Qualified Immunity Does Not Raise the Pleading Bar: The Fifth Circuit Rejects a “Citation Requirement” and Holds an Unprovoked Shove of a Non-Resisting Suspect States a Clearly Established Excessive-Force Claim

Qualified Immunity Does Not Raise the Pleading Bar: The Fifth Circuit Rejects a “Citation Requirement” and Holds an Unprovoked Shove of a Non-Resisting Suspect States a Clearly Established Excessive-Force Claim

Introduction

In Santander v. Salazar, No. 24-10275 (5th Cir. Apr. 4, 2025), the United States Court of Appeals for the Fifth Circuit addressed three § 1983 claims arising from an altercation outside a Fort Worth bar: excessive force, false arrest, and malicious prosecution. The plaintiff, Gustavo Santander, alleged that Jose Salazar—an off-duty Fort Worth police officer working security—pushed him from behind without provocation, punched him until he lost consciousness, and then arrested him for public intoxication. Santander’s lawsuit followed an internal affairs investigation that found Salazar had violated departmental policy and falsified the arrest affidavit. The district court dismissed all claims with prejudice, emphasizing that Santander had not cited analogous authority in his complaint to overcome qualified immunity.

Writing for a unanimous panel (Judges Haynes, Duncan, and Wilson), Judge Cory T. Wilson reversed in part. The court set an important procedural marker: a plaintiff’s complaint is not required to cite legal authority to defeat a Rule 12(b)(6) motion invoking qualified immunity. Applying the correct standard and accepting Santander’s well-pleaded allegations as true, the court held the excessive-force claim survives the motion to dismiss and the qualified-immunity defense. The false-arrest and malicious-prosecution claims do not, because the right asserted in each was not clearly established on the specific facts and timeline alleged.

Summary of the Opinion

  • Pleading Standard: The district court erred by requiring the complaint to cite “analogous authority” to defeat qualified immunity. Rule 8 governs; no heightened pleading applies when qualified immunity is raised.
  • Color of Law: Despite being off-duty, Salazar acted under color of state law by wearing his badge, carrying his service weapon, and effectuating an arrest, satisfying the Fifth Circuit’s “misuse of official power” and “nexus” tests.
  • Excessive Force: Accepting the allegations as true, Salazar’s unprovoked shove from behind of a non-resisting person, followed by repeated punches, plausibly states a constitutional violation. The initial unprovoked shove alone violates clearly established law; the claim proceeds past the pleadings stage.
  • False Arrest: Even if the public-intoxication basis was weak, the any-crime rule applies. Santander’s alleged act of pulling his arm away and pushing the officer supplied probable cause to arrest for resisting—unless clearly established law dictates otherwise. It does not. Qualified immunity bars the claim.
  • Malicious Prosecution: At the time of the July 2022 incident, the elements of a federal malicious-prosecution claim in the Fifth Circuit were unsettled post-Thompson v. Clark and pre-Armstrong v. Ashley. No clearly established law existed; qualified immunity bars the claim.
  • Disposition: Affirmed in part (false arrest and malicious prosecution dismissed); reversed in part (excessive force revived) and remanded.

