Qualified-Immunity Interlocutory Review Is Limited to Claims Actually Raised; Nonlethal Escalation to Extract a Barricaded, Resisting Suspect Is Objectively Reasonable

I. Introduction

In Cutshall v. Dillow (5th Cir. Aug. 24, 2026) (per curiam) (unpublished), truck driver Trinidad Cutshall sued thirteen Houston-area officers under 42 U.S.C. § 1983 and Texas law after a slow-speed chase and hours-long standoff ended with officers using nonlethal munitions, chemical agents, a K9, physical strikes, and a forcible extraction from the cab of an 18-wheeler.

Cutshall alleged Fourth Amendment excessive force and failure-to-intervene (“bystander liability”), plus Fourteenth Amendment due process theories (summary punishment; failure to render medical aid). The defendant officers filed varied motions to dismiss, invoking qualified immunity unevenly across claims. The district court denied the motions in terse orders, and all officers took an interlocutory appeal.

The Fifth Circuit’s decision does two significant things: (1) it strictly polices the scope of interlocutory appellate jurisdiction in qualified-immunity appeals based on what defendants actually raised below; and (2) it applies familiar Fourth Amendment standards to hold that the pleaded facts (including an incident report attached to the complaint) did not plausibly show clearly excessive, clearly unreasonable force in the escalating nonlethal tactics used to end a prolonged, dangerous standoff involving a noncompliant suspect in control of a semi-truck.

II. Summary of the Opinion

  • Jurisdiction: The court held it had interlocutory jurisdiction only over the claims the officers actually challenged on qualified-immunity grounds in their motions to dismiss—namely, excessive force claims against all thirteen officers and bystander liability claims against eight. It lacked jurisdiction over the Fourteenth Amendment claims (summary punishment; failure to render aid) and over state-law tort claims because the officers did not invoke immunity-from-suit defenses as to those claims.
  • Merits (Fourth Amendment): The court held Cutshall failed to plead plausible excessive-force claims against any officer. Key reasons included: no cognizable injury from spike strips/foam rounds that did not strike him; reasonable use of tear gas and vehicle-assisted entry techniques against a barricaded, noncompliant suspect; reasonable K9 deployment when Cutshall moved a hand out of sight; and reasonable physical force (including punches) during an active struggle where officers reported Cutshall reaching toward pocketknives.
  • Bystander liability: Because there was no underlying constitutional violation pleaded (at least as to excessive force), bystander liability necessarily failed.
  • Disposition: The Fifth Circuit REVERSED the denial of qualified immunity as to the claims within its jurisdiction and REMANDED for further proceedings consistent with the opinion.

III. Analysis

A. Precedents Cited

1. Interlocutory jurisdiction and the collateral-order doctrine

  • Mitchell v. Forsyth, 472 U.S. 511 (1985): The foundational authority recognizing that the denial of qualified immunity can be immediately appealable under the collateral-order doctrine because qualified immunity is an immunity from suit, not just a defense to liability. Cutshall uses Mitchell as the baseline rule but emphasizes its narrowness.
  • Frias v. Hernandez, 142 F.4th 803 (5th Cir. 2025) (Oldham, J., concurring): Quoted for a strict articulation of the collateral-order doctrine—only “conclusive” orders resolving important issues separate from the merits and effectively unreviewable later qualify. The panel used this to cabin the appeal to properly preserved immunity issues.
  • United States v. Wampler, 624 F.3d 1330 (10th Cir. 2010) (Gorsuch, J.): Cited (via Frias) for the proposition that collateral-order cases are “small, modest, and narrow,” reinforcing a restrained jurisdictional approach.
  • Johnson v. Williams, 95 F.3d 50 (5th Cir. 1996) (per curiam): Held there is no interlocutory jurisdiction where defendants have not pleaded qualified immunity. Cutshall applies this principle to limit review to claims actually presented for qualified-immunity dismissal below.
  • Dean v. Phatak, 162 F.4th 555 (5th Cir. 2025): Used to underscore that appellate review is “circumscribed by the limits on our jurisdiction,” and to support the court’s refusal to reach claims the officers did not put at issue via qualified immunity in their motions.

