Flores v. City of Palacios

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 10, 2004
FOR THE FIFTH CIRCUIT
_________________
Charles R. Fulbruge III
Clerk
No. 03-40863

ERIKA FLORES,

Plaintiff - Appellee,

v.

CITY OF PALACIOS, Et Al.,

Defendants,

WILBERT KALINA,
also known as BILLY KALINA,

Defendant - Appellant.

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

Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

Officer Wilbert Kalina appeals the district court’s denial of his motion for summary

judgment. On the evening of July 16, 2002, Kalina sought to detain Erika Flores because she was

parked on the wrong side of the road and because, when he shined a spotlight on her car, several

people fled from the vicinity. Flores did not respond to Kalina’s repeated commands that she stop

and instead drove away. Kalina shot her car to prevent her escape. When Flores stopped, Kalina

1
arrested her for evading detention.

Flores sued Kalina and the City of Palacios pursuant to 42 U.S.C. § 1983. She claimed

Kalina subjected her to an excessive use of force, unlawful arrest, and malicious prosecution in

violation of the Fourth Amendment. Flores also claimed that Kalina’s conduct violated the

Fourteenth Amendment by depriving her of her good name, reputation, and personal property

without due process of law.

The district court found there were genuine issues of material fact as to each of the Fourth

Amendment claims and therefore denied Kalina’s motion for summary judgment on those claims.

Flores v. City of Palacios, 270 F. Supp. 2d 865, 872-73 (S.D. Tex. 2003). The district court

dismissed the Fourteenth Amendment substantive due process claims because it found those

claims were properly brought under the Fourth Amendment. Id. at 873. Kalina timely appealed

the partial denial of summary judgment on the Fourth Amendment claims.

We hold that the district court properly denied summary judgment on the excessive force

claim. The district court erred, however, in denying summary judgment on the unlawful arrest

and malicious prosecution claims. We therefore affirm in part, and reverse and render in part.

I. JURISDICTION AND STANDARD OF REVIEW

The denial of a motion for summary judgment based on qualified immunity is immediately

appealable under the collateral order doctrine “to the extent that it turns on an issue of law.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Under the doctrine of qualified immunity,

government officials performing discretionary functions are shielded from civil liability “insofar as

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).

2
 When a defendant appeals a denial of summary judgment based on qualified immunity, we

“have interlocutory jurisdiction to determine whether [the plaintiff’s] summary judgment facts

state a claim under clearly established law.” Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472

(5th Cir. 1996).

We review de novo the scope of clearly established law and the objective reasonableness

of the defendant government official’s actions. Thompson v. Upshur County, Tex., 245 F.3d 447,

456 (5th Cir. 2001). Because our jurisdiction is limited to a review of questions of law, 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

v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc). We may review the district court’s

conclusion that issues of fact are material, but not the conclusion that those issues of fact are

genuine. Reyes v. City of Richmond, Tex., 287 F.3d 346, 350-51 (5th Cir. 2002).

II. FACTS ON APPEAL

When a district court fails to set out the factual disputes it deems genuine, “we may be

required to review the record in order to determine what facts the district court, in the light most

favorable to the nonmoving party, likely assumed.”1 Kinney, 367 F.3d at 348 (internal quotation

marks omitted).

In this case, the district court generally identified the relevant factual disputes, but the

parties identified further factual disputes. We therefore accept without review those facts

identified by the district court and determine which other facts the district court likely assumed.

1
We may also remand to the trial court to clarify the order, Thompson, 245 F.3d at 456,
but we decline to do so in this case because the district court laid out almost all of the genuine
issues of material fact.

3
Id. at 348 n.12. We begin by identifying those facts we must accept for purposes of this appeal.

We consider first the undisputed facts, next the facts alleged by Flores, and last the facts alleged

by Kalina.

