Ibarra v. Harris County Texas ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 28, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-20259
_____________________
SEAN CARLOS IBARRA; ERIK ADAM IBARRA,
Plaintiffs - Appellees,
versus
HARRIS COUNTY TEXAS; TOMMY THOMAS, Sheriff,
Individually and in his official capacity;
PRESTON FOOSE, Deputy, Individually and in
his official capacity; MANUEL MORENO, Deputy,
Individually and in his official capacity;
ALEXANDER ROCHA, Sergeant, Individually
and in his official capacity; JOHN PALERMO,
Deputy, Individually and in his official
capacity; DAN SHATTUCK, Deputy, Individually
and in his official capacity; ALBERT
RODRIGUEZ, Expert Witness,
Defendants - Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:04-CV-186
_________________________________________________________________
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
This case, before us on interlocutory appeal, arises out of an
incident in which the Harris County Sheriff’s deputies raided the
Ibarra home after observing Sean Ibarra taking photographs of
deputies executing a search warrant at a neighbor’s residence. The
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Defendants appeal the district court’s denial of their motion for
summary judgment on qualified immunity.
I.
At approximately 2:30 p.m. on January 4, 2002, members of the
Harris County Organized Crime Task Force arrived at 2911 Shady Park
Drive in Houston, Texas for the purpose of executing a search
warrant.1 Shortly before 3:00 p.m., Sean Ibarra returned to his
residence at 2907 Shady Park Drive. He observed marked police
vehicles in the street and several officers in uniform or wearing
“Police” or “Sheriff” jackets walking around the premises at 2911
Shady Park Drive. He saw children on the premises who were not
wearing coats and appeared to be cold. At some point in time, Sean
was told that one of the children had been assaulted by one of the
officers and that at least one of the children had urinated on
himself and had not been permitted to change clothing. Sean
continued to observe the children for almost an hour, during which
time none of the children were given additional clothing.
Some time later, Madalyn Valdez appeared at the front door of
the Ibarra residence, complaining about how the officers were
treating the children, some of whom were her grandchildren. She
asked to borrow a camera to document the manner in which the
children were being treated. Sean Ibarra offered to take the
1
Because we are reviewing the district court’s denial of
motions for summary judgment on qualified immunity on interlocutory
appeal, we relate the facts as alleged by the Ibarras. See Meadows
v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007).
2
photographs because he thought it would be safer for him to do so.
At this point, it was also decided that Erik Ibarra would park his
truck on the public street and videotape the scene, but Erik was
unable to because his truck was blocked in the driveway. Sean took
the camera and proceeded outside where he took pictures for
approximately 45 minutes. He remained on his property, the
sidewalk, or in the public street at all times, and did nothing to
interfere with the officers executing the search warrant.
At some point, a uniformed officer, Deputy Foose, observed
Sean taking photographs of the scene at 2911 Shady Park Drive.
Foose ordered Sean to stop taking photographs and to “come here.”
Sean hesitated, then took another photograph. Sean saw the officer
become agitated and yell to someone. He gave the camera to Ms.
Valdez and proceeded to follow her and his mother back toward his
house. By the time he reached his front door, Foose was
immediately behind him. Sean grabbed the frame of the front door
with his back to the officers and told them they were not welcome
in his house. At that point, Sean says that Foose struck him in
the back, kidneys, and on the side of his face. As he began to
fall, Foose hit him again in the head and he fell to the floor.
Foose then turned to Ms. Valdez who was holding the camera and
began to hit and assault her. He was stopped by another officer,
believed to be Deputy Shattuck.
Erik Ibarra was taping the scuffle on his video recorder.
Shattuck threatened to shoot him. Erik placed the video camera on
3
the bed and was told by Shattuck that they were all under arrest.
The camera and the video recorder were confiscated and everyone was
taken outside the residence. Erik and Sean report that they were
tripped, and then tightly handcuffed after they fell to the ground.
They both claim to have complained to the officers about their
treatment and were told to shut up.
Sean and Erik were transported to Harris County Jail where
they were charged with Evading Detention and Resisting Arrest. The
criminal charges against the Ibarras were subsequently dismissed.
The camera was returned broken and the film was destroyed. The
video recorder was returned without the memory stick.
