Case: 21-50890 Document: 00516446999 Page: 1 Date Filed: 08/25/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 25, 2022
No. 21-50890
Lyle W. Cayce
Clerk
Roberto Garcia,
Plaintiff—Appellee,
versus
Julio Orta, San Antonio Police Officer, #1079, Individually and in his
Official Capacity; Zachary Sherron,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:16-CV-1175
Before Smith, Wiener, and Southwick, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Roberto Garcia alleges that his Fourth Amendment rights were
violated because he was detained without probable cause for driving while
intoxicated. He brought suit under Section 1983, seeking damages from the
officers who submitted an affidavit and incident reports to a magistrate to
support his pretrial detention. The defendants moved for summary
judgment, asserting the defense of qualified immunity. The district court
determined that fact issues precluded summary judgment. On this
interlocutory appeal, we REVERSE and RENDER.
Case: 21-50890 Document: 00516446999 Page: 2 Date Filed: 08/25/2022
No. 21-50890
FACTUAL AND PROCEDURAL HISTORY
On July 17, 2014, Roberto Garcia was arrested for driving while
intoxicated. He was found sleeping in a parked vehicle in a private driveway
to a construction site, which was steps away from a public road. According
to Garcia, a friend was driving the vehicle with Garcia in the passenger seat
when the car’s engine began to overheat. After the driver left to seek
assistance, Garcia switched to the driver’s seat to take a nap.
Officer Zachary Sherron, a police officer with the San Antonio Police
Department (“SAPD”), was called to Garcia’s location by other officers.
According to Sherron, Garcia was asleep behind the wheel of a vehicle with
its motor running when officers arrived. When officers woke Garcia and
ordered him out of the vehicle, Garcia allegedly “attempted to pull the
vehicle forward.” Sherron reported that he observed the vehicle lunge
forward and then abruptly stop a few feet later. Sherron reported the car was
running during “all of this” and another officer had to remove the keys from
the ignition to turn off the vehicle.
Garcia disputes some of these factual assertions. In a deposition, he
testified that the keys were in his pocket and denied that the vehicle was
running. He denies the vehicle lunged forward. At most, the vehicle “rolled
slightly” due to some other cause, such as his releasing the brakes or from
the officers’ pounding on the window while the vehicle was in neutral.
Officer Julio Orta, also a police officer with the SAPD, arrived on the
scene to determine whether Garcia had been driving while intoxicated. Orta
asked Garcia to exit the vehicle to speak with him. Orta reported that Garcia
smelled of alcohol, had slurred and confused speech, and had red and glassy
eyes. Orta reported that Garcia stated that he had one drink in the morning,
though he did not recall when he started or stopped drinking. After Garcia
declined to participate in any field sobriety tests, Orta arrested Garcia.
2
Case: 21-50890 Document: 00516446999 Page: 3 Date Filed: 08/25/2022
No. 21-50890
To obtain a search warrant for Garcia’s blood and to support his pre-
trial detention, the officers provided their incident reports and an affidavit to
a magistrate. The officers alleged that Garcia “attempted to pull the vehicle
forward,” that “the vehicle lunge[d] forward and then abruptly c[a]me to a
stop a few feet later,” and that “[t]he vehicle was on and keys in the igni-
tion.” Also, the officers reported that Garcia’s vehicle was found in a “pub-
lic place” on the “2000 block of Zarzamora St.” Garcia later alleged that the
officers’ statements were deliberately false and asserted they were motivated
by a previous lawsuit Garcia had filed against another SAPD officer.
Garcia was then taken before a magistrate. As we understand the
allegations, the same incident reports and affidavit were introduced at that
time. The magistrate set Garcia’s bond at $75,000, which Garcia could not
afford. He was held in pretrial detention for 505 days, over 16 months, before
his case was eventually dismissed. We will explain that the arresting officers
did not violate his rights, but this extraordinarily long detention of an arrestee
is wretched commentary.
Proceeding pro se, Garcia brought suit under 42 U.S.C. § 1983 against
Officer Orta, SAPD Chief William McManus, the SAPD, and the City of San
Antonio, asserting federal constitutional and related state law claims. The
district court agreed with the defendants that a statute of limitations barred
Garcia’s lawsuit and therefore dismissed the case. On appeal, after the initial
briefs were filed, this court appointed pro bono counsel. New briefing
followed. We then reversed the dismissal of Garcia’s claim that he was
detained pursuant to wrongful legal process, holding that his claim did not
accrue until criminal proceedings ended in his favor. Garcia v. San Antonio,
Tex., 784 F.App’x 229, 232–33 (5th Cir. 2019).