The district court laid out the following undisputed facts: Kalina’s shot entered Flores’s

bumper just above the tailpipe and continued through the bumper and the muffler. The bullet

ultimately became lodged in the back of the muffler. Flores suffered no immediate physical injury

when her car was shot, though her car was damaged. Flores, who was sixteen years old at the

time, violated an 11:00 p.m. weeknight curfew for minors. Later investigation revealed alcohol in

the area surrounding where she had parked her car, though there is no evidence to suggest that

she had been drinking. Kalina charged Flores with evading detention in a motor vehicle, but the

charge was later dismissed.

We assume that the district court most likely accepted all of the facts alleged by Flores as

sufficiently supported for summary judgment purposes. Flores’s factual allegations, which we

assume the district court accepted, are as follows: On the evening of July 16, 2002, she visited her

cousin and some friends at her aunt’s house. At approximately 11:00 p.m., she got into her car,

which was parked on the edge of her aunt’s property just next to the driveway. She noticed a

police car drive past her, but she did not see any officers exit the car or hear an officer say

anything. As she pulled away from the house and onto the road, she heard a loud bang and felt

something hit her car. She immediately stopped and got out of the car to investigate the noise.

Kalina ran up to her and exclaimed, “I almost killed you!” He then forced her to the ground,

handcuffed her, and told her she was under arrest. As a result of this incident, Flores suffers from

post-traumatic stress disorder, mental anguish, headaches, and nightmares.

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 Absent any language specifically suggesting otherwise, we do not assume that the district

court accepted any facts alleged by Kalina. See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 151 (2000) (“[T]he court should give credence to the evidence favoring the nonmovant

as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at

least to the extent that the evidence comes from disinterested witnesses.”) (internal quotation

marks omitted). The only facts adopted by the district court in support of Kalina’s claim of

qualified immunity are included in its analysis of Flores’s false arrest claim:

Kalina alleges that he shined a spotlight on Flores’s car; that people began to flee
from the area around the car; that he called, “Police. Stop,” but a person running
toward the car did not stop; and that as he ran up behind the car, still calling out,
“Police. Stop,” Flores drove away. Flores does not directly contest these
allegations: she admits seeing the patrol car drive past her, having her music too
loud for her to have heard Officer Kalina shout, “Police. Stop,” and beginning to
drive away. Under this factual scenario, a reasonable officer in Kalina’s position
could have believed he had probable cause to arrest Flores.

Flores, 270 F. Supp. 2d at 871 (internal citations omitted).2

We assume the district court accepted all the facts mentioned above for purposes of this

summary judgment motion.

III. QUALIFIED IMMUNITY STANDARD

In reviewing a government official’s motion for summary judgment based on qualified

immunity, we undertake a two-step analysis. First, we assess whether a statutory or constitutional

right would have been violated on the facts alleged. Saucier v. Katz, 533 U.S. 194, 200 (2001).

If we find a violation is properly alleged, we proceed to the second step, in which we determine

whether the defendant’s actions violated “clearly established statutory or constitutional rights of

2
The district court elsewhere noted that “[i]t is unclear whether Kalina is claiming that the
person who ran past him got into the car.” Flores, 270 F. Supp. at 869 n.2.

5
which a reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(quoting Harlow, 457 U.S. at 818).3

IV. EXCESSIVE FORCE CLAIM

Kalina argues that he is entitled to qualified immunity on the excessive force claim because

Flores did not satisfy the elements of the claim and because his actions were objectively

reasonable in light of clearly established law. The district court denied Kalina’s motion for

summary judgment on Flores’s excessive force claim because it found a genuine issue of material

fact regarding the objective reasonableness of Kalina’s use of deadly force.

A. STEP ONE: CONSTITUTIONAL VIOLATION

To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must

first show that she was seized. See Graham v. Connor, 490 U.S. 386, 388 (1989). Next she

must show that she suffered (1) an injury that (2) resulted directly and only from the use of force

that was excessive to the need and that (3) the force used was objectively unreasonable. Goodson

v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000). We hold that Flores satisfactorily

alleged each element of a Fourth Amendment excessive force claim.