Sean and his brother Erik Ibarra brought this lawsuit against
Harris County, Sheriff Thomas, and the deputies in December 2003 in
state court, alleging violation of 42 U.S.C. § 1983 and numerous
state law claims. The Ibarras later amended their complaint to add
law enforcement expert witness, Albert Rodriguez, and Assistant
District Attorney, Sally Ring. The defendants removed the case to
federal court and filed separate motions for summary judgment. In
March 2005, the district court denied the summary judgment motions
of Harris County, Sheriff Thomas, Foose, Shattuck, Moreno, Rocha,
and Palermo. In April 2005, the district court denied the summary
judgment motions of Ring and Rodriguez. The defendants timely
appealed.2
2
We lack jurisdiction over Harris County’s appeal because
municipal governments do not enjoy the same right to interlocutory
4
II.
A.
In reviewing an interlocutory appeal from the denial of
qualified immunity, this court does not apply the typical summary
judgment standard. See Kinney v. Weaver, 367 F.3d 337, 348 (5th
Cir. 2004) (en banc). Rather, we consider de novo “whether the
district court erred in assessing the legal significance of the
conduct that the district court deemed sufficiently supported for
purposes of summary judgment.” Id. at 349. Our jurisdiction is
limited to issues of law. See Flores v. City of Palacios, 381 F.3d
391, 393 (5th Cir. 2004) (citation omitted). The presence of a
genuine issue of material fact regarding qualified immunity will
preclude us from exercising jurisdiction. Glenn v. City of Tyler,
242 F.3d 307, 312 (5th Cir. 2001).
The district court found that the facts of this case, taken in
the light most favorable to the plaintiffs, do not demonstrate that
the defendant officers had probable cause to arrest the Ibarras.
The district court also found that the defendant officers acted in
accordance with an unconstitutional policy set by County Sheriff
Thomas. The district court therefore denied qualified immunity as
to all of the defendants. On appeal, the defendants assert that
appeal as their officials. See Gentry v. Lowndes County, 337 F.3d
481, 484 (5th Cir. 2003) (citing McKee v. Rockwall, 877 F.2d 409,
412 (5th Cir. 1989)). The County’s appeal is therefore dismissed.
On October 12, 2006, this court granted the Ibarras’ unopposed
motion to dismiss Defendant Ring from this appeal.
5
the Ibarras failed to allege that the officers’ actions violated
their constitutional rights. They further argue that they are
entitled to statutory immunity under Texas law.
1.
“Government officials performing discretionary functions are
entitled to qualified immunity from civil liability to the extent
that ‘their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.’” Longoria v. Texas, 473 F.3d 586, 592 (5th Cir.
2006)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
qualified immunity analysis is a two-step process. First, we
determine whether the plaintiff properly alleged the violation of
a clearly established right. Michalik v. Hermann, 422 F.3d 252,
257 (5th Cir. 2005). “A right is clearly established if its
contours are ‘sufficiently clear that a reasonable officer would
understand that what he is doing violates that right.’” Id. at 238
(quoting Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir.
2000)). If the plaintiff can meet that burden, we then consider
whether the official’s conduct was objectively reasonable under the
law at the time of the incident. Id. (citing Sanchez v. Swyden,
139 F.3d 464, 467 (5th Cir. 1998)).
Sean Ibarra claims that his First and Fourth Amendment rights
were violated when Deputy Foose attempted to detain him for taking
photographs of the scene at 2911 Shady Park Drive, and then
arrested him for failing to comply with Foose’s order to stop. The
6
law is clearly established that a detention is objectively
unreasonable if the police officers lacks reasonable suspicion to
believe that the person is engaged in criminal activity, Brown v.
Texas, 443 U.S. 47, 51 (1979), and that a warrantless arrest is
objectively unreasonable if the officer lacks probable cause.
United States v. Watson, 423 U.S. 411, 417-424 (1976). Here Sean
has alleged that Foose attempted to detain him without reasonable
suspicion and arrested him without probable cause. Sean has
therefore satisfied the first prong of the qualified immunity
analysis by alleging a violation of his clearly established Fourth
Amendment rights.
We therefore consider whether Foose’s actions were objectively
reasonable. Both parties agree that taking photographs of police
activity is not, in and of itself, a criminal act. Deputy Foose
argues that he had reasonable suspicion to detain Sean Ibarra
because he feared that Sean planned to use the photos to retaliate
against the officers.3 At summary judgment, Foose offered no
evidence to support his belief that Sean planned to use these
photographs to engage in this criminal activity in the future,
other than the bare fact that Sean was taking photographs of the
scene.4 Foose has pointed to no other facts in the summary
3
Under § 36.06 of the Texas Penal Code, a person commits the
offense of retaliation if he intentionally or knowingly harms or
threatens to harm another on account of that person’s status as a
public servant.
