*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this opinion should not be published and is not precedent except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

FOR THE FIFTH CIRCUIT

____________________

No. 98-50232

____________________

BETTY SUE CASPER, individually and as next friend of Jared and

Clinton Casper,

Plaintiff-Appellee,

versus

CITY OF LAGO VISTA; BART TUREK; FRANK W. MILLER; et al.,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(A-97-CV-716)

_________________________________________________________________

March 17, 1999

Before REYNALDO G. GARZA, POLITZ and BARKSDALE, Circuit Judges.

PER CURIAM:*

The City of Lago Vista, its police chief, Frank Miller, and

one of its police officers, Bart Turek, contest the denial of

qualified immunity in an action arising out of Officer Turek’s

response to Betty Sue Casper’s interference with the arrest of her

husband. No material fact issues exist for whether the Officer’s

response, or his hiring, training, retention and supervision by

Chief Miller and the City, were objectively unreasonable in light

of clearly established federal law, or not within the scope of the

authority of Chief Miller and Officer Turek and in good faith in
2

light of state law. We REVERSE the denial of summary judgment on

all claims except the federal law claim against the City and

REMAND.

I.

The following facts are taken from the police reports of

Officer Turek and his partner, Officer Scott Orrison, and the

affidavit of Betty Sue Casper. For the facts concerning the

incident, these three accounts constitute the entire summary

judgment record. None of what follows is in dispute.

In August 1997, pursuant to a warrant, Officers Turek and

Orrison proceeded to the house where the Caspers resided in Lago

Vista, Texas, to arrest Edward Casper for criminal failure to pay

child support. Officer Turek began to read Mr. Casper his Miranda

warnings while Officer Orrison handcuffed him. Mrs. Casper then

emerged from the house and demanded to see the warrant. Told by

the Officers to return inside, Mrs. Casper instead stepped between

Officer Turek and her husband, asking again to see a warrant.

Unsatisfied with Officer Turek’s response, Mrs. Casper raised

her hand toward him to get his attention. In response, Officer

Turek grabbed her arm and attempted to restrain her; as Mrs. Casper

and the Officer struggled, she was thrown through a flower bed

against a parked vehicle.

During this incident, Mr. Casper asked his wife several times

to stop. When Mrs. Casper was out of the way, Officer Turek

maintained his distance from her. 
3

Chief Miller, by affidavit, opined that the Officers’ actions

were reasonable, noting that arrests are historically volatile

circumstances during which police officers are in particularly

acute danger. In that affidavit, Chief Miller also reviewed

Officer Turek’s work history.

Officer Turek graduated from the City’s Police Academy in May

1994, and was hired the next month by the City as a reserve

officer. In this position, he worked at least 16 hours each month,

usually riding with a more experienced officer. From March 1995 to

September 1997, the Officer worked for the City as a certified

police officer. Police officers for the City are required to be

fully certified peace officers as set out in the Texas Commission

on Law Enforcement Officers Standards and Education.

Keith Campbell, who has worked in police recruiting for the

Austin Police Department, filed an affidavit on Mrs. Casper’s

behalf, stating that he would not have hired Officer Turek because

the Officer had: changed jobs frequently; failed two of three

psychological tests at the Austin Police Department; applied

unsuccessfully to several other police departments; and omitted

information on his employment form.

Finally, Mrs. Casper filed the City’s Police Department

Regulations, Policy and Procedure (the Manual) in the summary

judgment record. The Manual requires that officers “shall not use

more force than is necessary for the safe custody of a prisoner or

for overcoming any resistance that may be encountered”, and places

the Chief of Police in charge of the policies.
4

Mrs. Casper filed this action in Texas state court within a

week of the incident, presenting claims under 42 U.S.C. § 1983 and

state law on her own behalf and on behalf of her two children, who

may have seen the incident. The action was removed to federal

court.

The City, Chief Miller, and Officer Turek moved for summary

judgment, claiming qualified immunity for the federal and state

claims. Mrs. Casper did not move, pursuant to FED. R. CIV. P.

56(f), to suspend a ruling on summary judgment pending discovery.

The district court denied summary judgment.

II.

Denials of summary judgment on qualified-immunity grounds are

appealable 28 U.S.C. § 1291 “final orders” when based on an issue

of law. E.g., Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

While some types of fact issues pertinent to summary judgment, such

as the sufficiency of evidence identifying officers, are not

subject to interlocutory appeal in this context, see Johnson v.

