officer is not a crime

under § 38.02 unless that person has already been “lawfully arrested.” Tex.

Penal Code § 38.02(a). Such a refusal can never supply probable cause

to make the initial arrest. See Crutsinger v. State, 206 S.W.3d 607, 610 (Tex.

Crim. App. 2006) (“When appellant refused to give Garcia his name, he was

not under arrest. Therefore, [§ 38.02(a)] does not apply.”). Here, Sauceda

had not yet been placed under arrest when he declined to produce his

identification; and even if he had, Defendants would still have to account for

whether that arrest was lawful. 8 In any event, our conclusion in the previous

section that Lopez lacked authority to make a warrantless entry onto

Sauceda’s property applies with equal force to Lopez’s argument that he

could have entered the property to arrest Sauceda for failure to identify. See

Part II.B.1.i, supra.

iii. Evading arrest or detention

Defendants assert that when Sauceda walked from his yard back

towards his home, he committed the offense of evading arrest or detention.

But as discussed above, Lopez did not have grounds to enter Sauceda’s

curtilage without a warrant, so an arrest for evading arrest or detention could

not lawfully be made. See Part II.B.1.i, supra. Moreover, Sauceda has at least

8

Defendants’ argument that Sauceda’s failure to provide identification was

tantamount to providing false or fictitious information does not require an extended

answer. The Texas Penal Code separately addresses individuals who refuse to identify

themselves and those who provide false identification. Tex. Penal Code § 38.02(a),

(b). In the former case, a lawful arrest is always required. See id.

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raised a genuine issue of fact as to whether Lopez possessed probable cause

to arrest him for this offense. Specifically, there is a genuine dispute as to

whether, during the few seconds in which Sauceda walked away, Lopez was

“attempting … to or arrest or detain” him. Tex. Penal Code § 38.02(a).

Sauceda specifically denied that Lopez ever told him he was under arrest.

And nothing in the record indicates that Lopez said or did anything, at that

time, to communicate that Sauceda was not free to leave. Although Lopez

told Sauceda, “I am coming after you, brother”—which, according to Lopez,

notified Sauceda that he was indeed under arrest—body camera footage

shows that Lopez was no longer walking away when these words were

spoken. Thus, Lopez could not have lawfully arrested Sauceda for evading

arrest or detention.

iv. Resisting arrest

The district court concluded that Lopez had probable cause to arrest

Sauceda for resisting arrest after Sauceda “batted [Lopez’s] hands away” as

Lopez pursued him into the yard. We agree that Lopez had the requisite

probable cause to arrest Sauceda once Sauceda began resisting. But that does

not end our inquiry, for—as we explain below—a reasonable factfinder could

still find that Lopez made an unlawful arrest before Sauceda’s resistance.

“Supreme Court and Fifth Circuit caselaw makes clear that a Fourth

Amendment seizure occurs in one of two ways: either an officer applies

physical force or an officer makes a show of authority to which an individual

submits.” Arnold v. Williams, 979 F.3d 262, 268 (2020). In order for such a

seizure to constitute an arrest, the circumstances must be such that “a

reasonable person in the suspect’s position would have understood the

situation to constitute a restraint on freedom of movement of the degree

which the law associates with a formal arrest.” Carroll v. Ellington, 800 F.3d

154, 170 (5th Cir. 2015) (quoting United States v. Corral-Franco, 848 F.2d 536,

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540 (5th Cir. 1988)). An arrest may be “effected by the slightest application

of physical force”; “the mere grasping or application of physical force with

lawful authority, whether or not it succeed[s] in subduing the arrestee, [is]

sufficient.” California v. Hodari D., 499 U.S. 621, 624, 625 (1991); see also

Torres v. Madrid, 141 S. Ct. 989, 995 (2021) (“‘[M]erely touching’ [is]

sufficient to constitute an arrest”) (quoting Hodari D., 499 U.S. at 625).

“Put another way, an officer’s application of physical force to the body of a

person ‘for the purpose of arresting him’ [is] itself an arrest—not an

attempted arrest—even if the person [does] not yield.” Torres, 141 S. Ct. at

995 (emphasis in original; internal quotation marks omitted) (quoting Hodari

D., 499 U.S. at 624).

