Von Derhaar v. Watson

Case: 22-30710 Document: 186-1 Page: 1 Date Filed: 07/30/2024

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 22-30710

____________ FILED

July 30, 2024

Karl Von Derhaar, Lyle W. Cayce

Clerk

Plaintiff—Appellee/Cross-Appellant,

versus

Khalid Watson, in both his individual and official capacity; Michael

Stalbert, in both his individual and official capacity; Kim Williams, in

both her individual and official capacity,

Defendants—Appellants/Cross-Appellees,

Darryl Watson, in both his individual and official capacity; Shaun D.

Ferguson, Superintendent of the New Orleans Police Department, in his

official capacity; Lawrence Jones, in both his individual and official

capacity; New Orleans City, through the Mayor of the City of New

Orleans, Latoya Cantrell,

Defendants—Cross-Appellees,

consolidated with

_____________

No. 22-30718

_____________

Karl Von Derhaar,

Plaintiff—Appellant,

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versus

Shaun D. Ferguson, Superintendent of the New Orleans Police

Department, in his official capacity; New Orleans City, through the

Mayor of the City of New Orleans, Latoya Cantrell,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC Nos. 2:21-CV-1653, 2:21-CV-1653

______________________________

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

New Orleans Crime Lab employee Karl Von Derhaar warned

superiors about safety breaches and inaccuracies in a drug-testing method.

Von Derhaar contends that, rather than address those concerns, the Lab

mandated that all employees be tested using that very method. Von Derhaar

requested placement on unpaid leave. Lab supervisor Sergeant Michael

Stalbert then went to Von Derhaar’s home but got no answer because he

went to the wrong apartment. He came back the next day with two officers

who were also armed. What followed is fully captured on body camera video.

Von Derhaar, standing in his front doorway, calmly declined to speak with

Stalbert. Stalbert told Von Derhaar that he was required to speak with

Stalbert and would be escorted out of his home. Von Derhaar ultimately

agreed that he would get dressed and then speak, but Stalbert suddenly

announced that he was coming in with Officer Khalid Watson and entered.

Though Stalbert told Von Derhaar that this was a wellness check, neither

officer looked for anyone in distress nor appeared to have noticed anything

out of the ordinary. Von Derhaar’s young child played calmly. His girlfriend

then appeared and asked what anyone witnessing this scene would want to

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know: What in the world is going on? Von Derhaar told her and an

unidentified person he called on the phone that the officers had forced their

way in. Stalbert ordered Von Derhaar out of his home, where another Crime

Lab supervisor, Lieutenant Kim Williams, waited. When Von Derhaar

declined to go with the officers, Williams called Lieutenant Darryl Watson 1

at the Police Integrity Bureau (PIB) and then relayed to Von Derhaar that he

was required to go to PIB headquarters because PIB was concerned for his

wellbeing. Von Derhaar’s repeated requests to return to his home and collect

his phone were denied, and he was ultimately taken to a police car, patted

down, and driven away.

Von Derhaar sued the City of New Orleans, its police superintendent,

the officers present, and Darryl Watson under 42 U.S.C. § 1983 for violating

his Fourth Amendment right to be free from unreasonable searches and

seizures. Some defendants, though not Darryl Watson, moved for summary

judgment, arguing that there was no municipal liability for the City and

superintendent and that qualified immunity shielded each officer on the

scene. The district court granted summary judgment to the City and

superintendent on all claims. On the search claim, the district court granted

summary judgment to Williams and Khalid Watson but denied it to Stalbert.

On the seizure claim, the district court denied summary judgment to Stalbert,

Williams, and Khalid Watson. These appeals and cross-appeals followed.

We DISMISS for want of appellate jurisdiction the appeals of the

denial of summary judgment to Stalbert on the issue of punitive damages, the

summary judgment to Khalid Watson on the search claim, and the summary

judgment to the City and superintendent, and therefore DENY as moot Von

_____________________

1

To avoid confusion between Officer Khalid Watson and Lieutenant Darryl

Watson, we refer to each by his first and last name throughout this opinion.

