IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20532

CRAIG A. WASHINGTON, 

 Plaintiff–Appellee,

v.

JOSE SALAZAR, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-362

Before JOLLY, ELROD, and WILLETT, Circuit Judges. 

PER CURIAM:*

Defendant–Appellant Jose Salazar appeals the district court’s order 

denying his motion for summary judgment based on qualified immunity. But

genuine issues of material fact preclude qualified immunity. For that reason,

we DISMISS Salazar’s appeal for lack of jurisdiction.

I.

Late on the night of February 13, 2014, Plaintiff–Appellee Craig 

Washington awoke to the sound of breaking glass outside his home office in 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 21, 2018

Lyle W. Cayce

Clerk

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Houston. He looked out his window and saw a beer bottle fly over his fence and 

shatter in his parking lot. Washington grabbed his 12-gauge shotgun and went 

to investigate, dressed only in a coat and underwear. By the time Washington 

stepped outside, he saw no one on his property. But he noticed several broken 

beer bottles and saw three young men walking down the street toward the 

nearby Limelight Club. So he followed the trio.

Washington approached the valet stand at the Limelight Club. According 

to Washington, both he and the valets stood on the sidewalk. He was still 

carrying his shotgun, down at his side and pointed at the ground. Washington 

asked the valets if they saw the people who just passed by. Unable to get any 

information, he complained about the broken beer bottles on his property and 

then returned to his home office. After Washington left, a valet told Sergeant 

Lawrence Leon and Officer Luis Gamez, two off-duty officers working at the 

Club: “There’s someone walking down the street with a shotgun.” Leon thought 

the valet seemed excited, nervous, and scared.

Around that time, Officers Charles Barner and Stephanie Moses-Davis 

arrived at the Club, responding to a separate noise complaint. Leon told Barner 

and Moses-Davis that Washington “has a shotgun. Go stop him.” Barner and 

Moses-Davis drove down the street and saw Washington outside his home 

office, shotgun pointed to the ground.

Barner radioed that there was a man with a gun and requested back up. 

Deputy Kerry Robinson was dispatched. Robinson was told there were men 

throwing bottles at Washington’s property and a man had a shotgun. Barner 

and Moses-Davis asked Washington to put the gun down. Washington 

complied. The officers secured Washington’s gun. They then conducted a 

preliminary investigation, speaking with Leon and the valets, to determine if 

Washington engaged in any illegal conduct, such as pointing the gun at anyone 

or entering the Club’s premises. The result was inconclusive—no witness 

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reported seeing Washington on the Club’s property, behaving in a threatening 

manner, or otherwise acting illegally.

Defendant–Appellant Sergeant Jose Salazar was one of the officers

dispatched for “a weapon disturbance.” Upon arriving at Washington’s home, 

Salazar was the highest-ranking officer and thus the supervisor. Barner 

briefed Salazar, and Salazar ensured Washington was detained and secured. 

Salazar personally confirmed the weapon involved was a shotgun.

Based on Barner’s report, Salazar told Barner to call the District 

Attorney to see if they could charge Washington with “unlawfully carrying a 

weapon.” Barner explained to the DA what he heard from Leon: Washington 

had a shotgun and was seen walking down the street. The DA responded, “I’m 

not taking any charges because it’s not against the law.” Barner told Salazar 

about the conversation and that the DA refused charges. 

At some point, Leon arrived and further briefed Salazar. Leon did not 

tell Salazar that any valet suggested Washington entered the Club’s parking 

lot or displayed the shotgun in a threatening way. Leon then returned to the 

Club. Officer Kerry Clopton also arrived with a partner. When Clopton arrived, 

he pointed at Washington, identified him as a political figure, and stated: 

“That’s the guy that’s been causing us problems.”

Salazar then said he would call the DA with “additional information.” 

According to Salazar, he wanted to ensure the DA heard “all the facts,” 

including that Washington “made it to the parking lot with the shotgun.” 

Salazar says the DA agreed on the call that Washington violated the Texas 

Alcoholic Beverage Code (“TABC”) by entering the parking lot, which was 

enough to charge him with possession of a firearm at a licensed premise. 

Salazar told Barner the DA accepted charges for “unlawfully carrying a 

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firearm, weapon, shotgun”1 and directed him to arrest Washington and seize 

his shotgun. Barner arrested Washington and explained he was being charged 

with unlawfully carrying a weapon.

Washington was jailed and released on bond that morning. He was 

charged with unlawfully carrying a handgun, a felony offense if committed on 

premises licensed to sell alcohol. The charge was later dismissed, and 

Washington’s shotgun was returned to him.

