    Case: 18-40415   Document: 00514901282      Page: 1   Date Filed: 04/03/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit


                                 No. 18-40415
                                                                       FILED
                                                                    April 3, 2019
                                                                  Lyle W. Cayce
                                                                       Clerk

JERI LYNN RICH,
as representative for Gavrila Covaci Dupuis-Mays, an incapacitated person,

           Plaintiff−Appellee,

versus

MICHAEL PALKO; KEITH DUANE HUDGENS,

           Defendants−Appellants.




               Appeal from the United States District Court
                    for the Eastern District of Texas




Before KING, SMITH, and WILLETT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Jeri Rich sued Michael Palko and Keith Hudgens of the McKinney Police
Department (“MPD”) on behalf of her adopted son, Gavrila Dupuis-Mays, who
has been declared an incapacitated person by the State of Texas. Rich sought
damages under 42 U.S.C. § 1983, alleging that the officers had violated
Dupuis-Mays’s Fourth and Fourteenth Amendment rights. The district court
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                                    No. 18-40415
denied the officers’ motion for summary judgment based on qualified immunity
(“QI”). We reverse and render a judgment of dismissal with prejudice.

                                           I.
      Dupuis-Mays sustained a brain injury as an infant and has cerebral
palsy, mental retardation, bi-polar disorder, depression, ADHD, and epilepsy.
On July 2, 2015, he was admitted for inpatient psychiatric evaluation for
depressed ideation. He was released on July 10, 2015, and returned to a group
home in McKinney, Texas, where he had been living.

      Between July 10 and 11, MPD was called to the group home four times
because Dupuis-Mays kept trying to run away.               The final of those visits
stemmed from a 911 call made by Dupuis-Mays’s caseworker, Rhonda Holley,
on Saturday July 11 at 2:01 a.m. 1 Holley asked police to transport Dupuis-
Mays to Green Oaks Hospital, explaining that Dupuis-Mays needed inpatient
care because he was “in a psychotic phase, where he is verbally and physically
aggressive towards staff.” Holley confirmed that Dupuis-Mays had not hit
anyone that night but was “covered in feces and refusing to bathe.” Holley told
the 911 operator that she had initially called Green Oaks, and they recom-
mended that she call 911.

      Palko and Hudgens responded. When they arrived at the group home,
they briefly conversed with one of Dupuis-Mays’s caretakers, who reported
that Dupuis-Mays was becoming increasingly psychotic and that Green Oaks
directed the group home staff to bring him in for care. She further explained
that neither she nor other staff members felt safe transporting Dupuis-Mays
to Green Oaks: He was “threatening” Holley, and “he just threatened our


      1 Most of the facts come from an audio recording of the 911 call made by Holley; a
video showing a waiting room at Green Oaks; videos showing the Green Oaks triage room
from two angles; and Hudgens’s audio feed while at the group home and Green Oaks.
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                                   No. 18-40415
children,” who were present that night.

      The officers approached Dupuis-Mays, who was covered in feces, and
dialogued with him at length. At the officers’ urging, Dupuis-Mays eventually
agreed to shower and change clothes. Holley told the officers what had precipi-
tated her 911 call. Dupuis-Mays had defecated on himself and had removed
his clothes and put them on the porch. He had scattered tables in the home’s
backyard and refused to follow staff instructions. Staff members also reported
that Dupuis-Mays’s aggression had been increasing and that his psychiatrist
told the staff that their only option until Monday was to transport Dupuis-
Mays back to Green Oaks for an assessment. Dupuis-Mays’s doctors had called
Dupuis-Mays “unstable.”

      Once Dupuis-Mays had showered and dressed, he voluntarily ap-
proached the officers and smoked a cigarette while talking with them. After
about ten minutes, the officers told Dupuis-Mays that he would be going for a
ride in the police car; they handcuffed and led him to the police car. The three
talked casually during the ride to Green Oaks and arrived without incident.

