Qualified-Immunity Interlocutory Appeals Reach Only Claims Actually Raised Below

1. Introduction

Cutshall v. Sandor arises from a slow-speed pursuit and prolonged standoff on I-10 near Houston involving an 18-wheeler driver, Trinidad Cutshall, and multiple Houston-area officers and SWAT personnel. After spike strips immobilized the truck, officers used escalating nonlethal measures—40mm foam rounds, tear gas, an armored BEAR vehicle, a ROOK vehicle to open the cab, and a police dog—before physically extracting and handcuffing Cutshall.

Cutshall sued thirteen officers under 42 U.S.C. § 1983 and state law, alleging Fourth Amendment excessive force and failure to intervene (bystander liability), and Fourteenth Amendment due process claims styled as “summary punishment” and failure to render medical aid. The officers moved to dismiss; the district court denied the motions in brief orders. On interlocutory appeal, the Fifth Circuit confronted two central questions:

• Appellate jurisdiction: Which claims are properly before the court on an interlocutory qualified-immunity appeal when the defendants’ motions to dismiss are inconsistent and incomplete?
• Merits (within jurisdiction): Do the pleaded facts, including a police incident report attached to the complaint, state plausible claims for (i) excessive force and (ii) bystander liability?

2. Summary of the Opinion

The court reversed the denial of dismissal as to (1) excessive force claims against all thirteen officers and (2) bystander liability claims against eight officers, and remanded for further proceedings on any remaining claims not within the appeal.

3. Analysis

3.1. Precedents Cited

A. Interlocutory jurisdiction, the collateral-order doctrine, and pleading qualified immunity

• Mitchell v. Forsyth, 472 U.S. 511 (1985)
  The court treated Mitchell as the foundational source of interlocutory appealability for qualified-immunity denials: ordinarily appellate jurisdiction requires a “final decision” under 28 U.S.C. § 1291, but qualified immunity can trigger a narrow collateral-order exception. The opinion emphasized Mitchell’s narrowness, which becomes decisive when defendants seek review of claims they did not properly place at issue below.
• Frias v. Hernandez, 142 F.4th 803 (5th Cir. 2025) (Oldham, J., concurring)
  The court relied on Frias for a modern articulation of the collateral-order doctrine’s strict requirements and for the caution that the class of immediately appealable orders is “small, modest, and narrow.” This framing supported the panel’s refusal to enlarge interlocutory jurisdiction to cover unraised claims.
• United States v. Wampler, 624 F.3d 1330 (10th Cir. 2010) (Gorsuch, J.)
  Quoted via Frias, Wampler supplied the “small, modest, and narrow” description, reinforcing the court’s formal limits on interlocutory review.
• Johnson v. Williams, 95 F.3d 50 (5th Cir. 1996) (per curiam)
  Johnson was used to anchor a bright-line jurisdictional point: where defendants “ha[d] not yet plead the affirmative defense of qualified immunity,” the appellate court lacks interlocutory jurisdiction. In Cutshall, that principle translated into a claim-by-claim jurisdictional sieve: only claims actually challenged via qualified immunity were reviewable.
• Dean v. Phatak, 162 F.4th 555 (5th Cir. 2025)
  Dean supplied the doctrinal tool for restricting review to the court’s jurisdictional grant and for rejecting review over claims not presented as qualified-immunity issues. The panel used Dean to deny jurisdiction over the Fourteenth Amendment claims and, separately, to deny jurisdiction over state-law claims where no immunity from suit had been invoked.

B. State-law claims and the absence of a Texas “immunity from suit” hook

• City of Houston v. Rodriguez, 704 S.W.3d 462 (Tex. 2024)
  The court cited Rodriguez to identify “official immunity” as a recognized Texas immunity doctrine. The key point was negative: because the defendants did not invoke any Texas immunity from suit (whether common-law official immunity or statutory protections such as the TTCA election-of-remedies), the denial of dismissal on state claims was not an interlocutory appealable collateral order.
• Tex. Civ. Prac. & Rem. Code §§ 101.024, 101.026, 101.106(a)-(f)
  The TTCA exemplary-damages bar (§ 101.024) was mentioned by some defendants, but the court treated that as insufficient to create interlocutory jurisdiction. The opinion highlighted what was missing: any invocation of an immunity from suit (including § 101.106’s election-of-remedies framework).

