Qualified immunity denied for officer who entered gated curtilage to arrest subject who walked away and refused to provide identification


(If you are new to 1983 actions, click here for help)

Ricardo Sauceda was fifty years old and disabled at the time of the events in question. Sauceda and his neighbors, the Cortez family, had a fraught history. Sauceda had lodged numerous complaints against the Cortez family to the San Benito Police Department. On June 20, 2015, the Cortez family was having a party across the street from Sauceda’s home. Marco Cortez alleged that Sauceda made lewd gestures and comments directed toward him. Cortez recorded three videos of Sauceda on his cellphone, but deleted one of them because it didn’t show anything. The other two videos show Sauceda standing on his property, though they lack audio and do not clearly show what gestures (if any) Sauceda was making.

After recording Sauceda, Cortez called the police. Officer Hector Lopez arrived and spoke to Cortez, who described his allegations against Sauceda and showed Lopez the videos he recorded. Lopez then crossed the street and addressed Sauceda, who was standing behind a gated fence that surrounded his property. Lopez testified that at that time he had not yet decided to arrest Sauceda for disorderly conduct.

Lopez’s body camera recorded their interaction. Sauceda denied the accusations against him, stated that he previously filed police reports against the grandfather of the Cortez family, and suggested that the Cortezes had called the police against him in retaliation. Lopez then asked Sauceda for his driver’s license. Sauceda declined to produce it, stating that he did not wish to file a report and was just minding his own business. Lopez told Sauceda that he would be making a report and needed Sauceda’s information. Sauceda told him, “I’m not going to give you anything,” and began to walk away.

Lopez testified that it was at this point that he decided to arrest Sauceda. However, the mere refusal to identify oneself to a police officer is not a crime in Texas if the person has not lawfully been placed under arrest. See Tex. Penal Code § 38.02(a). (Note: Mississippi also has no stop and identify laws). As Sauceda walked a few steps toward his house, Lopez began to open Sauceda’s gate. Sauceda noticed what Lopez was doing, turned back, and attempted to hold the gate closed. He told Lopez, “you don’t get in my house without a search warrant, no, sir.” Lopez responded, “I’m going after you, brother,” and forced his way into Sauceda’s yard.

Lopez testified that he got a hold of Sauceda’s left hand before Sauceda pulled away. His body camera footage showed Sauceda telling Lopez “don’t touch me” as he pulled out of Lopez’s grip. Lopez continued to pursue Sauceda further into the yard, telling him, “You’re going to come with me, brother,” and saying over his radio, “I got one resisting arrest.” Lopez did not inform Sauceda why he was being arrested. Lopez then grabbed Sauceda a second time. It is unclear if Lopez jerked Sauceda forward or if Sauceda lost his balance, but Sauceda immediately fell to the ground.

Lopez attempted to handcuff Sauceda. As Sauceda lay on his back, Lopez stood over him and pinned him with his legs. While in this position, Lopez drew and extended his baton with his left hand. Sauceda testified that Lopez struck him with the baton. Lopez testified that he did not. Lopez’s body camera footage does not show precisely what Lopez did with the baton. During the struggle, someone placed the palm side of their right hand directly over the camera, obscuring part of the relevant footage. During the arrest, Cortez began to make his own recording on his cellphone. Cortez’s video shows Sauceda lying on his back and an object falling from his pocket. Several seconds later, Lopez extends his baton by raising it up to head level with his left hand and making a quick, downward swing in a counterclockwise arc. It is difficult to tell whether the swing made contact with Sauceda, or whether it was intended to make such contact. At no point in either video can the baton be seen or heard coming into contact with Sauceda, and Sauceda said nothing on the recording about being struck with the baton and does not cry out as if struck.

Lopez’s body camera captured repeated outcries from both Sauceda and Sauceda’s wife begging for Lopez to leave him alone. They repeatedly told Lopez that he was hurting Sauceda because he was disabled and had a bad back. After he was handcuffed, Sauceda struggled to stand and asked for an ambulance. Lopez told him to give him his hand. Sauceda said he would get up himself. Lopez again told Sauceda “Give me your hand” and threatened to “spray” him if he did not. Sauceda said, “I think I hurt my back for real.” Lopez replied, “I don’t care, brother.” By this point, other officers had arrived on the scene. Sauceda continued to ask for an ambulance as he was moved to the police car and was told, “once we get to the station.” Eventually, a different officer agreed to call an ambulance.

