UNITED STATES COURT OF APPEALS
For the Fifth Circuit
LARRY J. LAND,
TRINITY MOTHER FRANCES HEALTH SYSTEM, ET AL,
CITY OF TYLER;
MARC SUMMY GRAY, POLICE OFFICER, CITY OF TYLER;
RANDY HAMMONTREE, POLICE OFFICER, CITY OF TYLER,
Appeal from the United States District Court for the Eastern District of Texas, Tyler Division[End Page 6:98-CV-742]
October 27, 2000
Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, Judge*.
The City of Tyler ("the City"); Marc Summy Gray, Police
Officer, City of Tyler ("Officer Gray"); and Randy Hammontree,
Judge of the U.S. Court of International Trade, sitting
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that this opinion should not be published and is not precedent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.
Police Officer, City of Tyler ("Officer Hammontree") (collectively
"Appellants" or "Defendants"), appeal the district court's denial
of their motion for summary judgment. Larry J. Land ("Appellee" or
"Plaintiff") brought an action in the district court pursuant to 42
U.S.C. § 1983 ("Section 1983") for unlawful arrest, false
imprisonment, and malicious prosecution. Officers Gray and
Hammontree sought and were denied summary judgment on the ground of
qualified immunity from prosecution for Land's federal claim of
unlawful arrest, and on the ground of official immunity from
prosecution for Land's state-law claims of false imprisonment and
malicious prosecution. The City also sought and was denied summary
judgment on the ground of municipal liability immunity. Magistrate
Judge McKee found that Land had "presented sufficient summary
judgment evidence that raises material questions of fact and rebuts
the defendants' right to immunity." Court Order at 14 (Oct. 25,
1999). Appellants now seek review of the district court's order on
interlocutory appeal. For the reasons discussed below, the Court
REVERSES the district court's order denying summary judgment to
Officers Gray and Hammontree.1
Appellants have made no argument with respect to the
district court's denial of the City's motion for summary judgment
on grounds of municipal liability immunity. When an appellant
fails to address a potential error in the district court's
analysis, it is the same as if the appellant had not appealed that
aspect of the judgment. See Brinkmann v. Abner, 813 F.2d 744
(5th Cir. 1987). In other words, for purposes of this interlocutory
appeal, the City's immunity claims are deemed abandoned. See Davis
v. Maggio, 706 F.2d 568
, 571 (5th Cir. 1983). Therefore, without
affirming the conclusions of the district court's opinion, we leave
its entry of judgment against the City undisturbed.
For purposes of this appeal, the relevant factual background
is as follows: On the morning of January 18, 1998, Land was
admitted to Trinity-Mother Frances Health System d/b/a Mother
Frances Hospital ("the Hospital") for severe headaches. Dr. Mack
Stewart treated Land with Phenergan and Demeral, a sedative and a
narcotic analgesic, respectively. Dr. Stewart discharged Land on
the condition that he be picked up at the Hospital by someone else,
and with the instruction that if his condition worsened, Land
should return to the Hospital. Hospital security officer William
Kennedy escorted Land to a Hospital waiting room to wait for Land's
wife to pick him up. While in the waiting room, Kennedy observed
Land engage in "bizarre" disruptive behavior, which led Kennedy to
escort Land out of the Hospital and call the police.
When Officers Gray and Hammontree arrived at the Hospital,
Kennedy told the officers that, while in the waiting room, Land had
used a cigarette lighter to burn strips of paper from an EKG
monitor in the presence of flammable substances; that Land had
attempted to use a computer keyboard as if it were a telephone;
that Land had propositioned a woman in the waiting room; that Land
had harassed nurses; and that, when Kennedy tried to intervene,
Land had addressed him with profanity and threatened to hurt him.
Kennedy also told the officers that, once outside of the waiting
room, Land continued using profane language and directed threats at
Kennedy and the Hospital staff. The officers claim they were not
told that Land had received any treatment at the Hospital.
The officers observed Land, who was pointed out by Kennedy.