Analysis

Precedents Cited and Their Roles

  • Pleading and Qualified Immunity Framework:
    • Ashcroft v. Iqbal; Bell Atlantic v. Twombly: Establish the plausibility standard under Rule 12(b)(6).
    • Elder v. Holloway: Plaintiffs need not identify the controlling legal universe in their pleadings; courts must determine the law, and dismissing for counsel’s failure to cite is improper.
    • Arnold v. Williams; Guerra v. Castillo; Waller v. Hanlon; Anderson v. Valdez; Schultea v. Wood: The Fifth Circuit’s repeated rejection of heightened pleading for qualified immunity; plaintiffs must plead facts which, if proven, defeat immunity, but need not brief caselaw in the complaint.
    • Longoria v. San Benito ISD; Ferguson v. Bank of New York Mellon; Pena v. City of Rio Grande City; Hodge v. Engleman: Standards for de novo review, well-pleaded facts, and disregard of conclusory assertions.
  • Under Color of Law (Off-Duty Officer Conduct):
    • West v. Atkins: § 1983 requires action under color of state law.
    • Gomez v. Galman; Bustos v. Martini Club; United States v. Tarpley: Duty status is not dispositive; misuse of official power and the nexus between conduct and official duties establish color of law. Wearing a badge, carrying a service weapon, and making an arrest met the test here.
  • Excessive Force:
    • Poole v. City of Shreveport; Ontiveros v. City of Rosenberg: Elements of a Fourth Amendment excessive-force claim.
    • Mullenix v. Luna; al-Kidd; Brosseau v. Haugen; Saucier v. Katz; Kisela v. Hughes; Harmon v. City of Arlington; Morrow v. Meachum: Clearly established law must be specific; excessive-force precedents are fact-specific and “especially demanding” for plaintiffs.
    • Spiller v. Harris County; Carroll v. Ellington: It is clearly established that striking a suspect who is not resisting is excessive; force after a suspect is subdued is impermissible.
    • Lytle v. Bexar County: Reasonableness can change over the course of an encounter.
  • False Arrest and Probable Cause:
    • Deville v. Marcantel; Resendiz v. Miller: False arrest under § 1983 turns on lack of probable cause.
    • District of Columbia v. Wesby; Voss v. Goode: The any-crime rule—probable cause to arrest for any offense renders the arrest lawful.
    • California v. Hodari D.: “Mere grasping” can constitute an arrest (relevant to when resisting begins).
    • Ramirez v. Martinez: Pulling one’s arm out of an officer’s grasp can constitute resisting arrest; resisting can itself supply probable cause.
    • Rice v. ReliaStar: Policy violations do not defeat qualified immunity, though they may color the reasonableness assessment.
    • Texas Penal Code § 9.31(c): Justification to resist arrest when excessive force is used first; the court noted its potential relevance but held no clearly established federal law dictated the outcome on these facts.
  • Malicious Prosecution:
    • Castellano v. Fragozo: Before 2022, the Fifth Circuit did not recognize a stand-alone federal malicious-prosecution claim.
    • Thompson v. Clark (2022): Recognized a § 1983 malicious-prosecution claim grounded in the Fourth Amendment but did not specify all elements.
    • Armstrong v. Ashley (Feb. 2023): The Fifth Circuit first articulated the elements post-Thompson; because the incident here predated Armstrong, the law was not clearly established for qualified-immunity purposes.
    • Cooper v. Brown: The clearly-established inquiry is anchored to the time of the alleged violation.
  • Alternative-Grounds Affirmance:
    • Ortiz v. American Airlines; NLRB v. Kentucky River Community Care: Appellate courts may affirm on any ground supported by the record, even if the district court’s reasoning was wrong.

Legal Reasoning

First, the panel corrected the district court’s threshold error: a plaintiff facing a qualified-immunity motion at the pleadings stage is not required to cite cases in the complaint. Rule 8 controls; the question is whether the plaintiff has pled specific facts that, if true, would both state a constitutional violation and defeat qualified immunity. Elder v. Holloway squarely rejects a “plaintiff-must-brief-the-law-in-the-complaint” approach, and Fifth Circuit precedents confirm there is no heightened pleading standard when immunity is asserted.

Turning to the merits, the court accepted as true Santander’s allegation that Salazar, while displaying indicia of official authority, initiated an unprovoked physical encounter by violently shoving Santander from behind, then punching him repeatedly until he lost consciousness, and arresting him thereafter. These allegations satisfied the “under color of law” requirement because Salazar allegedly misused official power with a nexus to his duties.

On excessive force, the court held that the initial shove of a non-resisting suspect “suddenly and without provocation” crosses the clearly established line. Under Spiller and related cases, striking a suspect who is not resisting is excessive. While the full encounter could evolve in ways that might complicate the reasonableness calculus, Lytle teaches that force reasonable at one moment can become unreasonable the next and vice versa; here, the initial shove itself was enough to carry the claim beyond the pleading stage.

The false-arrest claim failed on the clearly-established prong. Although the internal affairs findings and the dismissed public-intoxication charge cast doubt on the original charge, Wesby’s any-crime rule permits the arrest to be justified by probable cause for any offense. Santander alleged that he pulled his arm from Salazar’s grasp and pushed him away; under Ramirez, that conduct can constitute resisting arrest and can itself supply probable cause—even if the officer initiated contact. While Texas Penal Code § 9.31(c) recognizes a justification to resist when the officer uses excessive force first, the court found no clearly established federal precedent stating that an officer lacks probable cause to arrest for resisting in these specific circumstances. Because qualified immunity demands that the unlawfulness be beyond debate for every reasonable officer on materially similar facts, the false-arrest claim was dismissed.

The malicious-prosecution claim also failed on clearly established law. At the time of the July 2022 incident, Thompson had newly recognized the claim but left its elements to the lower courts; Armstrong did not supply those elements until February 2023. The governing standard was unsettled at the time of Salazar’s conduct, precluding liability on qualified immunity.