Sauceda was told that he was under arrest and read his rights. He was taken by ambulance to Harlingen Medical Center, where he was diagnosed with a cervical sprain, a back sprain, and a contusion. Once released from the hospital, he was taken to the police station for booking. He was charged with disorderly conduct, failure to identify, resisting arrest, and assault on a public servant. The Cameron County District Attorney dismissed all charges against Sauceda in February 2017. Lopez was not disciplined.

Sauceda brought a §1983 claim against Lopez for false arrest and excessive force. The district Court dismissed the claim. The 5th reversed as to the false arrest claim.


A. False arrest

Probable cause to arrest exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. See Key Son Lee.

In addition to the probable cause requirement, the Fourth Amendment limits an officer’s ability to enter a private dwelling to make a warrantless arrest. See SCOTUS Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) (It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.) And the “curtilage” of the home—that is, the area immediately surrounding and associated with the home—is part of the home itself for Fourth Amendment purposes. See SCOTUS Florida v. Jardines, 133 S. Ct. 1409 (2013).

Defendants have identified five offenses for which they claim Lopez could have lawfully arrested Sauceda: (i) disorderly conduct; (ii) failure to identify; (iii) evading arrest or detention; (iv) resisting arrest; and (v) assault on a public servant. We examine each theory in turn.

A1. Disorderly conduct

Lopez claims that Sauceda’s allegedly vulgar language and gestures toward Cortez constituted disorderly conduct under Texas law, furnishing probable cause to arrest him.

We need not decide whether Sauceda’s actions—as described by Cortez—fit the statutory definition of disorderly conduct under § 42.01(a), or whether an officer would have probable cause to make an arrest where the alleged misconduct occurred outside of the officer’s presence, was based on an uncorroborated statement by one witness, and was immediately denied by the alleged offender. It suffices to conclude that that, even if probable cause existed to arrest Sauceda for disorderly conduct, Lopez lacked authority to enter the curtilage of Sauceda’s home to arrest him for this purpose.

To the extent Lopez contends that Sauceda’s front yard was not part of the “home” for Fourth Amendment purposes, the videos clearly show what appears to be a single-family home on a normal-sized lot in a residential neighborhood. The sides of the lot that are visible are enclosed by a chain- link fence that is almost as tall as an average adult. There are also bushes behind the fence that obscure parts of the yard from street view. The only apparent access point is a gate, which Sauceda was seen closing in one of the videos, and which was not opened again until Lopez forced his way through it.

A case factually similar to this one was Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974), in which our Court held that an apartment’s backyard, which was inaccessible to others and completely removed from the street and surrounded by a chain link fence, was sufficiently removed and private in character to constitute part of the curtilage.

Because Lopez entered the curtilage of Sauceda’s home without a warrant, we must next determine whether an exception to the warrant requirement applies. Relying on what is commonly known as the hot pursuit exception, Lopez asserts that he acted lawfully in attempting to stop Sauceda from walking back into his house.

Under the hot pursuit exception, the pursuit of a suspect is an exigent circumstance that may excuse an otherwise unconstitutional intrusion into a residence. See Jones. But for the exception to apply, the suspect must be retreating from a public place to a private place.

An area may technically be private property, yet be a public place for Fourth Amendment purposes. See U.S. v. Varkonyi, 645 F.2d 453 (1981) (holding that a private scrap metal yard located behind a fence but with its gate open was a public place); see also SCOTUS Santana, 427 U.S. 38 (1976) (holding that the threshold of an open doorway was a public place).

In Santana and Varkonyi, the places in question were either unenclosed or accessible through an open door or gate. Here, by contrast, Sauceda’s yard was fenced off and his gate was closed.

A suspect’s movement from one point inside his home to another cannot trigger this exception. See Hogan (holding that officers could not justify their warrantless entry based upon their hot pursuit because the suspect did not retreat into his apartment from a public place and was fully inside his apartment at all times). And that is all Sauceda attempted to do here: move from the curtilage of his property—a part of the home, to another point inside the home.

Lopez and the district court stated that law enforcement officers may enter upon private property to make warrantless arrests, provided the arrest is based on probable cause and the person is in plain view. A suspect might be in plain view of the officers if he stands by an open window or on an upper balcony—surely this would not authorize the police to dispense with the warrant requirement if they wish to pass through the front door to arrest him. We think the same is true when a suspect stands within the curtilage of their house from behind a closed gate, albeit visible to the public.