Though sitting quietly on a short wall by the emergency room
entrance, Land appeared to be "unsteady," and his speech was
"extremely slurred." Officer Gray asked Land to step down from the
wall. When Land did so, he lost his balance and staggered. On the
basis of their observations, the officers concluded that Land was
intoxicated as a result of ingesting some substance, and that Land
endangered himself and others. The officers arrested Land for
public intoxication. Land then told Kennedy and Officer Gray that
he had taken Vicodin and Somaâ€"a narcotic pain medication and a
muscle relaxant, respectivelyâ€"the previous evening and earlier in
the morning. Land also initially told the officers that he had not
been drinking alcohol, but later told them that he had had a
"couple of mixed drinks."2 Land admits that he remembers nothing
that happened at the Hospital after Dr. Stewart administered the
shots of Demerol and Phenergan.
Standard of Review
This court reviews de novo the denial of a motion for summary
Land was tried by a jury for public intoxication on the
theory that he was drunk on alcohol. Dr. Stewart testified that he smelled no alcohol on Land's breath when he treated him at the
Hospital. Officer Gray testified that he smelled alcohol on Land's
breath, but later admitted that his trial testimony was untrue.
Land was acquitted, on the ground that the intoxicating substance
he ingested had been prescribed for medicinal purposes.
judgment predicated on qualified immunity. See Hayter v. City of
Mt. Vernon, 154 F.3d 269
, 274 (5th Cir. 1998). Summary judgment is
proper if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with any affidavits filed in
support of the motion, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c). The moving party
bears the burden of showing the district court that there is an
absence of evidence to support the nonmoving party's case. See
Celotex Corp. v. Catrett, 477 U.S. 317
, 325 (1986). If the moving
party meets the initial burden of showing that there is no genuine
issue, the burden shifts to the nonmovant to set forth specific
facts showing the existence of a genuine issue for trial. See Fed.
R. Civ. P. 56(e). The nonmovant cannot satisfy his summary
judgment burden with conclusional allegations, unsubstantiated
assertions, or only a scintilla of evidence. See Little v. Liquid
Air Corp., 37 F.3d 1069
, 1075 (5th Cir. 1994)(en banc).
Land raises the threshold issue of this Court's jurisdiction
over the officers' interlocutory appeal based on qualified
immunity. See Appellee's Br. at 1. "[T]he district court found
sufficient evidence and the existence of genuine disputes with
regard to material facts that precluded the granting of summary
judgment. Individual officers cannot interlocutorily appeal this
kind of fact-based finding of evidence sufficiency." Id. (citing
Johnson v. Jones, 515 U.S. 304
(1995)). Appellants reply that this
court does have jurisdiction, because there is no dispute about the
facts surrounding Land's arrest. See Appellants' Br. at 1-3.
In its order, the district court found that Land had produced
summary judgment evidence sufficient to "present material questions
of fact that questions [sic] whether [the officers] had probable
cause to arrest Land." Court Order at 6-7. The district court
also found an issue of material fact as to "whether reasonable
officers would have believed that Land committed the offense of
public intoxication." Id. at 8. Finally, the district court found
a material fact issue as to whether the officers' conduct was
"objectively reasonable," because it was possible that the
objectively reasonable "thing would have been to inquire into
[Land's] physical condition." Id. at 8-9. Because there were
issues of material fact with respect to whether the officers'
actions had been objectively reasonable, the district court further
found that the officers were also not entitled to official immunity
under state law with respect to Land's state law claims. Id. at 9-
It is clear that, in certain instances, this Court has
jurisdiction over qualified immunity claims on interlocutory
appeal: "[A] district court's denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an
appealable â€˜final decision' within the meaning of 28 U.S.C. § 1291
notwithstanding the absence of a final judgment." Mitchell v.
Forsyth, 472 U.S. 511
, 530 (1985). The Supreme Court clarified
Mitchell in Johnson and Behrens v. Pelletier, 516 U.S. 299
See also Hart v. O'Brien, 127 F.3d 424
, 435-36 (5th Cir. 1997). In
Johnson, the Supreme Court:
distinguished between orders that resolve legal wrangles
and those that determine "evidence sufficiency" disputes.
If, for example, the district court denies summary
judgment on the basis that, given the set of undisputed
facts, the defendant official's conduct was not
objectively reasonable in light of clearly established
law, the official may seek immediate appeal. If the
district court denies summary judgment on the grounds
that material facts exist which a party may or may not be
able to prove at trial, the official must await final
judgment before appealing.