1. SEIZURE

Kalina argues that the Fourth Amendment does not apply to Flores’s excessive force claim

3
This two-tiered analysis can lead to a “somewhat schizophrenic approach,” because we
must apply current law to the first step and the law at the time of the incident to the second step,
which may sometimes result in applying different tests to the two steps. Petta v. Rivera, 143 F.3d
895, 900 & n.4 (5th Cir. 1998). Despite the confusion this approach creates, the Supreme Court
has made clear that we are obliged to go through the first step of the analysis even if the second
step shows that the law was not clearly established. Saucier, 533 U.S. at 200-01.

6
because he had not yet seized Flores when he shot her car.4 Thus, he argues, the allegedly

excessive force was applied before the seizure. See California v. Hodari D., 499 U.S. 621, 629

(1991) (holding that the Fourth Amendment is not triggered until the moment a person is actually

seized). We disagree.

An officer seizes a person when he, “by means of physical force or show of authority, has

in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)

(emphasis added). In addition, the “governmental termination of freedom of movement” must be

made “through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596-97

(1989) (emphasis in original). Kalina argues that Flores was not seized by the gunshot because

she was not aware of its existence and so did not submit to a show of authority when she stopped.

See Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (holding that when a person has been

restrained through a show of authority, that person has been seized “only if, in view of all of the

circumstances surrounding the incident, a reasonable person would have believed that he was not

free to leave”) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). We hold,

however, that Kalina seized Flores by physical force. Kalina used physical force by shooting

Flores’s car, and the termination of her freedom of movement was accomplished by exactly the

means he intentionally applied, i.e., the shot to her car. We do not consider the suspect’s

perception of her detention when it is accomplished by means of physical force. Cf. Tennessee v.

4
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV.
Flores also argues that the damage to her car implicates an invasion of Fourth Amendment
substantive due process rights, but she cites no case law to support such a claim, and the district
court did not address it. We therefore do not consider her substantive due process claim. See
Glenn v. City of Tyler, 242 F.3d 307, 315 (5th Cir. 2001).

7
Garner, 471 U.S. 1, 7 (1985) (considering only reasonableness of seizure accomplished by deadly

force, not suspect’s reaction to it).

Kalina argues that this was not a seizure by means of physical force because merely

shooting at and hitting a car does not necessarily constitute a seizure. See, e.g., Latta v. Keryte,

118 F.3d 693, 699-700 (10th Cir. 1997); Cole v. Bone, 993 F.2d 1328, 1332-33 (8th Cir. 1993).

While the Tenth and Eighth Circuits in Latta and Cole held that shooting at and hitting a car is not

necessarily a seizure, the suspects in those cases were not seized because they continued to drive

after being hit. These holdings therefore do not suggest that shooting at and hitting a car is not a

seizure when it is successful. Cf. Cole, 993 F.2d at 1333 (holding that driver of truck was

eventually seized when one of the shots aimed at the engine instead hit him in the forehead).

The Supreme Court’s holding in Brower supports our holding. The Court held that a

suspect was seized when he crashed into a roadblock erected by the police. Brower, 489 U.S. at

598. The Court specifically distinguished the roadblock from a police car flashing its lights

because “a roadblock is not just a significant show of authority to induce a voluntary stop, but is

designed to produce a stop by physical impact if voluntary compliance does not occur.” Id. A

roadblock, therefore, can be either a show of authority or a means of physical force, depending on

whether a suspect stops before reaching it or crashes into it. In determining whether there was a

seizure, however, the Court did not dwell on this distinction. The Court focused on whether the

suspect was seized by means intentionally applied, not on whether the suspect stopped for the

reason the officers desired: “It may well be that respondents here preferred, and indeed earnestly

hoped, that [the suspect] would stop on his own, without striking the barrier, but we do not think

it practicable to conduct such an inquiry into subjective intent.” Id. Kalina probably expected

8
Flores to realize that he had shot her car, but we will not inquire into his subjective intent.

In determining whether the means that terminates the freedom of movement is the
very means that the government intended we cannot draw too fine a line, or we
will be driven to saying that one is not seized who has been stopped by the
accidental discharge of a gun with which he was meant only to be bludgeoned, or
by a bullet in the heart that was meant only for the leg. We think it enough for a
seizure that a person be stopped by the very instrumentality set in motion or put in
place in order to achieve that result.

