     Case: 17-20532      Document: 00514610403         Page: 1    Date Filed: 08/21/2018




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

                                      No. 17-20532                          FILED
                                                                      August 21, 2018
                                                                       Lyle W. Cayce
CRAIG A. WASHINGTON,                                                        Clerk

              Plaintiff–Appellee,

v.

JOSE SALAZAR,

              Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:16-CV-362


Before JOLLY, ELROD, and WILLETT, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Jose Salazar appeals the district court’s order
denying his motion for summary judgment based on qualified immunity. But
genuine issues of material fact preclude qualified immunity. For that reason,
we DISMISS Salazar’s appeal for lack of jurisdiction.
                                            I.
       Late on the night of February 13, 2014, Plaintiff–Appellee Craig
Washington awoke to the sound of breaking glass outside his home office in



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-20532    Document: 00514610403       Page: 2   Date Filed: 08/21/2018



                                No. 17-20532
Houston. He looked out his window and saw a beer bottle fly over his fence and
shatter in his parking lot. Washington grabbed his 12-gauge shotgun and went
to investigate, dressed only in a coat and underwear. By the time Washington
stepped outside, he saw no one on his property. But he noticed several broken
beer bottles and saw three young men walking down the street toward the
nearby Limelight Club. So he followed the trio.
      Washington approached the valet stand at the Limelight Club. According
to Washington, both he and the valets stood on the sidewalk. He was still
carrying his shotgun, down at his side and pointed at the ground. Washington
asked the valets if they saw the people who just passed by. Unable to get any
information, he complained about the broken beer bottles on his property and
then returned to his home office. After Washington left, a valet told Sergeant
Lawrence Leon and Officer Luis Gamez, two off-duty officers working at the
Club: “There’s someone walking down the street with a shotgun.” Leon thought
the valet seemed excited, nervous, and scared.
      Around that time, Officers Charles Barner and Stephanie Moses-Davis
arrived at the Club, responding to a separate noise complaint. Leon told Barner
and Moses-Davis that Washington “has a shotgun. Go stop him.” Barner and
Moses-Davis drove down the street and saw Washington outside his home
office, shotgun pointed to the ground.
      Barner radioed that there was a man with a gun and requested back up.
Deputy Kerry Robinson was dispatched. Robinson was told there were men
throwing bottles at Washington’s property and a man had a shotgun. Barner
and Moses-Davis asked Washington to put the gun down. Washington
complied. The officers secured Washington’s gun. They then conducted a
preliminary investigation, speaking with Leon and the valets, to determine if
Washington engaged in any illegal conduct, such as pointing the gun at anyone
or entering the Club’s premises. The result was inconclusive—no witness
                                         2
    Case: 17-20532    Document: 00514610403    Page: 3    Date Filed: 08/21/2018



                                No. 17-20532
reported seeing Washington on the Club’s property, behaving in a threatening
manner, or otherwise acting illegally.
      Defendant–Appellant Sergeant Jose Salazar was one of the officers
dispatched for “a weapon disturbance.” Upon arriving at Washington’s home,
Salazar was the highest-ranking officer and thus the supervisor. Barner
briefed Salazar, and Salazar ensured Washington was detained and secured.
Salazar personally confirmed the weapon involved was a shotgun.
      Based on Barner’s report, Salazar told Barner to call the District
Attorney to see if they could charge Washington with “unlawfully carrying a
weapon.” Barner explained to the DA what he heard from Leon: Washington
had a shotgun and was seen walking down the street. The DA responded, “I’m
not taking any charges because it’s not against the law.” Barner told Salazar
about the conversation and that the DA refused charges.
      At some point, Leon arrived and further briefed Salazar. Leon did not
tell Salazar that any valet suggested Washington entered the Club’s parking
lot or displayed the shotgun in a threatening way. Leon then returned to the
Club. Officer Kerry Clopton also arrived with a partner. When Clopton arrived,
he pointed at Washington, identified him as a political figure, and stated:
“That’s the guy that’s been causing us problems.”
      Salazar then said he would call the DA with “additional information.”
According to Salazar, he wanted to ensure the DA heard “all the facts,”
including that Washington “made it to the parking lot with the shotgun.”
Salazar says the DA agreed on the call that Washington violated the Texas
Alcoholic Beverage Code (“TABC”) by entering the parking lot, which was
enough to charge him with possession of a firearm at a licensed premise.
Salazar told Barner the DA accepted charges for “unlawfully carrying a




