Washington v. SALAZAR et al
MEMORANDUM AND OPINION granting in part and denying in part 118 AMENDED MOTION (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
C RAIG W ASHINGTON,
J OSE S ALAZAR, et al.,
August 04, 2017
David J. Bradley, Clerk
C IVIL A CTION N O. 4:16-CV-00362
MEMORANDUM AND OPINION
Before the Court is defendant Jose Salazar’s second amended motion for summary
judgment. Dkt. 118. A hearing on the motion was held June 19, 2017. The motion for
summary judgment is denied in part and granted in part.
Plaintiff Craig Washington brings this action under 42 U.S.C. § 1983, alleging that
he was falsely arrested in February 2014 by Houston Police Department Sergeant Jose
Salazar, in violation of rights guaranteed by the Second, Fourth, and Fourteenth
Amendments of the U.S. Constitution.
Washington was arrested near his home following an incident in which broken
bottles were thrown onto his property from a nearby night club. Washington, who held a
valid concealed handgun permit at the time, went outside to investigate, carrying his 12gauge shotgun. He was subsequently arrested and charged with unlawfully carrying a
handgun, a felony offense. Washington remained in jail overnight, and was released on
bond the next morning. The charges were dismissed one month later due to insufficient
evidence. His shotgun, which had been confiscated as evidence, was then returned to him.
Defendant Salazar moves for summary judgment on the basis of qualified
Summary judgment is proper if the movant establishes that there is no genuine
issue about any material fact and the law entitles it to judgment. F ED. R. C IV. P. 56(c).
Disputes are “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A party
moving for summary judgment “must demonstrate the absence of a genuine issue of
material fact, but need not negate the elements of the nonmovant’s case.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(internal citation omitted).
In determining whether genuine issues of material fact exist, “factual controversies
are construed in the light most favorable to the nonmovant, but only if both parties have
introduced evidence showing that a controversy exists.” Lynch Propterties, Inc. v.
Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998). “A dispute regarding a
material fact is ‘genuine’ if the evidence would permit a reasonable jury to return a
verdict in favor of the nonmoving party.” Roberson v. Alltel Info. Servs., 373 F.3d 647,
651 (5th Cir.2004).
The doctrine of qualified immunity protects government officials performing
discretionary functions in the realm of their official duties from liability as well as from
suit. See Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). This doctrine shields officials
from civil liability “so long as their conduct ‘does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’” Mullenix v.
Luna, 136 S. Ct. 305, 38 (2015). “Put simply, qualified immunity protects ‘all but the
plainly incompetent or those who knowingly violate the law.” Id. (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)).
“Where, as here, a section 1983 defendant pleads qualified immunity and shows he
is a governmental official whose position involved the exercise of discretion, the plaintiff
then has the burden ‘to rebut this defense by establishing that the official’s allegedly
wrongful conduct violated clearly established law.’” Pierce v. Smith, 117 F.3d 866, 87172 (5th Cir. 1997)(internal citation omitted).
It is undisputed that Sgt. Salazar was
performing discretionary duties within the scope of his authority. Washington has the
burden to show that Sgt. Salazar violated clearly established precedent.
The Second Amendment right to keep and bear arms is fully applicable to the
states by virtue of the Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S.
742 (2010). However, the Supreme Court noted that Second Amendment rights are not
unlimited. McDonald reiterated the core Second Amendment right described in District of
Columbia v. Heller, 554 U.S. 570 (2008), holding that the Fourteenth Amendment
incorporates the Second Amendment right to “possess a handgun in the home for
purposes of self-defense.” 561 U.S. 742, 791 (2010). McDonald offers no guidance on
whether securing a defendant’s shotgun upon arrest is a violation of Washington’s Second
The right guaranteed by the Second Amendment is not so much a property right to
a specific firearm, but rather a right to bear arms for self-defense. See Heller, 554 U.S. at
628-30. Washington presents no authority clearly establishing that the seizure of his
shotgun under these circumstances violated the Second Amendment. Nor does he cite
any Fifth Circuit precedent supporting his theory that seizing the shotgun violates the
Second Amendment merely because he held a valid permit to carry a handgun. Given the
lack of clear guidance from McDonald, and Washington’s failure to point to any
supporting case law, summary judgment is appropriate on this portion of his claim.
Precedent clearly establishes that Washington had a right to be free from
warrantless arrest absent probable cause. United States v. Castro, 166 F.3d 728, 733 (5th
Cir. 1999). The contours of that right as they apply here are not in question. See Club
Retro, L.L.C. v. Hilton, 568 F.3d 181, 207 (5th Cir. 2009).
Salazar concedes that the Texas unlawful carry statute applies only to handguns,
not shotguns, and that there was no probable cause to arrest Washington for that offense.
Nevertheless, Salazar argues that he reasonably believed probable cause existed to arrest
Washington for a different offense – carrying a firearm on premises licensed to sell
Washington alleges that he was denied Fourteenth Am endm ent Due Process when Sgt. Salazar
purportedly m ade false statem ents to the assistant district attorney to effectuate arrest. However, the
allegations are more aptly analyzed under the Fourth Am endm ent. When the false statem ent leads only
to an arrest and not trial, Washington m ust seek recovery under the Fourth Am endm ent since it
provides protection of pretrial rights. Castellano v. Fragozo, 352 F.3d 939, 959 (5th Cir. 2003). If “a
particular amendment provides an explicit textual source of constitutional protection against a
particular sort of government behavior, that amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing those claims.” Albright v. Oliver, 510 U.S.
266, 273 (1994).
alcohol. He claims that a subordinate officer disregarded instructions and listed the wrong
offense on the charge form.
Washington responds that Salazar’s version of events is contradicted by
compelling evidence, including not only the offense report but also the testimony of other
officers on the scene. Dkt. 119, at 4-14. If Washington’s account and the statements of his
fellow officers are correct, then it would have been objectively unreasonable for Salazar
to believe that there was probable cause to arrest Washington for any offense – including
carrying a firearm on licensed premises.2
Washington has thus presented evidence
allowing an inference that Salazar lacked “arguable probable cause.” Club Retro, 568
F.3d at 207. He also points to evidence suggesting that his arrest was not based on what
he had done, but because of who he is – a prominent political figure and civil rights
Upon reviewing the summary judgment record, the Court agrees that there are
disputed issues of material fact which preclude summary judgment on the basis of
The evidence is conflicting whether Washington was physically on licensed premises, and whether
Salazar was ever so advised. Even more significantly, the Penal Code sections proscribing unlawful carry
on licensed premises do not cover shotguns. Texas Penal Code §§ 46.02(a), (c) (“handgun, illegal knife,
or club”); 46.035(b)(1) (“handgun”). "Handgun" is defined as any firearm that is designed, made, or
adapted to be fired with one hand. T EX . P ENAL C ODE § 46.01(5).
For these reasons, Salazar’s motion is granted as to Washington’s Second
Amendment claim, but denied as to the Fourth Amendment claim. The case will be set for
trial on a date to be set after consultation with the parties.
Signed at Houston, Texas, on August 4, 2017.
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