2. Texas-law claims and the absence of immunity-from-suit arguments

  • City of Houston v. Rodriguez, 704 S.W.3d 462 (Tex. 2024): Cited to describe Texas official immunity. Cutshall uses it to show what defendants did not invoke; without an immunity-from-suit issue, the state-law portion of the denial order is not immediately appealable.

3. Pleading with exhibits attached to the complaint

  • U.S. ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370 (5th Cir. 2004): Establishes that exhibits attached to a complaint are part of the pleadings, and where a complaint is contradicted by an attached exhibit, the exhibit controls. This became pivotal because Cutshall attached an incident report and did not disclaim its veracity.
  • Pena v. City of Rio Grande City, 879 F.3d 613 (5th Cir. 2018): Clarifies that if a plaintiff attaches a police report but expressly rejects conflicting parts, courts should not assume the report is truthful—only that officers made the assertions. Cutshall distinguishes Pena: because Cutshall did not reject the report, the court treated it as factual content at the motion-to-dismiss stage.

4. Fourth Amendment excessive-force framework and applications

  • Poole v. City of Shreveport, 691 F.3d 624 (5th Cir. 2012): Recognizes the Fourth Amendment right to be free from excessive force during a seizure and instructs courts to evaluate each officer’s actions separately where possible—important here given thirteen defendants playing different roles.
  • Anderson v. Estrada, 140 F.4th 634 (5th Cir. 2025): Provides the Fifth Circuit’s three-part articulation of an excessive-force claim and emphasizes the reasonableness inquiry’s fact-specific nature. Cutshall uses Anderson to frame the analysis officer-by-officer and to characterize repeated refusal to follow orders as “active resistance.”
  • Graham v. Connor, 490 U.S. 386 (1989): Supplies the “objective reasonableness” test and the Graham factors (severity, immediate threat, active resistance/flight). Graham is the backbone for approving escalation in response to prolonged noncompliance in a high-risk setting (a semi-truck on a highway).
  • Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004): Used for the proposition that claims can fail at the injury element if injuries are too slight to be cognizable.
  • Glenn v. City of Tyler, 242 F.3d 307 (5th Cir. 2001): Cited for the “de minimis injury” concept under the Fourth Amendment; here, foam rounds striking windows (and missing entirely) and spike strips did not yield cognizable injury allegations.
  • Scott v. Harris, 550 U.S. 372 (2007) and Salazar-Limon v. City of Houston, 826 F.3d 272 (5th Cir. 2016): Cited to reinforce the legitimacy of using force to stop dangerous vehicular situations and to contextualize the public danger posed by a noncompliant driver controlling a heavy vehicle.
  • Rucker v. Marshall, 119 F.4th 395 (5th Cir. 2024): Strongly supports the proposition that noncompliance justifies escalation; also specifically approves breaking a car window after repeated refusals to exit—analogized to breaking/removing truck components to gain access and visibility.
  • Laney v. City of St. Louis, 56 F.4th 1153 (8th Cir. 2023): Persuasive authority approving tear gas use to secure compliance, supporting the reasonableness of chemical agents against a barricaded suspect.
  • Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009): Holds deadly force can be reasonable when a suspect moves hands out of sight such that an officer could reasonably believe the suspect is reaching for a weapon. Cutshall uses it a fortiori to justify the lesser intrusion of a K9 bite to secure a hidden hand and avoid a deadly-force encounter.
  • Carroll v. Ellington, 800 F.3d 154 (5th Cir. 2015) and Buehler v. Dear, 27 F.4th 969 (5th Cir. 2022): Cited for the permissibility of using nonlethal force, including taking a resisting suspect to the ground, to gain compliance during active resistance.