Id. at 598-99. Similarly, we will not “draw too fine a line” in determining whether an officer

seizes a suspect when he intentionally shoots a fleeing suspect’s car and the suspect stops

immediately in response to the shot.

Based on the facts assumed by the district court, Flores was seized.

2. INJURY

Next, we reject Kalina’s argument that psychological injuries alone are never sufficient to

sustain a Fourth Amendment claim.5 A plaintiff alleging an excessive force violation must show

that she has suffered “at least some injury.” Jackson v. R.E. Culbertson, 984 F.2d 699, 700 (5th

Cir. 1993). While certain injuries are so slight that they will never satisfy the injury element, see,

e.g., Glenn, 242 F.3d at 314 (holding that “handcuffing too tightly, without more, does not

amount to excessive force”), psychological injuries may sustain a Fourth Amendment claim. See

Dunn v. Denk, 79 F.3d 401, 402 (5th Cir. 1996) (en banc). The plaintiff’s physical injuries in

Dunn were only bruises, but she suffered substantial psychological injuries. Id. We held that she

alleged an injury sufficient to demonstrate the violation of a clearly established constitutional

right. Id. at 402-03.

5
Kalina also argues that Flores did not present sufficient summary judgment evidence to
support her claim of psychological injury. We lack jurisdiction to consider this argument. See
Kinney, 367 F.3d at 348.

9
 Kalina argues alternatively that even if substantial psychological injuries may be sufficient

to state a claim in certain circumstances, Flores’s alleged psychological injuries do not state a

claim when balanced against the need for force and the use of force. We address this question as

part of our objective reasonableness analysis. See infra, Part III(A)(4).

3. RESULTING DIRECTLY AND ONLY FROM EXCESSIVE FORCE

Kalina argues that any injury Flores suffered did not result directly and only from the

gunshot because she only received any psychological injury when he told her he had shot her car,

not when he actually shot it, as she was unaware at that time what was happening. Kalina relies

on, but fundamentally misconstrues, Hodari D., in which the Supreme Court precisely defined the

moment of seizure to find that a fleeing suspect had not yet been seized when he discarded

evidence. 499 U.S. at 625. Hodari D. does not suggest that cognizable injuries must be incurred

at the moment of seizure or at the exact moment excessive force is applied. Were we to accept

Kalina’s position, any injury resulting from the use of excessive force subsequent to the initial

moment of seizure would not be covered by the Fourth Amendment. Clearly this is not so. See,

e.g., Graham, 490 U.S. at 396 n.10 (suggesting that the Fourth Amendment continues to provide

protection at least until the point of pretrial detention); Williams v. Bramer, 180 F.3d 699, 704

(5th Cir. 1999) (holding that plaintiff alleged a valid Fourth Amendment claim for an injury

received after he was seized and after his car and person had already been searched). The district

court did not err in determining that Flores’s injuries resulted directly and only from her seizure.

4. OBJECTIVE REASONABLENESS

To determine whether a seizure was objectively reasonable, and thus whether an injury is

cognizable, we ask “whether the totality of the circumstances justified [that] particular sort of

10
search or seizure.” Garner, 471 U.S. at 8-9.6 “[T]he permissibility of a particular law

enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment

interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440

U.S. 648, 654 (1979). To “gaug[e] the objective reasonableness of the force used by a law

enforcement officer, we must balance the amount of force used against the need for force.” Ikerd,

101 F.3d at 434 (citing Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993)). This balancing

test “requires careful attention to the facts and circumstances of each particular case.” Graham,

490 U.S. at 396.

When an officer uses deadly force, our “objective reasonableness” balancing test is

constrained. It is objectively unreasonable to use deadly force “unless it is necessary to prevent [a

suspect’s] escape and the officer has probable cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer or others.” Garner, 471 U.S. at 3. The

district court denied summary judgment because it found that Kalina used deadly force and that

there was a genuine question of material fact as to whether Kalina reasonably believed that Flores

posed a significant threat to anyone. Kalina argues that both conclusions are incorrect as a matter

of law. The district court properly denied summary judgment because neither conclusion can be

