Perry v. Mendoza

Case: 22-20436 Document: 00516914650 Page: 1 Date Filed: 09/29/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

September 29, 2023

No. 22-20436 Lyle W. Cayce

____________ Clerk

Jacqueline Perry,

Plaintiff—Appellant,

versus

Maxanette Mendoza,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-4364

______________________________

Before Duncan and Wilson, Circuit Judges, and Mazzant, * District

Judge.

Stuart Kyle Duncan, Circuit Judge:

Officer Maxanette Mendoza arrested Jacqueline Perry for telephone

harassment after she witnessed Perry call in false complaints about her neigh-

bors’ supposedly loud music. The harassment charges were dropped, how-

ever. Perry then sued Mendoza for false arrest under 42 U.S.C. § 1983. Her

claim was dismissed based on qualified immunity. We affirm.

_____________________

*

District Judge of the Eastern District of Texas, sitting by designation.

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I.

A.

Some time before she was arrested, Perry voiced concerns at a

neighborhood meeting about her neighbors playing loud music. 1 Police

officers present at the meeting gave her a non-emergency dispatch number to

report any future disturbances.

On October 8, 2017, Perry called police around 10:45 a.m.,

complaining of loud music coming from her neighbors’ home three houses

down the street. The responding officer approached Perry’s house with his

windows down and radio off to listen for music but did not hear any. He spoke

with Perry and one of Perry’s neighbors, a Hispanic male, before departing.

At 12:05 p.m., Perry called again, claiming the neighbors raised the volume

the moment the officer departed. A second officer responded. Because he

heard no loud music playing, the officer noted that Perry’s complaint was

“unfounded.”

Soon after, Perry called a third time and lodged the same complaint.

This time, Mendoza arrived on the scene. Mendoza heard no loud music. She

spoke to the neighbors, who said that Perry had repeatedly called the police

to falsely accuse them of playing loud music. Perry saw Mendoza’s cruiser,

drove down the street, and told Mendoza that “she could hear the music

inside her house,” that “the neighbors showed no consideration for others in

the neighborhood,” and that “she knows the Constable of Harris County

Precinct 3 and she will call every time she hears them.”

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1

Because the district court granted summary judgment dismissing Perry’s false

arrest claim, “[w]e view the facts and draw reasonable inferences in the light most favorable

to [Perry].” Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 325 (5th Cir. 2020).

2

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Mendoza decided to investigate further. She drove around the corner

and hid behind the neighbor’s fence for thirty minutes. While Mendoza

waited, Perry called for the fourth time, stating that the neighbor had turned

the music up again the minute Mendoza left. 2 Mendoza, however, heard

nothing.

At that point, Mendoza contacted the Harris County District

Attorney’s Office and described what was happening. Specifically, she said

that she had “stood behind [the neighbor’s] fence and heard no noise at the

same time Ms. Perry was once again calling in another complaint.” The

district attorney’s office told Mendoza that “it would accept the charge of

telephone harassment.” Mendoza then arrested Perry “for telephone

harassment.”

Perry spent 13 hours in custody before the District Attorney dropped

the charge for lack of probable cause. The precinct subsequently opened an

investigation into Perry’s arrest and placed Mendoza on unpaid leave. She

later resigned. The investigation cleared Mendoza of any wrongdoing besides

a technical policy violation for not timely filing a police report.

B.

Perry sued Mendoza under 42 U.S.C. § 1983 for false arrest. 3

Mendoza moved for summary judgment based on qualified immunity. The

magistrate judge denied her motion because he found a factual dispute as to

whether loud music was playing when Perry called the police. Taking Perry’s

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2

Mendoza claims Perry called an additional two-to-three times. Call records show,

however, that the precinct received a total of four calls only.

3

Perry also sued Mendoza for using excessive force to arrest her. The magistrate

judge granted Mendoza qualified immunity on that claim because Perry failed to allege an

injury. Perry did not appeal the excessive force claim, so it is not before us.

3

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version of events as true, he reasoned that Perry called “in a loud music

disturbance on a nonemergency line,” which no officer could believe

constitutes telephone harassment.

Mendoza moved for reconsideration. She argued the relevant factual

question was not whether the neighbors were playing loud music but, instead,

whether Mendoza herself heard such music. If Mendoza indisputably heard

no music, then she could reasonably believe Perry was lying about the noise

disturbance, even if Perry was in fact telling the truth.