      The officers led Dupuis-Mays, still handcuffed, into the Green Oaks
waiting room and seated him in a chair near the door to the triage room.
Dupuis-Mays eventually stood up from the chair and began talking to the
officers, saying, among other things, “I’ll be glad you go to hell [sic],” and “I hate
police officers.” At least two other patients were in the waiting room. After
Dupuis-Mays refused to sit down, the officers retuned him to his chair. A few
seconds later, Dupuis-Mays spat toward Palko’s face. The officers turned away
from the spitting before approaching Dupuis-Mays, moving his head between
his legs, and holding him in that position for about five minutes. The video and
audio indicate that Dupuis-Mays continued spitting at and berating the offi-
cers, even with his head between his legs.

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                                  No. 18-40415
      Dupuis-Mays was called back to the triage room, where quarters were
tight: He was seated in a chair in one corner of the room with a small file
cabinet directly to his right and the triage nurse’s desk to the right of the
cabinet. A second file cabinet was in the corner opposite Dupuis-Mays, about
three to four feet in front of him. The officers stood by a door catty-corner from
Dupuis-Mays. Because of the file cabinets’ positioning, the corridor from the
officers to Dupuis-Mays was narrow.

      After a couple of minutes, Dupuis-Mays grew agitated and began saying,
“I hate police officers! I hate ‘em!” The triage nurse urged him to “stay calm,”
but Dupuis-Mays retorted, “Hell no!” The officers tried to pacify him, encour-
aging him that they were being nice. Dupuis-Mays continued, however, in
escalating volume, “I hate police officers! F*** them police officers! I hope cops
die!” “Do you really mean what you say?” Palko queried, to which Dupuis-
Mays responded, “I hope you die!” “That’s really mean of you to say,” Palko
answered calmly.

      The nurse left the room, leaving the officers with Dupuis-Mays. About
twenty seconds later, Dupuis-Mays spat toward Detective Palko, who stepped
back, and told him, “Don’t spit on me, Bud.” Dupuis-Mays then leaned forward,
stared at Palko, and spat directly at his face.

      Palko stepped across the room toward Dupuis-Mays through the opening
left by the two file cabinets. Palko placed both of his hands on Dupuis-Mays’s
head and began moving him down and diagonally from his chair to the middle
of the room. Palko stood with his body in front of the corner filing cabinet, his
left foot in front of and parallel with the cabinet’s side. Palko’s eyes were con-
sistently directed downward—not toward the file cabinet. Hudgens also ap-
proached and placed his right hand on Dupuis-Mays’s shoulder blade and his
left hand on Dupuis-Mays’s handcuffed hands. Midway to the ground, Dupuis-

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                                       No. 18-40415
Mays’s torso began to turn toward the corner cabinet, his foot apparently
caught behind the file cabinet directly to the right of his chair. Palko was still
in front of the corner cabinet. As Dupuis-Mays twisted, Palko’s left elbow
bumped the corner cabinet, his hand fell off Dupuis-May’s head, and Dupuis-
Mays’s head fell into the corner cabinet. Notably, Palko did not have a hand
on Dupuis-Mays’s head as Dupuis-Mays fell into the cabinet.

       The officers promptly helped Dupuis-Mays up and carefully moved him
to a seated position on the floor. They did not apply additional force. Dupuis-
Mays’s head was bleeding significantly, and he sustained a five-inch gash.

       Hudgens filed a post-incident report with MPD. That report did not com-
port with the video from the triage room, so MPD began an internal affairs
investigation, during which MPD Sergeant Agan spoke to Palko, who accur-
ately recalled and recounted the events. Hudgens later watched the video,
listened to the audio, and corrected his report.

       Rich sued Palko and Hudgens under § 1983, claiming that they had vio-
lated Dupuis-Mays’s Fourth, Eighth, and Fourteenth Amendment rights. 2 The
officers moved to dismiss for failure to state a claim, and the district court
granted the motion respecting Rich’s Eighth Amendment claim. But the court
deferred the remaining claims for disposition after discovery on whether the
officers were entitled to QI. Following discovery, the officers moved for sum-
mary judgment on grounds of QI. The district court, adopting the report and
recommendation of the magistrate judge, denied QI, and the officers appealed.