6
Whether an injury is cognizable and whether the use of force is objectively reasonable are
inextricably linked questions. “[T]he amount of injury necessary to satisfy our requirement of
‘some injury’ and establish a constitutional violation is directly related to the amount of force that
is constitutionally permissible under the circumstances.” Ikerd v. Blair, 101 F.3d 430, 434-35
(5th Cir. 1996) (citations omitted). The definition of a cognizable injury, therefore, changes with
the facts of each case. See, e.g., Williams, 180 F.3d at 704 (holding that choking the plaintiff was
a cognizable injury when it served no legitimate purpose but that it was not a cognizable injury
when it was incident to a search of the plaintiff’s mouth for drugs). If the force used is
constitutionally permissible, i.e., objectively reasonable, the plaintiff has not, by definition,
suffered a cognizable injury and her injury is by definition de minimis. Ikerd, 101 F.3d at 434; see
also Williams, 180 F.3d at 704.

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resolved as a matter of law; genuine issues of material fact exist as to each.

First, whether a particular use of force is “deadly force” is a question of fact, not one of

law. See Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998) (holding that

“deadly force” is force “carrying with it a substantial risk of causing death or serious bodily

harm”); Omdahl v. Lindholm, 170 F.3d 730, 733 (7th Cir. 1999) (holding that whether shooting

an individual with bean bags constitutes deadly force is a question of fact that an appeals court

may not review). We lack jurisdiction to review the district court’s factual finding that Kalina

used deadly force.

Second, Kalina argues that we must accept, as a matter of law, that he reasonably believed

that Flores posed a significant threat to him or another person. He asserts that he thought he was

in real danger, and he argues that his belief was reasonable as a matter of law (though not

necessarily accurate) based on the facts assumed by the district court. Our perspective on review

is that of “a reasonable officer on the scene,” and we “allow[] for the fact that police officers are

often forced to make split-second judgments – in circumstances that are tense, uncertain, and

rapidly evolving – about the amount of force that is necessary in a particular situation.” Graham,

490 U.S. at 396-97. The district court found that Kalina had reason to suspect only that Flores

was guilty of a minor parking violation. While the court found that Flores pulled into the street at

an angle to enter the correct lane of traffic, it nonetheless concluded that she did not drive

erratically. Finally, and most critically, it found that Kalina was already behind her car when he

shot it. On these assumed facts we cannot find as a matter of law that Kalina reasonably believed

Flores posed any danger either to him or to anyone else.

The district court correctly held that genuine issues of fact exist as to whether Kalina used

12
deadly force and as to whether he reasonably believed Flores was a threat, and Flores has

sufficiently alleged a constitutional violation.

B. STEP TWO: OBJECTIVE REASONABLENESS IN LIGHT OF CLEARLY
ESTABLISHED LAW

For a right to be clearly established under the second step of the qualified immunity

analysis, “[t]he contours of that right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). “The central concept [of the test] is that of fair warning: The law can be clearly

established despite notable factual distinctions between the precedents relied on and the cases then

before the Court, so long as the prior decisions gave reasonable warning that the conduct then at

issue violated constitutional rights.” Kinney, 367 F.3d at 350 (quoting Hope, 536 U.S. at 740)

(internal quotation marks omitted). Even officers who interpret the law mistakenly but reasonably

are entitled to immunity. See Anderson, 483 U.S. at 641.

Kalina argues that even if his actions violated Flores’s Fourth Amendment rights, the

following legal principles were not clearly established in 2002: (1) that a suspect is seized when

her car is shot and she stops without realizing what has happened; (2) that excessive force that

does not result in physical harm violates the Fourth Amendment; (3) that shooting at the tires of a

moving vehicle is deadly force; and (4) that shooting at the tires of a moving vehicle in

circumstances such as these constitutes an objectively unreasonable use of excessive force in

violation of the Fourth Amendment. We find that the law was clearly established as to the first

and second issues. We cannot resolve the third and fourth issues without reference to disputed

questions of material fact, so we affirm the district court’s denial of Kalina’s summary judgment

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motion as to the excessive force claim.

