qualified immunity granted for officer who consulted with prosecutor before making arrest


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Some time before she was arrested, Jacqueline Perry voiced concerns at a neighborhood meeting about her neighbors playing loud music. Police officers present at the meeting gave her a non-emergency dispatch number to report any future disturbances. On October 8, 2017, Perry called police around 10:45 a.m., complaining of loud music coming from her neighbors’ home three houses down the street. The responding officer approached Perry’s house with his windows down and radio off to listen for music but did not hear any. He spoke with Perry and one of Perry’s neighbors, a Hispanic male, before departing.

At 12:05 p.m., Perry called again, claiming the neighbors raised the volume the moment the officer departed. A second officer responded. Because he heard no loud music playing, the officer noted that Perry’s complaint was “unfounded.” Soon after, Perry called a third time and lodged the same complaint. This time, Officer Maxanette Mendoza arrived on the scene. Mendoza heard no loud music. She spoke to the neighbors, who said that Perry had repeatedly called the police to falsely accuse them of playing loud music. Perry saw Mendoza’s cruiser, drove down the street, and told Mendoza that she could hear the music inside her house, that the neighbors showed no consideration for others in the neighborhood, and that she knows the Constable of Harris County Precinct 3 and she will call every time she hears them.

Mendoza decided to investigate further. She drove around the corner and hid behind the neighbor’s fence for thirty minutes. While Mendoza waited, Perry called for the fourth time, stating that the neighbor had turned the music up again the minute Mendoza left. Mendoza, however, heard nothing. At that point, Mendoza contacted the Harris County District Attorney’s Office and described what was happening. Specifically, she said that she had stood behind the neighbor’s fence and heard no noise at the same time Ms. Perry was once again calling in another complaint. The district attorney’s office told Mendoza that it would accept the charge of telephone harassment. Mendoza then arrested Perry for telephone harassment.

Perry spent 13 hours in custody before the District Attorney dropped the charge for lack of probable cause. The precinct subsequently opened an investigation into Perry’s arrest and placed Mendoza on unpaid leave. She later resigned. The investigation cleared Mendoza of any wrongdoing besides a technical policy violation for not timely filing a police report.

Perry sued Mendoza under 42 U.S.C. § 1983 for false arrest. The magistrate judge concluded that Mendoza had probable cause to believe that Perry had called the authorities multiple times to report loud music that did not exist and that she called with the intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another under Texas Penal Code § 42.07(a)(4). The 5th affirmed.


Perry asserts her arrest was unreasonable because the Texas law requires harassing calls to be aimed at the victim, not the police.

We may assume arguendo that Mendoza lacked probable cause to arrest Perry for telephone harassment. Indeed, there is some support in Texas law, as Perry argues, for the proposition that the harassing phone calls must be made to the intended victim. Nonetheless, we agree with the magistrate judge that any mistake by Mendoza was reasonable.

It is undisputed that, before arresting Perry, Mendoza called the district attorney’s office to ensure that a telephone harassment charge was proper. As a panel of our court recently explained, advice obtained from a prosecutor prior to making an arrest should be factored into the totality of the circumstances and considered in determining the officer’s entitlement to qualified immunity. See Gorsky. Numerous other circuits agree with that approach.

As the magistrate judge observed, nothing about the circumstances taints Mendoza’s beliefs as unreasonable: (1) Perry called multiple times to report loud music that day; (2) other officers found no loud music playing when they arrived; (3) the alleged noisemakers claimed they were not playing loud music; (4) no music was playing during the several hours Mendoza was on the scene; and (5) while Mendoza stood behind the neighbors’ fence hearing no noise, she received reports Perry was still calling in complaints. Furthermore, as noted, Mendoza relayed what was happening to the district attorney’s office and received the go-ahead to arrest Perry for telephone harassment.

In sum, we see no error in the magistrate judge’s conclusion that Mendoza reasonably believed probable cause supported Perry’s arrest.