After our remand, the district court appointed counsel for Garcia, who
filed an amended complaint and added officer Sherron as a defendant.
3
Case: 21-50890 Document: 00516446999 Page: 4 Date Filed: 08/25/2022
No. 21-50890
Relevant to this appeal, Garcia alleged that his pretrial detention was without
probable cause in violation of the Fourth Amendment. He alleged that his
detention was “unreasonable” because it was based on false evidence
presented to the magistrate, rather than being supported by probable cause.
The defendants moved for summary judgment asserting qualified
immunity. The magistrate judge recommended granting defendants Orta’s
and Sherron’s motion for summary judgment, concluding they were entitled
to qualified immunity because any allegedly false statements were ultimately
immaterial to the criminal court’s probable cause finding. The district court
disagreed, concluding there was a genuine dispute of material fact whether
the officers made false statements that Garcia was “operating a motor
vehicle” in violation of Texas law. The defendants timely appealed.
DISCUSSION
We review the denial of a motion for summary judgment de novo.
Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020).
Summary judgment is appropriate where “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Since this is an interlocutory appeal of the district
court’s denial of qualified immunity on summary judgment, our review is
generally limited “to the extent that it turns on an issue of law.” Joseph, 981
F.3d at 331 (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “When
the district court identifies a factual dispute, as it did here, we consider only
whether the district court correctly assessed ‘the legal significance’ of the
facts it ‘deemed sufficiently supported for purposes of summary judgment.’”
Id. (quoting Cole v. Carson, 935 F.3d 444, 452 (5th Cir. 2019)(en banc)).
Our discussion proceeds as follows. First, we address whether the
defendants preserved several legal arguments for appeal. Second, we
consider whether we have interlocutory jurisdiction over the defendants’
4
Case: 21-50890 Document: 00516446999 Page: 5 Date Filed: 08/25/2022
No. 21-50890
argument that the district court erred by relying on Garcia’s version of the
facts when they were supposedly contradicted by video evidence of the
incident. Third, we address whether, with aspects of Garcia’s version of the
facts discredited, the defendants are entitled to qualified immunity. Finally,
we address Garcia’s asserted alternative basis of affirmance.
I. Forfeiture
The defendants argued to the district court that the statements they
submitted to the magistrate were demonstrably true, relying on the dashcam
footage of the incident and expert analysis of that footage. On appeal, they
reassert this argument and raise several new arguments that they are entitled
to qualified immunity. Except for the argument presented in the district
court, Garcia maintains that each of those arguments is forfeited.
Generally, “arguments not raised before the district court are waived
and will not be considered on appeal.” Celanese Corp. v. Martin K. Eby
Constr. Co., 620 F.3d 529, 531 (5th Cir. 2010). “A party must press, not
merely intimate, an argument, in order to preserve it for appeal.” Kelly v.
Foti, 77 F.3d 819, 823 (5th Cir. 1996). “The raising party must present the
issue so that it places the opposing party and the court on notice that [the]
issue is being raised.” Id. (citation omitted). The exceptions to this rule
include arguments concerning (1) the court’s subject matter jurisdiction and
(2) “purely legal matter[s] [when] failure to consider the issue will result in
a miscarriage of justice.” Rollins v. Home Depot USA, 8 F.4th 393, 398 (5th
Cir. 2021) (citation omitted).
The defendants argue that forfeiture does not apply solely because the
plaintiff bears the burden to rebut qualified immunity. See Vincent v. City of
Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). Because it was Garcia’s burden
to identify “specific evidence in the summary judgment record
demonstrating that there is a material fact issue concerning the essential
5
Case: 21-50890 Document: 00516446999 Page: 6 Date Filed: 08/25/2022
No. 21-50890
elements” of qualified immunity, see Orr v. Copeland, 844 F.3d 484, 490 (5th
Cir. 2016), the defendants contend that they could not have forfeited
arguments concerning those essential elements. We disagree. District court
judges, as well as judges on this court, depend on the arguments presented
by the parties in making decisions, and we will not put the district court in
error based on an argument never there presented.
The arguments not presented to the district court are forfeited. 1
II. Interlocutory Appeal Jurisdiction
The only argument preserved by the defendants is that the district
court erred in finding a genuine dispute of fact existed concerning whether
the officers’ statements provided in their incident reports and affidavit
regarding Garcia operating his vehicle were true. Garcia argues that we lack
interlocutory jurisdiction over this issue because it “implicates” the
genuineness of a fact dispute.
