                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                            No.   99-41348




                           LARRY J. LAND,

                              Plaintiff-Counter Defendant-Appellee,

                                  VERSUS

            TRINITY MOTHER FRANCES HEALTH SYSTEM, ET AL,

                                                        Defendants,

                            CITY OF TYLER;
           MARC SUMMY GRAY, POLICE OFFICER, CITY OF TYLER;
          RANDY HAMMONTREE, POLICE OFFICER, CITY OF TYLER,

                            Defendants-Counter Claimants-Appellants


               Appeal from the United States District Court
          for the Eastern District of Texas, Tyler Division
                              6:98-CV-742

                          October 27, 2000

Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, Judge*.

POGUE, JUDGE:**

     The City of Tyler (“the City”); Marc Summy Gray, Police

Officer, City of Tyler (“Officer Gray”); and Randy Hammontree,


     *
          Judge of the U.S. Court of International Trade, sitting
by designation.
     **
          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that this opinion should not be published and is not precedent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.
Police Officer, City of Tyler (“Officer Hammontree”) (collectively

“Appellants” or “Defendants”), appeal the district court’s denial

of their motion for summary judgment. Larry J. Land (“Appellee” or

“Plaintiff”) brought an action in the district court pursuant to 42

U.S.C.   §   1983   (“Section   1983")   for   unlawful   arrest,   false

imprisonment,   and   malicious   prosecution.      Officers   Gray   and

Hammontree sought and were denied summary judgment on the ground of

qualified immunity from prosecution for Land’s federal claim of

unlawful arrest, and on the ground of official immunity from

prosecution for Land’s state-law claims of false imprisonment and

malicious prosecution. The City also sought and was denied summary

judgment on the ground of municipal liability immunity. Magistrate

Judge McKee found that Land had “presented sufficient summary

judgment evidence that raises material questions of fact and rebuts

the defendants’ right to immunity.”       Court Order at 14 (Oct. 25,

1999). Appellants now seek review of the district court’s order on

interlocutory appeal.    For the reasons discussed below, the Court

REVERSES the district court’s order denying summary judgment to

Officers Gray and Hammontree.1


     1
           Appellants have made no argument with respect to the
district court’s denial of the City’s motion for summary judgment
on grounds of municipal liability immunity.      When an appellant
fails to address a potential error in the district court’s
analysis, it is the same as if the appellant had not appealed that
aspect of the judgment. See Brinkmann v. Abner, 813 F.2d 744, 748
(5th Cir. 1987). In other words, for purposes of this interlocutory
appeal, the City’s immunity claims are deemed abandoned. See Davis
v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983). Therefore, without
affirming the conclusions of the district court’s opinion, we leave
its entry of judgment against the City undisturbed.
                        Factual Background

     For purposes of this appeal, the relevant factual background

is as follows: On the morning of January 18, 1998, Land was

admitted to Trinity-Mother Frances Health System d/b/a Mother

Frances Hospital (“the Hospital”) for severe headaches.   Dr. Mack

Stewart treated Land with Phenergan and Demeral, a sedative and a

narcotic analgesic, respectively.   Dr. Stewart discharged Land on

the condition that he be picked up at the Hospital by someone else,

and with the instruction that if his condition worsened, Land

should return to the Hospital.   Hospital security officer William

Kennedy escorted Land to a Hospital waiting room to wait for Land’s

wife to pick him up.   While in the waiting room, Kennedy observed

Land engage in “bizarre” disruptive behavior, which led Kennedy to

escort Land out of the Hospital and call the police.

     When Officers Gray and Hammontree arrived at the Hospital,

Kennedy told the officers that, while in the waiting room, Land had

used a cigarette lighter to burn strips of paper from an EKG

monitor in the presence of flammable substances; that Land had

attempted to use a computer keyboard as if it were a telephone;

that Land had propositioned a woman in the waiting room; that Land

had harassed nurses; and that, when Kennedy tried to intervene,

Land had addressed him with profanity and threatened to hurt him.

Kennedy also told the officers that, once outside of the waiting

room, Land continued using profane language and directed threats at
Kennedy and the Hospital staff.    The officers claim they were not

told that Land had received any treatment at the Hospital.

     The officers observed Land, who was pointed out by Kennedy.