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Derhaar’s motion for certification of that order. We AFFIRM the denial of

summary judgment to Stalbert on the search and seizure claims. We

REVERSE the denial of summary judgment to Williams and Khalid Watson

on the seizure claim.

I

Von Derhaar told his immediate supervisor at the Lab that he was

concerned about safety and procedural lapses and was worried that tests

could not distinguish between marijuana and hemp. Lab supervisors Stalbert

and Williams learned of Von Derhaar’s concerns. These concerns were

allegedly ignored. Von Derhaar was then told that, as a new condition of his

employment, he would be required to take drug tests using the testing

method that he had warned was inaccurate.

Von Derhaar requested leave without pay. Stalbert avers that he told

Von Derhaar to come discuss protocol for doing so but, despite promises

otherwise, Von Derhaar did not go speak with Stalbert. Stalbert alleges that,

later that day, he went to Von Derhaar’s apartment on the orders of his

supervisor, Captain Simon Hargrove, but received no response. The next

day, Stalbert alleges that he went to speak to PIB Commander Sabrina

Richardson. Darryl Watson was brought into this conversation based on a

purportedly relevant, recent experience, which was never specified. 2

According to Stalbert’s testimony, he explained that he thought it would be

necessary to enter Von Derhaar’s home to ensure Von Derhaar had not

harmed himself or others.

_____________________

2

Stalbert testified that Darryl Watson “said that he had just handled a situation

similar to this and that he had the expertise to guide [Stalbert] [to do] what [Stalbert]

needed to do.”

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Stalbert and Williams went to Von Derhaar’s home. Stalbert learned

that he had knocked on the wrong apartment door the previous day. Stalbert

and Williams allege that they knocked on Von Derhaar’s correct door for

fifteen minutes without a response, at which point they requested an officer

with a body-worn camera and arranged for a standby ambulance. Khalid

Watson arrived with a body-worn camera. A description of its footage

follows.

Von Derhaar, who was wearing only boxers, answered and partially

opened his door. Stalbert asked how Von Derhaar was, to which Von

Derhaar responded that he was “doing good” but “actually d[idn’t] want to

talk right now.” Stalbert said, “well you need to talk to me . . . you have to”

and moved directly in front of the door, with Williams a few feet behind him

and Khalid Watson behind her. Stalbert repeated this several times and Von

Derhaar responded that “there has been a problem with working conditions

at the lab.” Stalbert told Von Derhaar that he and his fellow officers were

“going to come and escort you, make sure that you put some pants on.”

Rather than respond to Von Derhaar’s questions about where he would be

taken, Stalbert said “you are going to put pants on” and “at that point we are

going to talk further.”

Von Derhaar agreed to dress and tried to close his door. He could not

do so, however, because Stalbert stepped onto the threshold and announced

“we are coming in, okay,” which Von Derhaar repeated as Stalbert stepped

over the threshold and pushed open the door. With his child playing on the

couch next to him, Von Derhaar called an unidentified person, relayed that

“they just forced themselves into my apartment,” and asked what he should

do given the officers “don’t have a right to enter my house without a

warrant.” Stalbert remained in the room with Von Derhaar and his child.

Stalbert told Von Derhaar that he could remain on his phone and that they

were just trying to speak with him, explaining that they “respect [Von

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Derhaar’s] house and family.” Von Derhaar told Stalbert that his girlfriend

was working. Stalbert insisted that Von Derhaar “need[ed] to step outside”

because he did “not want to intrude on [Von Derhaar’s house]” and would

“explain everything to” Von Derhaar then.

At that point, Von Derhaar’s girlfriend walked into the room. Stalbert

clarified that Von Derhaar’s girlfriend was working from home—this was

September 2020—and identified himself as Von Derhaar’s supervisor. She

asked what was happening and Stalbert finally explained that this was a

“wellness check,” stated that he had tried to contact Von Derhaar for two

days, and made assurances that he would explain to Von Derhaar what was

happening. Von Derhaar then asked Stalbert if he should put his hands up,

and Stalbert replied that Von Derhaar “work[ed] for the New Orleans Police

Department” and was “not under arrest,” as Von Derhaar followed him out.