       2  Rich also sued the City of McKinney, alleging that it “employs a policy, practice, or
custom that permits police officers to use excessive force and file false police reports.” The
city is not a party to this appeal.
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                                      No. 18-40415
                                             II.
       We have jurisdiction to consider this interlocutory appeal because the
“general rule” that “[a]n order denying a motion for summary judgment is
generally not a final decision within the meaning of § 1291 and is thus gen-
erally not immediately appealable . . . does not apply when the summary judg-
ment motion is based on a claim of [QI].” Plumhoff v. Rickard, 572 U.S. 765,
771 (2014) (citations omitted). But “we have jurisdiction only to decide wheth-
er the district court erred in concluding as a matter of law that officials are not
entitled to [QI] on a given set of facts.” Cantrell v. City of Murphy, 666 F.3d
911, 921 (5th Cir. 2012) (internal quotation marks and citation omitted).

       We review de novo the legal issue whether the district court erred in
denying a motion for summary judgment based on QI. Escobar v. Montee,
895 F.3d 387, 393 (5th Cir. 2018). Although we “review the materiality of any
factual disputes,” we do not review “their genuineness.”             Curran v. Aleshire,
800 F.3d 656, 660 (5th Cir. 2015) (quoting Wagner v. Bay City, 227 F.3d 316,
320 (5th Cir. 2000)). If there are factual disputes, “we view the facts in the
light most favorable to the nonmoving party.” Plumhoff, 572 U.S. at 768. 3

                                            III.
       A plaintiff makes out a § 1983 claim if he “show[s] a violation of the
Constitution or of federal law, and then show[s] that the violation was com-
mitted by someone acting under color of state law.” Brown v. Miller, 519 F.3d
231, 236 (5th Cir. 2008) (internal quotation marks and citation omitted). But
government officials performing discretionary duties can assert QI. See, e.g.,
Haverda v. Hays Cty., 723 F.3d 586, 598 (5th Cir. 2013). Once an officer


       3We will not, however, accept a plaintiff’s version of the facts “for purposes of [QI]
when it is ‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.’” Curran,
800 F.3d at 664 (quoting Scott v. Harris, 550 U.S. 372, 380–81 (2007)).
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                                       No. 18-40415
invokes the defense, the plaintiff must rebut it by establishing (1) that the
officer violated a federal statutory or constitutional right and (2) that the
unlawfulness of the conduct was “clearly established at the time.” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)).

       To identify whether the law was clearly established when the officers
acted, “we must be able to point to controlling authority—or a robust consensus
of persuasive authority—that defines the contours of the right in question with
a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371–72 (5th
Cir. 2011) (en banc) (internal quotation marks and citations omitted). Though
“a case directly on point” is not required, “existing precedent must have placed
the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011). 4 “This demanding standard protects ‘all but the
plainly incompetent or those who knowingly violate the law.’”                         Wesby,
138 S. Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In sum,
QI “represents the norm, and courts should deny a defendant immunity only
in rare circumstances.” Romero v. City of Grapevine, 888 F.3d 170, 176 (5th
Cir. 2018) (internal quotation marks and citations omitted). “It is the plain-
tiff’s burden to find a case in his favor that does not define the law at a high
level of generality.” Vann v. City of Southaven, 884 F.3d 307, 310 (5th Cir.
2018) (per curiam) (internal quotation marks and citation omitted).

       Rich alleges that the officers violated Dupuis-Mays’s Fourth Amendment
rights through unlawful detention, excessive force, and false reporting. The



       4  See also Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 578–79 (5th Cir. 2009)
(quoting Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997)) (“[P]re-existing law must dictate,
that is, truly compel (not just suggest or allow or raise a question about), the conclusion for
every like-situated, reasonable government agent that what defendant is doing violates fed-
eral law in the circumstances.”).
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                                       No. 18-40415
officers assert QI on each claim.