Though sitting quietly on a short wall by the emergency room

entrance, Land appeared to be “unsteady,” and his speech was

“extremely slurred.” Officer Gray asked Land to step down from the

wall.    When Land did so, he lost his balance and staggered.   On the

basis of their observations, the officers concluded that Land was

intoxicated as a result of ingesting some substance, and that Land

endangered himself and others.      The officers arrested Land for

public intoxication.    Land then told Kennedy and Officer Gray that

he had taken Vicodin and Soma–a narcotic pain medication and a

muscle relaxant, respectively–the previous evening and earlier in

the morning.   Land also initially told the officers that he had not

been drinking alcohol, but later told them that he had had a

“couple of mixed drinks.”2 Land admits that he remembers nothing

that happened at the Hospital after Dr. Stewart administered the

shots of Demerol and Phenergan.



                          Standard of Review

     This court reviews de novo the denial of a motion for summary


     2
          Land was tried by a jury for public intoxication on the
theory that he was drunk on alcohol. Dr. Stewart testified that he
smelled no alcohol on Land’s breath when he treated him at the
Hospital. Officer Gray testified that he smelled alcohol on Land’s
breath, but later admitted that his trial testimony was untrue.
Land was acquitted, on the ground that the intoxicating substance
he ingested had been prescribed for medicinal purposes.
judgment predicated on qualified immunity.          See Hayter v. City of

Mt. Vernon, 154 F.3d 269, 274 (5th Cir. 1998).        Summary judgment is

proper if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with any affidavits filed in

support of the motion, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as a matter of law.       See Fed. R. Civ. P. 56(c).    The moving party

bears the burden of showing the district court that there is an

absence of evidence to support the nonmoving party’s case.            See

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).         If the moving

party meets the initial burden of showing that there is no genuine

issue, the burden shifts to the nonmovant to set forth specific

facts showing the existence of a genuine issue for trial.         See Fed.

R. Civ. P. 56(e).          The nonmovant cannot satisfy his summary

judgment burden with conclusional allegations, unsubstantiated

assertions, or only a scintilla of evidence.         See Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc).



                                Discussion

I.     Jurisdiction

       Land raises the threshold issue of this Court’s jurisdiction

over    the   officers’    interlocutory   appeal   based   on   qualified

immunity.     See Appellee’s Br. at 1.       “[T]he district court found

sufficient evidence and the existence of genuine disputes with

regard to material facts that precluded the granting of summary
judgment.       Individual officers cannot interlocutorily appeal this

kind of fact-based finding of evidence sufficiency.”                     Id. (citing

Johnson v. Jones, 515 U.S. 304 (1995)).               Appellants reply that this

court does have jurisdiction, because there is no dispute about the

facts surrounding Land’s arrest.            See Appellants’ Br. at 1-3.

      In its order, the district court found that Land had produced

summary judgment evidence sufficient to “present material questions

of fact that questions [sic] whether [the officers] had probable

cause to arrest Land.”           Court Order at 6-7.           The district court

also found an issue of material fact as to “whether reasonable

officers would have believed that Land committed the offense of

public intoxication.” Id. at 8.           Finally, the district court found

a material fact issue as to whether the officers’ conduct was

“objectively       reasonable,”       because    it    was   possible     that    the

objectively reasonable “thing would have been to inquire into

[Land’s] physical condition.”             Id. at 8-9.          Because there were

issues of material fact with respect to whether the officers’

actions had been objectively reasonable, the district court further

found that the officers were also not entitled to official immunity

under state law with respect to Land’s state law claims.                   Id. at 9-

11.

      It   is    clear   that,   in    certain    instances,      this    Court   has

jurisdiction      over   qualified      immunity      claims    on   interlocutory

appeal: “[A] district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an
appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.”               Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985).           The Supreme Court clarified

Mitchell in    Johnson and Behrens v. Pelletier, 516 U.S. 299 (1996).

See also Hart v. O’Brien, 127 F.3d 424, 435-36 (5th Cir. 1997).            In

Johnson, the Supreme Court:

     distinguished between orders that resolve legal wrangles
     and those that determine “evidence sufficiency” disputes.
     If, for example, the district court denies summary
     judgment on the basis that, given the set of undisputed
     facts, the defendant official’s conduct was not
     objectively reasonable in light of clearly established
     law, the official may seek immediate appeal.       If the
     district court denies summary judgment on the grounds
     that material facts exist which a party may or may not be
     able to prove at trial, the official must await final
     judgment before appealing.

Hart, 127 F.3d at 435 (citing Johnson, 515 U.S. at 312).            Behrens

interpreted Johnson narrowly to mean that interlocutory appeals

must be denied only “if what is at issue in the sufficiency

determination is nothing more than whether the evidence could

support a finding that particular conduct occurred.”            Behrens, 516

U.S. at 313.