The “denial of qualified immunity is immediately appealable under
the collateral order doctrine, when based on an issue of law.” Rodriguez v.
Neeley, 169 F.3d 220, 222 (5th Cir. 1999). This court has “jurisdiction for
this interlocutory appeal if it challenges the materiality of factual issues, but
[we] lack jurisdiction if it challenges the district court’s genuineness ruling
— that genuine issues exist concerning material facts.” Bazan ex rel. Bazan
v. Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001) (emphasis removed). As
a result, with one exception we discuss later, we do not disturb “the district
court's articulation of the genuinely disputed facts when determining
1
The defendants also suggest in their briefing for the first time on appeal that the
law was not clearly established at the time of the alleged constitutional violation. This
argument is forfeited because, in addition to failing to raise it below, they failed to provide
adequate briefing on appeal. See Calanese Corp., 620 F.3d at 531; Roy v. City of Monroe, 950
F.3d 245, 251 (5th Cir. 2020).
6
Case: 21-50890 Document: 00516446999 Page: 7 Date Filed: 08/25/2022
No. 21-50890
whether these disputes are material to a finding of qualified immunity.”
Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).
Here, the district court considered the video, photographs, expert
evidence, and testimony from the parties and found a genuine factual dispute
about “whether and by what means the vehicle traveled” and whether the
vehicle was running with the keys in the ignition when the officers arrived.
From that finding, the district court also found a genuine factual dispute
about whether the officers’ statements that Garcia “attempted to pull the
vehicle forward,” that the “vehicle lunge[d] forward and then abruptly
[came] to a stop a few feet later,” and that “[t]he vehicle was on and keys in
the ignition” were false. The argument that the district court erred by failing
to credit the officers’ statements as true considering the video evidence is a
challenge to the genuineness of a factual dispute, an argument we typically
would lack jurisdiction to consider.
To avoid this conclusion, the defendants argue that the district court
erred “by ignoring the objective video evidence that established the veracity
of the materials Orta presented to the magistrate and the presence of probable
cause for Garcia’s detention.” In support, the defendants rely on a Supreme
Court decision addressing the impact of video evidence. Scott v. Harris, 550
U.S. 372 (2007).
In Scott, the Supreme Court reversed the denial of summary judgment
to defendant police officers based on their assertion of qualified immunity.
Id. at 376, 386. The district court held that the plaintiff’s version of the facts
created a genuine dispute of material fact. Id. at 376. The plaintiff had been
involved in a high-speed vehicle chase and was pushed off the road by the
chasing police officer; the plaintiff alleged a set of facts greatly downplaying
the dangerousness of his efforts to elude officers, thereby creating a basis to
argue excessive force was used. Id. at 375, 379–80. Despite the usual rule
7
Case: 21-50890 Document: 00516446999 Page: 8 Date Filed: 08/25/2022
No. 21-50890
that courts should adopt the plaintiff’s version of the facts when the
defendant moves for summary judgment, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that
no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.” Id. at
378, 380. A court “should not . . . rel[y] on such visible fiction” and should
“view[] the facts in the light depicted by the videotape.” Id. at 380–81. The
“record” in Scott that created the blatant contradiction was the video of the
chase. Id. a 378.
After Scott, we have held that a court of appeals may consider, on
interlocutory appeal, still photographs and video evidence to evaluate
whether the district court erred by relying on the plaintiff’s version of the
facts. Curran v. Aleshire, 800 F.3d 656, 663–64 (5th Cir. 2015). The standard
we apply is whether the record evidence “blatantly contradict[s]” or “utterly
discredit[s]” the nonmoving party’s version of the facts. See id. at 664
(quoting Scott, 550 U.S. at 380–81). 2 Among our precedents are some that
rely on what can be heard, and not just what can be seen, on a video. See, e.g.,
Rich v. Palko, 920 F.3d 288, 295 (5th Cir. 2019).
According to Garcia, when the officers arrived, he was sleeping in the
driver’s seat; the vehicle’s motor was off and the ignition key was in his
pocket. He denies that he attempted to pull forward or that the vehicle
2
In Scott, the Court relied upon bodycam video footage, which discredited the
plaintiff’s version of the facts. 550 U.S. at 380. The Scott opinion does not limit its holding
to video evidence, instead referring to “the record.” See id. Courts have applied this
holding using other types of evidence capable of utterly discrediting the plaintiff’s version
of the facts. See Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022) (video and audio
from dashcam); McManemy v. Tierney, 970 F.3d 1034, 1038 (8th Cir. 2020) (taser log);
Curran, 800 F.3d at 663–64 (still photos); Coble v. City of White House, 634 F.3d 865, 868–
69 (6th Cir. 2011) (audio from dashcam footage).