Hart, 127 F.3d at 435 (citing Johnson, 515 U.S. at 312). Behrens
interpreted Johnson narrowly to mean that interlocutory appeals
must be denied only "if what is at issue in the sufficiency
determination is nothing more than whether the evidence could
support a finding that particular conduct occurred." Behrens, 516
U.S. at 313.
In this case, there is very little dispute about what
particular conduct occurred. All the evidence the district court
cites in favor of Land in finding "genuine disputes with regard to
material facts" is, in fact, undisputed by Appellants. No one
contests that Land was at the Hospital or that he was sitting
quietly on a wall when the officers arrived; no one contests that
the officers arrested Land, even though, in truth, no alcohol was
detected; and no one contests that Land cooperated with the
officers. See Court Order, 7-9. What is contested is whether the
officers had probable cause to arrest Land for public intoxication;
that is, whether conduct of the officers was "objectively
reasonable" under clearly established law. That is a legal
question, notwithstanding the district court's characterization of
it as a purely factual question.3 See Hart, 127 F.3d at 435-36.
As such, the Court has jurisdiction over Appellants' interlocutory
appeal of the district court's denial of their summary judgment
motion on the ground of qualified immunity, as well as on the
ground of official immunity. See id., 127 F.3d at 436.
II. Qualified Immunity and Official Immunity
Government officials performing discretionary functions are
protected from civil liability under the doctrine of qualified
immunity if their conduct violates no "clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800
, 818 (1982).
Federal courts review claims of qualified immunity under a two-step
analysis. First, a court asks whether the plaintiff has asserted
Appellate jurisdiction is not precluded simply because
the order denying a summary judgment motion based on qualified
immunity contains a determination that "material issues of fact
remain." Cantu v. Rocha, 77 F.3d 795
, 803 (5th Cir. 1996)(citing
Behrens, 516 U.S. 312-13). This Court possesses jurisdiction to
"take, as given, the facts that the district court assumed when it
denied summary judgment and determine whether these facts state a
claim under clearly established law." Id. (internal quotes and
a violation of a "clearly established constitutional right."
Siegert v. Gilley, 500 U.S. 226
, 231-32 (1991); Hayter, 154 F.3d at
274. If so, the court decides whether the defendant's conduct was
"objectively reasonable in light of legal rules clearly established
at the time of the incident." Jones v. City of Jackson, 203 F.3d 875
, 879 (5th Cir. 2000)(citation and internal quotation marks
omitted). The same "objective reasonableness" standard also
applies to claims of official immunity under Texas state law. See
City of San Augustine v. Parrish, 10 S.W.3d 734, 741 (Tex. Ct. App.
Here, there is no dispute that, if Officers Gray and
Hammontree arrested Land without probable cause, Land has asserted
a violation of a clearly established constitutional right. The
Constitution requires that an arrest must be supported by a
properly issued arrest warrant or probable cause. See Johnston v.
City of Houston, 14 F.3d 1056
, 1061 (5th Cir. 1994). An individual
has a constitutionally protected right to be free from unlawful
arrest and detention. See Duckett v. Cedar Park, 950 F.2d 272
(5th Cir. 1992).
There is a dispute, however, as to whether the officers'
arrest of Land for public intoxication was "objectively reasonable
in light of legal rules clearly established at the time of the
Under settled law, [Officers Gray and Hammontree] are
entitled to immunity if a reasonable officer could have
believed that probable cause existed to arrest [Land].
Probable cause existed if "at the moment the arrest was
made . . . the facts and circumstances within their
knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in
believing" that [Land] had violated [the Texas public
Hunter v. Bryant, 502 U.S. 224
, 228 (1991)(citing Beck v. Ohio, 379 U.S. 89
, 91 (1964)). In Texas, an individual is publicly
intoxicated if (1) he appears in a public place (2) under the
influence of alcohol or any other substance (3) to the degree he
may endanger himself or another. See State v. Ross, 999 S.W.2d
468, 473 (Tex. App. Houston 14th Dist. 1999)(citing Tex. Penal Code
Ann. § 49.02(a) (Vernon Supp. 1998)). The danger need not be
"immediate," and "[i]t is sufficient if the accused renders himself
or others subject to potential danger." Reynolds v. State, 902
S.W.2d 558, 560 (Tex. App. Houston 1st Dist. 1995)(citations and
internal quotation marks omitted).