The magistrate judge agreed with Mendoza that he had erred. Relying

on Mendoza’s declaration, the magistrate judge found it undisputed that (1)

Mendoza heard no noise when she arrived on the scene; (2) Mendoza was

aware that Perry had called the police numerous times that day; and (3)

Mendoza was standing outside the neighbors’ house and heard no noise when

Perry reported loud music for the fourth time. Given these undisputed facts,

the magistrate judge concluded that Mendoza had “probable cause to believe

that Perry had called the authorities multiple times to report loud music that

did not exist and that she called with the intent ‘to harass, annoy, alarm,

abuse, torment, embarrass, or offend another’ under Texas Penal Code

§ 42.07(a)(4).” He therefore granted Mendoza summary judgment on the

false arrest claim. Perry timely appealed.

II.

We review a grant of summary judgment de novo, applying the same

standard as the district court. Bryant v. Gillem, 965 F.3d 387, 391 (5th Cir.

2020). Summary judgment is appropriate where “the movant shows that

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

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

Once an officer “raises the defense of qualified immunity, the plaintiff

bears the burden of showing the defense does not apply.” Gillem, 965 F.3d at

4

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391. To overcome qualified immunity, the plaintiff must show that the officer

(1) violated a constitutional right that was (2) clearly established at the time.

Laviage v. Fite, 47 F.4th 402, 405–06 (5th Cir. 2022). Courts “can analyze

the prongs in either order or resolve the case on a single prong.” Garcia v.

Blevins, 957 F.3d 596, 600 (5th Cir. 2020).

III.

Perry argues the magistrate judge erred by (A) concluding Mendoza

reasonably believed she had probable cause to arrest Perry for telephone

harassment, and (B) determining no issue of material fact existed precluding

summary judgment. We address each issue in turn.

A.

The magistrate judge ruled Mendoza had probable cause to believe

Perry violated Texas’s telephone harassment law. See Tex. Penal Code

§ 42.07. As relevant here, a person violates that law

if, with intent to harass, annoy, alarm, abuse, torment, or

embarrass another, the person . . . causes the telephone of

another to ring repeatedly or makes repeated telephone

communications anonymously or in a manner reasonably likely

to harass, annoy alarm, abuse, torment, embarrass, or offend

another.

Id. § 42.07(a)(4). But even if Mendoza was mistaken about probable cause,

the magistrate judge continued, she still merited qualified immunity because

her mistake was reasonable. On appeal, Perry argues this was error. She

asserts her arrest was unreasonable because the Texas law requires harassing

calls to be aimed at the victim, not the police.

An officer is due qualified immunity, “even if he did not have probable

cause to arrest a suspect,” so long as “a reasonable person in his position

would have believed that his conduct conformed to the constitutional

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standard in light of the information available to him and the clearly

established law.” Voss v. Goode, 954 F.3d 234, 239 (5th Cir. 2020) (cleaned

up) (quoting Freeman v. Gore, 483 F.3d 404, 415 (5th Cir. 2007)); see also

Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000) (explaining that

officers who “‘reasonably but mistakenly conclude that probable cause is

present’ are entitled to immunity”) (quoting Hunter v. Bryant, 502 U.S. 224,

227 (1991)). Accordingly, we may assume arguendo that Mendoza lacked

probable cause to arrest Perry for telephone harassment. 4 Indeed, there is

some support in Texas law, as Perry argues, for the proposition that the

harassing phone calls must be made to the intended victim. See Scott v. State,

322 S.W.3d 662, 669 (Tex. Crim. App. 2010) (“[T]he text [of § 42.07(a)(4)]

requires that the actor have the specific intent to harass . . . the recipient of

the telephone call.”), abrogated in part on other grounds by Wilson v. State, 448

S.W.3d 418, 422–23 (Tex. Crim. App. 2014). Nonetheless, we agree with the

magistrate judge that any mistake by Mendoza was reasonable.

It is undisputed that, before arresting Perry, Mendoza called the

district attorney’s office to ensure that a telephone harassment charge was

proper. As a panel of our court recently explained (albeit in an unpublished

opinion), “advice obtained from a prosecutor prior to making an arrest should

be factored into the totality of the circumstances and considered in

determining the officer’s entitlement to qualified immunity.” Gorsky v.

Guajardo, No. 20-20084, 2023 WL 3690429, at *9 n.17 (5th Cir. May 26,

2023) (unpublished) (quoting Kelly v. Borough of Carlisle, 622 F.3d 248, 255

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4

Given this assumption, we also need not determine whether Mendoza had

probable cause to arrest Perry for some other crime. See Voss, 954 F.3d at 238 (explaining

that an arresting officer “may justify the arrest by showing probable cause for any crime”)

(emphasis added) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)).