Outside, Von Derhaar and Stalbert met Williams. She told Von

Derhaar that he “need[ed] to go to PIB,” explaining that officials at PIB

“need[ed] to speak with [him] about different things that have been going

on” because “they [were] concerned about [his] well-being.” When Von

Derhaar asked again if he was under arrest, Williams assured him “absolutely

not”—but then when asked by Von Derhaar if he was required to go with the

officers, Williams said that “PIB said that you need to come to their office.”

Von Derhaar asked whether he could return to his home and Williams

responded that she would call PIB.

Williams relayed to Darryl Watson on the phone that Von Derhaar

“said that if he’s not under arrest he wants to go back into his house,” and

Darryl Watson responded, over speakerphone, “tell [Von Derhaar] he is

being put back on the clock, he’s being ordered to come into work to take this

test,” presumably referring to the drug test Von Derhaar had raised concerns

about. Williams and Stalbert each told Von Derhaar that PIB was ordering

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him to come in, and Stalbert explained that Von Derhaar was being ordered

to take a drug test because Von Derhaar was behaving out of character.

Stalbert told Von Derhaar that, while Von Derhaar could refuse assistance at

a later point, Von Derhaar was required to come with the officers “under the

direction of PIB” because there was concern for his wellbeing. Stalbert said

that he would tell Von Derhaar’s girlfriend what was happening.

Von Derhaar asked if he was required to go with the officers if he quit

his job, and both Stalbert and Williams responded that he was. Von Derhaar

asked Williams if he could retrieve his phone from his home and was told

“no, you are not going to need it.” He asked a second time and was again

forbidden by Williams. Williams told Von Derhaar to go to the police car.

Khalid Watson, still wearing the body camera, gestured for Von Derhaar to

walk in front of him. Von Derhaar then told Khalid Watson and Williams

“this isn’t legal,” and stopped. Williams responded that Von Derhaar was

“being ordered” by PIB and had to “keep moving.” Khalid Watson and

Williams directed Von Derhaar through a parking lot toward a police car.

Williams left and Khalid Watson continued, for approximately two minutes,

to direct Von Derhaar to the police car.

Once at the police car, Williams rejoined Khalid Watson and Von

Derhaar. She told Von Derhaar that “in any police car” “you have to be

searched.” Khalid Watson then patted Von Derhaar down before directing

him to “have a seat” in the back of the police car. Williams confirmed that

Von Derhaar had been searched and, while repeating that he was not under

arrest, emphasized that Von Derhaar was not being handcuffed “as a

courtesy.” Stalbert returned, and the three officers agreed to meet at PIB

headquarters.

Von Derhaar was driven to PIB headquarters and was permitted to

resign from his position at the Lab there.

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II

As relevant here, Von Derhaar sued Stalbert, Khalid Watson,

Williams, Darryl Watson, the City, and superintendent under Section 1983

for violating his Fourth Amendment right to be free from unreasonable

searches and seizures. We reach the merits of only the search claim against

Stalbert and the seizure claim against Stalbert, Khalid Watson, and Williams

because we lack jurisdiction over the appeals of other issues.

A

The district court granted summary judgment to the City and

superintendent, concluding Von Derhaar could not establish municipal

liability under Section 1983. We lack appellate jurisdiction over Von

Derhaar’s appeal of that order and the district court’s order excluding Von

Derhaar’s municipal liability expert. We accordingly also deny as moot Von

Derhaar’s motion for certification of the order granting summary judgment

to the City and superintendent.

We lack jurisdiction under 28 U.S.C. § 1291, which grants

“jurisdiction of appeals from all final decisions of the district courts of the

United States.” 28 U.S.C. § 1291. “[A] final judgment is normally deemed

not to have occurred until there has been a decision by the District Court that

ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d

164, 171 (5th Cir. 2009) (internal quotation marks and citations omitted).

