United States Court of Appeals

for the Fifth Circuit

No. 21-20329

Constable Herschel Smith, 

Plaintiff—Appellee,

versus

Constable Ted Heap, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

No. 4:20-CV-3572

Before Smith, Costa, and Wilson, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Ted Heap is an elected constable in Harris County, Texas. Herschel 

Smith is his counterpart in adjoining Waller County. After a 911 caller reported that Smith had aimed a gun at him on a local tollway in Harris County,

Heap’s deputies stopped and questioned Smith, then released him minutes 

later. 

Smith sued Heap, who asserted qualified and statutory immunities. 

The stop was lawful, Heap wasn’t even there, and state law shields him from 

the tort claims. But the district court denied Heap’s motion to dismiss. We 

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2022

Lyle W. Cayce

Clerk

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reverse, dismiss, and render judgment for Heap.

I.

In summer 2020, Constable Smith was returning to Waller County 

from an extra job, driving in Harris County in a county-owned vehicle that 

displayed “Exempt” license plates and featured standard red and blue emergency lights. The vehicle was otherwise unmarked. While on a tollway, 

Smith observed a car exceeding the speed limit, so he flashed his police lights 

to tell the driver to slow down.

A motorist then called 911. After identifying Smith’s vehicle (a black 

Chevy Tahoe) and its license plate number, the caller said that the driver had 

flashed “police lights” at him and, after the caller slowed down, “pulled up 

next to me and pointed a gun at me and was yelling stuff at me” before driving 

off.

After learning of the call, Harris County deputy constables in marked 

police vehicles began searching for Smith’s vehicle. When they found it, they 

activated their police lights and sirens and directed Smith to stop. Because 

the 911 caller had said that Smith had pointed a gun at him, the deputies 

planned to employ a “felony stop” procedure: After the cars rolled to a stop, 

the deputies would approach Smith’s car, guns drawn, so they could react if 

Smith emerged and started shooting. And they would cuff Smith promptly 

so he could not retrieve a weapon while they investigated. 

The stop was textbook. The cars stopped. The officers approached, 

guns drawn and ready, and asked Smith to show his hands. Smith activated 

his police lights and, about a minute later, stuck his hands out the window. 

He then exited the Tahoe with his hands up, out, and empty. A deputy led 

Smith behind a police car and cuffed him. 

The deputies asked Smith where his service weapon was. Smith 

replied that it was in his car. The deputies asked him to sit in the back of a 

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police car. Smith refused and demanded that the deputies call Heap, the

constable for that Harris County precinct. The deputies did not do that. 

Smith also asked why he was pulled over, and one of the deputies told 

him what the 911 caller had said. Smith admitted to flashing his lights at a 

motorist but denied pointing his gun. After one minute forty-seven seconds, 

the deputies removed the handcuffs. The deputies and Smith spoke for a few 

more minutes; Smith then left the scene.

The next day, Smith, who is black, held a press conference at which he 

accused the deputies, Heap, and the 911 caller of racial discrimination. He 

protested, as does his complaint, that the deputies stopped him even though 

he is an elected constable who was driving a government vehicle. He demanded that Heap apologize for his deputies’ conducting the stop.

Smith’s presser prompted media inquiries, so Heap held his own. 

Defending his deputies, Heap pointed out that the 911 caller never mentioned 

Smith’s race, that two of the deputies who stopped Smith were black, and 

that aiming a gun at other motorists would plainly warrant a felony stop. He 

then answered Smith’s complaint that Heap did not call him to apologize on 

behalf of his deputies:

Reporter: So we were talking to [Smith] and he says you 

haven’t—he hasn’t had a call from you. Have you had plans to 

talk to him, like, call—talk about this issue?