Here, Lopez reached for Sauceda immediately after opening the gate

into his yard. His body camera does not clearly show whether Lopez made

physical contact with Sauceda. But Lopez testified that he “got a hold of

[Sauceda’s] left hand.” That is enough to constitute a seizure under the

Fourth Amendment. See Torres, 141 S. Ct. at 995 (“As applied to a person,

‘the word “seizure” readily bears the meaning of a laying on of hands or

application of physical force to restrain movement, even when it is ultimately

unsuccessful.’ Then, as now, an ordinary user of the English language could

remark: ‘She seized the purse-snatcher, but he broke out of her grasp.’”)

(brackets and internal citations omitted) (quoting Hodari D., 499 U.S. at

626); compare Arnold, 979 F.3d at 268 (holding that a seizure did not occur

where the officer unsuccessfully attempted to grab the suspect). And

Lopez’s seizure of Sauceda was an arrest under all of the attending

circumstances. That is because, as the district court found, Lopez’s words—

“I am going after you, brother,” spoken just seconds before grabbing

Sauceda’s hand—reasonably indicated to Sauceda that he was being

arrested. Therefore, a rational factfinder could determine that Lopez

arrested Sauceda before Sauceda applied any resistance.

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Any arrest that Lopez made when he opened Sauceda’s gate and

grabbed his hand could not have been lawful. As we have explained above,

Lopez had no legal justification to enter Sauceda’s property without a

warrant; additionally, he lacked probable cause to arrest Sauceda for failure-

to-identify or evading arrest. Thus, a jury could find that when Sauceda

“resisted” by pulling out of Lopez’s grip, he had already been placed under

an unlawful arrest. Even if an unlawful arrest becomes lawful moments later

by virtue of the arrestee’s resistance, there is no reason why the officer

cannot be held liable for the unlawful part. 9 For that reason, the district court

erred in granting summary judgment on the grounds that Lopez had probable

cause to arrest Sauceda for resisting arrest.

v. Assault on a public servant

Finally, Defendants aver that Lopez had probable cause to arrest

Sauceda for assault on a public servant. As discussed in the immediately

preceding section, however, Sauceda was already “arrested” when Lopez

opened the gate and grabbed his hand. Lopez’s body camera footage shows

that Sauceda did not do anything resembling an assault before this arrest

occurred. Therefore, summary judgment cannot be granted on this ground.

***

For these reasons, we conclude that Sauceda has raised genuine issues

of material fact as to whether Lopez had lawful authority to arrest him.

9

Even nominal damages are recoverable in a false arrest action under 42 U.S.C. §

1983. See Kelly v. Curtis, 21 F.3d 1544, 1557 (11th Cir. 1994). And, in some cases, a § 1983

plaintiff awarded nominal damages will be entitled to attorney fees as well. See 42 U.S.C.

§ 1988; Grisham v. City of Fort Worth, 837 F.3d 564 (5th Cir. 2016).

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2. Qualified Immunity

Because the district court held that Lopez had probable cause to arrest

Sauceda, it concluded that Sauceda had necessarily failed to overcome

Lopez’s qualified immunity defense. However, as we have just noted, there

are genuine issues of material fact as to the lawfulness of Sauceda’s arrest.

We must therefore consider whether the summary judgment record could

show that “any reasonable official in the [Lopez’s] shoes would have

understood that he was violating” Sauceda’s constitutional rights in light of

clearly established law. Plumhoff, 572 U.S. at 778; see Darden, 880 F.3d at

727.

Lopez’s argument that he is entitled to qualified immunity is

essentially duplicative of his argument that his arrest of Sauceda was

supported by probable cause. The district court similarly granted Lopez

qualified immunity based on its finding that he had probable cause to arrest

Sauceda for resisting arrest. Yet having found that the acts constituting

resisting arrest or assault on a public official occurred after the arrest, and

viewing the facts in the light most favorable to Sauceda, Lopez did not have

probable cause to enter Sauceda’s property to execute a warrantless arrest.

Washington v. Salazar, 747 F. App’x 211 (5th Cir. 2018); see also Darden, 880

F.3d at 727 (at the summary judgment stage we must “view the facts in the

light most favorable to the nonmoving party” even in context of qualified

immunity). Because Lopez did not have probable cause to arrest Sauceda for

resisting arrest, the district court’s provision of qualified immunity to Lopez

on this basis must be reversed. Qualified immunity may nonetheless protect

Lopez’s conduct, however, if “a reasonable officer could have believed [the

arrest] to be lawful, in light of clearly established law and the information the

[arresting] officer[] possessed.”. Salazar, 747 F. App’x at 215. We thus

remand to the district court to determine whether Lopez’s conduct was

objectively reasonable in these circumstances.