     In   this   case,   there   is   very   little   dispute    about   what

particular conduct occurred.      All the evidence the district court

cites in favor of Land in finding “genuine disputes with regard to

material facts” is, in fact, undisputed by Appellants.               No one

contests that Land was at the Hospital or that he was sitting

quietly on a wall when the officers arrived; no one contests that

the officers arrested Land, even though, in truth, no alcohol was
detected;        and    no     one   contests    that    Land    cooperated     with   the

officers.        See Court Order, 7-9.           What is contested is whether the

officers had probable cause to arrest Land for public intoxication;

that       is,    whether       conduct     of   the    officers    was    “objectively

reasonable”           under    clearly     established    law.      That   is   a   legal

question, notwithstanding the district court’s characterization of

it as a purely factual question.3                  See Hart, 127 F.3d at 435-36.

As such, the Court has jurisdiction over Appellants’ interlocutory

appeal of the district court’s denial of their summary judgment

motion on the ground of qualified immunity, as well as on the

ground of official immunity.                 See id., 127 F.3d at 436.



II.    Qualified Immunity and Official Immunity

       Government officials performing discretionary functions are

protected from civil liability under the doctrine of qualified

immunity         if    their     conduct     violates     no    “clearly   established

statutory or constitutional rights of which a reasonable person

would have known.”             Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Federal courts review claims of qualified immunity under a two-step

analysis.         First, a court asks whether the plaintiff has asserted


       3
          Appellate jurisdiction is not precluded simply because
the order denying a summary judgment motion based on qualified
immunity contains a determination that “material issues of fact
remain.” Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996)(citing
Behrens, 516 U.S. 312-13). This Court possesses jurisdiction to
“take, as given, the facts that the district court assumed when it
denied summary judgment and determine whether these facts state a
claim under clearly established law.” Id. (internal quotes and
citation omitted).
a   violation    of     a    “clearly    established    constitutional     right.”

Siegert v. Gilley, 500 U.S. 226, 231-32 (1991); Hayter, 154 F.3d at

274.   If so, the court decides whether the defendant’s conduct was

“objectively reasonable in light of legal rules clearly established

at the time of the incident.”              Jones v. City of Jackson, 203 F.3d

875, 879 (5th Cir. 2000)(citation and internal quotation marks

omitted).       The     same     “objective     reasonableness”     standard    also

applies to claims of official immunity under Texas state law.                    See

City of San Augustine v. Parrish, 10 S.W.3d 734, 741 (Tex. Ct. App.

1999).

       Here,    there       is   no   dispute   that,   if    Officers   Gray    and

Hammontree arrested Land without probable cause, Land has asserted

a violation of a clearly established constitutional right.                       The

Constitution     requires         that   an   arrest   must   be   supported    by a

properly issued arrest warrant or probable cause.                  See Johnston v.

City of Houston, 14 F.3d 1056, 1061 (5th Cir. 1994).                 An individual

has a constitutionally protected right to be free from unlawful

arrest and detention.            See Duckett v. Cedar Park, 950 F.2d 272, 278

(5th Cir. 1992).

       There is a dispute, however, as to whether the officers’

arrest of Land for public intoxication was “objectively reasonable

in light of legal rules clearly established at the time of the

incident.”

       Under settled law, [Officers Gray and Hammontree] are
       entitled to immunity if a reasonable officer could have
       believed that probable cause existed to arrest [Land].
       Probable cause existed if “at the moment the arrest was
       made . . . the facts and circumstances within their
       knowledge and of which they had reasonably trustworthy
       information were sufficient to warrant a prudent man in
       believing” that [Land] had violated [the Texas public
       intoxication law].

Hunter v. Bryant, 502 U.S. 224, 228 (1991)(citing Beck v. Ohio, 379

U.S.   89,   91    (1964)).        In   Texas,      an   individual   is   publicly

intoxicated if (1) he appears in a public place (2) under the

influence of alcohol or any other substance (3) to the degree he

may endanger himself or another.                  See State v. Ross, 999 S.W.2d

468, 473 (Tex. App. Houston 14th Dist. 1999)(citing Tex. Penal Code

Ann. § 49.02(a) (Vernon Supp. 1998)).                    The danger need not be

“immediate,” and “[i]t is sufficient if the accused renders himself

or others subject to potential danger.”                   Reynolds v. State, 902

S.W.2d 558, 560 (Tex. App. Houston 1st Dist. 1995)(citations and

internal quotation marks omitted).