Heap: Well as much as I would like to, my response would 

be, ‘Why would I call him? He’s a suspect in a criminal 

case.’ If I was to call a suspect in a criminal case, could you 

imagine how that is going to play? The fact that two elected 

officials are collaborating on possible criminal charges? I mean, 

we reviewed this this morning, the district attorney said this 

needs to probably be referred [to the Texas Rangers], we referred it. At that point, then it’s not appropriate for me to make 

a phone call to a suspect in a criminal case. Regardless if 

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they’re an elected official or not—I don’t think the public or 

anybody else wants to believe that law enforcement should be 

above the law.

Smith then sued Heap, the deputies, and Harris County in federal 

court. His amended complaint brings three counts. The first, against all 

defendants, is a claim under 42 U.S.C. § 1983 for excessive force, illegal 

search and seizure, and supervisory liability for the same. The remaining 

counts are state-law claims: The second, also against all defendants, is intentional infliction of emotional distress (“IIED”). The third, against Heap 

only, is defamation, arising from Heap’s statement at the presser that Smith 

was a “suspect” in a “criminal case.” Smith sues Heap in his individual and 

official capacities.

Heap soon moved to dismiss the individual-capacity claims against 

him. He asserted qualified immunity (“QI”) from the federal claims, which 

were inadequately pleaded. Heap stressed that he was at home when the stop 

took place. And even if he had been present or had directed the stop, the stop 

was completely lawful: The deputies had reasonable suspicion to stop Smith

to investigate the 911 caller’s disturbing report. Plus, the deputies used no 

force at all—and certainly not excessive force—during Smith’s brief detention.

The district court denied Heap’s motion. This is all it said about the 

merits and Heap’s defenses:

The Court finds that these allegations, taken as true, are sufficient to maintain the suit against the defendant individually. 

In short, the fact that the defendant is a Constable does not 

exempt him from a suit for slander as an individual, nor does 

his status automatically exempt him from acts done under 

“color of the law,” where it is shown that he was involved in or 

endorsed illegal conduct. The circumstances are not fully 

clear, but suggest that the defendant was personally involved in 

the matter, even though he was not present. In any event, limCase: 21-20329 Document: 00516281240 Page: 4 Date Filed: 04/14/2022
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ited discovery concerning the defendant’s involvement will 

serve to clear up the matter as to whether the defendant may be 

personally liable under [42 U.S.C.] § 1983.

Heap appealed.

II.

“This court reviews de novo a district court’s denial of a motion to 

dismiss on grounds of qualified or absolute immunity.” Terwilliger v. Reyna, 

4 F.4th 270, 279 (5th Cir. 2021). When an official asserts QI, the plaintiff 

bears the burden to rebut that defense. Hyatt v. Thomas, 843 F.3d 172, 177 

(5th Cir. 2016). 

The standard pleading burden applies:

To withstand a motion to dismiss under Rule 12(b)(6), a complaint must present enough facts to state a plausible claim to 

relief. A plaintiff need not provide exhaustive detail to avoid 

dismissal, but the pleaded facts must allow a reasonable inference that the plaintiff should prevail. Facts that only conceivably

give rise to relief don’t suffice. Thus, though we generally take 

as true what a complaint alleges, we do not credit a complaint’s 

legal conclusions or threadbare recitals of the elements of a 

cause of action.[

1

]

The denial of immunity is a collateral order, which this court has jurisdiction 

to review.

2

1 Mandawala v. Ne. Baptist Hosp., 16 F.4th 1144, 1150 (5th Cir. 2021) (cleaned up); 

see also Terwilliger, 4 F.4th at 279–80 (“These standards are the same when a motion to 

dismiss is based on qualified immunity.”).

2 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (stating that denial of QI is a 

collateral order); Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir. 1996) (same rule for state-law 

immunities).

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III.

This court must first decide whether Heap is entitled to QI on the 

federal claims. He is. We then must decide whether Texas law immunizes 

Heap from Smith’s tort claims. It does, so we reverse and dismiss all 

individual-capacity claims against Heap.

A.

We turn first to the federal claims. Although his brief does not challenge the propriety of the initial traffic stop, Smith asserts that the deputies 

committed an unreasonable seizure and used excessive force to detain him. 

