# Sauceda v. City of San Benito

> Court of Appeals for the Fifth Circuit · August 15, 2023 · 78 F.4th 174

URL: https://www.frixlaw.com/law-library/cases/9555928

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** August 15, 2023
- **Citations:** 78 F.4th 174
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9555928

## How later opinions describe it (automated extraction)

- noting that, in some cases, a § 1983 plaintiff awarded nominal damages will be entitled to attorneys fees as well under 42 U.S.C. § 1988 (citing Grisham vy. City of Fort Worth, 837 F.3d 564 (Sth Cir. 2016)
- applying Rule 6(b)(1)(B) to summary-judgment motion filed after case-management deadline for such motions

## Opinion text

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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No. 19-40904

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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No. 19-40904

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.

23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9555928. Public record. Not legal advice.