                                              A.
       The officers insist that they are entitled to QI on Rich’s claim that the
officers violated Dupuis-Mays’s constitutional rights by unlawfully detaining
and transporting him to Green Oaks. “The probable cause standard applies in
the context of a seizure of the mentally ill.” Cantrell, 666 F.3d at 923 n.8. An
officer has probable cause to detain if the two requirements for emergency
detention under Texas law are satisfied: “(1) [T]he officer has reason to believe
and does believe that a person is mentally ill and because of that illness there
is a substantial risk of serious harm to the person or to others unless the person
is immediately restrained; and (2) believes that there is not sufficient time to
obtain a warrant before taking the person into custody.” Id. at 923 (citing TEX.
HEALTH & SAFETY CODE ANN. § 573.001).

       The parties do not dispute that Dupuis-Mays is “mentally ill” under
Texas law. 5 They focus, instead, on whether he posed a substantial risk of
serious harm to himself or others. That sort of substantial risk “may be dem-
onstrated by[ ] (1) the person’s behavior; or (2) evidence of severe emotional
distress and deterioration in the person’s mental condition to the extent that
the person cannot remain at liberty.” TEX. HEALTH & SAFETY CODE ANN.
§ 573.001(b). An officer may base his belief that the person meets the statutory
criteria for apprehension either on “a representation of a credible person[,] or
. . . on the basis of the conduct of the apprehended person or the circumstances
under which the apprehended person is found.” Id. § 573.001(c)(1)–(2). An


       5 A person is mentally ill under Texas law if he has “an illness, disease, or condition,
other than epilepsy, dementia, substance abuse, or intellectual disability, that[ ] (A) sub-
stantially impairs [his] thought, perception of reality, emotional process, or judgment;
or (B) grossly impairs behavior as demonstrated by recent disturbed behavior.” TEX. HEALTH
& SAFETY CODE ANN. § 571.003(14).
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                                     No. 18-40415
officer who detains a person under those provisions “shall immediately” take
him to “the nearest appropriate inpatient mental health facility” or an
otherwise     designated     mental     health     or     emergency     facility.     Id.
§ 573.001(d)(1)(A)–(B).

      The video and audio evidence supports that the officers relied on the rep-
resentations of credible persons to believe that Dupuis-Mays met the statutory
criteria for apprehension. According to the group home staff, Dupuis-Mays’s
behavior posed a substantial risk of harm to others. His caretakers stated that
he was in a “psychotic episode,” “verbally and physically aggressive towards
staff.” He had threatened staff members and children, disturbed property in
the backyard, soiled and refused to clean himself, and ignored the instructions
of the staff, who were so frightened that they refused to transport him. Fur-
ther, a treating psychiatrist—as well as staff at the Green Oaks hospital—had
recommended that Dupuis-Mays be taken to the hospital for psychiatric
evaluation.

      Dupuis-Mays’s conduct and the circumstances in which the officers
found him also allowed them reasonably to conclude that Dupuis-Mays was
experiencing “severe emotional distress and deterioration in [his] mental con-
dition to the extent that [he could not] remain at liberty.” Id. § 573.001(b)(2).
The officers found him covered in feces, refusing to bathe, and ignoring in-
structions. Dupuis-Mays, moreover, responded to Palko’s exhortation to clean
himself, because the feces covering him could make him “feel bad,” by saying
that he wanted to feel bad. 6 Additionally, Dupuis-Mays had attempted to run
away from the group home several times that evening.




      6  Palko asked Dupuis-Mays, “You don’t want to feel bad, right?” “I do,” Dupuis-Mays
replied. Palko rejoined, “Why is that?” And Dupuis-Mays responded, “I just do.”
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                                      No. 18-40415
       Rich suggests that the officers did not have sufficient evidence to detain
Dupuis-Mays lawfully because this court’s cases concerning lawful detention
of a mentally ill person under Texas law all involve a suicide threat. 7 That is
so, but nothing in those cases suggests that a suicide risk is a prerequisite for
detention under Texas law. Indeed, holding so would nullify the statute’s
allowance for detention if the mentally ill person poses a substantial risk of
harm to others. 8

       Based on the representations of credible persons and their own observa-
tions, the officers reasonably concluded that Dupuis-Mays was mentally ill and
posed a substantial risk of serious harm to himself or others. 9 They accordingly
had a lawful basis to detain him under the Texas Health and Safety Code and
complied with the Code’s requirements by taking him directly to Green Oaks.