4
The one case Foose cites in support is distinguishable. In
7
judgment record that would support a reasonable officer’s belief
that Sean Ibarra was engaged in criminal activity.5 Viewed in the
light most favorable to the Ibarras, Deputy Foose unreasonably
violated Sean Ibarra’s clearly established Fourth Amendment rights
by attempting to detain him without reasonable suspicion.6 The
United States v. Raibley, 243 F.3d 1069 (7th Cir. 2001), the
suspect was observed surreptitiously videotaping a young woman who
worked at Walmart as she walked across the parking lot. Id. at
1071. When the man realized he had been observed, he drove away
from the scene “in a hurry.” Id. The man later returned to the
Walmart and then sped away again, apparently after seeing a marked
patrol vehicle parked in front of the store. Id. The Seventh
Circuit found that the police officer who stopped Raibley had
reasonable suspicion to believe that he was engaged in the criminal
offense of stalking, id. at 1074-75, which under Illinois law
requires a showing that the defendant placed another person under
surveillance on at least two separate occasions and placed that
person in reasonable apprehension of bodily harm, sexual assault,
confinement, or restraint. Id. at 1074.
In contrast to Raibley, Sean Ibarra was openly taking pictures
from his front lawn -- and attempted to retreat to his house only
after Foose started toward him. Furthermore, there was no
evidence other than the fact that Sean was taking photographs that
would have indicated that Sean planned to use them to engage in
retaliation.
5
Foose further argues that he had probable cause to arrest
Sean because Sean failed to obey the order to stop and fled. The
law is clearly established that disregarding an unlawful police
order does not create reasonable suspicion or probable cause.
Brown, 443 U.S. at 51-52; Goodson v. City of Corpus Christi, 202
F.3d 730, 740 (5th Cir. 2000). Because Foose is unable to
demonstrate based on the summary judgment record that his attempt
to detain Sean was lawful, he cannot show that Sean’s subsequent
arrest was supported by probable cause.
6
Because the record before us indicates a violation of Sean
Ibarra’s Fourth Amendment rights, we need not reach the question of
whether his First Amendment rights were violated to resolve this
interlocutory appeal. If necessary, this question may be addressed
in a subsequent appeal after the evidence as to both claims is
developed at trial.
8
district court’s denial of qualified immunity with respect to
Deputy Foose is therefore affirmed.7
2.
We find, however, that the district court erred in not
considering each deputy’s individual role in the arrest when
determining whether he was eligible for qualified immunity. See
Longoria v. Texas, 473 F.3d at 593 (holding that the “court erred
in using these factual disputes as a blanket justification for
denial of summary judgment to the defendants as a class, without
further considering their individual roles in the disputed
incidents.”); Collins v. Ainsworth, 382 F.3d 529, 540-41 (5th Cir.
2004). We therefore address each officer’s argument in turn.
Deputy Shattuck claims that he is entitled to qualified
immunity because he acted reasonably in assisting Foose with the
Ibarras’ arrest. There is a disputed question of fact as to how
much Shattuck saw of the interaction between Foose and the Ibarras.
In his incident report, Shattuck claimed to have witnessed the
entire sequence of events. He has since claimed that he never saw
Sean Ibarra taking photographs, and only came out of 2911 Shady
Park Drive in time to see Foose pursuing a fleeing suspect. The
Ibarras maintain that Shattuck was present for the entire incident.
7
Our determination here is based solely on our reading of the
record under the summary judgment standard for purposes of
determining qualified immunity, and is in no way preclusive of a
contrary finding by the jury with respect to the ultimate merits of
the constitutional claim.
9
This factual dispute precludes summary judgment on qualified
immunity, because the extent of Shattuck’s knowledge as to events
leading up to the arrest will affect the determination whether his
actions with respect to the Ibarras were objectively reasonable.
We therefore dismiss Shattuck’s interlocutory appeal for lack
jurisdiction.