                                         3
     Case: 17-20532       Document: 00514610403          Page: 4     Date Filed: 08/21/2018



                                       No. 17-20532
firearm, weapon, shotgun” 1 and directed him to arrest Washington and seize
his shotgun. Barner arrested Washington and explained he was being charged
with unlawfully carrying a weapon.
       Washington was jailed and released on bond that morning. He was
charged with unlawfully carrying a handgun, a felony offense if committed on
premises licensed to sell alcohol. The charge was later dismissed, and
Washington’s shotgun was returned to him.
       Washington sued Salazar, Clayton Scott, the City of Houston, and Harris
County under 42 U.S.C. § 1983, alleging he was falsely arrested in violation of
his Second, Fourth, and Fourteenth Amendment rights. The parties consented
to have a Magistrate Judge conduct all proceedings. After discovery, Salazar
moved for summary judgment, asserting qualified immunity.
       The court granted Salazar’s motion on Washington’s Second and
Fourteenth Amendment claims. It concluded Washington presented no
authority establishing that seizing his shotgun under the circumstances
violated the Second Amendment. And it determined that his Due Process
claim—in which he alleged Salazar made false statements to effectuate the
arrest—was more appropriately analyzed under the Fourth Amendment.
       The court denied qualified immunity on Washington’s Fourth
Amendment claim. It found conflicting evidence as to whether Washington was
physically on premises licensed to sell alcohol and whether Salazar knew that
fact. Under Washington’s version of the facts, “it would have been objectively
unreasonable for Salazar to believe that there was probable cause to arrest
Washington for any offense.” The court also noted the unlawful carry offenses


       1 Salazar argues Barner filed the incorrect charge. Instead, the correct charge was
“possession of a firearm at a licensed premise.” This is disputed. “Any factual disputes that
exist in a qualified immunity appeal are resolved in favor of Plaintiffs’ version of the facts.”
Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004) (citing Kinney v. Weaver, 367 F.3d
337, 348 (5th Cir. 2004) (en banc)).
                                               4
    Case: 17-20532       Document: 00514610403     Page: 5    Date Filed: 08/21/2018



                                    No. 17-20532
omit shotguns. Thus, disputed issues of material fact precluded summary
judgment based on qualified immunity. Salazar timely appealed.
                                         II.
         We have jurisdiction to hear appeals from “final decisions of the district
courts of the United States.” 28 U.S.C. § 1291. “Although a denial of a
defendant’s motion for summary judgment is ordinarily not immediately
appealable, the Supreme Court has held that the denial of a motion for
summary judgment based upon qualified immunity is a collateral order
capable of immediate review.” Kinney, 367 F.3d at 346 (citing Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)). Our jurisdiction, however, is limited: Our
court is “restricted to determinations ‘of question[s] of law’ and ‘legal issues.’”
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (alteration in
original) (quoting Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251–52 (5th
Cir. 2005)); see also Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en
banc).
         In short, we “consider only whether the district court erred in assessing
the legal significance of the conduct that the district court deemed sufficiently
supported for purposes of summary judgment.” Kinney, 367 F.3d at 348.
“Where the district court has identified a factual dispute, we ask whether the
officer is entitled to summary judgment even assuming the accuracy of the
plaintiff’s version of the facts.” Melton, 875 F.3d at 261.
         “A good-faith assertion of qualified immunity alters the usual summary
judgment burden of proof, shifting it to the plaintiff to show that the defense
is not available.” Id. (quoting King v. Handorf, 821 F.3d 650, 653 (5th Cir.
2016)). We do not question the correctness of the plaintiff’s version of the
facts—instead, we accept Washington’s version of the facts as true and review
the district court’s ruling de novo. Good v. Curtis, 601 F.3d 393, 398 (5th Cir.
2010).
                                          5
    Case: 17-20532     Document: 00514610403      Page: 6   Date Filed: 08/21/2018



                                  No. 17-20532
                                       III.
      On appeal, Salazar maintains he is entitled to qualified immunity—he
says it was objectively reasonable for him to believe probable cause existed to
arrest Washington. Officials are entitled to qualified immunity to the extent
“their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In order to overcome qualified immunity, a plaintiff
must show (1) “that the official violated a statutory or constitutional right;”
and (2) that “the right was ‘clearly established’ at the time of the challenged
conduct.” Melton, 875 F.3d at 261 (quoting Morgan v. Swanson, 659 F.3d 359,
371 (5th Cir. 2011) (en banc)).
      The right to be free from warrantless arrest without probable cause is
clearly established. See, e.g., Alexander v. City of Round Rock, 854 F.3d 298,
306–07 (5th Cir. 2017). An officer is therefore not entitled to qualified
immunity if “‘there was no actual probable cause for the arrest’ and he was
‘objectively unreasonable in believing there was probable cause for the arrest.’”
Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir. 2018) (quoting Davidson v. City
of Stafford, 848 F.3d 384, 391 (5th Cir. 2017)). “Probable cause exists when the
totality of the facts and circumstances within a police officer’s knowledge at
the moment of arrest are sufficient for a reasonable person to conclude that the
suspect had committed or was committing an offense.” Mesa v. Prejean, 543
F.3d 264, 269 (5th Cir. 2008) (quoting United States v. McCowan, 469 F.3d 386,
390 (5th Cir. 2006)). In other words, the central inquiry for qualified immunity
in a false-arrest claim is “the objective (albeit fact-specific) question whether a
reasonable officer could have believed [the arrest] to be lawful, in light of
clearly established law and the information the [arresting] officers possessed.”
Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998) (alteration in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Here, we must ask
                                        6
     Case: 17-20532      Document: 00514610403         Page: 7    Date Filed: 08/21/2018