Washington sued Salazar, Clayton Scott, the City of Houston, and Harris 

County under 42 U.S.C. § 1983, alleging he was falsely arrested in violation of 

his Second, Fourth, and Fourteenth Amendment rights. The parties consented 

to have a Magistrate Judge conduct all proceedings. After discovery, Salazar 

moved for summary judgment, asserting qualified immunity.

The court granted Salazar’s motion on Washington’s Second and 

Fourteenth Amendment claims. It concluded Washington presented no 

authority establishing that seizing his shotgun under the circumstances 

violated the Second Amendment. And it determined that his Due Process 

claim—in which he alleged Salazar made false statements to effectuate the 

arrest—was more appropriately analyzed under the Fourth Amendment.

The court denied qualified immunity on Washington’s Fourth 

Amendment claim. It found conflicting evidence as to whether Washington was 

physically on premises licensed to sell alcohol and whether Salazar knew that 

fact. Under Washington’s version of the facts, “it would have been objectively 

unreasonable for Salazar to believe that there was probable cause to arrest 

Washington for any offense.” The court also noted the unlawful carry offenses 

 

1 Salazar argues Barner filed the incorrect charge. Instead, the correct charge was 

“possession of a firearm at a licensed premise.” This is disputed. “Any factual disputes that 

exist in a qualified immunity appeal are resolved in favor of Plaintiffs’ version of the facts.” 

Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004) (citing Kinney v. Weaver, 367 F.3d 

337, 348 (5th Cir. 2004) (en banc)).

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omit shotguns. Thus, disputed issues of material fact precluded summary 

judgment based on qualified immunity. Salazar timely appealed.

II.

We have jurisdiction to hear appeals from “final decisions of the district 

courts of the United States.” 28 U.S.C. § 1291. “Although a denial of a 

defendant’s motion for summary judgment is ordinarily not immediately 

appealable, the Supreme Court has held that the denial of a motion for 

summary judgment based upon qualified immunity is a collateral order 

capable of immediate review.” Kinney, 367 F.3d at 346 (citing Mitchell v. 

Forsyth, 472 U.S. 511, 530 (1985)). Our jurisdiction, however, is limited: Our 

court is “restricted to determinations ‘of question[s] of law’ and ‘legal issues.’” 

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (alteration in 

original) (quoting Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251–52 (5th 

Cir. 2005)); see also Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en 

banc). 

In short, we “consider only whether the district court erred in assessing 

the legal significance of the conduct that the district court deemed sufficiently 

supported for purposes of summary judgment.” Kinney, 367 F.3d at 348.

“Where the district court has identified a factual dispute, we ask whether the 

officer is entitled to summary judgment even assuming the accuracy of the 

plaintiff’s version of the facts.” Melton, 875 F.3d at 261.

“A good-faith assertion of qualified immunity alters the usual summary 

judgment burden of proof, shifting it to the plaintiff to show that the defense 

is not available.” Id. (quoting King v. Handorf, 821 F.3d 650, 653 (5th Cir. 

2016)). We do not question the correctness of the plaintiff’s version of the 

facts—instead, we accept Washington’s version of the facts as true and review 

the district court’s ruling de novo. Good v. Curtis, 601 F.3d 393, 398 (5th Cir. 

2010).

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III.

On appeal, Salazar maintains he is entitled to qualified immunity—he 

says it was objectively reasonable for him to believe probable cause existed to 

arrest Washington. Officials are entitled to qualified immunity to the extent 

“their conduct does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 

457 U.S. 800, 818 (1982). In order to overcome qualified immunity, a plaintiff 

must show (1) “that the official violated a statutory or constitutional right;” 

and (2) that “the right was ‘clearly established’ at the time of the challenged 

conduct.” Melton, 875 F.3d at 261 (quoting Morgan v. Swanson, 659 F.3d 359, 

371 (5th Cir. 2011) (en banc)).

The right to be free from warrantless arrest without probable cause is 

clearly established. See, e.g., Alexander v. City of Round Rock, 854 F.3d 298,

306–07 (5th Cir. 2017). An officer is therefore not entitled to qualified 

immunity if “‘there was no actual probable cause for the arrest’ and he was 

‘objectively unreasonable in believing there was probable cause for the arrest.’” 

Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir. 2018) (quoting Davidson v. City 

of Stafford, 848 F.3d 384, 391 (5th Cir. 2017)). “Probable cause exists when the 

totality of the facts and circumstances within a police officer’s knowledge at 

the moment of arrest are sufficient for a reasonable person to conclude that the 

suspect had committed or was committing an offense.” Mesa v. Prejean, 543 

F.3d 264, 269 (5th Cir. 2008) (quoting United States v. McCowan, 469 F.3d 386, 

390 (5th Cir. 2006)). In other words, the central inquiry for qualified immunity 

in a false-arrest claim is “the objective (albeit fact-specific) question whether a 

reasonable officer could have believed [the arrest] to be lawful, in light of 

clearly established law and the information the [arresting] officers possessed.”

Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998) (alteration in original) 

(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Here, we must ask

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whether it was objectively reasonable for Salazar to conclude probable cause 

existed.

Salazar argues it was. He proposes three possible offenses supported

probable cause: (1) unlawfully carrying a weapon, (2) unlawfully carrying a 

weapon on a TABC-licensed premises, and (3) disorderly conduct.

Salazar attempts to circumvent this court’s limited jurisdiction by 

arguing that his actions were objectively reasonable, yet his argument is not a 

purely legal one. In fact, his argument depends largely on his own version of 

the facts, which Washington genuinely contests. This is exactly the kind of 

thing that precludes summary judgment.2

For example, according to Salazar, he arrived and concluded, based on 

information provided by Leon,3 that “Washington had set foot on a licensed 

premises with a shotgun.” But, according to Washington, there is no evidence 

suggesting he ever set foot on the Limelight Club’s premises or that officers 

reported to Salazar that he was suspected to have done so. Washington says

he merely approached the valets on the sidewalk with his shotgun pointed at 

the ground. And Leon testified that no one ever told him or gave him the 

impression Washington entered the premises with the shotgun, and he never 

suggested to anyone that Washington had.4 Barner and Moses-Davis also 

confirmed that no one suggested Washington stepped onto the Club’s property 

or violated any law.

 

2 See FED. R. CIV. P. 56(a) (“The court shall grant summary judgment if the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.”); Kinney, 367 F.3d at 348.

3 Salazar argues that Leon told him that Washington “approached the valet guys and 

made contact with them.” And Robinson testified that he heard Leon say Washington “was 

on the property.”

4 In fact, Leon testified that he “did not tell anyone that [Washington] entered 

nightclub property” and agreed with the statement that anyone who said that he told Salazar 

or anyone else that Washington was believed to have entered the parking lot “would not be 

telling the truth.”

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To take another example, Salazar argues he confirmed “there was 

sufficient information to support charges against Washington” with the DA. 

But this too is disputed. Both Barner and Moses-Davis testified they believe

Salazar lied to the DA. And based on the information they had at the time, 

they did not believe probable cause existed to arrest Washington.

Finally, Salazar argues “there are no facts to support [Washington’s] 

allegation that Sergeant Salazar . . . was not reasonable in relying on the 

information he received . . . .” But this argument misses the point while making 

it—there is a genuine dispute of material fact. We have explained that in 

denying qualified immunity at the summary-judgment stage, “the district 

court can be thought of as making two distinct determinations, even if only 

implicitly.” Kinney, 367 F.3d at 346. First, that “a certain course of conduct 

would, as a matter of law, be objectively unreasonable in light of clearly 

established law.” Id. Second, that “a genuine issue of fact exists regarding 

whether the defendant(s) did, in fact, engage in such conduct.” Id. We lack 

jurisdiction to “review the district court’s decision that a genuine factual 

dispute exists.” Id. at 348. So the only proper issue for this appeal is whether, 

under Washington’s version of the facts, it was objectively reasonable for 

Salazar to believe probable cause existed.

It wasn’t. Under Washington’s version of the facts, all he did was walk 

down the street with a shotgun at his side, pointed at the ground, and speak

to valets on the sidewalk. There is no indication Washington carried his 

shotgun in a threatening way. And it is not unlawful to openly carry a firearm 

in Texas, aside from the enumerated proscriptions in the Penal Code.5

 

5 We note that “unlawfully carrying a weapon” is the only offense prohibiting weapons 

on premises licensed to sell alcohol. See TEXAS PENAL CODE § 46.02(a), (c). By its terms, that 

offense applies only to handguns, clubs, and location-restricted knives, not shotguns. See id.

§ 46.02(a), (a-4). It is also a felony for a handgun license holder to “intentionally, knowingly, 

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Accepting Washington’s version of the facts as true, it would have been 

objectively unreasonable for Salazar to believe probable cause existed for any

alleged offense. We agree with the district court: “evidence is conflicting 

whether Washington was physically on licensed premises, and whether 

Salazar was ever so advised.” These outstanding fact issues are material, 

meaning they could affect the case’s outcome. See Newman v. Guedry, 703 F.3d 

757, 759 (5th Cir. 2012); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 

493 (5th Cir. 2001). Accordingly, we lack jurisdiction over Salazar’s appeal. 

IV.

Because facts that the district court determined to be in genuine dispute 

are also material, we DISMISS Salazar’s appeal for lack of jurisdiction.

 

or recklessly carr[y] a handgun” on premises licensed to sell alcohol. Id. § 46.035(b)(1), (g). 

But again, by its plain language, that offense does not apply to shotguns.

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