# United States Court of Appeals

f or 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 re

ported that Smith had aimed a gun at him on a local tollway in Harris County, Heap’s deputies stopped and questi oned Smith, then released him minutes later

. Smith sued Heap, who asserted qualified and statutory immunit ies

. The stop was lawful , Heap wasn’t even there, and state law shields him from the tort claims. But t he district court denied Heap’s motion to dismiss . We United States Court of Appeals

Fifth Circuit 

### FILED April 14, 2022 Lyle W. Cayce Clerk Case: 21-20329 Document: 00516281240 Page: 1 Date Filed: 04/14/2022No. 21

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2 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 emer

gency 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 sl ow 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 poin ted 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 a nd 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 c ould not retrieve a weapon while they investigated. The stop was textbook. T he 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 hand s out the window. He then exited the Tahoe with his hands up, out, and empty. A deputy led Smit h behind a police car and cuffed him

. Th e 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 Case: 21-20329 Document: 00516281240 Page: 2 Date Filed: 04/14/2022No. 21

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

c onstable 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, He ap, 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. H e de

manded 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 mot orists 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 attorn ey said this needs to probably be referred [to the Texas Rangers], we re

ferred 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 Case: 21-20329 Document: 00516281240 Page: 3 Date Filed: 04/14/2022No. 21

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4 they’re an elected official or not

— I don’t think the p ublic 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 inten

tional infliction of emotional distress (“IIED”) . The th ird, 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 indi vidual and official capacities

. Heap soon moved to dismiss the individual

- capacity claims agai nst 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 suf

ficient to maintain the suit against the defendant individu ally. 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, lim

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5 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 pl aintiff bears the burden to rebut th at 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 com

plaint must present enough facts to state a plausible c laim to relief. A plaintiff need not provide exhaustive detail to avoid dismissal, but the pleaded facts must allow a reasonable infer

ence 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 juris diction

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 denia l of QI is a collateral order); Cantu v. Rocha , 77 F.3d 795, 804 (5th Cir. 1996) (same rule for state

- law immunities). Case: 21-20329 Document: 00516281240 Page: 5 Date Filed: 04/14/2022No. 21

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6 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 , s o we reverse and dismiss all individual

- capacity claims against Heap.

A. We turn first to the federal claims. Although his brief does not chal

lenge the propriety of the initial traffic stop, Smith asserts that the deputies committed an unreasonable seizu re and used excessive force to detain him. Though Heap wasn’t present, Smith claims that Heap is respon sible for the stop because he either “order[ed] the excessive force used against [Smith]” or ratified that violation by defending his deputies at the p ress 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 pa th to choose is committed to our “sound discretion.” Pearson v. Callahan , 555 U.S. 223, 236 (2009).

We choose to address the merits , and t here 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 merit less

. Smith appears to claim that his seizure was a de facto arrest that required probable cause

. But Smith was not arrested. De facto arrest requ ires restraint “of the degree which the law asso ciates with formal arrest.” Wind

ham 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 investi

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7 gatory stop become s a de facto arrest.” 3 And if unjustifiably prolonged, a Terry stop “can, due to its duration, trans form 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 in to a police vehicle , and “transported [him] to different locations” for more than ninety minut es. Nothing like that happened here. Smith alleges that the deputies aimed guns at him, “activated the sirens and flashers on their vehicles, com

manded [him] to exit his vehicle, handcuffed [him], and tried to place [him] in to 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 inves tigatory stop. United States v. Thomas , 997 F.3d 603, 615 (5th C ir. 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 offi cers detained Smith for mere minutes , 4 releasing him after he denied aiming his gun at anot her 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 57 9 (“A Terry detention must .

. . last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, sup

ported by articulable facts, emerges.”) (cleaned up). Case: 21-20329 Document: 00516281240 Page: 7 Date Filed: 04/14/2022No. 21

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8 2. Smith asserts that the deputies deployed excessive force to detain him, violating the Fourth Amendment. Again, Smith fails to plead a colora ble con

stitutional 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.” Rat

liff v. Aransas Cnty. , 948 F.3d 281, 287 (5th Cir. 2020) (cleaned up). We mea

sure the excessiveness and unreasonableness of the force “from the per spec

tive 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 firs t is that his complaint doesn’t allege it. Paragraphs 63 through 68 of Smith’s amended complaint assert his excessive

- force claim; none men

tions injury

. Smith later says that the stop “caused

. . . severe emotional distress, ” but that allegation pertain s 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 for ce . “ [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, 6 the 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 suspic ion and Case: 21-20329 Document: 00516281240 Page: 8 Date Filed: 04/14/2022No. 21

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9 Smith to exit the vehicle, and then handcuffed him for under two minutes (causing no physical injury) while th ey secured the scene. That use of force

was reasonable ; it’s a “routine police procedure” for safely confront ing 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 , w hether 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 mea

sure of excessive force is whether an officer’s conduct would be a felony under state law had th e officer lacked lawful authority to make the stop. Second , Smith’s a iming a gun at someone may, in fact, be a felony in Texas. 10

probable cause are objective inquir ies ; “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. LaF ave, Search & Seizure: A Trea tise 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 “com mitted 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 Case: 21-20329 Document: 00516281240 Page: 9 Date Filed: 04/14/2022No. 21

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

. Smith has n’t adequately pleaded any constitutional vi olation . 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 regard

ing the same subject matter.” 11

Second , subsection (f) entitles a government al 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 sco pe of that employee’s employment.” Tex. Civ. Prac. & Rem. Code § 101.106(f). Two , the suit “could have been brought” against the government al 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 , 4 63 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) (apply

ing § 101.106(f )). Case: 21-20329 Document: 00516281240 Page: 10 Date Filed: 04/14/2022No. 21

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11 Subsection (a) precludes both tort claims against Heap. In his original and amended complaints, Sm ith lists both Heap and Harris County as defendants. H e has sue d those defendants “regarding the same subject mat

ter” 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 offi

cial capacity are reall y IIED and defamation claims against the c ounty . A nd 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 ne ed only link his “job responsibil i

ties” 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 super

vises his deputies’ a ctivities 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 link ed to conduct within the scope of Heap’s employ as a precinct constable. T hat 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 con

duct.” But whether an official’s act is unlawful does not determine whether Case: 21-20329 Document: 00516281240 Page: 11 Date Filed: 04/14/2022No. 21

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12 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 d enial 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 dea ler 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 4 05. “Under section 101.106(f ), we are not tasked with passing judg

ment on [the police offi cer’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. 202 2 ) (“A master is subject to liability for defamatory statements made by a servant acting within the scope of his employ

ment, 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 emp loyment). Case: 21-20329 Document: 00516281240 Page: 12 Date Filed: 04/14/2022