Not so here, where multiple claims remain against multiple other defendants

in the suit. Nor does this fall within the collateral order doctrine, through

which Section 1291 is given its “practical rather than . . . technical

construction.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)

(citations omitted). That doctrine affords review of a “small class [of

decisions] which finally determine claims of right separable from, and

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collateral to, rights asserted in the action, too important to be denied review

and too independent of the cause itself to require that appellate consideration

be deferred until the whole case is adjudicated.” Henry, 566 F.3d at 171

(quoting Cohen, 337 U.S. at 546). But “[a]n erroneous ruling on liability,” as

Von Derhaar argues this was, “may be reviewed effectively on appeal from

final judgment.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 43 (1995).

Additionally, the district court declined certification, so we lack jurisdiction

under 28 U.S.C. § 1292(b). See Von Derhaar v. Stalbert, et al, 21-cv-01653-

ILRL-MBN, ECF 271 (July 5, 2023).

Nor will we exercise pendent jurisdiction, proper only “(1) [i]f the

pendent decision is ‘inextricably intertwined’ with the decision over which

the appellate court otherwise has jurisdiction . . . or (2) if ‘review of the

former decision [is] necessary to ensure meaningful review of the latter.’”

Escobar v. Montee, 895 F.3d 387, 391 (5th Cir. 2018) (quoting Swint, 514 U.S.

at 51). Assuming either was satisfied, we are not exercising jurisdiction over

other claims against the City and superintendent, and “this court has never

permitted—and has indeed rejected—pendent party (as opposed to pendent

claim) interlocutory jurisdiction.” Harris v. Clay County, 47 F.4th 271, 276

(5th Cir. 2022) (citations omitted) (emphasis added). While “[o]ther

circuits do sometimes exercise pendent party jurisdiction over orders

involving municipalities when individuals with qualified immunity also

appeal, . . . we do not.” Id. (footnote and citation omitted).

B

We lack appellate jurisdiction to review the denial of summary

judgment to Stalbert on whether punitive damages are available. There is no

jurisdiction under Section 1291 because there has not been a “decision by the

District Court that ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment.” Henry, 566 F.3d at 171. This does

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not fall under the collateral order doctrine. Adelman v. Branch, 784 F. App’x

261, 268 (5th Cir. 2019) (per curiam). In Adelman, we held that the denial of

summary judgment on punitive damages was not collateral to the Section

1983 Fourth Amendment claim for which the plaintiff sought punitive

damages. Id. We explained that “[s]uch a denial does not ‘conclusively

determine the disputed question’ or ‘resolve an important issue completely

separate from the merits of the action,” and, instead, “the issue of damages

is enmeshed with the merits.” Id. (quoting Will v. Hallock, 564 U.S. 345, 349

(2006)). Furthermore, “[i]f the district court issues a final judgment

assessing punitive damages against [the defendant], we may review an appeal

of that judgment, meaning that the opportunity for review is not

‘irretrievably lost if it is not reviewed in this collateral appeal.’” Id. (quoting

Cherry v. Univ. Wis. Sys. Bd. of Regents, 265 F.3d 541, 546-47 (7th Cir. 2001)).

Finally, this is not an order enumerated under Section 1292(a), nor

was it certified pursuant to Section 1292(b). And we do not exercise pendent

jurisdiction because the issue is not “inextricably intertwined” with the

qualified immunity denial properly before us, nor is it necessary to

“meaningful review.” Swint, 514 U.S. at 51.

C

We also lack appellate jurisdiction to review the grant of qualified

immunity to Khalid Watson on the search claim. “[W]hile we may review

the denial of claims of qualified immunity under the collateral-order doctrine,

the doctrine does not encompass orders granting qualified immunity.”

Walton v. City of Verona, 82 F.4th 314, 320 (5th Cir. 2023) (citation omitted).

By contrast, we have appellate jurisdiction to review the qualified

immunity denial to Stalbert on the search claim and to Stalbert, Khalid

Watson, and Williams on the seizure claim. “[T]he denial of qualified

immunity on summary judgment is immediately appealable under the

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collateral order doctrine if based on an issue of law,” Pasco ex rel. Pasco v.

Knoblauch, 566 F.3d 572, 576 (5th Cir. 2009) (citing Mitchell v. Forsyth, 472

U.S. 511, 530 (1985)), but, as we explain below, that “jurisdiction is

significantly limited,” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004)

(en banc) (citing Mitchell, 472 U.S. at 530).