1. SEIZURE

It was clearly established at the time that shooting toward a person is a use of physical

force. See Garner, 471 U.S. at 7. It was also clearly established that a use of physical force that

succeeds in stopping a fleeing suspect constitutes a seizure. See Hodari D., 499 U.S. at 629;

Terry, 392 U.S. at 19 n.16. It was clearly established that stopping a moving car by intentionally

shooting it constitutes a seizure.

2. INJURY

It was clearly established at the time, based on three cases, that psychological injuries can

be sufficient to state a Fourth Amendment excessive force claim.7

First, we rejected our previous “significant injury” requirement for Fourth Amendment

claims and held that a plaintiff need only allege “an injury” to state a claim under the Fourth

Amendment. Harper v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994) (overruling the Fourth

Amendment significant injury requirement in light of Hudson v. McMillan, 503 U.S. 1, 10 (1992).

This reduction established the elimination of a need for a physical injury because it greatly

widened the scope of redressable injuries.

Second, we further strengthened this holding in Dunn, where the plaintiff alleged purely

psychological injuries, and we noted that “whatever injury requirement (if any) may remain after

Hudson [and Harper] respecting a claim for excessive force in an arrest is satisfied here.” Dunn,

79 F.3d at 402-03. The observation that substantial psychological injuries now satisfy the injury

7
The extent of an injury is an element of an excessive force claim that must be clearly
established in the second prong of the qualified immunity analysis. Dunn, 79 F.3d at 403.

14
element makes it entirely clear that no physical injury is necessary to state a Fourth Amendment

claim.

Third, in Petta, we squarely held that two children who had suffered “purely psychological

harm,” under circumstances similar to those here, had asserted a valid § 1983 claim for excessive

force under the Fourteenth Amendment. 143 F.3d at 899, 900.8 The holding in Petta is

applicable to our Fourth Amendment cases, despite the fact that the Petta children were not

seized, because we found that during “an attempted but ultimately unsuccessful arrest,” id. at 911

(emphasis in original), whether an officer’s “use of force was ‘objectively reasonable’ largely

implicates Fourth Amendment concerns, even though the fortuity of his bullet going astray

removed this case from the purview of ‘seizure’ cases,” id. at 913-14. We therefore applied our

Fourth Amendment holding in Dunn to our reasoning in Petta. Id. at 914. We emphasized that

“cases arising under one amendment have consistently affected the parameters of rights that, while

arising under different constitutional amendments, implicate similar policy concerns.” Id. at 914

n.31. Just as our holding in Dunn established clear parameters for cases brought under the

Fourteenth Amendment, see id. at 911, our holding in Petta likewise establishes clear guidelines

for conduct within the bounds of the Fourth Amendment.

Our holdings in Harper, Dunn, and Petta clearly established by 2002 that psychological

8
Kalina notes that after Dunn and before Petta, we stated that “[t]here is no constitutional
right to be free from emotional distress.” Shinn v. College Station Ind. Sch. Dist., 96 F.3d 783,
786 (5th Cir. 1996). As noted in the concurring opinion to Shinn, the only way to interpret this
language is that the Constitution does not provide an independent right to be free from emotional
distress, not that it is impossible to recover for emotional distress when a plaintiff can show the
violation of a right that is guaranteed in the Constitution. See id. at 787 (Dennis, J., concurring)
(citing cases in which damages have been granted for emotional distress in § 1983 constitutional
suits, e.g., Memphis Comm’y Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986)).

15
injuries are sufficient to satisfy the injury element of a § 1983 claim for excessive force under the

Fourth Amendment.