Though Heap wasn’t present, Smith claims that Heap is responsible for the 

stop because he either “order[ed] the excessive force used against [Smith]” 

or ratified that violation by defending his deputies at the press conference.

When a defendant asserts and is entitled to QI, a court has two 

options: It can decide that the plaintiff’s constitutional claims lack merit, or 

it can decide that the defendant’s conduct did not violate clearly established 

law. Which path to choose is committed to our “sound discretion.” Pearson 

v. Callahan, 555 U.S. 223, 236 (2009).

We choose to address the merits, and there are none. Smith has not 

pleaded a constitutional violation—not even close.

1.

Smith first claims that after the stop, the deputies unreasonably seized 

him, violating the Fourth Amendment. That claim is meritless.

Smith appears to claim that his seizure was a de facto arrest that 

required probable cause. But Smith was not arrested. De facto arrest requires 

restraint “of the degree which the law associates with formal arrest.” Windham v. Harris Cnty., 875 F.3d 229, 240 (5th Cir. 2017) (cleaned up). Taking a 

suspect “to police headquarters usually marks the point at which an investiCase: 21-20329 Document: 00516281240 Page: 6 Date Filed: 04/14/2022
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gatory stop becomes a de facto arrest.”3 And if unjustifiably prolonged, a Terry 

stop “can, due to its duration, transform into the equivalent of an arrest.” 

United States v. Massi, 761 F.3d 512, 522 (5th Cir. 2014). For example, United 

States v. Zavala, 541 F.3d 562, 579 (5th Cir. 2008), held that a defendant 

endured a de facto arrest when, after a search of his car turned up nothing, 

police handcuffed him, stuffed him into a police vehicle, and “transported 

[him] to different locations” for more than ninety minutes.

Nothing like that happened here. Smith alleges that the deputies 

aimed guns at him, “activated the sirens and flashers on their vehicles, commanded [him] to exit his vehicle, handcuffed [him], and tried to place [him] 

into the back of a squad car.” But those measures typify our cases dismissing 

claims of de facto arrest. It is “reasonable to detain a suspect at gunpoint, 

handcuff [him], and place [him] in a police car” during an investigatory stop. 

United States v. Thomas, 997 F.3d 603, 615 (5th Cir. 2021) (citing United States 

v. Abdo, 733 F.3d 562, 565–66 (5th Cir. 2013)), cert. denied, 142 S. Ct. 828 

(2022). And unlike many of those cases, here the officers detained Smith for 

mere minutes,

4

releasing him after he denied aiming his gun at another 

driver.5

Because reasonable suspicion supported the investigatory stop, Smith 

did not adequately plead an unreasonable seizure.

3 United States v. Martinez, 808 F.2d 1050, 1055 (5th Cir. 1987) (citing Hayes v. 

Florida, 470 U.S. 811, 815–16 (1985)); see also Terry v. Ohio, 392 U.S. 1, 16 (1968) (describing 

“a trip to the station house and prosecution” as hallmarks of arrest).

4 See, e.g., Windham, 875 F.3d at 241 (ninety-minute traffic stop that ended in release 

wasn’t a de facto arrest).

5 See Zavala, 541 F.3d at 579 (“A Terry detention must . . . last no longer than is 

necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges.”) (cleaned up).

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2.

Smith asserts that the deputies deployed excessive force to detain him, 

violating the Fourth Amendment. Again, Smith fails to plead a colorable constitutional violation. 

To plead a claim of excessive force, the plaintiff “must establish (1) an 

injury (2) which resulted directly and only from a use of force that was clearly 

excessive, and (3) the excessiveness of which was clearly unreasonable.” Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th Cir. 2020) (cleaned up). We measure the excessiveness and unreasonableness of the force “from the perspective of a reasonable officer on the scene.” Id. (quotation omitted).

To the first element, Smith claims that he suffered “psychological 

injuries” from the stop. But that claim has two problems. 

