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Whether Rogers had probable cause to arrest Accordingly, the district court did not err in finding
Allemang after the SFST, however, presents a that Rogers is entitled to qualified immunity
much closer question. We conclude that the law against Allemang’s Fourth Amendment claim.
does not conclusively establish probable cause on
this question. But that uncertainty necessarily [discussion of capacity claims omitted as is that of
means that Rogers is entitled to qualified immunity, the affidavits]
because there is no caselaw clearly establishing that
Rogers acted unreasonably in arresting Allemang. In summary, we agree with the district court that
When Rogers asked Allemang whether he was able Rogers is entitled to qualified immunity, but only
to perform a field sobriety test, Rogers responded because there is no caselaw clearly establishing that
that his bad back would prevent him from doing so, he acted unreasonably in proceeding to arrest
and that his amblyopia might interfere with a Allemang for a failed SFST despite a negative
nystagmus test. Nonetheless, Rogers proceeded breathalyzer. We further conclude that Allemang’s
with the SFST, including a nystagmus test, and then official-capacity claim against Rogers is not viable
arrested Rogers based on Allemang’s poor under § 1983. We therefore AFFIRM the district
performance. Allemang does not dispute that he court’s judgment.
was deficient on his SFST. Thus, the undisputed Allemang v. State of La. (unpublished) No. 21-
evidence shows Rogers based his arrest on the 30360, 5 th Cir. 8/10/2022.
following information:
• Allemang admitted to drinking four beers; ****************************************
• Rogers’ conclusion that Allemang failed the SFST *********************************
(based on Rogers’ inability to perform the
nystagmus test, inability to stand on one foot, and
inability to perform the walk-the-line test); and PROBABLE CAUSE & FORCE,
• A “faint to moderate” smell of alcohol on protester arrests
Allemang’s breath.
On the ledger’s other side, however, we have James Everard (“Everard”) and Christopher
Allemang’s statement that his disabilities would Grisham (“Grisham”) (collectively, “Plaintiffs”)
inhibit his ability to perform the SFST and his filed this civil rights suit under 42 U.S.C. § 1983
subsequent negative Breathalyzer. Allemang does against the City of Olmos Park (“the City”) and
not dispute that he was deficient on his SFST. But several police officers (collectively, “Defendants”)
he contends that any probable cause arising from alleging that their arrests were in violation of their
the SFST dissipated when he blew a negative constitutional rights. The district court granted
Breathalyzer. The parties cite no circuit-level summary judgment in favor of the City and the
authority that addresses whether a clean officers and dismissed Everard’s and Grisham’s
Breathalyzer test negates probable cause for an claims. Because the record evidence supports the
arrest based on a failed SFST. Nor does there district court’s summary judgment, we AFFIRM.
appear to be consensus among the district courts on
the issue. Also lacking is any consensus or robust Grisham and Everard are self-styled “Second
trend among the other circuits that we could join. Amendment protestors” who had been involved in
several protests advocating for the repeal of a City
Against this mixed precedential backdrop, we must ordinance that governs the unauthorized carrying
conclude that Rogers acted did not act of loaded firearms. This case arises out of their
unreasonably in light of then-prevailing caselaw. arrests on March 27, 2018. Prior to this date, the

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