None of the remaining officer defendants were aware of the
events leading up to the arrest, and on the record before us they
are entitled to qualified immunity for their participation.8
Moreno responded to a request from other deputies for assistance
and watched Sean and Erik Ibarra outside after they had been
arrested. Palermo also responded to the other deputies’ call for
assistance. He entered the Ibarra residence, saw Sean struggling
with Deputy Foose, escorted Sean out of the house, and forced Sean
to the ground to handcuff him because he was noncompliant. Like
Moreno, Palermo did not know why the Ibarras had been arrested and
his response upon arriving on the scene was not unreasonable. He
is therefore entitled to immunity. Deputy Palermo is also entitled
to qualified immunity as to the excessive force claim because the
8
Because none of the remaining officers were aware of the
events leading up to the arrest, they cannot be held liable as
bystanders. A bystander liability claim requires the plaintiffs to
show that the officer was present at the scene and did not take
reasonable measures to protect a suspect from excessive force.
Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). None of the
remaining defendants knew why the Ibarras were being arrested or
had a reasonable opportunity to intervene. Moreno, Palermo, and
Rocha are entitled to qualified immunity on the Ibarras’ bystander
liability claims.
10
Ibarras offer no argument or evidence to support their claim that
Palermo’s use of force against Sean was unreasonable under the
circumstances.
Sergeant Rocha was inside the residence at 2911 Shady Park
when he heard a deputy outside shouting that an officer needed
assistance. He ran over to 2907 Shady Park, where he saw Madalyn
Valdez attacking Foose. Rocha grabbed Valdez by the arm and
handcuffed her. Rocha did not help with the apprehension or arrest
of Sean Ibarra or Erik Ibarra, and did not touch them, speak to
them, or transport them to the Harris County Jail. He had no
knowledge of the events giving rise to the arrests. He did not act
unreasonably, given the circumstances, and therefore is entitled to
qualified immunity based on his personal participation in the
arrest.
The Ibarras also argue that Sergeant Rocha is liable as a
policymaker and because he ratified the actions of the deputies
involved. Rocha cannot be liable as a supervisor because the acts
of his subordinates do not trigger § 1983 liability. Alton v.
Texas A & M Univ., 168 F.3d 196, 200 (5th Cir. 1999). Moreover,
Rocha is not an “authorized policymaker in whom final authority
rested regarding the action ordered.” Cozzo v. Tangipahoa Parish
Council, 279 F.3d 273, 289 (5th Cir. 2002). The Ibarras make
several conclusory allegations that Rocha ratified Foose’s actions,
but offer no evidence in support. This argument is therefore
abandoned. Rocha is entitled to qualified immunity.
11
3.
As a supervisory official, Sheriff Thomas may not be held
liable under § 1983 for the acts of his subordinates based on a
theory of respondeat superior. See Alton, 168 F.3d at 200.
Sheriff Thomas may, however, be held personally liable if either
(1) he was personally involved in the constitutional deprivation;
or (2) a sufficient causal connection exists between his wrongful
conduct and the constitutional violation. Thompkins v. Belt, 828
F.2d 298, 304 (5th Cir. 1987). As chief law enforcement
policymaker in Harris County, Sheriff Thomas may be held personally
liable if he implemented “a policy so deficient that the policy
itself is a repudiation of constitutional rights and is the moving
12
force of the constitutional violation,” Cozzo, 279 F.3d at 289.9
The district court determined that Sheriff Thomas maintained
and acquiesced in an unconstitutional policy permitting officers to
effectuate the warrantless seizure of cameras and video recorders
and to destroy the film therein. The court noted that Thomas
stated in his deposition that he approved of Foose’s actions in
this case and that Foose had acted in accordance with the
department’s word of mouth or standard operating procedures. The
court further noted that Sergeant Petruska testified about a
previous incident that the deputies had handled the same way, and
that the testimony of Petruska, Shattuck, and Rocha indicates that
9
An official policy is defined as:
1. A policy statement, ordinance, regulation,
or decision that is officially adopted and
promulgated by the municipality’s lawmaking
officers or by an official to whom the
lawmakers have delegated policy-making
authority; or
2. A persistent, widespread practice of city
officials or employees, which, although not
authorized by officially adopted and
promulgated policy, is so common and well-
settled as to constitute a custom that fairly
represents municipal policy. Actual or
constructive knowledge of such custom must be
attributable to the governing body of that
municipality or to an official to whom that
body had delegated policy-making authority.
Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).
13
Foose acted in accordance with procedures deemed appropriate.10 The
court concluded that there was no factual dispute about the
existence or character of the procedures under which the plaintiffs
were incarcerated -- and that Sheriff Thomas’s acquiescence in this
practice showed deliberate indifference to the plaintiffs’
constitutional rights.