       The facts and circumstances within the knowledge of the

officers     are   detailed    above,       see    discussion,    supra,   and   are

essentially undisputed.            The officers had reasonably trustworthy

information,       insofar    as    their    knowledge     of    these   facts   and

circumstances was derived either from their own observations or

from the observations of the Hospital security officer Kennedy.

The issue, then, is whether the officers’ knowledge of these facts

and circumstances was sufficient to warrant their belief that Land

was committing the offense of public intoxication. If so, then the

officers’ behavior was “objectively reasonable” for purposes of

qualified and official immunity, and the district court erred in
denying the officers’ motion for summary judgment on immunity

grounds.

      As    to   the   first     element    of   the    Texas   law    of   public

intoxication, it is undisputed that Land appeared in a public

place.     See Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App.

1994)(en banc)(“public” places encompass all those places to which

a   substantial    group    of    the   public    has    access,      including   a

hospital).

      The second element of the public intoxication statute requires

the officers to have had a reasonable belief that Land was under

the influence of alcohol or any other substance.                   The district

court found that Land had produced sufficient summary judgment

evidence to demonstrate that there was a material issue of fact as

to this question.        See Court Order at 7-8.           In so finding, the

district court pointed to evidence that Land was at the Hospital,

that Dr. Stewart had instructed that Land should be returned to the

Hospital if his condition changed, and that “Dr. Stewart stat[ed]

he did not smell alcohol on Land’s breath and even Officers Gray

and Hammontree admit there was no smell of alcohol on Land’s

breath.”     Id. at 7.     Further, Land presented evidence that he was

“sitting still on a wall” and “was cooperating with the officers.”

Id. at 8.

      The Court disagrees that this evidence is sufficient to meet

Land’s burden of setting forth specific facts showing the existence

of a genuine issue for trial.              Land has raised only undisputed
evidence, which fails to directly counter other undisputed evidence

set forth by Appellants.   Texas law is clear that intoxication may

be induced by a substance other than alcohol.   See Tex. Penal Code

Ann. § 49.01.   Thus, evidence that no one smelled alcohol on Land’s

breath does not necessarily create a genuine issue for trial.4

“Intoxication” is defined in Texas as “not having the normal use of

mental or physical faculties by reason of the introduction of” some

substance “into the body.”     Tex. Penal Code Ann. § 49.01(2)(A).

Appellants presented undisputed evidence that Land’s speech was

slurred, that his balance appeared unsteady and he staggered and

stumbled when he stepped down from the wall, and that Land told

Kennedy and Officer Gray that he had taken Vicodin and Soma, and

told the officers that he had had some mixed drinks.          These

observations, coupled with the information the officers received

from Kennedy regarding Land’s behavior in the waiting room, led the

officers to reasonably conclude that Land was under the influence

of some substance.   See, e.g., United States v. Fossler, 597 F.2d

478, 480 (5th Cir. 1979)(officer had probable cause to arrest

defendant for public intoxication after observing him leaning



     4
          Land, as noted above, admits that, as a result of
receiving medication, he remembers nothing of the events
surrounding his arrest. See Appellee’s Br. at 16. Nonetheless, he
disputes that he was intoxicated, apparently because the
intoxicating substance was not alcohol. See id. In light of Texas
law that one can become “intoxicated” as a result of ingesting
substances other than alcohol, Land’s “dispute” is nothing more
than a conclusional allegation or unsubstantiated assertion, with
which he cannot satisfy his summary judgment burden. See Little,
37 F.3d at 1075.
against a car, having trouble standing, and exhibiting bloodshot

eyes and slurred speech).

     The district court relied on the evidence of the “changing

testimony” of the officers regarding the smell of alcohol on Land’s

breath, see Court Order at 7-8, to establish that the officers’

conduct was not objectively reasonable.          Federal law is clear,

however, that what is relevant in determining whether probable

cause existed is the evidence known to the officer at the moment of

arrest.    See United States v. Levine, 80 F.3d 129, 132 (5th Cir.

1996).    And Texas law, as explained above, is clear that one can be

intoxicated as a result of ingesting substances other than alcohol.

Therefore, the subsequent testimony of Officers Gray and Hammontree

regarding the particular substance which had intoxicated Land is

irrelevant to the analysis of the objective reasonableness of the

officers’ conduct.