3. DEADLY FORCE

Kalina next argues that a reasonable police officer would not have been on notice in 2002

that firing a single gunshot at a suspect’s car would constitute a use of deadly force. Kalina was

on notice, however, that using force “carrying with it a substantial risk of causing death or serious

bodily harm” is “deadly force.” See Gutierrez, 139 F.3d at 446. He was also on notice that

deadly force would only be justified by a reasonable belief that he or the public was in imminent

danger. See Garner, 471 U.S. at 3. The only thing he did not know for sure was whether

shooting at Flores’s car in the way that he did carried with it a substantial risk of death or serious

bodily harm.

The flaw in Kalina’s argument is that this last question is one of fact, not one of law. The

district court found that he used deadly force, thereby assuming, as a factual matter, that Kalina

created a substantial risk of death or serious bodily harm when he shot Flores’s car. On an

interlocutory appeal of this nature, we cannot review whether that factual question is genuine, and

it is obviously material. Reyes, 287 F.3d at 350-51; see also Omdahl, 170 F.3d at 733 (declining

to resolve the second step of a qualified immunity defense because it depended on resolution of

factual dispute whether shooting bean bags at the plaintiff constituted deadly force). We therefore

accept the district court’s factual assumption for summary judgment that Kalina reasonably should

have known that his action caused a substantial risk of death or serious bodily harm.

4. OBJECTIVE REASONABLENESS

As discussed in the first step of the qualified immunity analysis, whether Kalina’s action

16
was objectively reasonable depends on whether he reasonably believed that Flores posed a threat

of imminent danger. This is a question of fact that we may not review on interlocutory appeal.

See Section IV(A)(4), supra; Cowan v. Breen, 352 F.3d 756, 762-63 (2d Cir. 2003).

The parties may revisit the questions of objective reasonableness and sovereign immunity

at the close of the trial. See Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir. 1998).

V. UNLAWFUL ARREST CLAIM

We conduct the same two-step qualified immunity analysis for Flores’s unlawful arrest

claim that we used for his excessive force claim. See Saucier, 533 U.S. at 200. We reverse the

district court’s denial of Kalina’s motion for summary judgment because we find that Flores did

not allege a constitutional violation. There are two issues in dispute: first, whether Kalina had

probable cause to arrest Flores for evading detention, and second, whether Kalina’s use of

excessive force made the arrest unlawful.

A. PROBABLE CAUSE

An arrest is unlawful unless it is supported by probable cause. Hinshaw v. Doffer, 785

F.2d 1260, 1266 (5th Cir. 1986). “Probable cause exists when the totality of 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.”

United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996) (emphasis added). Kalina argues that

he had probable cause to arrest Flores for three crimes: (1) violating the juvenile curfew

ordinance, (2) underage drinking, and (3) evading detention. We find that Kalina lacked probable

cause to arrest Flores for the first two crimes but that he had probable cause to arrest her for the

third.

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 Kalina did not discover Flores’s age or the presence of alcoholic beverages until after the

arrest. He therefore did not have probable cause to arrest her for either a curfew violation or

underage drinking at the relevant time. See id.

The district court found that a reasonable person could conclude that Flores attempted to

evade detention based upon her failure to heed Officers Kalina’s repeated orders to stop. On an

interlocutory appeal, we accept the district court’s factual assumption that Kalina did indeed twice

shout “Police! Stop!” and that Flores continued to drive away after he did so. In Texas, “[a]

person commits an offense if he intentionally flees from a person he knows is a peace officer

attempting lawfully to arrest or detain him.” Tex. Penal Code Ann. § 38.04(a) (Vernon 2003).

Based on the facts assumed by the district court, we agree that Kalina had probable cause to

arrest Flores for evading detention.

Flores argues, however, that her arrest for evading detention was unconstitutional because

Kalina did not have reasonable suspicion sufficient to detain her in the first place. A suspect’s

flight from a police officer generates probable cause to arrest the suspect under section 38.04 only

if the officer “could have reasonably believed that [his] detention of [the suspect] was lawful.”

