Page 48 - TPA Journal May June 2025

No. 23-50879 de novo.” Summary judgment is proper where
there is no genuine dispute of material fact. Fed.
In March 2020, Delgado pulled McClain over for R. Civ. P.56(a).
swerving. He stopped McClain after observing Once qualified immunity is asserted, the burden
him “quickly jerk” his truck to the right shoulder “shifts to the plaintiff, who must rebut the defense
and “cross the solid white line several times.” by establishing a genuine fact issue as to whether
McClain apologized and stated, “I’m sorry, I was the official’s allegedly wrongful conduct violated
messing with my radio.” Delgado asked to per- clearly established law. ”Brown v. Callahan,
form Standardized Field Sobriety Tests, and 623F.3d 249,253 (5th Cir.2010).In false arrest
McClain agreed. cases, the plaintiff must show that no reasonable
Delgado performed three tests for “scientifically officer would have made the complained-of arrest.
validated clues of alcohol impairment. ”First, he Loftin v. City of Prentiss, 33 F.4th774,781 (5thCir.
administered the horizontal gaze nystag- 2022).When video evidence is available, the court
mus(HGN) test, which tracks involuntary jerking should consider “the facts in the light depicted by
of the eyes as they gaze to the side. Delgado the videotape. McClain cannot establish that a
observed all six possible clues of intoxication on genuine dispute of material fact exists as to
this test. Second, he administered the walk-and- whether Delgado’s conduct violated the Fourth
turn test, observing two of eight possible clues of Amendment.
intoxication. Lastly, he administered the one-leg First, Delgado had reasonable suspicion for the
stand test and observed no possible clues of intox- traffic stop—McClain’s swerving toward the right
ication. Delgado placed McClain under arrest for shoulder. McClain concedes this point in his com-
driving while intoxicated. After the arrest, Texas plaint, stating “Delgado had only reasonable sus-
Trooper Dallon McKay conducted the HGN test picion to stop” him and that McClain told “the
and confirmed Delgado’s results. McKay officer he was messing with his radio which is to
remarked that “what [Delgado] saw, is the same his right, which is the direction the vehicle jerked.
thing I just saw;” to which McClain replied, “I ”The dissent argues that this concession is taken
don’t doubt it, maybe I’ve got something going out of context. But not so. To argue that Delgado
on.” lacked probable cause for an arrest, McClain
McClain was taken to the hospital for a blood test. offers that he had “only reasonable suspicion”—
That test did not show the presence of any alcohol the requirement for a constitutional traffic stop.
or drugs. And the County Attorney did not prose- And on bodycam video, McClain did not dispute
cute McClain. that he crossed the line, but more than once offers
McClain sued under 42 U.S.C. an excuse for why he might’ve done so—messing
§1983.Hemadeclaims of false arrest and malicious with the radio. McClain nodded in agreement
prosecution against Delgado. Delgado moved for when Delgado mentioned his “jerking the wheel
summary judgment on both claims, arguing that to the right...several times.” While talking to
he was entitled to qualified immunity. The district McKay, McClain repeated the story:“[Delgado]
court granted the motion for the malicious prose- said I was going across the line, and I told him I
cution claim but denied it for the false arrest might’ve gone across it when I changed the radio
claim. Delgado appealed. station.” And at the hospital, McClain reaffirmed
The denial of a motion for summary judgment the radio caused any jerking.
based on qualified immunity is immediately So we are not determining whether McClain
appealable under the collateral-order doctrine. jerked, how many times, or the significance of any
lane departures, as the dissent contends we do.
“We review legal conclsions, materiality determi- We are merely taking McClain at his word on
nations, and the scope of clearly established law video and in the pleadings. And by doing so, we

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