Impact

  • Pleading practice in qualified-immunity cases: The opinion reinforces that district courts may not impose a de facto heightened pleading standard requiring plaintiffs to cite analogous authority in their complaints. Rule 8 governs. Practitioners can expect more § 1983 complaints that contain detailed factual narratives, not case citations, to survive a Rule 12(b)(6) qualified-immunity motion when the facts, if true, would defeat immunity.
  • Excessive-force litigation: The court’s application of clearly established law to an unprovoked shove of a non-resisting person provides a clear path for similar allegations to proceed to discovery. It also underscores that early-stage judicial focus on the initial use of force can be outcome-determinative.
  • False arrest and resisting: The any-crime rule remains a powerful defense. Even when an initial charge is weak or pretextual, a suspect’s resistance can supply probable cause. The court flagged, but did not resolve in a plaintiff-friendly way, the effect of state-law justification (e.g., Texas Penal Code § 9.31(c)) on probable cause in the qualified-immunity analysis. Unless and until clearly established federal precedent addresses that specific interplay, plaintiffs will face a high bar on false-arrest claims where resistance is alleged.
  • Malicious prosecution in the Fifth Circuit: Incidents occurring between Thompson (April 2022) and Armstrong (February 2023) face a qualified-immunity gap because the elements were not clearly established in this circuit. Conduct after Armstrong is governed by clearly articulated elements, allowing such claims to proceed where facts fit.
  • Off-duty officers working security: The opinion reaffirms that off-duty officers can act under color of law when they leverage the trappings of office (badge, service weapon) and exercise police authority (detentions, arrests). Private employment status will not shield officers from § 1983 liability where misuse of official power is alleged.

Complex Concepts Simplified

  • Qualified immunity: A defense shielding officials from damages unless a plaintiff plausibly alleges (and ultimately proves) two things: a constitutional violation and that the violated right was clearly established at the time. “Clearly established” means every reasonable officer would know the conduct was unlawful in the specific context.
  • No heightened pleading: Even when qualified immunity is raised, a complaint need only satisfy Rule 8. Plaintiffs must plead facts, not legal conclusions, that, if true, overcome immunity. They need not cite cases in the complaint.
  • Under color of law: An official acts “under color of state law” when misusing official power with a nexus to official duties. Off-duty status does not defeat § 1983 liability if the officer uses official authority (e.g., displaying a badge, making an arrest).
  • Excessive force basics: A Fourth Amendment claim requires an injury from force that was clearly excessive and clearly unreasonable under the circumstances. Striking a non-resisting person is a paradigmatic example of excessive force.
  • Any-crime rule: An arrest is lawful if the officer had probable cause for any offense, not just the stated one. Thus, even if one charge fails, another offense (e.g., resisting) can justify the arrest.
  • Resisting and probable cause: Pulling away from an officer’s grasp can be resisting under Fifth Circuit law, and resistance can supply probable cause for arrest—though state-law justifications may complicate the analysis. The federal question is whether it was clearly established that probable cause was lacking in the specific scenario.
  • Malicious prosecution timeline: Thompson recognized the federal claim in 2022 but left its contours undefined; Armstrong supplied elements in 2023. Acts before Armstrong occurred in a period when the law was not clearly established for qualified-immunity purposes in the Fifth Circuit.

Conclusion

Santander v. Salazar sets two important guideposts in the Fifth Circuit. Procedurally, it confirms that plaintiffs need not plead case citations to survive a Rule 12(b)(6) qualified-immunity motion; Rule 8’s factual pleading standard controls, consistent with Elder and Fifth Circuit precedent. Substantively, it reaffirms that an officer’s unprovoked use of force on a non-resisting person—here, a shove from behind—is clearly established as excessive under the Fourth Amendment, allowing such claims to proceed past the pleadings. At the same time, the opinion underscores the robustness of qualified immunity in false-arrest disputes involving resistance and in malicious-prosecution claims during the post-Thompson, pre-Armstrong period when the law’s contours were unsettled. The case will return to the district court for discovery on excessive force, while district courts should recalibrate their pleading-stage qualified-immunity analyses to focus on facts pled, not citations supplied.

Key Takeaways

  • No “citation requirement” in complaints to overcome qualified immunity at Rule 12(b)(6).
  • Off-duty officers may act under color of law when leveraging official authority.
  • An unprovoked shove of a non-resisting person is clearly established excessive force.
  • The any-crime rule and resistance often sustain probable cause for arrest; state-law justification for resistance did not overcome qualified immunity here.
  • Malicious-prosecution claims tied to pre-Armstrong conduct in the Fifth Circuit are likely barred by qualified immunity for lack of clearly established law.

Case Details

Year: 2025
Court: Court of Appeals for the Fifth Circuit

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