C. Pleading with exhibits: when an attached report controls

• U.S. ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370 (5th Cir. 2004)
  The court used Riley to apply Fed. R. Civ. P. 10(c): exhibits attached to a complaint become part of the pleading, and when the complaint is contradicted by the exhibit, “the exhibit and not the [complaint] controls.”
• Pena v. City of Rio Grande City, 879 F.3d 613 (5th Cir. 2018)
  Pena supplied an important qualification: if a plaintiff attaches an officer report but “expressly rejects” conflicting elements, the court should not presume the report’s truth—only that the officers made the assertions. In Cutshall, because Cutshall did not question the report’s veracity and relied on it, the panel treated the narratives as factual allegations that limited his own contradictory characterizations (e.g., claims that he was unconscious and unarmed).

D. Excessive force doctrine: injury, objective reasonableness, and permissible escalation

• Poole v. City of Shreveport, 691 F.3d 624 (5th Cir. 2012)
  The court relied on Poole for the general proposition that the Fourth Amendment protects against excessive force during a seizure and for the instruction to evaluate each officer’s actions separately “to the extent possible.”
• Anderson v. Estrada, 140 F.4th 634 (5th Cir. 2025)
  Anderson provided the three-part Fifth Circuit excessive-force test and reinforced that “reasonableness” is not mechanically applied. The panel also used Anderson to characterize repeated refusal to follow orders as “active resistance.”
• Graham v. Connor, 490 U.S. 386 (1989)
  Graham supplied the core “objective reasonableness” standard and the familiar factors: severity of crime, immediate threat, and resistance/flight. The court used Graham both as the overall standard and as justification that some force is inherent in effectuating arrest.
• Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004) and Glenn v. City of Tyler, 242 F.3d 307 (5th Cir. 2001)
  These cases supported the court’s threshold focus on the “injury” element and the requirement of more than a de minimis injury. They were central to rejecting claims against early-stage officers where foam rounds did not strike Cutshall and spike strips/impacts to windows produced no pleaded cognizable injury.
• Scott v. Harris, 550 U.S. 372 (2007) and Salazar-Limon v. City of Houston, 826 F.3d 272 (5th Cir. 2016)
  The court invoked Scott and Salazar-Limon to emphasize the public danger of vehicular noncompliance and to support the reasonableness of decisive tactics when a suspect’s driving threatens others.
• Rucker v. Marshall, 119 F.4th 395 (5th Cir. 2024)
  Rucker was a key comparator: breaking a window after repeated refusal to exit was not excessive force; and “noncompliance or continued physical resistance” justifies force. The panel used Rucker repeatedly to validate escalation steps (window/door breach; physical extraction) in the face of persistent refusal and resistance.
• Laney v. City of St. Louis, 56 F.4th 1153 (8th Cir. 2023)
  Cited to support that employing tear gas to force exit—rather than immediate physical struggle—can be a reasonable escalation under the Fourth Amendment.
• Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009)
  Used to validate the reasonableness of force when a suspect moves a hand out of view such that an officer could reasonably believe the suspect is reaching for a weapon. The panel reasoned that if deadly force may be reasonable under those circumstances, then deploying a police dog (non-deadly force) is, a fortiori, reasonable.
• Carroll v. Ellington, 800 F.3d 154 (5th Cir. 2015) and Buehler v. Dear, 27 F.4th 969 (5th Cir. 2022)
  These cases supported the proposition that officers are trained and permitted to use nonlethal force to gain compliance when a subject actively resists, including taking a resisting suspect to the ground—relevant to rejecting the excessive force claim against Sergeant Dillow during the final extraction/handcuffing.

E. Supervisory liability

• Bustos v. Martini Club Inc., 599 F.3d 458 (5th Cir. 2010)
  Bustos supplied the baseline rule: no § 1983 supervisory liability via vicarious liability. Plaintiffs must tie liability to the supervisor’s own acts/omissions.
• Tuttle v. Sepolio, 68 F.4th 969 (5th Cir. 2023)
  Tuttle provided the elements of a failure-to-train/supervise claim and the “high” pleading threshold, including deliberate indifference and a causal link to an underlying constitutional violation. The panel used it to dispose of claims against Lieutenant Calhoun and to foreclose any supervisory theory against Sergeant Dillow absent a predicate excessive-force violation by subordinates.