       7 See Cantrell, 666 F.3d at 923 (concluding that officers had probable cause to detain
woman making suicidal statements); Sullivan v. Cty. of Hunt, 106 F. App’x 215, 218 (5th Cir.
2004) (probable cause to detain where psychiatrist indicated that the person “was a suicide
risk”); Martinez v. Smith¸ 1999 WL 1095667, at *1–2 (5th Cir. Nov. 4, 1999) (unpublished)
(probable cause to detain where individual had told an acquaintance that she was suicidal
and avoided contact with officers by shutting the door on and running from them).
       8  Texas caselaw confirms that a mentally ill person may be lawfully detained without
a warrant even where he is not threatening suicide. See, e.g., In re M.R., No. 02-15-00221-
CV, 2015 LEXIS 11297, at *2 (Tex. App.—Fort Worth Nov. 3, 2015, no pet.) (mem. op.) (dis-
cussing the lawful detention and transport, pursuant to Texas law, of a mentally ill patient
who “evidenced a substantial risk of serious harm to himself or others” in that he was dis-
oriented, hallucinating, grunting, not bathing, soiling himself, and not taking his medica-
tion); In re J.M., No. 02-14-00398-CV, 2015 LEXIS 1420, at *2 (Tex. App.—Fort Worth
Feb. 12, 2015, no pet.) (mem. op.) (describing the lawful detention under Texas law of a men-
tally ill person who was physically aggressive toward her parents, behaving recklessly, and
experiencing psychosis and paranoia).
       9 The magistrate judge’s report and recommendation, fully adopted by the district
court, found the officers’ detention of Dupuis-Mays unlawful in part based on MPD’s internal
investigation of the events, in which Agan suggested that the officers had no lawful basis to
detain Dupuis-Mays. Whatever Agan concluded, “probable cause exists where the facts and
circumstances within the officer’s knowledge at the time of the seizure are sufficient for a
reasonable person to conclude that an individual is mentally ill and poses a substantial risk
of serious harm.” Cantrell, 666 F.3d at 923. The video and audio indicate that there was
enough evidence to believe the statutory criteria for detention had been satisfied.
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                                      No. 18-40415
The officers did not violate Dupuis-Mays’s constitutional rights and are
entitled to QI on the unlawful-detention claim.

       Even assuming the officers violated Dupuis-Mays’s constitutional rights,
Rich has failed to demonstrate that clearly established law put the officers on
notice that their conduct was illegal. In fact, established law in this circuit
suggests that the officers were acting legally by relying on the representations
of credible persons that Dupuis-Mays met the statutory requirements for
apprehension. 10 Rich points to no case even suggesting that staff at a group
home for disabled persons, who have been told by a hospital and a psychiatrist
that a patient should be taken to the hospital, are not credible persons under
the Texas Health and Safety Code. The district court erred in denying QI on
the claim of unlawful detention.

                                             B.
       The officers also assert QI on Rich’s claim that the officers violated
Dupuis-Mays’s Fourth Amendment rights by using excessive force to restrain
him in the triage room. We may “decid[e] which of the two prongs of the [QI]
analysis should be addressed first in light of the circumstances in the partic-
ular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). For the
excessive force claim, we start and end with the second prong: “whether the
right at issue was clearly established at the time of [the officers’] alleged
misconduct.” Id. at 232.