The first is that his complaint doesn’t allege it. Paragraphs 63 through 

68 of Smith’s amended complaint assert his excessive-force claim; none mentions injury. Smith later says that the stop “caused . . . severe emotional 

distress,” but that allegation pertains only to his IIED claim. Smith therefore 

has not alleged that his injury resulted “directly and only” from the deputies’ 

use of force. Ratliff, 948 F.3d at 287 (quotation omitted).

The second deficiency is that the police used objectively reasonable 

force. “[O]bjectively reasonable force will result in de minimis injuries only,” 

and de minimis injuries cannot sustain an excessive-force claim. Alexander v. 

City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (quotation omitted). 

Such is the case here. Informed that Smith had pointed his gun at 

another driver,6the officers approached the car with weapons drawn, directed 

6 At oral argument, Smith’s counsel asserted that the officers “did not believe that 

Constable Smith pointed a weapon” at the motorist. Oral Arg. at 18:45–18:50. Even if that 

claim had appeared in Smith’s complaint, it would not matter. Reasonable suspicion and 

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Smith to exit the vehicle, and then handcuffed him for under two minutes 

(causing no physical injury) while they secured the scene. That use of force 

was reasonable; it’s a “routine police procedure” for safely confronting

armed suspects like Smith.

7

 

Smith replies with a bizarre contradiction. He claims that the deputies 

committed felony assault by detaining him, a constable, at gunpoint.8 But 

Smith’s alleged pointing a gun at another motorist was, Smith says, a mere 

misdemeanor, for which the police could not arrest him.9

The first point is irrelevant, the second incorrect. First, whether the 

deputies committed an offense under Texas law does not tell us whether they 

violated the Fourth Amendment. Smith cites no case holding that the measure of excessive force is whether an officer’s conduct would be a felony 

under state law had the officer lacked lawful authority to make the stop. 

Second, Smith’s aiming a gun at someone may, in fact, be a felony in Texas.10 

probable cause are objective inquiries; “an officer’s subjective intentions have no impact” 

on either analysis. United States v. Lopez-Moreno, 420 F.3d 420, 432 (5th Cir. 2005).

7 Dunn v. Denk, 79 F.3d 401, 403 (5th Cir. 1996) (en banc); see also Glenn v. City of 

Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (“Other than placing the handcuffs on [the plaintiff ] 

. . . , Officer Rhodes did not touch her . . . . [H]andcuffing too tightly, without more, does 

not amount to excessive force.”); 3 Wayne R. LaFave, Search & Seizure: A 

Treatise on the Fourth Amendment § 5.1(d) n.240 (6th ed.), Westlaw (database 

updated Dec. 2021) (“Aiming of a weapon at an arrestee/intended arrestee has typically 

been upheld because of the circumstances.”).

8 See Tex. Penal Code § 22.01(b)(1) (assault is a third-degree felony when 

“committed against a person the actor knows is a public servant while the public servant is 

lawfully discharging an official duty, or in retaliation or on account of an exercise of official 

power”). 

9 See id. § 22.05(a) (“A person commits [the] offense [of deadly conduct] if he 

recklessly engages in conduct that places another in imminent danger of serious bodily 

injury.”); id. § 22.05(e) (noting that this crime is a Class A misdemeanor).

10 Texas law sensibly criminalizes “intentionally or knowingly threaten[ing] another 

with imminent bodily injury.” Tex. Penal Code § 22.01(a)(2). That offense is a felony 

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And Smith was only stopped; he was not arrested, as we have explained.

Smith hasn’t adequately pleaded any constitutional violation. That 

dooms Smith’s other claims: Absent a constitutional violation, Heap can’t be 

liable for supervising one, ratifying one, or for failing to train his deputies to 

avoid one. See Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005).

B.

As for the state claims, Smith sues Heap for defamation and IIED. We 

must decide whether state law protects Heap from those claims, and it does. 

Heap claims two statutory immunities. Both live in § 101.106 of the 

Texas Civil Practice and Remedies Code, and both preclude Smith’s tort 

claims.