     Moreover, to the extent that the district court relied on

Officer    Gray’s   false   testimony   at   Land’s   criminal   trial   to

demonstrate that the officers lacked “good faith” in arresting Land

for purposes of official immunity, see Court Order at 10-11, the

district court erred in two respects.          First, the “good faith”

clause of the Texas official immunity doctrine is not a separate

subjective inquiry, but rather the same objective reasonableness

inquiry conducted under the qualified immunity doctrine.          See City

of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994). Second,

the objective reasonableness inquiry does not permit consideration
of the officers’ underlying intent or motivation.       In the context

of deciding whether officers had used excessive force in arresting

a suspect, who subsequently sued the officers under Section 1983,

the Supreme Court explained, “An officer’s evil intentions will not

make a Fourth Amendment violation out of an objectively reasonable

use of force; nor will an officer’s good intentions make an

objectively unreasonable use of force constitutional.”        Graham v.

Connor, 490 U.S. 386, 397 (1989).

     The third and final element of the public intoxication statute

requires the officers to have had a reasonable belief that Land

endangered himself or others.    The district court apparently found

that the officers could not have had a reasonable belief that Land

was a danger to himself or others, because “Land was at the

[H]ospital and cooperating with the police officers.”        Court Order

at 8.   The district court then continued, “The evidence presented

by [Land] suggests that the reasonable thing to do would be to

return Land to the Hospital.    Perhaps, the objectively reasonable

thing would have been to inquire into his physical condition.        By

not asking about his physical condition, Land’s health was at risk

as Dr. Stewart stated any change in Land’s condition should result

in a return to the [H]ospital.”     Id. at 8-9.

     Again, the district court’s analysis misses the mark.         Land

again raises only undisputed evidence, which fails to directly

counter   other   undisputed   evidence   set   forth   by   Appellants.

Appellants do not dispute that Land was at the Hospital, was
cooperating with the officers, and was sitting quietly on a wall

when they arrived.      And undisputed by Land is additional evidence

presented by Appellants, and apparently not considered by the

district court, that Kennedy informed the officers that Land had

set fire to paper near flammable substances and had demonstrated

volatile and violent behavior both in the emergency room and

outside of it.     From the facts and circumstances within their

knowledge at the time of the arrest, Officers Gray and Hammontree

could reasonably conclude that Land posed a danger to others.              See

Raley v. Fraser, 747 F.2d 287, 290 (5th Cir. 1984)(reasonable belief

that intoxicated defendant posed danger when defendant had been

seen throwing    down    a    sign   and   heard    to   talk   belligerently).

Moreover, the officers could reasonably conclude that Land posed a

threat to himself because he had demonstrated a lack of balance and

was in an area where fast-moving Hospital emergency staff and

vehicles could run into him if he fell or stumbled.                See White v.

State,   714   S.W.2d   78,    79    (Tex.   App.    San   Antonio   1986)(man

intoxicated in parking lot “created probable cause for arrest for

public intoxication” because it was “reasonable to assume that cars

would travel in and out” and might hit him).

     As to the district court’s suggestions that the officers

should have taken a different course of action rather than arrest

Land, the law is that “[t]he ‘reasonableness’ of [the conduct] must

be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.”                 Graham,
490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968));

see also Hunter, 502 U.S. at 228.   Officers Gray and Hammontree, at

the time of the arrest, did not know that Land had been treated at

the Hospital, and thus did not know of Dr. Stewart’s instructions.

Land was properly acquitted at his criminal trial for public

intoxication after the full facts and circumstances surrounding his

trip to the Hospital and arrest were revealed.     Land’s acquittal

does not, however, conflict with this Court’s finding that the

officers’ conduct was objectively reasonable based on the facts and

circumstances known at the time they arrested Land.       The Court

concludes that qualified and official immunity protect Officers

Gray and Hammontree from prosecution as a matter of law.



                            Conclusion

     The Supreme Court has explained the rationale underlying

qualified immunity:

     It is inevitable that law enforcement officials will in
     some cases reasonably but mistakenly conclude that
     probable cause is present, and . . . in such cases those
     officials–like other officials who act in ways they
     reasonably believe to be lawful–should not be held
     personally liable.

Anderson v. Creighton, 483 U.S. 635, 641 (1987).     This is such a

case.   Officers Gray and Hammontree “reasonably but mistakenly”

concluded that Land was violating the Texas law against public

intoxication, and proceeded to arrest him on that belief.

     The district court is REVERSED, with summary judgment to be

entered in favor of Appellants Gray and Hammontree on their claims
of qualified and official immunity.