Jones, 515 U.S. 304, 313 (1995), the issue “whether the conduct as

alleged violated a clearly established statutory or constitutional

right of which a reasonable person would have known” may be

appealed. Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996).

Likewise, a federal district court’s denial of state law qualified

immunity is also immediately appealable when based on an issue of

law. Id.

For such an interlocutory appeal, we will not, however, review

issues not related to the denial of qualified immunity. As in
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Cantu, we decline to exercise “pendent appellate jurisdiction” over

issues not “inextricably intertwined or necessary to resolution of

the qualified immunity issue”. Id. at 805. Because municipalities

are not entitled to qualified immunity against claims under federal

law, e.g., Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163, 166 (1993), we have no

jurisdiction over the City's appeal on the § 1983 claim.

A.

Qualified immunity analysis asks first, whether the plaintiff

alleges a violation of clearly established law; if the plaintiff

has, an officer has qualified immunity if it is objectively

reasonable that the officer’s conduct did not violate clearly

established law as of the time of the incident. E.g., Stefanoff v.

Hays County, Tex., 154 F.3d 523, 525 (5th Cir. 1998).

Of course, we review the denial of summary judgment de novo.

E.g., Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). Such

judgment is proper if the items in the summary judgment record

“show that there is no genuine issue of material fact and that the

moving party is entitled to a judgment as a matter of law”. FED.

R. CIV. P. 56(c).

Mrs. Casper claims that: Officer Turek used excessive force,

intentionally inflicted emotional distress upon her and her

children, and assaulted and battered her; Chief Miller and the City

inadequately trained and supervised, and negligently hired and

retained, Officer Turek, and developed and maintained facially

unconstitutional regulations, as contained in the Manual.
6

1.

“[A]ll claims that law enforcement officers have used

excessive force—deadly or not—in the course of an arrest,

investigatory stop, or other ‘seizure’ of a free citizen should be

analyzed under the Fourth Amendment and its ‘reasonableness’

standard, rather than under a ‘substantive due process’ approach.”

Graham v. Connor, 490 U.S. 386, 395 (1989). Mrs. Casper was not

being arrested; however, a Fourth Amendment seizure occurs “when

government actors have, ‘by means of physical force or show of

authority, ... in some way restrained the liberty of a citizen’”,

id. at 386 & n.10 (quoting Terry v. Ohio, 392 U.S. 1, 19 & n.16

(1968)). Because such a restraint occurred here, we apply the

Fourth Amendment standard. See also Ikerd v. Blair, 101 F.3d 430,

433 & n.6 (5th Cir. 1996) (girl whose arm was grabbed by a police

officer during her father’s arrest was “seized” for Fourth

Amendment purposes).

A Fourth Amendment excessive force claim exists if a plaintiff

shows she (1) suffered some injury which (2) resulted from force

that was clearly excessive to the need for force; (3) the

excessiveness of which was objectively unreasonable. Heitschmidt

v. City of Houston, 161 F.3d 834, 839 (5th Cir. 1998).

Mrs. Casper claims, first, that no force was required; and

second, that even if some force was needed, Officer Turek’s use of

force was excessive. We disagree.

a.
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Taking Mrs. Casper’s affidavit as true, as we must for our

summary judgment analysis, Officer Turek was reasonably

apprehensive upon being physically confronted by an arrestee’s

current wife during his arrest for domestic matters concerning his

prior marriage. Mrs. Casper freely admits disobeying the Officers,

standing between Officer Turek and her husband, and raising her

hand toward the Officer. She claims no intent to strike or harm

him; yet, there is no material fact issue that his immediate

defensive response was not reasonable. “[N]o right is guaranteed

by federal law that one will be free from circumstances where he

will be endangered by the misinterpretation of his acts.” Young v.

City of Killeen, Tex., 775 F.2d 1349, 1353 (5th Cir. 1985).

Judicial notice can be taken of the fact that domestic

situations are fraught with danger for a police officer. Moreover,

Mrs. Casper presents no evidence to counter Chief Miller’s

assessment of the danger inherent in arrest situations.

Accordingly, there is no material fact issue whether Officer

Turek’s decision to use force was objectively reasonable in light

of established law.

b.