III

We now turn to the denial of qualified immunity to Stalbert on the

search claim and to Stalbert, Williams, and Khalid Watson on the seizure

claim.

“The doctrine of qualified immunity protects government officials

‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Our inquiry is two-

pronged, and we may take those prongs in any order. Id. at 236. “The first

asks whether the facts, ‘[t]aken in the light most favorable to the party

asserting the injury, . . . show the officer’s conduct violated a [federal]

right[.]’” Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (quoting Saucier v.

Katz, 533 U.S. 194, 201 (2001)). “The second prong of the qualified-

immunity analysis asks whether the right in question was ‘clearly

established’ at the time of the violation.” Id. at 656 (quoting Hope v. Pelzer,

536 U.S. 730, 739 (2002)).

To be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

This “requires an assessment of whether the official’s conduct would have

been objectively reasonable at the time of the incident.” Conroe Creosoting

Co. v. Montgomery County, 249 F.3d 337, 340 (5th Cir. 2001). “[D]espite

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notable factual distinctions between the precedents relied on and the cases

then before the Court,” law may be clearly established “so long as the prior

decisions gave reasonable warning that the conduct then at issue violated

constitutional rights.” Hope, 536 U.S. at 740 (citation omitted). For search

and seizure claims, the Supreme Court has cautioned that “courts should

define the ‘clearly established’ right at issue on the basis of the ‘specific

context of the case,’” Tolan, 572 U.S. at 657 (quoting Saucier, 533 U.S. at

201), while still “tak[ing] care not to define a case’s ‘context’ in a manner

that imports genuinely disputed factual propositions,” id. (citation omitted).

“The standard of review that we apply in an interlocutory appeal

asserting qualified immunity differs from the standard employed in most

appeals of summary judgment rulings.” Kinney, 367 F.3d at 347. We have

explained that “[w]henever the district court denies an official’s motion for

summary judgment predicated upon qualified immunity,” it “can be thought

of as making two distinct determinations[.]” Id. at 346. First, it “decides

that a certain course of conduct would, as a matter of law, be objectively

unreasonable in light of clearly established law.” Id. Second, it “decides that

a genuine issue of fact exists regarding whether the defendant(s) did, in fact,

engage in such conduct.” Id. “We lack jurisdiction to determine whether

any factual disputes are genuine,” the second determination, “and we only

consider, as a matter of law, if [any factual disputes] are material.” Cope v.

Cogdill, 3 F.4th 198, 204 (5th Cir. 2021). “In reviewing the district court’s

conclusions concerning the legal consequences—the materiality—of the

facts, our review is of course de novo.” Kinney, 367 F.3d at 349.

A

The district court properly denied qualified immunity to Stalbert on

the search claim. Stalbert argued that the entry was consented to, justified

by exigent circumstances, and made pursuant to a superior’s order.

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We first consider whether there was a constitutional violation. The

district court concluded that there were material fact disputes on both

consent and exigency that precluded summary judgment. 3 Whether there

was consent or exigency is a question of fact. See United States v. Bass, 996

F.3d 729, 739 (5th Cir. 2021) (consent); United States v. Howard, 106 F.3d

70, 74 (5th Cir. 1997) (exigency). In this posture, we ask only whether those

fact disputes are material. See Cope, 3 F.4th at 204. Although “searches . . .

inside a home without a warrant are presumptively unreasonable,” “the

ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” and

“the warrant requirement is subject to certain reasonable exceptions.”

Brigham City v. Stuart, 547 U.S. 398, 403 (2006). “Consent searches occupy

one of these” reasonable exceptions, Fernandez v. California, 571 U.S. 292,

298 (2014), as do exigencies in which there is a “need to assist persons who

are seriously injured or threatened with such injury,” Brigham City, 547 U.S.

at 403. The factual disputes over whether there was consent or exigent

circumstances are therefore material because they go directly to whether this

warrantless search was unconstitutional.