F. Bystander liability

• Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013)
  The panel used Whitley for the three-part bystander-liability test and the critical dependency principle: where there is no underlying constitutional violation, “secondary liability claims” fail “by necessity.”
• Martinez v. City of Rosenberg, Texas, 123 F.4th 285 (5th Cir. 2024)
  Cited to reinforce that bystander liability “cannot stand absent an underlying constitutional violation,” supporting dismissal once the court found no plausible excessive force by any officer.

3.2. Legal Reasoning

A. A claim-by-claim jurisdictional filter tied to the defendants’ actual motions

The opinion’s procedural core is its insistence that interlocutory jurisdiction in qualified-immunity appeals is not “case-wide,” but “claim-bounded” by what defendants presented below. The officers filed inconsistent motions: some challenged only excessive force; others challenged excessive force and bystander liability; none challenged the Fourteenth Amendment “summary punishment” or failure-to-render-aid claims; and none asserted Texas official immunity. Applying Johnson v. Williams and Dean v. Phatak, the court held it could review only:

• excessive force claims against all thirteen officers (because all invoked qualified immunity as to § 1983); and
• bystander liability claims against the eight officers who actually moved to dismiss that theory on qualified immunity grounds.

Everything else—Fourteenth Amendment theories and state-law torts—remained outside interlocutory review. This formalism functioned as a practical admonition: scattershot motion practice can shrink the scope of appellate review, even where defendants later ask the appellate court to “reverse” as to all claims.

B. Pleading strategy mattered: the attached incident report constrained the plaintiff

Cutshall attached an incident report to his complaint and did not “expressly reject” its contents. Under Fed. R. Civ. P. 10(c) and U.S. ex rel. Riley v. St. Luke's Episcopal Hosp., the report became part of the pleadings; under Pena v. City of Rio Grande City, the absence of an express rejection meant the court treated the narratives as factual allegations. This was outcome-determinative in places where Cutshall’s labels (“unarmed and unconscious”) conflicted with the report’s depiction of resistance, grabbing, attempted biting, and visible pocketknives.

C. Fourth Amendment merits: stepwise evaluation by officer groups

The court assessed each officer (or small group) in chronological order, using Poole v. City of Shreveport’s instruction to evaluate acts separately “to the extent possible,” and applying the Anderson v. Estrada excessive-force elements alongside Graham v. Connor’s objective reasonableness factors.

• Carrizales, Batton, Holley (early stop tactics): The foam rounds did not strike Cutshall; spike strips and window impacts produced no pleaded injuries “result[ing] directly and only from” those actions. Citing Glenn v. City of Tyler and Flores v. City of Palacios, the court treated any such harms as non-cognizable de minimis injuries. It also found reasonableness: a nonresponsive semi-truck posed a public danger, making spike strips and nonlethal attention-getting measures reasonable under Graham, Scott v. Harris, and Salazar-Limon v. City of Houston.
• Sandor, Hernandez, Luna (tear gas and ROOK breach): Even assuming tear gas caused injury, the court separated Hernandez’s ROOK actions (window/door removal) from tear gas deployment. Under Rucker v. Marshall, breaching a vehicle after persistent refusal to exit is not excessive force. As to tear gas, the court held chemical irritants were a reasonable escalation against a barricaded, noncompliant suspect, aided by Laney v. City of St. Louis and the maxim from Graham that effecting arrest permits some degree of force.
• Marshall (K9 deployment): The court relied on the report’s description that Cutshall’s right hand moved out of sight, prompting K9 deployment to prevent a deadly-force encounter, and that Marshall removed the dog once other deputies entered. Under Manis v. Lawson, officers may reasonably react to a perceived reach for a weapon; deploying non-deadly force was therefore reasonable a fortiori.
• Poirier, Faiura, Cogburn, Klosterman (physical struggle and punches): The report described active resistance, grabbing officers, visible pocketknives, and reaching toward them. Under Rucker, Poole, and Anderson, the court concluded punches and physical extraction in a confined space were objectively reasonable to subdue an actively resisting suspect with apparent weapons access.
• Calhoun and Dillow (supervisory and direct acts): The court rejected vicarious supervisory liability under Bustos v. Martini Club Inc. and found Cutshall failed Tuttle v. Sepolio’s causation requirement because there was no underlying excessive force by subordinates. As to Dillow’s own actions, the court declined to credit the “ramming” allegation where a photo and the report contradicted it, and held that dropping a resisting suspect to the ground during extraction was permitted under Carroll v. Ellington and Buehler v. Dear.