Because the hot pursuit exception does not apply (and because Lopez has not identified any other applicable exception to the warrant requirement), Sauceda has raised genuine issues of fact as to whether Lopez had authority to enter his property to arrest him for disorderly conduct.

A2. Failure to Identify

Defendants’ failure-to-identify argument can be dismissed quickly. A person’s mere refusal to identify themselves to a police officer is not a crime under § 38.02 unless that person has already been “lawfully arrested.” Tex. Penal Code § 38.02(a). Such a refusal can never supply probable cause to make the initial arrest.

A3. Evading arrest or detention

Defendants assert that when Sauceda walked from his yard back towards his home, he committed the offense of evading arrest or detention. But as discussed above, Lopez did not have grounds to enter Sauceda’s curtilage without a warrant, so an arrest for evading arrest or detention could not lawfully be made.

A4. Resisting arrest

The district court concluded that Lopez had probable cause to arrest Sauceda for resisting arrest after Sauceda batted Lopez’s hands away as Lopez pursued him into the yard. We agree that Lopez had the requisite probable cause to arrest Sauceda once Sauceda began resisting. But that does not end our inquiry, for a reasonable factfinder could still find that Lopez made an unlawful arrest before Sauceda’s resistance.

Supreme Court and Fifth Circuit caselaw makes clear that a Fourth Amendment seizure occurs in one of two ways: either an officer applies physical force or an officer makes a show of authority to which an individual submits. See Arnold. In order for such a seizure to constitute an arrest, the circumstances must be such that a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with a formal arrest. See Carroll. An arrest may be effected by the slightest application of physical force; the mere grasping or application of physical force with lawful authority, whether or not it succeeds in subduing the arrestee, is sufficient. See SCOTUS California v. Hodari D., 499 U.S. 621 (1992).

Here, Lopez reached for Sauceda immediately after opening the gate into his yard. Lopez testified that he got a hold of Sauceda’s left hand. That is enough to constitute a seizure under the Fourth Amendment. Also Lopez’s words— “I am going after you, brother,” spoken just seconds before grabbing Sauceda’s hand—reasonably indicated to Sauceda that he was being arrested. Therefore, a rational factfinder could determine that Lopez arrested Sauceda before Sauceda applied any resistance.

Any arrest that Lopez made when he opened Sauceda’s gate and grabbed his hand could not have been lawful. As we have explained above, Lopez had no legal justification to enter Sauceda’s property without a warrant; additionally, he lacked probable cause to arrest Sauceda for failure- to-identify or evading arrest. Thus, a jury could find that when Sauceda “resisted” by pulling out of Lopez’s grip, he had already been placed under an unlawful arrest. Even if an unlawful arrest becomes lawful moments later by virtue of the arrestee’s resistance, there is no reason why the officer cannot be held liable for the unlawful part.

A5. Assault on a public servant

Finally, Defendants state that Lopez had probable cause to arrest Sauceda for assault on a public servant. As discussed in the immediately preceding section, however, Sauceda was already “arrested” when Lopez opened the gate and grabbed his hand. Lopez’s body camera footage shows that Sauceda did not do anything resembling an assault before this arrest occurred. Therefore, summary judgment cannot be granted on this ground.

B. Qualified Immunity

Having found that the acts constituting resisting arrest or assault on a public official occurred after the arrest, and viewing the facts in the light most favorable to Sauceda, Lopez did not have probable cause to enter Sauceda’s property to execute a warrantless arrest. See Washington.

Qualified immunity may nonetheless protect Lopez’s conduct, however, if a reasonable officer could have believed the arrest to be lawful, in light of clearly established law and the information the arresting officer possessed. We thus remand to the district court to determine whether Lopez’s conduct was objectively reasonable in these circumstances.

C. Excessive force

The district court held that while Sauceda was unquestionably injured during his interaction with Lopez, Lopez’s use of force was objectively reasonable considering Sauceda’s resistance. In making this determination, the district court discredited Sauceda’s testimony that Lopez hit him with a baton as contradicted by the video footage of the interaction, which unambiguously established that Lopez did not strike Sauceda with a baton. In the absence of competent evidence that Lopez struck Sauceda with a baton, the district court concluded that Lopez did not use force that was objectively unreasonable in light of Sauceda’s resistance. We agree.

D. Municipal Liability

We similarly affirm the district court with respect to Sauceda’s municipal liability claim against the City. Sauceda has failed to show that Lopez’s allegedly unconstitutional acts were based on any official policy or widespread pattern of conduct of the City.