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3

On consent, the district court stated that “[t]he discrepancy of whether Stalbert

had permission to enter the apartment, alone, is a genuinely disputed material fact and

requires denial of Stalbert’s motion for summary judgment.” The district court explained

that “Stalbert avers he believed had . . . permission . . . to enter, and [Von Derhaar] never

asked him to leave,” while “[a]s Von Derhaar tells it, immediately after Stalbert said ‘. . .

and we are coming in, okay?’, [Von Derhaar] merely repeated what Stalbert said in

apparent disbelief as Stalbert ‘force[d] his way through the door.’” On exigency, the

district court stated that that the “factual circumstances arguably do not rise to the

standard of an exigency” and that “Stalbert did not specify how the plaintiff acted

‘erratically’” such that the entry was justified by exigent circumstances. It concluded there

were “genuine factual disputes as to whether the officer committed an unlawful entry into

[Von Derhaar’s] home to conduct a wellness check[.]”

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We now turn to the clearly established law prong. Considering the

standard for summary judgment and our limited review in this interlocutory

appeal, we assume these disputed facts as to the existence of consent and

exigency for purposes of the clearly established law inquiry. “[T]he law

regarding consent and exigent circumstances has been clearly established for

some time.” Gates v. Tex. Dep’t of Prot. & Reg. Servs., 537 F.3d 404, 424 (5th

Cir. 2008). Stalbert asserts that Von Derhaar had been acting “erratically,”

and that he “believed he had exigent circumstances to enter the apartment.”

Yet Stalbert testified that “[i]t’s not that I was saying that [Von Derhaar] was

impaired at that exact moment” but it was instead that Von Derhaar had

“sa[id] that he was stressed in some manner” and “did not appear” when

Stalbert asked him to come to work. He further testified that “little incidents

that happened one at a time and separate and spread out” justified his

conclusion that there was an exigency. He offers no further explanation or

evidence of danger, nor does he attempt to explain what he perceived that

would call for “emergency assistance to an injured occupant or to protect an

occupant from imminent injury.” Brigham City, 547 U.S. at 403.

Stalbert also argues that his conduct was “objectively reasonable at

the time of the incident,” Conroe Creosoting Co., 249 F.3d at 340 (citation

omitted), because “making sure that the occupants of Von Derhaar’s

household were also safe” was “in accordance with his orders from [Sabrina]

Hargrove and [Darryl] Watson.” 4 On the record at this stage, even accepting

that the entirety of the instruction to Stalbert was to “mak[e] sure that the

occupants of Von Derhaar’s house were also safe,” his entry into the home

was objectively unreasonable after he engaged Von Derhaar in conversation

for a full minute, and observed no safety threat that he has articulated to the

_____________________

4

We discuss in greater depth below the significance of following orders in our

qualified immunity doctrine.

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district court or our court. Furthermore, even if we were to assume that

Stalbert’s initial entry was not objectively unreasonable, that says nothing

about why Stalbert remained in Von Derhaar’s home for over four minutes

when nothing appeared out of the ordinary and he was able to see that the

other occupants of the home, Von Derhaar’s girlfriend and child, were fine.

The district court therefore did not err in concluding that material fact

disputes required denying summary judgment to Stalbert on the search claim.

B

On the seizure claim, the district court properly denied summary

judgment to Stalbert but erred in denying summary judgment to Williams and

Khalid Watson.

Von Derhaar argues that Stalbert seized him when Stalbert ordered

him out of his home; Williams seized him when Williams ordered Von

Derhaar to come with the officers to PIB and refused Von Derhaar’s request

to re-enter his home to collect his phone; and Khalid Watson seized him

when Watson patted him down, directed him into the police car, and then

drove him to PIB headquarters.

We begin with the constitutional violation. “[C]ertain seizures are

justifiable under the Fourth Amendment if there is articulable suspicion that

a person has committed or is about to commit a crime,” United States v.

Cooper, 43 F.3d 140, 145 (5th Cir. 1995), while an arrest is “plainly a Fourth

Amendment ‘seizure’ that must be based on probable cause,” id. at 146.

Crucially, no officer argues that there was even articulable suspicion to seize

Von Derhaar. They instead contend that there was no constitutional

violation because he was not seized and, even if he had been seized, that

seizure was constitutional because he was ordered to go to PIB as an

employee to take a drug test. Both arguments fail.