                                      No. 17-20532
whether it was objectively reasonable for Salazar to conclude probable cause
existed.
       Salazar argues it was. He proposes three possible offenses supported
probable cause: (1) unlawfully carrying a weapon, (2) unlawfully carrying a
weapon on a TABC-licensed premises, and (3) disorderly conduct.
       Salazar attempts to circumvent this court’s limited jurisdiction by
arguing that his actions were objectively reasonable, yet his argument is not a
purely legal one. In fact, his argument depends largely on his own version of
the facts, which Washington genuinely contests. This is exactly the kind of
thing that precludes summary judgment. 2
       For example, according to Salazar, he arrived and concluded, based on
information provided by Leon, 3 that “Washington had set foot on a licensed
premises with a shotgun.” But, according to Washington, there is no evidence
suggesting he ever set foot on the Limelight Club’s premises or that officers
reported to Salazar that he was suspected to have done so. Washington says
he merely approached the valets on the sidewalk with his shotgun pointed at
the ground. And Leon testified that no one ever told him or gave him the
impression Washington entered the premises with the shotgun, and he never
suggested to anyone that Washington had. 4 Barner and Moses-Davis also
confirmed that no one suggested Washington stepped onto the Club’s property
or violated any law.


       2  See FED. R. CIV. P. 56(a) (“The court shall grant summary judgment if 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.”); Kinney, 367 F.3d at 348.
        3 Salazar argues that Leon told him that Washington “approached the valet guys and

made contact with them.” And Robinson testified that he heard Leon say Washington “was
on the property.”
        4 In fact, Leon testified that he “did not tell anyone that [Washington] entered

nightclub property” and agreed with the statement that anyone who said that he told Salazar
or anyone else that Washington was believed to have entered the parking lot “would not be
telling the truth.”
                                             7
     Case: 17-20532        Document: 00514610403          Page: 8     Date Filed: 08/21/2018



                                        No. 17-20532
       To take another example, Salazar argues he confirmed “there was
sufficient information to support charges against Washington” with the DA.
But this too is disputed. Both Barner and Moses-Davis testified they believe
Salazar lied to the DA. And based on the information they had at the time,
they did not believe probable cause existed to arrest Washington.
       Finally, Salazar argues “there are no facts to support [Washington’s]
allegation that Sergeant Salazar . . . was not reasonable in relying on the
information he received . . . .” But this argument misses the point while making
it—there is a genuine dispute of material fact. We have explained that in
denying qualified immunity at the summary-judgment stage, “the district
court can be thought of as making two distinct determinations, even if only
implicitly.” Kinney, 367 F.3d at 346. First, that “a certain course of conduct
would, as a matter of law, be objectively unreasonable in light of clearly
established law.” Id. Second, that “a genuine issue of fact exists regarding
whether the defendant(s) did, in fact, engage in such conduct.” Id. We lack
jurisdiction to “review the district court’s decision that a genuine factual
dispute exists.” Id. at 348. So the only proper issue for this appeal is whether,
under Washington’s version of the facts, it was objectively reasonable for
Salazar to believe probable cause existed.
       It wasn’t. Under Washington’s version of the facts, all he did was walk
down the street with a shotgun at his side, pointed at the ground, and speak
to valets on the sidewalk. There is no indication Washington carried his
shotgun in a threatening way. And it is not unlawful to openly carry a firearm
in Texas, aside from the enumerated proscriptions in the Penal Code. 5



       5 We note that “unlawfully carrying a weapon” is the only offense prohibiting weapons
on premises licensed to sell alcohol. See TEXAS PENAL CODE § 46.02(a), (c). By its terms, that
offense applies only to handguns, clubs, and location-restricted knives, not shotguns. See id.
§ 46.02(a), (a-4). It is also a felony for a handgun license holder to “intentionally, knowingly,
                                               8
     Case: 17-20532       Document: 00514610403          Page: 9     Date Filed: 08/21/2018



                                       No. 17-20532
Accepting Washington’s version of the facts as true, it would have been
objectively unreasonable for Salazar to believe probable cause existed for any
alleged offense. We agree with the district court: “evidence is conflicting
whether Washington was physically on licensed premises, and whether
Salazar was ever so advised.” These outstanding fact issues are material,
meaning they could affect the case’s outcome. See Newman v. Guedry, 703 F.3d
757, 759 (5th Cir. 2012); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481,
493 (5th Cir. 2001). Accordingly, we lack jurisdiction over Salazar’s appeal.
                                             IV.
       Because facts that the district court determined to be in genuine dispute
are also material, we DISMISS Salazar’s appeal for lack of jurisdiction.




or recklessly carr[y] a handgun” on premises licensed to sell alcohol. Id. § 46.035(b)(1), (g).
But again, by its plain language, that offense does not apply to shotguns.
                                              9