The facts and circumstances within the knowledge of the
officers are detailed above, see discussion, supra, and are
essentially undisputed. The officers had reasonably trustworthy
information, insofar as their knowledge of these facts and
circumstances was derived either from their own observations or
from the observations of the Hospital security officer Kennedy.
The issue, then, is whether the officers' knowledge of these facts
and circumstances was sufficient to warrant their belief that Land
was committing the offense of public intoxication. If so, then the
officers' behavior was "objectively reasonable" for purposes of
qualified and official immunity, and the district court erred in
denying the officers' motion for summary judgment on immunity
As to the first element of the Texas law of public
intoxication, it is undisputed that Land appeared in a public
place. See Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App.
1994)(en banc)("public" places encompass all those places to which
a substantial group of the public has access, including a
The second element of the public intoxication statute requires
the officers to have had a reasonable belief that Land was under
the influence of alcohol or any other substance. The district
court found that Land had produced sufficient summary judgment
evidence to demonstrate that there was a material issue of fact as
to this question. See Court Order at 7-8. In so finding, the
district court pointed to evidence that Land was at the Hospital,
that Dr. Stewart had instructed that Land should be returned to the
Hospital if his condition changed, and that "Dr. Stewart stat[ed]
he did not smell alcohol on Land's breath and even Officers Gray
and Hammontree admit there was no smell of alcohol on Land's
breath." Id. at 7. Further, Land presented evidence that he was
"sitting still on a wall" and "was cooperating with the officers."
Id. at 8.
The Court disagrees that this evidence is sufficient to meet
Land's burden of setting forth specific facts showing the existence
of a genuine issue for trial. Land has raised only undisputed
evidence, which fails to directly counter other undisputed evidence
set forth by Appellants. Texas law is clear that intoxication may
be induced by a substance other than alcohol. See Tex. Penal Code
Ann. § 49.01. Thus, evidence that no one smelled alcohol on Land's
breath does not necessarily create a genuine issue for trial.4
"Intoxication" is defined in Texas as "not having the normal use of
mental or physical faculties by reason of the introduction of" some
substance "into the body." Tex. Penal Code Ann. § 49.01(2)(A).
Appellants presented undisputed evidence that Land's speech was
slurred, that his balance appeared unsteady and he staggered and
stumbled when he stepped down from the wall, and that Land told
Kennedy and Officer Gray that he had taken Vicodin and Soma, and
told the officers that he had had some mixed drinks. These
observations, coupled with the information the officers received
from Kennedy regarding Land's behavior in the waiting room, led the
officers to reasonably conclude that Land was under the influence
of some substance. See, e.g., United States v. Fossler, 597 F.2d 478
, 480 (5th Cir. 1979)(officer had probable cause to arrest
defendant for public intoxication after observing him leaning
Land, as noted above, admits that, as a result of
receiving medication, he remembers nothing of the events surrounding his arrest. See Appellee's Br. at 16. Nonetheless, he
disputes that he was intoxicated, apparently because the
intoxicating substance was not alcohol. See id. In light of Texas
law that one can become "intoxicated" as a result of ingesting substances other than alcohol, Land's "dispute" is nothing more
than a conclusional allegation or unsubstantiated assertion, with
which he cannot satisfy his summary judgment burden. See Little,
37 F.3d at 1075.
against a car, having trouble standing, and exhibiting bloodshot
eyes and slurred speech).
The district court relied on the evidence of the "changing
testimony" of the officers regarding the smell of alcohol on Land's
breath, see Court Order at 7-8, to establish that the officers'
conduct was not objectively reasonable. Federal law is clear,
however, that what is relevant in determining whether probable
cause existed is the evidence known to the officer at the moment of
arrest. See United States v. Levine, 80 F.3d 129
, 132 (5th Cir.
1996). And Texas law, as explained above, is clear that one can be
intoxicated as a result of ingesting substances other than alcohol.