Goodson, 202 F.3d at 740. Flores’s car was parked on the wrong side of a two-way street, which

is a violation of Texas law. See Tex. Transp. Code Ann. § 545.303(a) (Vernon 1999). Kalina

therefore had authority to detain her.9 Cf. Whren v. United States, 517 U.S. 806, 810 (1996)

(“[T]he decision to stop an automobile is reasonable where the police have probable cause to

believe that a traffic violation has occurred.”). Whether he was actually motivated to detain her

9
Kalina also argues he had reasonable suspicion to believe that criminal activity was afoot
because people fled from the area when he shined a spotlight on Flores’s car. We do not address
this argument, as we find that he could reasonably detain Flores based on the parking violation.

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for other reasons is irrelevant. See id. at 813.

Kalina reasonably sought to detain Flores, and he reasonably believed that, under the

assumed facts, she sought to evade detention. He therefore had probable cause to arrest her.

B. EXTRAORDINARY MANNER OF ARREST

We find that Flores’s claim of unlawful arrest based on the “extraordinary manner” of the

arrest is just her excessive force claim restated, and we therefore reject it. In general, we consider

claims of unlawful arrest separately from those of excessive use of force, and we analyze the

former based on the probable cause standard without reference to the manner in which the arrest

was accomplished. See, e.g., Hinshaw, 785 F.2d at 1266-67. Flores argues, however, that her

arrest was unlawful because it was conducted “in an extraordinary manner.” The district court

agreed; it found that the constitutionality of an arrest “depends not only ‘on when a seizure is

made, but also [on] how it is carried out.’” Flores, 270 F. Supp. 2d at 871 (citing Garner, 471

U.S. at 8) (alteration and emphasis in district court opinion). Garner, however, establishes only

that the Fourth Amendment encompasses the right to be free from excessive force in addition to

the right to be free from an arrest made unlawful by the absence of probable cause. See Garner,

471 U.S. at 8. Garner does not support the district court’s holding that the use of excessive force

creates two causes of action: one for excessive use of force and one for unlawful arrest.

The only possible support for Flores’s unlawful arrest claim lies in our recognition of a

claim of “unreasonable seizure” in Glenn, 242 F.3d at 313, but it is insufficient. In Glenn, the

plaintiff’s unreasonable seizure claim was based on the manner of her arrest – she was left in an

unventilated vehicle in the “baking sun” for almost an hour. Id. at 311. The claim in Glenn was

therefore distinguishable from a traditional excessive use of force claim because the plaintiff’s

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injuries did not result from an actual use of force. In contrast to the situation in Glenn, Flores’s

allegations in support of her unlawful arrest claim are identical to those in support of her

excessive use of force claim. As a result, Flores cannot raise a claim for unlawful arrest.

Flores did not allege a constitutional violation for unlawful arrest, and the district court

erred in not granting summary judgment to Kalina on this claim.

VI. MALICIOUS PROSECUTION CLAIM

The district court denied summary judgment on Flores’s claim of malicious prosecution

because, according to our case law at that time, “in the event the elements of malicious

prosecution are proved, a fortiori, a violation of the Fourth Amendment is also proved.”

Castellano v. Fragozo, 311 F.3d 689, 701 (2002), rev’d en banc, 352 F.3d 939 (5th Cir. 2003).

In our en banc opinion, issued after the district court order, we clarified that “‘malicious

prosecution’ standing alone is no violation of the United States Constitution.” 352 F.3d at 942.

Section 1983 “is not itself a source of substantive rights,” but merely provides “a method for

vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 145 (1979).

Accordingly, Kalina is entitled to summary judgment on Flores’s malicious prosecution claim.

VII. CONCLUSION

We hold that Kalina is not protected by qualified immunity as to Flores’s Fourth

Amendment excessive force claim. We therefore AFFIRM the district court’s denial of Kalina’s

motion for summary judgment as to Flores’s excessive force claim. We hold that Flores did not

allege facts sufficient to support an unlawful arrest violation or a malicious prosecution violation

under the Fourth Amendment. We REVERSE the district court’s denial of Kalina’s motion for

summary judgment as to Flores’s unlawful arrest and malicious prosecution claims, and we

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RENDER partial summary judgment in favor of Kalina as to the unlawful arrest and malicious

prosecution claims.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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