6

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(3d Cir. 2010)). 5 Numerous other circuits agree with that approach. See Cox

v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004) (explaining that “the fact of the

consultation [with the prosecutor] and the purport of the advice obtained

should be factored into the totality of the circumstances and considered in

determining the officer’s entitlement to qualified immunity”) (and collecting

cases from the Fourth, Seventh, Eighth, Ninth, and Tenth Circuits). 6

To be sure, “a wave of the prosecutor’s wand cannot magically

transform an unreasonable probable cause determination into a reasonable

one.” Hainey, 391 F.3d at 34. But, as the magistrate judge observed, nothing

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5

This factor did not help the officers in Gorsky because they did not speak to the

prosecutor until after arresting the plaintiff. See ibid.

6

See Wadkins v. Arnold, 214 F.3d 535, 542 (4th Cir. 2000); Kijonka v. Seitzinger,

363 F.3d 645, 648 (7th Cir. 2004); E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 478 (8th

Cir. 1989); Dixon v. Wallowa County, 336 F.3d 1013, 1019 (9th Cir. 2003); Lavicky v.

Burnett, 758 F.2d 468, 476 (10th Cir. 1985).

Circuit courts have reinforced and followed these decisions in subsequent cases.

See Ewing v. City of Stockton, 588 F.3d 1218, 1231 (9th Cir. 2009) (obtaining pre-arrest legal

advice “goes far to establish qualified immunity” (citation omitted)); Handy v. Palmiero,

836 F. App’x 116, 118–19 (3d Cir. 2020) (an officer who relies “in good faith on a

prosecutor’s legal opinion” is “presumptively entitled to qualified immunity” (citations

omitted)); Poulakis v. Rogers, 341 F. App’x 523, 533 (11th Cir. 2009); Stearns v. Clarkson,

615 F.3d 1278, 1284–85 (10th Cir. 2010); Folkerts v. City of Waverly, 707 F.3d 975, 982 (8th

Cir. 2013); Frye v. Kansas City Mo. Police Dep’t, 375 F.3d 785, 792 (8th Cir. 2004); Wheeler

v. City of Searcy, 14 F.4th 843, 851 (8th Cir. 2021); Fleming v. Livingston County, 674 F.3d

874, 881 (7th Cir. 2012); Zimmerman v. Doran, 807 F.3d 178, 183 (7th Cir. 2015); Steiger v.

Hahn, 718 F. App’x 386, 391–92 (6th Cir. 2018); Shrewsbury v. Williams, 844 F. App’x 647,

650 (4th Cir. 2021).

But see Brown v. Knapp, 75 F.4th 638, 648–49 (6th Cir. 2023) (finding under the

totality of the circumstances that relying on prosecutor’s advice was unreasonable);

Merchant v. Bauer, 677 F.3d 656, 664–65 (4th Cir. 2012) (finding it unreasonable for an

officer to ignore exculpatory evidence while relying on prosecutor’s advice concerning

probable cause); Silberstein v. City of Dayton, 440 F.3d 306, 318 (6th Cir. 2006) (finding

reliance on counsel’s legal advice on its own constitutes a qualified immunity defense only

under “extraordinary circumstances”).

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about the circumstances taints Mendoza’s beliefs as unreasonable: (1) Perry

called multiple times to report loud music that day; (2) other officers found

no loud music playing when they arrived; (3) the alleged noisemakers claimed

they were not playing loud music; (4) no music was playing during the several

hours Mendoza was on the scene; and (5) while Mendoza stood behind the

neighbors’ fence hearing no noise, she received reports Perry was still calling

in complaints. Furthermore, as noted, Mendoza relayed what was happening

to the district attorney’s office and received the go-ahead to arrest Perry for

telephone harassment. 7 “[W]e cannot fairly require police officers in the field

to be as conversant in the law as lawyers and judges who have the benefit not

only of formal legal training, but also the advantage of deliberate study.”

Kelly, 622 F.3d at 255.

Perry nonetheless argues that two cases from the Texas Court of

Criminal Appeals clearly establish that her arrest was unreasonable because

harassing calls must be made to the victim, not a third party. We disagree.

Even assuming those decisions stand for that categorical proposition (which

we need not decide), they are too far afield from the present case to clearly

establish the law for qualified immunity purposes.