First, under subsection (a) of that statute, filing a tort claim “against a 

governmental unit . . . immediately and forever bars any suit or recovery by 

the plaintiff against any individual employee of the governmental unit regarding the same subject matter.”11

Second, subsection (f) entitles a governmental employee to dismissal 

of an individual-capacity suit against him when two conditions are met: One, 

the suit is “based on conduct within the general scope of that employee’s 

employment.” Tex. Civ. Prac. & Rem. Code § 101.106(f). Two, the 

suit “could have been brought” against the governmental unit. Id.12

when the actor “uses or exhibits a deadly weapon,” id. § 22.02(a)(2), and a first-degree

felony if “committed by a public servant acting under color of [his] office or employment,” 

id. § 22.02(b)(2)(A).

11 Tex. Civ. Prac. & Rem. Code § 101.106(a); see also Molina v. Alvarado, 

463 S.W.3d 867, 870–71 (Tex. 2015) (per curiam) (applying § 101.106(a)).

12 See also Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (per curiam) (applying § 101.106(f )).

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Subsection (a) precludes both tort claims against Heap. In his original 

and amended complaints, Smith lists both Heap and Harris County as 

defendants. He has sued those defendants “regarding the same subject matter” because he has sued Heap in his individual and official capacities: Under 

Texas law, an official-capacity suit against an employee is “a suit against his 

government employer.” Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex.

2011). That means the IIED and defamation claims against Heap in his official capacity are really IIED and defamation claims against the county. And 

those claims necessarily arise from the “same subject matter” as the identical 

individual-capacity claims against Heap.

Even if subsection (a) did not apply, subsection (f) would bar Smith’s 

tort claims. “The scope-of-employment inquiry under section 101.106(f) 

focuses on whether the employee was doing his job, not the quality of the job 

performance.” Garza v. Harrison, 574 S.W.3d 389, 394 (Tex. 2019). In other 

words, to claim immunity, a defendant need only link his “job responsibilities” to “the alleged tort[s].” Id. 

That link exists here. Both tort claims against Heap arise, if at all, from 

acts he took to fulfill his official duties. As the elected constable, Heap supervises his deputies’ activities and is the public face of his precinct. Thus, both 

the IIED claim, which arises from the stop, and the defamation claim, which 

arises from the presser, are linked to conduct within the scope of Heap’s 

employ as a precinct constable. That means Heap has immunity. See, e.g., 

Alexander, 435 S.W.3d at 792.

Smith replies that Heap is not immune under subsection (f) because 

he “stepped outside of his official duties” by “engag[ing] in malicious conduct.” But whether an official’s act is unlawful does not determine whether 

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that act is within the scope of his employment.13 What matters is whether the 

defendant’s actions are linked to his job responsibilities, and that connection 

exists here.

* * * * *

Constable Heap is entitled to dismissal. His immunities bar all claims 

against him. We REVERSE the denial of the motion to dismiss, DISMISS

all claims, and RENDER judgment for Heap.

13 In Garza, for example, an off-duty officer shot and killed a suspected drug dealer 

in a parking lot. But whether that was a tort—and a very bad one—was not the question. 

Garza, 574 S.W.3d at 405. “Under section 101.106(f ), we are not tasked with passing judgment on [the police officer’s] skill or the manner in which he attempted to enforce the law,” 

the Court stressed. Id. “Our analysis is strictly limited to whether he was doing the job of 

a peace officer . . . .” Id. at 405–06. And because Texas law permits off-duty officers to 

make warrantless arrests, the Court found that the officer had acted within the scope of his 

employment. Id. at 406.

Blackletter agency law confirms that result. See, e.g., Restatement (Second) 

of Agency § 247 (1958), Westlaw (database updated Mar. 2022) (“A master is subject to 

liability for defamatory statements made by a servant acting within the scope of his employment, or, as to those hearing or reading the statement, within his apparent authority.”); see 

also id. § 229 (for some facts relevant to whether an act is within the scope of employment).

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