“Beyond Debate” Re-affirmed: Fifth Circuit Clarifies the Specificity Requirement for Clearly-Established Law in Less-Lethal Force Cases

1. Introduction

In Smith v. Saenz, No. 24-50975 (5th Cir. Aug. 14, 2025), the United States Court of Appeals for the Fifth Circuit revisited the doctrine of qualified immunity in the context of less-lethal police force—specifically, the deployment of a pepperball round to subdue a fleeing and non-compliant suspect. Plaintiff-Appellee Ronald Smith sued Deputies Hunter Saenz and Jimmy Gonzalez under 42 U.S.C. § 1983 for excessive force after Saenz fired a pepperball that struck Smith’s head and the deputies thereafter handcuffed him. The district court denied qualified immunity, finding that a rational jury could deem the force excessive. On interlocutory appeal, the Fifth Circuit reversed, holding that—even if the force were excessive—no clearly-established precedent in June 2021 placed the unconstitutionality of the deputies’ specific conduct “beyond debate.”

Although issued as an unpublished opinion (limited precedential value under 5th Cir. R. 47.5.4), the decision offers a meticulous roadmap for litigants and trial courts confronting qualified-immunity questions involving pepperball or other less-lethal devices.

2. Summary of the Judgment

• The panel (Jones, Graves, Rodriguez) reviewed de novo the district court’s denial of summary judgment on qualified-immunity grounds.
• It assumed, without deciding, that the force might have been excessive under the Fourth Amendment.
• However, the court held that Smith failed to identify factually analogous, controlling precedent existing on June 27, 2021 that would have alerted a reasonable officer that using a single pepperball on a seated but recently fleeing suspect constituted a constitutional violation.
• Precedents cited by the district court (Boyd v. McNamara, 2023; Trammel v. Fruge, 2017) were distinguished as (i) temporally post-dating the incident or (ii) involving materially different facts (full compliance/no flight; more injurious force).
• Accordingly, the panel reversed and rendered judgment for Deputies Saenz and Gonzalez, shielding them from trial under qualified immunity.

3. Analysis

a. Precedents Cited

The decision canvasses a constellation of Supreme Court and Fifth Circuit authorities:

• Anderson v. Creighton, 483 U.S. 635 (1987) – foundational articulation of the “clearly-established” standard.
• Ashcroft v. al-Kidd, 563 U.S. 731 (2011) – “beyond debate” language re-emphasized.
• Graham v. Connor, 490 U.S. 386 (1989) – objective reasonableness factors (severity, threat, resistance).
• Kisela v. Hughes, 584 U.S. 100 (2018); Mullenix v. Luna, 577 U.S. 7 (2015) – need for case law that “squarely governs.”
• Boyd v. McNamara, 74 F.4th 662 (5th Cir. 2023) – use of taser on compliant detainee; deemed inapplicable.
• Trammel v. Fruge, 868 F.3d 332 (5th Cir. 2017) – excessive force on passively resisting driver; factually distinct.
• Dozens of out-of-circuit pepper-spray/ball cases—dismissed as non-controlling and factually distinguishable.

By juxtaposing each cited case with the record video, the panel underscores the jurisprudential message: only a case with near-mirror factual alignment can strip an officer of qualified immunity in a fast-evolving force scenario.

b. Legal Reasoning

1. Sequential Qualified-Immunity Inquiry. The court exercised its discretion to skip the merits prong (whether a constitutional violation occurred) and decide the appeal exclusively on “clearly-established” grounds, following Pearson v. Callahan, 555 U.S. 223 (2009).
2. Temporal Focus. Only precedent existing on the date of the incident (June 27, 2021) could provide notice. Cases like Boyd (2023) could not.
3. Factual Specificity. The panel parsed distinctions: (a) Smith had recently fled and ignored commands; (b) deputies deployed a single pepperball, not repeated taser cycles or baton strikes; (c) objective threat assessment differed from arrestees lying prone and compliant.
4. Video Evidence. Under Scott v. Harris, 550 U.S. 372 (2007) and Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017), the panel accepted the body-cam footage over plaintiff’s contrary narrative regarding the handcuffing takedown.
5. “Beyond Debate” Standard Re-affirmed. The opinion repeatedly quotes al-Kidd and Kisela to stress that officers cannot be expected to anticipate federal constitutional boundaries through “broad general propositions” (e.g., “pepperballs may not be used on passive subjects”); rather, plaintiffs must cite controlling cases “squarely” on point.

c. Impact of the Judgment

Even as an unpublished decision, Smith carries doctrinal and practical weight:

• Clarifies Pepperball Jurisprudence. The Fifth Circuit had not previously addressed pepperball deployment in a published excessive-force opinion. Smith signals that, absent more on-point precedent, officers will receive immunity for single-round pepperball uses against non-compliant and recently fleeing suspects.
• Raises the Bar for Plaintiffs. Civil-rights litigants must scour (or create) factual precedents describing nearly identical force instruments, suspect conduct, and temporal context. Generic “passive resistance” or “minor offense” cases will not suffice.
• Guidance for Law Enforcement. Agencies may view the decision as permission to utilize pepperballs in analogous circumstances, provided warnings are issued and video corroborates escalating non-compliance.
• Influence on Settlement Posture. Defendants in § 1983 suits within the Fifth Circuit can invoke Smith to negotiate more favorable settlements where plaintiffs rely on broad excessive-force principles rather than tight analogues.
• Foreshadows Future Published Opinion. Because pepperball usage is increasing nationwide, the absence of controlling Supreme Court or published circuit precedent virtually ensures that a factually proximate case will eventually compel a precedential ruling.

Importantly, practitioners should remember the decision’s unpublished status; district courts are not bound but often find such persuasive, especially when the opinion canvasses governing Supreme Court law.

4. Complex Concepts Simplified

• Qualified Immunity: A legal shield protecting government officials from civil damages unless they violated a constitutional right that was “clearly established” at the time of the conduct.
• Clearly Established Law: Pre-existing case law—binding in the jurisdiction—with facts so similar that any reasonable officer would know the conduct is unlawful.
• Pepperball: A projectile (often .68-caliber) filled with oleoresin capsicum powder. Considered “less-lethal” but can cause pain, bruising, and secondary injuries.
• Passive vs. Active Resistance: “Passive” refers to non-violent failure to comply (e.g., sitting, going limp). “Active” includes flight, struggle, or threats. The force permissible escalates with the level of resistance.
• Unpublished Opinion: A decision designated “not for publication” and lacking precedential force except under limited rules (5th Cir. R. 47.5.4). Still citable for persuasive value.

5. Conclusion

Smith v. Saenz underscores the Fifth Circuit’s unwavering adherence to the Supreme Court’s insistence on case-specific clarity before depriving officers of qualified immunity. By dissecting the factual nuances between pepperball usage and previously litigated taser, baton, or physical takedown cases, the court reinforces that “clearly-established” means factually and temporally on point. Plaintiffs alleging excessive force from less-lethal munitions must therefore bring forward either: (i) a binding precedent with near mirror-image facts; or (ii) a Supreme Court opinion that so obviously governs the conduct that no reasonable officer could think it lawful.

While the opinion’s unpublished status tempers its precedential heft, its meticulous reasoning will likely influence district-court analyses, police training protocols, and the strategic calculus of civil-rights litigants across the Fifth Circuit—and perhaps beyond—until a published decision, or the Supreme Court itself, further delineates officers’ constitutional boundaries when wielding pepperballs and other emerging compliance tools.