Perry’s principal case, Scott v. State, involved a man convicted under

the telephone harassment law for repeatedly leaving abusive voicemails on

his former wife’s phone. See 322 S.W.3d at 665. In the context of rejecting a

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7

The magistrate judge’s ruling relied in part on Mendoza’s summary judgment

declaration. Perry contends this was error because the declaration was unsigned and not

made under penalty of perjury. We disagree. As the magistrate judge pointed out,

Mendoza’s declaration was permissible under Federal Rule of Civil Procedure 56(c)(2)

because it was “capable of being presented in an admissible form.” See LSR Consulting,

LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016). Furthermore, the

declaration contained only facts (1) based on Mendoza’s personal knowledge; (2) that

would have been admissible; and (3) to which Mendoza was competent to testify. See Fed.

R. Civ. P. 56(c)(4).

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vagueness challenge, the court ruled that the harassment law “does not

implicate the free-speech guarantee of the First Amendment.” Id. at 670–71.

Perry also relies on Wilson v. State, involving a woman convicted under the

same law for repeatedly leaving angry voicemails on her neighbor’s phone.

See 448 S.W.3d at 420–21. In the course of rejecting a legal sufficiency

challenge to the conviction, the court interpreted the statute’s phrase

“repeated telephone communications.” Id. at 423–26.

Neither case clearly establishes that Perry’s arrest was unreasonable.

Especially when evaluating qualified immunity in the Fourth Amendment

context, we look for “precedent [that] squarely governs the specific facts at

issue.” Salazar v. Molina, 37 F.4th 278, 285 (5th Cir. 2022) (quoting Kisela

v. Hughes, 584 U.S. ---, 138 S. Ct. 1148, 1153 (2018)); see also Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 5 (2021) (per curiam) (explaining “existing precedent

must have placed the statutory or constitutional question beyond debate . . .

in light of the specific context of the case” (citations omitted)); Lincoln v.

Turner, 874 F.3d 833, 847–51 (5th Cir. 2017) (applying these principles to a

false arrest claim). Neither Scott nor Wilson rises to that level. Both cases

concerned disputes between private parties, not claims concerning false

arrest or probable cause. While one statement in Scott appears to support

Perry’s reading of the statute, see supra, neither decision squarely resolved

the issue presented here. Finally, as noted, Perry reasonably relied on the

district attorney’s advice before making the arrest.

In sum, we see no error in the magistrate judge’s conclusion that

Mendoza reasonably believed probable cause supported Perry’s arrest.

B.

Finally, we turn to whether material fact issues precluded summary

judgment. The magistrate judge found no such fact issues. Specifically, he

pointed out that (1) Perry did not dispute that Mendoza heard no music while

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standing behind the neighbors’ fence, and (2) Perry did not allege the music

resumed after her third call to the police, the first call to which Mendoza

responded. Perry argues this was error. She claims that several material fact

issues precluded summary judgment, including (1) the officers’ statements

that “no music was heard when Perry phoned in her complaints”; (2) the

number of calls Perry made; (3) whether Perry used an emergency line or a

non-emergency line; and (4) whether Perry named the neighbors as the

subject of the complaint. We disagree.

To overcome Mendoza’s qualified immunity defense on summary

judgment Perry “bears the burden of showing a genuine and material

dispute[.]” Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015). A disputed fact

is material if it could affect the outcome of the lawsuit. Allen v. U.S. Postal

Serv., 63 F.4th 292, 300 (5th Cir. 2023). Perry cannot satisfy her burden with

“conclusory allegations,” “unsubstantiated assertions,” or by “a scintilla of

evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(citations and internal quotation marks omitted).

The fact disputes Perry points to, even assuming they are genuine, are

immaterial to whether Mendoza reasonably believed there was probable

cause to arrest her. For instance, as the magistrate judge correctly ruled in

granting Mendoza’s motion for reconsideration, it does not matter whether

neighbors were ever actually playing loud music—it matters only whether

Mendoza heard loud music when she was on the scene. Perry adduced no

evidence of that. Nor does Perry point to any evidence challenging

Mendoza’s assertion that Perry called in noise complaints even while

Mendoza herself heard no loud noise at all. In other words, Perry does not

dispute the key facts that led Mendoza to reasonably believe she had probable

cause to arrest Perry.

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Perry’s other arguments also fail to move the needle. Any dispute over

the number of calls Perry actually made is immaterial because the Texas

statute only requires “repeated” calls, and the record undisputedly shows at

least four occurred. See Tex. Penal Code § 42.07(a)(4). Whether Perry

used an emergency or non-emergency line is also beside the point. It only

matters that she repeatedly called, not which line she used. Nor can we

discern why it matters whether Perry specifically named her neighbors as the

offending parties in her noise complaint.

In sum, the magistrate correctly found that no genuine disputes of

material fact precluded summary judgment.

AFFIRMED.

11