United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED April 14, 2022 No. 21-20329 Lyle W. Cayce Clerk

Constable Herschel Smith,

Plaintiff—Appellee,

versus

Constable Ted Heap,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas No. 4:20-CV-3572

Before Smith, Costa, and Wilson, Circuit Judges. Jerry E. Smith, Circuit Judge: Ted Heap is an elected constable in Harris County, Texas. Herschel Smith is his counterpart in adjoining Waller County. After a 911 caller re- ported that Smith had aimed a gun at him on a local tollway in Harris County, Heap’s deputies stopped and questioned Smith, then released him minutes later. Smith sued Heap, who asserted qualified and statutory immunities. The stop was lawful, Heap wasn’t even there, and state law shields him from the tort claims. But the district court denied Heap’s motion to dismiss. We Case: 21-20329 Document: 00516281240 Page: 2 Date Filed: 04/14/2022

No. 21-20329

reverse, dismiss, and render judgment for Heap. I. In summer 2020, Constable Smith was returning to Waller County from an extra job, driving in Harris County in a county-owned vehicle that displayed “Exempt” license plates and featured standard red and blue emer- gency lights. The vehicle was otherwise unmarked. While on a tollway, Smith observed a car exceeding the speed limit, so he flashed his police lights to tell the driver to slow down. A motorist then called 911. After identifying Smith’s vehicle (a black Chevy Tahoe) and its license plate number, the caller said that the driver had flashed “police lights” at him and, after the caller slowed down, “pulled up next to me and pointed a gun at me and was yelling stuff at me” before driving off. After learning of the call, Harris County deputy constables in marked police vehicles began searching for Smith’s vehicle. When they found it, they activated their police lights and sirens and directed Smith to stop. Because the 911 caller had said that Smith had pointed a gun at him, the deputies planned to employ a “felony stop” procedure: After the cars rolled to a stop, the deputies would approach Smith’s car, guns drawn, so they could react if Smith emerged and started shooting. And they would cuff Smith promptly so he could not retrieve a weapon while they investigated. The stop was textbook. The cars stopped. The officers approached, guns drawn and ready, and asked Smith to show his hands. Smith activated his police lights and, about a minute later, stuck his hands out the window. He then exited the Tahoe with his hands up, out, and empty. A deputy led Smith behind a police car and cuffed him. The deputies asked Smith where his service weapon was. Smith replied that it was in his car. The deputies asked him to sit in the back of a

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police car. Smith refused and demanded that the deputies call Heap, the constab