Constable in Texas did not violate another constable’s constitutional rights


Ted Heap is elected constable in Harris County, Texas. Herschel Smith is elected constable in Waller County, Texas. In 2020, Smith was driving in Harris County in a county owned vehicle that displayed exempt license plates and featured red and blue emergency lights.  Smith observed a car exceeding the speed limit so he flashed his lights to tell the other 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.

Harris County constables responded to the call and employed a felony car stop procedure wherein they got Smith out of his car at gunpoint and handcuffed him. Smith told them he flashed his lights but denied pointing a gun at any motorists. 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.

Smith alleged the stop was based on racial discrimination and held a press conference. Smith then sued Heap, the deputies, and Harris County in federal court under 42 U.S.C. § 1983 for excessive force, illegal search and seizure, and supervisory liability for the same. The district court denied Heap’s summary judgement finding that the circumstances were not clear. On appeal, the 5th circuit reversed and dismissed all charges against Heap.


When a defendant asserts and is entitled to qualified immunity, 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.” We choose to address the merits, and there are none. Smith has not pleaded a constitutional violation—not even close.

A.  Constitutional violation – Unreasonable Seizure

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. Taking a suspect to police headquarters usually marks the point at which an investigatory stop becomes a de facto arrest. And if unjustifiably prolonged, a Terry stop can, due to its duration, transform into the equivalent of an arrest.

For example, in Zavala we 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.

In Thomas, we held that it is reasonable to detain a suspect at gunpoint, handcuff him, and place him in a police car during an investigatory stop. In this case, the officers detained Smith for mere minutes, releasing him after he denied aiming his gun at another driver. Because reasonable suspicion supported the investigatory stop, Smith did not adequately plead an unreasonable seizure.

B.  Constitutional violation – Excessive Force

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. We measure the excessiveness and unreasonableness of the force from the perspective of a reasonable officer on the scene.

Smith’s claim has two problems.  The first is that his complaint doesn’t allege an injury. The second deficiency is that the police used objectively reasonable force. In Alexander, we said that objectively reasonable force will result in de minimis injuries only, and de minimis injuries cannot sustain an excessive force claim.

Such is the case here. Informed that Smith had pointed his gun at another driver, the officers approached the car with weapons drawn, directed 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.

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.