5. Supervisory liability (failure to supervise/train)

  • Bustos v. Martini Club Inc., 599 F.3d 458 (5th Cir. 2010): Reiterates that supervisors are not liable under § 1983 via vicarious liability; personal involvement or a culpable policy/failure is required.
  • Tuttle v. Sepolio, 68 F.4th 969 (5th Cir. 2023): Sets a “high” pleading threshold for failure-to-supervise claims—requiring failure, causal link to a constitutional violation, and deliberate indifference. Cutshall applies Tuttle to reject supervisory theories where no underlying constitutional violation was pleaded.

6. Bystander liability (failure to intervene)

  • Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013): Defines bystander liability’s elements and clarifies that without an underlying constitutional violation, secondary liability claims fail.
  • Martinez v. City of Rosenberg, Texas, 123 F.4th 285 (5th Cir. 2024): Reinforces that bystander liability cannot stand absent an underlying constitutional violation; used to mandate dismissal once the court rejected excessive-force claims.

B. Legal Reasoning

1. A strict, claim-by-claim approach to interlocutory jurisdiction

The court treated jurisdiction as an antecedent constraint, not a formality. Although all thirteen officers appealed, their motions to dismiss did not uniformly raise qualified immunity across all claims. Applying Mitchell v. Forsyth, Johnson v. Williams, and Dean v. Phatak, the panel held that interlocutory jurisdiction extended only to those claims for which the defendants had actually invoked qualified immunity in the district court.

Equally important, the court refused to entertain state-law tort issues because defendants did not invoke any Texas immunity-from-suit (common-law official immunity or the TTCA’s election-of-remedies provisions), noting that a TTCA exemplary-damages bar (Tex. Civ. Prac. & Rem. Code § 101.024) is not an immunity from suit that fits the collateral-order doctrine.

Practical consequence: defendants cannot “bootstrap” unraised issues into an interlocutory qualified-immunity appeal; appellate jurisdiction depends on what was preserved and presented.

2. Pleading reality: attached incident reports can control

Because Cutshall attached the incident report, relied on it, and did not disclaim its accuracy, the court—invoking U.S. ex rel. Riley v. St. Luke's Episcopal Hosp. and distinguishing Pena v. City of Rio Grande City—treated the report’s narratives as part of the complaint’s factual allegations. That decision did substantial work: it supplied details (e.g., missed foam rounds; a hand dropping out of view; reported knives; continued resistance) that undercut conclusory allegations like being “unconscious” or “unarmed.”

3. Fourth Amendment reasonableness: escalation matched prolonged resistance and a high-risk setting

Using Graham v. Connor and Fifth Circuit applications like Anderson v. Estrada and Rucker v. Marshall, the panel assessed each group of officers in chronological context:

  • Spike strips and foam rounds (Carrizales, Batton, Holley): No pleaded injury “resulting directly and only from” these actions, and at most “de minimis” harm under Glenn v. City of Tyler. In context (a semi-truck ignoring lights/siren and commands), stopping the truck and attempting to gain attention with nonlethal rounds was objectively reasonable (citing Scott v. Harris; Salazar-Limon v. City of Houston).
  • Breaking windows/door and tear gas (Sandor, Hernandez, Luna): Vehicle entry tactics were reasonable given continuous noncompliance, supported by Rucker v. Marshall. Tear gas was treated as a reasonable nonlethal escalation to avoid hands-on force against a barricaded suspect (with persuasive support from Laney v. City of St. Louis).
  • K9 deployment (Marshall): When Cutshall lowered a hand out of sight, a reasonable officer could believe he was reaching for a weapon. Under Manis v. Lawson, even deadly force could be reasonable in such a situation; thus a K9 deployment to secure the hand was, a fortiori, reasonable. The report also indicated Marshall removed the dog to prevent further injury once other deputies moved in.
  • Physical strikes and extraction amid reported knives (Poirier, Faiura, Cogburn, Klosterman): The complaint’s own exhibit described active resistance, a confined space, and reported knives (including an assertion Cutshall reached for them). Under the “noncompliance/active resistance justifies force” line of cases (e.g., Rucker v. Marshall; Poole v. City of Shreveport; Anderson v. Estrada), punches to overcome a grip and complete the extraction were held objectively reasonable.
  • Supervisory theories and final takedown (Calhoun, Dillow): Supervisory liability failed under Bustos v. Martini Club Inc. and Tuttle v. Sepolio because the underlying conduct was not unconstitutional, eliminating causation. The court also rejected fact assertions contradicted by a photo and the incident report (the “ramming” allegation), and held taking a resisting suspect to the ground was permissible under Carroll v. Ellington and Buehler v. Dear.