       Rich has not demonstrated that the officers violated clearly established



       10See Sullivan, 106 F. App’x at 221 (holding that officers who took a man into custody
to commit him for a mental screening at the behest of their supervisor, who was relying on
the statements of a psychiatrist, lawfully detained the man under Texas law); see also Mar-
tinez¸ 1999 WL 1095667, at *2 (holding that officers “had probable cause to take [plaintiff]
into protective custody” “[b]ased on the Texas statute, the information from a third party,
and their own observations”).
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                                         No. 18-40415
law by moving Dupuis-Mays—who was increasingly aggravated, repeatedly
spitting at the officers, and failing to comply with instructions to stop—to the
floor, even though he collided with a cabinet on the way down. The cases Rich
cites on appeal do not implicate the situation Palko and Hudgens faced and
certainly do not put it “beyond debate,” al-Kidd, 563 U.S. at 741, that the
officers’ actions violated Dupuis-Mays’s rights. Instead, those decisions con-
cern the use of deadly force, 11 repeatedly striking an arrestee, 12 tackling an
arrestee and pummeling him with the officers’ “knees and fists,” 13 slamming a
subdued arrestee into a car window with enough force to break two teeth, 14
tackling a moving suspect, 15 and catching a fleeing suspect and then repeatedly
tasing him and slamming him on the ground. 16

        Rich has failed to identify precedent clearly establishing that the offi-
cers’ conduct violated Dupuis-Mays’s constitutional rights on the excessive
force claim. The officers are entitled to QI.

                                                C.
       The officers contend that they deserve QI on Rich’s claim that the officers



       11Cole v. Carson, 905 F.3d 334, 343 (5th Cir. 2018), vacated for reh’g en banc, 915 F.3d
378 (5th Cir. 2019).
       12   Brown v. Lynch, 524 F. App’x 69, 72–73 (5th Cir 2013) (unpublished).
       13   Trammell v. Fruge, 868 F.3d 332, 342 (5th Cir. 2017).
       14   Bush v. Strain, 513 F.3d 492, 496 (5th Cir. 2008).
       15   Goodson v. City of Corpus Christi, 202 F.3d 730, 733–34 (5th Cir. 2000).
       16 Anderson v. McCaleb, 480 F. App’x 768, 769 (5th Cir. 2012) (per curiam). The dis-
trict court found that Brady v. Louisiana, No. 92-3904, 1993 U.S. App. LEXIS 39564 (5th Cir.
1993) (unpublished but precedential), “along with several other cases in this Circuit, provide
clearly established law that lesser levels of force are excessive against restrained, non-
threatening persons.” Rich cites those “other cases,” and we have already found them inap-
posite. Brady involved a prison guard’s hitting a restrained inmate, id. at *2, and does not
provide the kind of precedent “that defines the contours of the right in question with a high
degree of particularity,” Morgan, 659 F.3d at 372.
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                                        No. 18-40415
violated Dupuis-Mays’s constitutional rights by preparing false police reports
“to support the unlawful arrest.” Neither the district court nor Rich has iden-
tified which of Dupuis-Mays’s constitutional rights was violated. The court
explained only that “these reporting falsities obstructed the investigation
regarding the incident and continue to serve as a potential basis for the justi-
fication of the alleged unlawful detention and use of excessive force,” and
accordingly, “are proper matters for a jury to review.” 17

       Rich’s theory appears to be that Hudgens’s inaccurate post-incident
report was designed to provide probable cause to support a warrantless deten-
tion. But Rich fails to identify a single case suggesting that an individual has
a right to be free from inaccuracies in an after-the-fact police report or that an
inaccurate report serves as a sort of continuing constitutional violation, as the
district court suggested. The only case from this circuit that the magistrate
judge cited is to the contrary. 18 Consequently, Rich has not shown a violation
of a clearly established constitutional right, and the officers are entitled to QI.

       The order denying QI is REVERSED, and a judgment of dismissal with
prejudice is RENDERED.




       17 The magistrate judge similarly found “these reporting falsities to be consequential
to Plaintiff’s unlawful detention and excessive force claims, and that a jury could find the
false statements were intentionally made by Defendant Officers.”
       18  See Smith v. Patri, 99 F. App’x 497, 498 (5th Cir. 2004) (per curiam) (“[T]here is no
right to a completely accurate police report.”). Other circuits have also recognized that false
or inaccurate police reports do not pose a constitutional violation. See, e.g., Jarrett v. Twp. of
Bensalem, 312 F. App’x 505, 507 (3d Cir. 2009) (“[T]he mere existence of an allegedly incorrect
police report fails to implicate constitutional rights.”).
                                               13