D. Bystander liability failed because the predicate violation failed

Applying Whitley v. Hanna and Martinez v. City of Rosenberg, Texas, the court held that because no plausible excessive force claim survived against any officer, the bystander liability claims necessarily failed “for lack of an underlying constitutional violation.” Notably, the panel expressly declined to decide whether Cutshall’s other § 1983 theories (summary punishment; failure to render aid) could serve as predicates for bystander liability, because those claims were not within the court’s interlocutory jurisdiction.

3.3. Impact

A. Litigation practice: defendants must raise qualified immunity precisely—or lose interlocutory review

The opinion’s most transferable lesson is procedural. Defendants who wish to obtain the benefit of immediate appellate review must actually assert qualified immunity as to each claim they want reviewed. “Scattershot” motions to dismiss can:

• limit appellate jurisdiction to only some claims, even if defendants seek broader relief on appeal; and
• leave potentially significant claims (here, the Fourteenth Amendment theories and all state-law tort claims) to proceed in the district court without interlocutory correction.

B. Pleading practice: attaching police reports can narrow a plaintiff’s case at the motion-to-dismiss stage

By applying U.S. ex rel. Riley v. St. Luke's Episcopal Hosp. and Pena v. City of Rio Grande City, the opinion underscores a tactical risk for § 1983 plaintiffs: attaching an incident report without expressly disputing key assertions may cause the report’s narrative to control over the complaint’s conclusory characterizations, potentially defeating plausibility.

C. Substantive Fourth Amendment signals: nonlethal escalation against a barricaded, noncompliant suspect

While fact-bound, the court’s reasonableness analysis aligns with an enforcement-oriented line of cases approving graduated force when a suspect refuses repeated commands and presents potential danger—especially in vehicle-related standoffs. The decision is likely to be cited (even if nonprecedential) for:

• treating tear gas and vehicle breaching as potentially reasonable alternatives to immediate hands-on force in standoff contexts; and
• affirming that physical strikes during a confined-space struggle may be reasonable when resistance persists and weapon access is perceived.

4. Complex Concepts Simplified

• Qualified immunity: A doctrine shielding officials from damages unless the plaintiff plausibly pleads a constitutional violation and that the law was clearly established. Here, the court resolved the appeal at the “no plausible violation” step for excessive force and bystander liability.
• Collateral-order doctrine: A narrow exception allowing immediate appeal of certain nonfinal orders (like some qualified-immunity denials) because the right at stake would be effectively lost if review waited until after trial.
• Interlocutory jurisdiction is claim-limited: The appellate court can review only the issues actually packaged as qualified-immunity questions below; it cannot reach unrelated or unraised claims simply because the case is on appeal.
• Fed. R. Civ. P. 10(c) exhibits: Documents attached to a complaint become part of it. If the exhibit contradicts the complaint and the plaintiff does not expressly dispute the exhibit, the exhibit can control what facts are treated as pleaded.
• De minimis injury: Minor harm that is too slight to satisfy the injury element in Fifth Circuit excessive-force doctrine (as reflected in Glenn and Flores).
• Bystander liability (failure to intervene): Liability for an officer who observes another officer violating rights, has a reasonable chance to stop it, and chooses not to—but it depends on an underlying constitutional violation actually occurring.
• Supervisory liability (failure to supervise/train): Not automatic. A supervisor is liable only for their own deliberate indifference and only if that failure caused a subordinate’s constitutional violation (per Tuttle).

5. Conclusion

Cutshall v. Sandor is a dual lesson in procedure and substance. Procedurally, it tightens the practical rule that interlocutory qualified-immunity review reaches only the claims actually challenged on qualified immunity grounds in the district court—leaving unraised federal theories and state-law claims outside immediate appellate correction. Substantively, using the complaint’s attached incident report as controlling factual content, the Fifth Circuit held that the officers’ escalating nonlethal measures and eventual physical extraction were objectively reasonable in the face of hours-long noncompliance, perceived weapon access, and active resistance; without a predicate Fourth Amendment violation, bystander liability necessarily failed.

Note: The opinion is “not designated for publication” under 5th Cir. R. 47.5, but it nonetheless provides a detailed roadmap for how the Fifth Circuit may analyze jurisdictional limits in qualified-immunity appeals and plausibility in standoff-related excessive-force pleadings.