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C. Excessive Force

“The Fourth Amendment’s protection against unreasonable search

and seizure requires that officers refrain from using excessive force, that is,

more force than is reasonably necessary, when effectuating an arrest.”

United States v. Brugman, 364 F.3d 613, 616 (5th Cir. 2004). “It is clearly

established law in this circuit that in order to state a claim for excessive force

in violation of the Constitution, a plaintiff must allege (1) an injury, which (2)

resulted directly and only from the use of force that was clearly excessive to

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

Id. (quoting Bazan v. Hidalgo County, 246 F.3d 481, 487 (5th Cir. 2001)

(citation omitted)). “The injury must be more than a de minimis injury and

must be evaluated in the context in which the force was deployed.” Glenn v.

City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).

The district court held that while Sauceda was unquestionably injured

during his interaction with Lopez, Lopez’s use of force was objectively

reasonable considering Sauceda’s resistance. In making this determination,

the district court discredited Sauceda’s testimony that Lopez hit him with a

baton as contradicted by the video footage of the interaction, which

“unambiguously establishe[d]” that Lopez did not strike Sauceda with a

baton. In the absence of competent evidence that Lopez struck Sauceda with

a baton, the district court concluded that Lopez did not use force that was

objectively unreasonable in light of Sauceda’s resistance. We agree.

The video footage of the interaction between Lopez and Sauceda does

not provide any evidence that Lopez struck Sauceda with his baton, and as

such, the district court did not err in discrediting Sauceda’s testimony to the

contrary. See Shepherd on behalf of Est. of Shepherd v. City of Shreveport, 920

F.3d 278, 283 (5th Cir. 2019) (“when there is a videotape that discredits the

non-movant’s description of facts, we will consider the facts in the light

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depicted by the videotape”) (cleaned up). Sauceda did not present any

further competent summary judgment evidence demonstrating that Lopez

struck Sauceda with a baton, 10 and Sauceda does not argue that Lopez’s use

of force would have been unreasonable in the absence of a baton strike.

Because the district court properly discredited Sauceda’s evidence regarding

Lopez’s use of the baton, the district court did not err in finding no genuine

issue of material fact as to whether Lopez used excessive force that was

objectively unreasonable under the circumstances. We affirm the district

court’s dismissal of Sauceda’s excessive force claim.

D. Municipal Liability

We similarly affirm the district court with respect to Sauceda’s

municipal liability claim against the City. Sauceda has failed to show that

Lopez’s allegedly unconstitutional acts were based on any official policy or

widespread pattern of conduct of the City. At most, Sauceda points to: (i)

the affirmative deposition responses of Lieutenant Martin Morales, Jr.—the

San Benito Chief of Police at the time of Sauceda’s arrest—when Morales

was asked whether it was “city policy” to arrest individuals who refuse to

provide a driver’s license upon request, and (ii) Lopez’s affirmative

deposition responses when asked whether he was following City “policy” in

arresting Sauceda. This is insufficient. Sauceda conceded below that the

“relevant policymaker” was the San Benito City Commission, not Morales.

10 Defendants correctly note that Perez’s legal conclusion that Officer Lopez used

excessive force is irrelevant and entitled to no weight, as “experts are not permitted to offer

legal conclusions.” United States v. Oti, 872 F.3d 678, 691-92 (5th Cr. 2017). Sauceda also

claims that the court failed to properly credit his submitted affidavit from another neighbor,

Jaime Salas, who stated that he witnessed the arrest, and that Lopez “barge[d] into

Sauceda’s property and sw[u]ng his baton.” However, even if this evidence were assumed

to be true in its entirety, it does not allege that Lopez actually hit or even attempted to hit

Sauceda with his baton, and thus does not support a claim of excessive force.

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And there is no record evidence that a policy to arrest individuals for failing

to produce identification was adopted or promulgated by the City

Commission. Nor has Sauceda produced evidence of “a widespread practice

that [was] so common and well-settled as to constitute a custom that fairly

represent[ed] municipal policy.” Fennell, 804 F.3d at 413 (cleaned up). A

solitary instance of violating Sauceda’s rights cannot confer liability on the

City. See Sanchez v. Young Cty., Texas, 866 F.3d 274, 280 (5th Cir. 2017),

cert. denied, 139 S. Ct. 126 (2018) (“A municipality is almost never liable for

an isolated unconstitutional action on the part of an employee.”).