Although we agree with the district court that viewed in the
light most favorable to the Ibarras the evidence indicates that
Sheriff Thomas acquiesced in an unconstitutional policy, we
disagree with the district court’s conclusion that no factual
disputes exist as to existence and scope of a custom or policy, and
as to Thomas’s knowledge of this policy. On appeal, Sheriff Thomas
specifically challenges the district court’s finding that any such
unofficial custom or policy exists and argues that the Ibarras have
produced insufficient evidence showing a pattern of constitutional
violation under official County regulations. Because Sheriff
Thomas primarily argues that evidence in the record is insufficient
to support the Ibarras’ version of the facts, the resolution of his
qualified immunity claim turns on a contested question of fact. We
therefore dismiss Sheriff Thomas’s appeal for lack of jurisdiction.
See Connelly v. Texas Dept. of Criminal Justice, 484 F.3d 343, 345-
46 (5th Cir. 2007) (citing Kinney v. Weaver, 367 F.3d 337, 347 (5th
Cir. 2004) (en banc)).
10
He explained: “We took the film. Took the camera, took the
film, gave them their camera back.”
14
B.
Each of the officers also claims immunity from suit for the
state-law claims under the Texas Tort Claims Act because the
Ibarras made an irrevocable election to sue only the County. They
rely upon § 101.106(a) of the Texas Civil Practice and Remedies
Code, which states that “[t]he filing of a suit under this chapter
against a governmental unit constitutes an irrevocable election by
the plaintiff and immediately and forever bars any suit or recovery
by the plaintiff against any individual employee of the
governmental unit regarding the same subject matter.” Because the
Ibarras sued the County, the Defendants argue, their lawsuits
against the individual officers are barred.
The defendants misread the statute. Subsection (b) of §
101.106 states the converse of subsection (a): suing an employee
constitutes an irrevocable election and bars suit against the
governmental unit. Subsection (e) states that if both the
employees and the governmental unit are sued “the employees shall
immediately be dismissed on the filing of a motion by the
governmental unit.”
In this case, both Harris County and its employees were sued;
therefore, subsection (e) controls. Harris County has never filed
a motion to dismiss its employees; therefore, the defendant
officers have no automatic right to dismissal. Subsection (e) does
not explicitly prohibit suits against both employee and
governmental unit. See Newman v. Obersteller, 960 S.W.2d 621, 622
15
(Tex. 1997) (judgment for school district rendered employee immune
under § 101.106). Harris County’s presence in this case does not
entitle the individual officers to immunity from the state-law
claims.11 Because Harris County failed to file the appropriate
motion, the district court did not err in denying summary judgment
on basis of statutory immunity under the Texas Tort Claims Act.12
C.
In its one-page order of April 27, 2005, the district court
summarily denied Rodriguez’s motion for summary judgment.
Rodriguez appealed, arguing that the district court erred in
denying him absolute immunity as an expert witness. We agree. See
Mowbray v. Cameron County, 274 F.3d 269, 277 (5th Cir. 2001)
(citing Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108 (1983)).
See also Kinney v. Weaver, 367 F.3d 337, 352 (5th Cir. 2004) (en
banc) (“[N]o distinction between fact witnesses and expert
witnesses ... [is] drawn in cases involving the absolute immunity
that protects witnesses from civil liability arising from their
testimony.”). The Ibarras argue that Rodriguez was not sued
because he was an expert witness, but because he conspired with
others to commit perjury. This argument fails, however, because as
11
Appellants Thomas, Shattuck, Rocha, Moreno, and Palermo
incorporate this argument in their briefs.
12
The appellants offer no other arguments in support of their
claim for qualified immunity as to the Ibarras’ state law claims.
16
Rodriguez correctly notes, immunity also covers allegations of
conspiracy to commit perjury. Mowbray, 274 F.3d at 277-78(“absolute witness immunity bars § 1983 suits for conspiracy to
commit perjury”). Rodriguez is entitled to absolute immunity.
III.
For the foregoing reasons, we AFFIRM the judgment of the
district court denying qualified immunity on the federal claims
with respect to Foose. The appeals of Shattuck and Thomas are
DISMISSED for lack of jurisdiction. We AFFIRM the judgment of the
district court denying immunity under the Texas Torts Claims Act to
Foose, Shattuck, Thomas, Moreno, Palermo, and Rocha and we REVERSE
the district court’s judgment denying qualified immunity on the
federal claims to Moreno, Palermo, Rocha, and Rodriguez.
AFFIRMED in part; REVERSED in part; and DISMISSED in part.
17