Regarding the excessiveness of force, Mrs. Casper does not

present a material fact issue whether Officer Turek’s force was

disproportionate to the need. The Officer was reasonably

apprehensive upon being physically confronted in the course of an

arrest. Because even a small person’s physical aggression can

divert attention while, for instance, another person draws a gun,
8

it was reasonable for the Officer to quickly remove Mrs. Casper

from the immediate proximity of the arrest. 

No summary judgment evidence suggests that the Officer’s

conduct was clearly excessive relative to this need. He neither

struck Mrs. Casper a second time nor drew a weapon; instead, he

established distance as soon as possible. Uncontradicted evidence

indicates that Mrs. Casper’s husband and Officer Orrison viewed her

as resisting Officer Turek during the struggle. No evidence exists

of Officer Turek using force beyond that necessary to remove Mrs.

Casper from her posture of interference with the arrest.

Mrs. Casper lays stress upon the allegations in her pleadings

that Officer Turek’s force was “great” and “unreasonable”, and

particularly on his action being done “violently” and “brutally”.

She contends that this language establishes a material fact issue

for trial. Of course, summary judgment evidence must go beyond the

pleadings. FED. R. CIV. P. 56 (e); e.g., Stults v. Conoco, Inc., 76

F.3d 651, 656 (5th Cir. 1996). Moreover, even had such

descriptions appeared in Mrs. Casper’s affidavit, such conclusory

assertions would raise no material fact issue. E.g., Lechuga v.

Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992).

c.

Finally, no summary judgment evidence exists of any injury to

Mrs. Casper. This circuit’s prior “serious injury” requirement for

a Fourth Amendment excessive force claim has been modified in the

light of the Supreme Court’s Eighth Amendment holding in Hudson v.

McMillian, 503 U.S. 1, 4 (1992). See Spann v. Rainey, 987 F.2d
9

1110, 1115 & n.7 (5th Cir. 1993); Ikerd, 101 F.3d at 434 & n.7.

However, our court still requires “at least some injury” to support

a Fourth Amendment excessive force claim. Id. at 434.

In sum, Mrs. Casper fails to create a material fact issue for

each of the three prongs for showing excessive force. Accordingly,

summary judgment is required on that claim.

2.

Mrs. Casper conceded at oral argument that, if Officer Turek

has qualified immunity on the excessive force claim, then claims

against Chief Miller and the City for improper hiring, training,

retention, and supervision of Officer Turek and for the policy in

the Manual would be meritless. A waiver at oral argument is

binding. E.g., U.S. v. Amaya, 111 F.3d 386, 388 & n.3 (5th Cir.

1997). Therefore, we need not discuss these issues.

B.

Concerning Mrs. Casper’s state law claims against Officer

Turek, Chief Miller and the City for intentional infliction of

emotional distress, assault and battery, and negligent hiring,

Texas’ qualified immunity law is substantially the same as the

federal standard. Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir.

1997). Accordingly, there is immunity from suit for state

government officials for matters arising from the performance of

their discretionary duties, as long as they are acting in good

faith and within the scope of their authority. City of Lancaster

v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). 

1.
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Mrs. Casper conceded at oral argument that the intentional

infliction of emotional distress claims for her and her children

were meritless.

2.

The predicate state law for assault and battery and for

negligent hiring, regarding which officers must act in good faith

and within their authority to be afforded qualified immunity under

Texas law, differs from the Fourth Amendment predicate regarding

which they must be objectively reasonable to be afforded such

immunity under § 1983. However, Mrs. Casper’s brief articulates no

distinct standard for these state tort claims. Of course, failure

to brief and argue an issue constitutes waiver. E.g., Applewhite

v. Reichhold Chemicals, 67 F.3d 571, 573 (5th Cir. 1995). Given

our disposition of the federal claims, summary judgment is proper

on the remaining state claims as well.

C.

As noted, the City has no qualified immunity under federal

law. But, under the Texas Tort Claims Act, it is entitled to

immunity under Texas law if, as they are here, its officers are

immune. City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.

1993).

III.

Accordingly, the denial of summary judgment for Officer Turek

and Chief Miller on all claims, and for the City of Lago Vista on

the state law claims, is REVERSED; and this case is REMANDED for

entry of appropriate summary judgments in this regard, and for
11

further proceedings, consistent with this opinion, on the remaining

federal law claim against the City.

REVERSED and REMANDED