8
Case: 21-50890 Document: 00516446999 Page: 9 Date Filed: 08/25/2022
No. 21-50890
lunged forward, though he concedes that the vehicle may have “rolled
forward slightly” due to some unexplained cause. Does the dashcam footage
and photographic evidence utterly discredit these statements?
The video shows Garcia’s vehicle parked in a driveway, feet away
from a public road, with two officers near the driver’s side door. The
taillights on Garcia’s vehicle are on. As Sherron approaches the vehicle, the
vehicle moves forward, away from the camera, causing Sherron to turn back
toward his vehicle. The brake lights come on almost immediately after the
forward movement. 3 We perceive no dispute that the vehicle moved at least
six inches and maybe further. Officers can then be heard ordering Garcia to
turn off the vehicle. The video shows the brake lights remain on for several
seconds, then turn off, then turn back on again until Garcia gets out of the
vehicle.
We conclude it to be undisputable from the video and photographic
evidence that the vehicle moved forward with Garcia behind the wheel. He
must have put his foot on the brakes just after the vehicle began its forward
motion because that is when the brake lights came on.
A different issue arises from the fact that on the audio recording, more
than one officer can be heard ordering Garcia to turn off the vehicle.
Accepting as indisputably accurate the recorded oral statements about what
someone stated that he perceived (the vehicle’s motor was on) is different in
kind and not just degree from accepting as accurate what we can see ourselves
3
Still photos from the video, provided by the defendants’ expert, confirm that the
vehicle moved forward and the brake lights engaged almost immediately after the vehicle
started moving. The still photos, which were time stamped two seconds apart from each
other, show the vehicle before and after it moved forward. The expert analysis also
confirms that the vehicle moved relative to the ground, excluding the possibility the police
car in the frame moved.
9
Case: 21-50890 Document: 00516446999 Page: 10 Date Filed: 08/25/2022
No. 21-50890
on a video. The statements likely would be admissible under some exception
to the hearsay rules. The issue, though, is how these statements fit within
the Scott v. Harris principles about blatant contradictions. One standard from
Scott is whether, because of the audio, “no reasonable jury could believe”
Garcia’s version that the motor was off and the key to the ignition was in his
pocket. See Scott, 550 U.S. at 380–81. All we need to hold today, and we do,
is that the recorded oral assertions that the vehicle’s motor was on may not
by themselves be enough to discredit Garcia’s statements, but they can be
considered in deciding whether other evidence sufficiently contradicts.
With these facts in hand, we examine whether qualified immunity
should have been granted.
III. Qualified Immunity
Qualified immunity protects public officials acting in their individual
capacity from lawsuits and liability for damages under Section 1983 unless
their conduct violates a clearly established constitutional right. See Mason v.
Lafayette City-Parish Consol. Gov’t, 806 F.3d 268, 275 (5th Cir. 2015). To
overcome an asserted qualified immunity defense, the plaintiff must show
“sufficient facts to ‘make out a violation of a constitutional right’” and “‘the
right at issue was “clearly established” at the time of the defendant’s alleged
misconduct.’” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
The Fourth Amendment protects against unreasonable searches and
seizures. This includes the “constitutional right . . . to be free from police
arrest [and searches] without a good faith showing of probable cause” based
on “deliberate or reckless false statements.” Winfrey v. Rogers, 901 F.3d 483,
494 (5th Cir. 2018) (citation omitted). It is “clearly established that a
defendant’s Fourth Amendment rights are violated if (1) the affiant, in
support of the warrant, includes ‘a false statement knowingly and
intentionally, or with reckless disregard for the truth’ and (2) ‘the allegedly
10
Case: 21-50890 Document: 00516446999 Page: 11 Date Filed: 08/25/2022
No. 21-50890
false statement is necessary to the finding of probable cause.’” Id. (quoting
Franks v. Delaware, 438 U.S. 154, 155–56 (1978)). To determine if an
allegedly false statement is “necessary to the finding of probable cause,” the
court must consider the affidavit as if those false statements were removed
and consider whether the “remaining content” would still support a probable
cause finding. See Franks, 438 U.S. at 156. That standard also means that
qualified immunity applies if the corrected affidavit would have supported a
reasonable officer’s belief that probable cause existed. See Malley v. Briggs,
475 U.S. 335, 344–45 (1986).
After the incident, Garcia was charged with and detained for the
offense of driving while intoxicated, which is committed “if the person is
intoxicated while operating a motor vehicle in a public place.” Tex. Penal
Code Ann. § 49.04(a). Garcia alleges that the officers violated his Fourth
Amendment rights because the officers knowingly made materially false
statements to the magistrate that he was “operating a motor vehicle” and “in
a public place.” We will analyze each assertion.
a. Whether Garcia was operating a motor vehicle
We start with Garcia’s contention that the officers’ allegedly false
statements were material to the magistrate’s finding of probable cause that
Garcia operated the vehicle. Section 49.04 does not define “operate.”