4. Bystander liability collapses without an underlying excessive-force violation

Applying Whitley v. Hanna and Martinez v. City of Rosenberg, Texas, the court held that once excessive-force claims failed, bystander liability premised on those claims necessarily failed. The panel explicitly declined to decide whether Cutshall’s unreviewable Fourteenth Amendment theories could serve as predicates for bystander liability, leaving that for the district court on remand.

C. Impact

  • Procedural discipline in qualified-immunity appeals: The decision is a warning that “scattershot” motions to dismiss can shrink (or destroy) interlocutory appellate jurisdiction. Defendants seeking immediate review must clearly and consistently raise qualified immunity for each claim they want appealed; otherwise, those claims remain in the district court and outside the appellate court’s reach.
  • Pleading strategy and exhibits: Plaintiffs who attach incident reports without disclaimers may effectively adopt the officers’ narratives for Rule 12 purposes under U.S. ex rel. Riley v. St. Luke's Episcopal Hosp.. If plaintiffs intend to contest those narratives, Pena v. City of Rio Grande City signals the need to expressly reject conflicting portions.
  • Substantive guidance on nonlethal escalation: Though unpublished, the opinion reinforces that, in the Fifth Circuit, escalating nonlethal tactics (chemical agents, K9 use, strikes during a struggle) can be reasonable when a suspect is barricaded, repeatedly noncompliant, and presents a plausible threat—especially in the context of a heavy vehicle posing public danger.
  • Bystander liability remains derivative: The ruling underscores that failure-to-intervene claims are only as strong as the underlying constitutional claim—particularly at the pleading stage.

IV. Complex Concepts Simplified

  • Qualified immunity: A doctrine that can shield officials from being sued for damages unless the complaint plausibly alleges a constitutional violation and (typically) that the law was clearly established. Importantly, it is meant to protect officials from the burdens of litigation, not merely from losing at trial.
  • Collateral-order doctrine: A narrow exception allowing appeals before a final judgment when waiting would effectively destroy an important right (like immunity from suit).
  • Interlocutory jurisdiction limited to issues raised: An appellate court cannot decide issues not properly teed up below (here, by actually invoking qualified immunity as to specific claims).
  • Objective reasonableness (Graham): The Fourth Amendment asks whether the force used was reasonable from the viewpoint of a reasonable officer on the scene, not with hindsight.
  • De minimis injury: Very minor injuries (or none at all) may fail the injury component of an excessive-force claim in the Fifth Circuit, depending on context.
  • Bystander liability (failure to intervene): An officer can be liable for not stopping another officer’s constitutional violation only if the officer knew of the violation, had a reasonable chance to stop it, and chose not to.

V. Conclusion

Cutshall v. Dillow is principally a decision about limits—limits on interlocutory appellate jurisdiction in qualified-immunity appeals and limits on excessive-force liability where the pleaded facts (including an attached incident report) depict prolonged noncompliance, potential threat escalation, and tailored nonlethal measures to end a dangerous standoff. The Fifth Circuit’s insistence that it could review only claims actually presented under qualified immunity below is a concrete procedural lesson for defendants, while its merits analysis reflects the court’s continued deference to on-scene judgments involving high-risk vehicular contexts and active resistance. On remand, Cutshall’s remaining Fourteenth Amendment and state-law claims proceed without appellate guidance from this interlocutory posture.