Therefore, the subsequent testimony of Officers Gray and Hammontree
regarding the particular substance which had intoxicated Land is
irrelevant to the analysis of the objective reasonableness of the
Moreover, to the extent that the district court relied on
Officer Gray's false testimony at Land's criminal trial to
demonstrate that the officers lacked "good faith" in arresting Land
for purposes of official immunity, see Court Order at 10-11, the
district court erred in two respects. First, the "good faith"
clause of the Texas official immunity doctrine is not a separate
subjective inquiry, but rather the same objective reasonableness
inquiry conducted under the qualified immunity doctrine. See City
of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994). Second,
the objective reasonableness inquiry does not permit consideration
of the officers' underlying intent or motivation. In the context
of deciding whether officers had used excessive force in arresting
a suspect, who subsequently sued the officers under Section 1983,
the Supreme Court explained, "An officer's evil intentions will not
make a Fourth Amendment violation out of an objectively reasonable
use of force; nor will an officer's good intentions make an
objectively unreasonable use of force constitutional." Graham v.
Connor, 490 U.S. 386
, 397 (1989).
The third and final element of the public intoxication statute
requires the officers to have had a reasonable belief that Land
endangered himself or others. The district court apparently found
that the officers could not have had a reasonable belief that Land
was a danger to himself or others, because "Land was at the
[H]ospital and cooperating with the police officers." Court Order
at 8. The district court then continued, "The evidence presented
by [Land] suggests that the reasonable thing to do would be to
return Land to the Hospital. Perhaps, the objectively reasonable
thing would have been to inquire into his physical condition. By
not asking about his physical condition, Land's health was at risk
as Dr. Stewart stated any change in Land's condition should result
in a return to the [H]ospital." Id. at 8-9.
Again, the district court's analysis misses the mark. Land
again raises only undisputed evidence, which fails to directly
counter other undisputed evidence set forth by Appellants.
Appellants do not dispute that Land was at the Hospital, was
cooperating with the officers, and was sitting quietly on a wall
when they arrived. And undisputed by Land is additional evidence
presented by Appellants, and apparently not considered by the
district court, that Kennedy informed the officers that Land had
set fire to paper near flammable substances and had demonstrated
volatile and violent behavior both in the emergency room and
outside of it. From the facts and circumstances within their
knowledge at the time of the arrest, Officers Gray and Hammontree
could reasonably conclude that Land posed a danger to others. See
Raley v. Fraser, 747 F.2d 287
, 290 (5th Cir. 1984)(reasonable belief
that intoxicated defendant posed danger when defendant had been
seen throwing down a sign and heard to talk belligerently).
Moreover, the officers could reasonably conclude that Land posed a
threat to himself because he had demonstrated a lack of balance and
was in an area where fast-moving Hospital emergency staff and
vehicles could run into him if he fell or stumbled. See White v.
State, 714 S.W.2d 78, 79 (Tex. App. San Antonio 1986)(man
intoxicated in parking lot "created probable cause for arrest for
public intoxication" because it was "reasonable to assume that cars
would travel in and out" and might hit him).
As to the district court's suggestions that the officers
should have taken a different course of action rather than arrest
Land, the law is that "[t]he â€˜reasonableness' of [the conduct] must
be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight." Graham,
490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1
, 20-22 (1968));
see also Hunter, 502 U.S. at 228. Officers Gray and Hammontree, at
the time of the arrest, did not know that Land had been treated at
the Hospital, and thus did not know of Dr. Stewart's instructions.
Land was properly acquitted at his criminal trial for public
intoxication after the full facts and circumstances surrounding his
trip to the Hospital and arrest were revealed. Land's acquittal
does not, however, conflict with this Court's finding that the
officers' conduct was objectively reasonable based on the facts and
circumstances known at the time they arrested Land. The Court
concludes that qualified and official immunity protect Officers
Gray and Hammontree from prosecution as a matter of law.
The Supreme Court has explained the rationale underlying
It is inevitable that law enforcement officials will in
some cases reasonably but mistakenly conclude that
probable cause is present, and . . . in such cases those
officialsâ€"like other officials who act in ways they
reasonably believe to be lawfulâ€"should not be held
Anderson v. Creighton, 483 U.S. 635
, 641 (1987). This is such a
case. Officers Gray and Hammontree "reasonably but mistakenly"
concluded that Land was violating the Texas law against public
intoxication, and proceeded to arrest him on that belief.
The district court is REVERSED, with summary judgment to be
entered in favor of Appellants Gray and Hammontree on their claims
of qualified and official immunity.