Barton v. State, 882 S.W.2d 456, 459 (Tex. App. — Dallas 1994, no pet.).
The Texas Court of Criminal Appeals has defined the statute as not being
dependent on whether a person caused a vehicle to move:
We do not accept the contention that to operate a vehicle
within the meaning of the statute, the driver’s personal effort
must cause the automobile to either move or not move.
Purposely causing or restraining actual movement is not the
only definition of “operating” a motor vehicle. In other words,
we examine the totality of the circumstances to determine if
11
Case: 21-50890 Document: 00516446999 Page: 12 Date Filed: 08/25/2022
No. 21-50890
[the defendant] exerted personal effort upon his vehicle for its
intended purpose.
Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995) (en banc)
(brackets in original) (quoting Barton, 882 S.W.2d at 459).
The inquiry, then, is whether, under “the totality of the
circumstances[,] . . . the defendant took action to affect the functioning of his
vehicle in a manner that would enable the vehicle’s use.” Id. (citation
omitted). Texas courts have upheld convictions for driving while intoxicated
when the driver was found asleep behind the wheel of an idling vehicle, even
though the car did not move. See Dornbusch v. State, 262 S.W.3d 432, 433–
34 (Tex. App. — Fort Worth 2008, no pet.). Another court held that the
defendant’s “application of the brake pedal, thereby restraining the vehicle’s
actual movement, falls within the definition of ‘operating a motor vehicle.’”
Partee v. Tex. Dep’t of Pub. Safety, 249 S.W.3d 495, 499 (Tex. App. —
Amarillo 2007, no pet.).
Our earlier summary showed that the video removed any doubt that
Garcia was in the driver’s seat, the vehicle moved forward at least six inches,
and the brakes stopped the car. To the extent Garcia argues the movement
was too small to be unequivocal evidence that the motor was on and the car
was in gear, and that perhaps something else caused the vehicle to move, we
add to the mix the recorded commands from officers for Garcia to turn the
motor off. There is only so much we can place within the range of decisions
by reasonable jurors. With the rest of this evidence, no reasonable juror
would reject each officer’s contemporaneous reference to the motor’s being
on. The vehicle moved, with Garcia in the driver’s seat and the motor on.
He operated the motor vehicle.
As to whether there were any false statements in the affidavit, all we
see is a question about how far the vehicle moved. An affidavit asserting it
12
Case: 21-50890 Document: 00516446999 Page: 13 Date Filed: 08/25/2022
No. 21-50890
moved at least six inches would still have supported a reasonable officer’s
belief that Garcia was operating the vehicle. The district court should have
adopted the version of the facts revealed by the evidence we have discussed.
b. Whether Garcia was in a public place
Garcia also argues that regardless of whether he was operating a motor
vehicle while intoxicated, he was not doing so in a public place. The district
court rejected this argument.
According to Texas Penal Code Section 1.07(a)(40), a public place is
“any place to which the public or a substantial group of the public has access
and includes, but is not limited to, streets, highways, and the common areas
of schools, hospitals, apartment houses, office buildings, transport facilities,
and shops.” Texas courts interpret this provision as providing for a broad
definition of a public place. State v. Gerstenkorn, 239 S.W.3d 357, 358–59
(Tex. App. — San Antonio 2007, no pet.). Courts are given a degree of
“discretion” to inquire “whether the public has access to the place.” See id.
The district court found there was no genuine factual dispute
regarding whether the vehicle was located on a publicly accessible driveway
on the “2000 block of Zarzamora St,” which was properly characterized as a
public place. We agree. The dashcam footage shows the vehicle was just off
the roadway on a driveway to a construction site, feet away from the road.
There were no visible signs warning the public not to enter the driveway nor
any indication that access to the driveway was off-limits to members of the
public. Thus, the district court did not err by concluding that the private
driveway was properly characterized as a “public place” under Texas law.
See id. at 359.
We REVERSE and RENDER judgment for the defendants.
13