Sauceda alternatively contends that the City is liable for Officer

Lopez’s actions because it failed to provide him with sufficient training and

adequate supervision. Municipal liability for failure to train or supervise

attaches when the failure “reflects a municipality’s deliberate or conscious

choice” such that the choice is a policy. Canton v. Harris, 489 U.S. 378, 389

(1989) (internal quotation marks omitted). For this liability to attach,

Sauceda must also show that (1) the training or hiring procedures of the

municipality’s policymaker were inadequate; (2) the municipality’s

policymaker was deliberately indifferent in adopting the hiring or training

policy; and (3) the inadequate hiring or training policy directly caused the

plaintiff’s injury.” Baker v. Putnal, 75 F.3d 190, 200 (5th Cir. 1996) (citing

Canton, 489 U.S. at 385–87).

It is not enough that the failure to supervise be due to negligence or

ineptitude on the part of the City; Sauceda’s burden is to prove it was a result

of deliberate indifference. Alton v. Texas A&M Univ., 168 F.3d 196, 201 (5th

Cir. 1999) (“Actions and decisions by officials that are merely inept,

erroneous, ineffective, or negligent do not amount to deliberate indifference

and do not divest officials of qualified immunity.”). The fact that this was an

isolated incident raises that burden further because the “single-incident

method of proving deliberate indifference” is “generally reserved” for cases

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in which “no training whatsoever” occurred. Littell v. Houston Indep. Sch.

Dist., 894 F.3d 616, 625 (5th Cir. 2018) (citing Peña v. City of Rio Grande City,

879 F.3d 613, 624 (5th Cir. 2018)). Here, Sauceda did not produce evidence

that could establish that Lopez received no training, that his training was

intentionally or deliberately inadequate, or that the City had a policy

endorsing Officer Lopez’s actions. Because of this, the district court found

correctly that Sauceda failed to raise a genuine issue of material fact

supporting municipal liability.

E. Defendants’ Untimely Motion for Summary Judgment

Finally, we consider Sauceda’s argument that the district court failed

to comply with Rule 6(b) by considering Defendants’ untimely motion for

summary judgment. Sauceda argues that the district court erred by

considering Defendants’ motion for summary judgment even though it was

filed late without leave. Defendants did not file their motion for summary

judgment until four days past the deadline given by the district court. The

district court then issued an order sua sponte taking notice of the motion for

summary judgment and, without explanation, considering it timely filed.

Federal Rule of Civil Procedure 6(b)(1) allows the court to extend the

time within which an act must be done for good cause, but explicitly

distinguishes between extensions to time made before its expiration (which

the court can make with or without motion or notice) and extensions to time

made after its expiration (which the court can make only on motion). Fed. R.

Civ. P. 6(b)(1). Further, a court may only extend the time for filings after a

deadline has expired “if the party failed to act because of excusable neglect.”

Id. The Defendants did not move the court for an extension of time before

this retroactive extension was granted and failed to provide any explanation

for the delay in filing. Therefore, they have not shown good cause for the

delay, let alone demonstrated excusable neglect, and the district court erred

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in sua sponte extending the deadline for Defendants’ motion for summary

judgment.

However, we hold that this error was harmless. Sauceda has not

identified or shown any way in which he was prejudiced by this error and the

four-day delay that resulted from the acceptance of the late filing. Yesudian

ex rel. U.S. v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir. 2001) (no reversible

error where “delay was brief, and there is no suggestion that [untimely filing]

had a material effect on the proceedings”). Moreover, Sauceda had notice

of and access to the motion for summary judgment, in the form in which it

would later be filed, when the Defendants attached it as an exhibit to their

Motion for Leave to File a Motion for Summary Judgment in excess of the

district court’s page limit. This notice and Sauceda’s failure to identify how

the error prejudiced him render the error harmless.

***

For the foregoing reasons, we: (1) AFFIRM the district court’s entry

of summary judgment in favor of the City and in favor of Lopez on Sauceda’s

excessive force claim; (2) REVERSE the district court’s entry of summary

judgment in favor of Lopez on Sauceda’s false arrest claim; and (3) and

REMAND for further proceedings consistent with this opinion.

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