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“[A] person is ‘seized’ only when, by means of physical force or a

show of authority, his freedom of movement is restrained,” and “[o]nly

when such restraint is imposed is there any foundation . . . for invoking

constitutional safeguards.” United States v. Mendenhall, 446 U.S. 544, 553

(1980). It is therefore not dispositive, contrary to the officers’ assertions,

that Von Derhaar was told he was not under arrest nor that the officers

allegedly would have allowed Von Derhaar to leave if he had so attempted. A

seizure occurs when “in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to

leave.” Id. at 554. “Examples of circumstances that may indicate a seizure,

even where the person did not attempt to leave, would be the threatening

presence of several officers, . . . or the use of language or tone of voice

indicating that compliance with the officer’s request might be compelled.”

Id. Here, Von Derhaar, in the presence of three armed officers, repeatedly

stated that he did not want to go to PIB but was repeatedly told that he was

“ordered” to go. Von Derhaar said that he wanted to go back to his home,

even just to retrieve his phone, and was told that he could not. He was then

taken to a police car, patted down, and ordered to enter it—and informed he

would not be handcuffed “as a courtesy.” Applying Mendenhall, these

circumstances indicate that Von Derhaar was seized by each officer.

This analysis is unchanged by the fact that Von Derhaar also worked

for the Lab. Of course, the government’s interest in regulating certain

employees can create “‘special needs’ beyond normal law enforcement that

may justify departures from the usual warrant and probable-cause

requirements.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 620 (1989)

(quoting Griffin v. Wisconsin, 483 U.S. 868, 873–74 (1987)). One such

departure has, for example, been justified in required, post-accident drug

tests of railroad workers given the significant public safety interest and

“diminished” expectation of privacy the workers hold. Id. at 627. But two

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key features from that balancing are absent here. First, that balancing hinges

on the fact that employees are subject to significant restrictions in movement

at work and so the at-work drug test adds comparatively little burden. Id. at

624–25. Second, permissible drug-testing policies are those that are

“defined narrowly and specifically,” like testing immediately after an

accident. Id. at 622. Von Derhaar, though, was at home and was told that he

would be put back on the clock for the purpose of ordering him to come in to

take a drug test. 5 As the district court explained, while “[p]erhaps plaintiff,”

as an employee, “could be ordered to provide a urine sample for drug testing

purposes, . . . a reasonable jury could find that hauling plaintiff to [PIB]

against his wishes goes too far and thus, a reasonable trier of fact could find

that an illegal seizure occurred.”

We next consider whether the constitutional violation was clearly

established when it occurred. The officers contend that each acted pursuant

to orders. An individual may “act[] reasonably in following [orders]”—such

that following those orders does not violate clearly established law—when

the orders are “not facially outrageous.” Jacobs v. W. Feliciana Sheriff’s

Dep’t, 228 F.3d 388, 398 (5th Cir. 2000).

We agree with Von Derhaar that Stalbert seized him in violation of

clearly established law when Stalbert ordered him from his home. Stalbert

does not point to any order, from a superior or otherwise, that he was

following at the time to bring Von Derhaar out of his home or to continue any

contact with Von Derhaar after assuring, at most, Von Derhaar’s wellbeing.

_____________________

5

To the extent that there is some ambiguity in the record on whether Von Derhaar

was authorized to take his unpaid leave because he had not submitted the requisite

paperwork, that does not change the undisputed fact that this all occurred when Von

Derhaar was at home. Any discrepancy is a fact question that may not be resolved at this

stage.

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Stalbert was thus not objectively reasonable in seizing Von Derhaar at this

time, and he violated clearly established law in doing so.

On the other hand, both Williams and Khalid Watson point to orders

that each was following, and Von Derhaar fails to establish that those orders

were “facially outrageous.” Id. As to Williams, Von Derhaar argues that

“Darryl Watson merely conveyed on the phone to Lt. Williams to relay to

Mr. Von Derhaar that he was being ordered to take a drug test,” not to

“escort [Von Derhaar] to PIB in a police vehicle.” But this ignores the fuller

conversation in which the order was given. Von Derhaar asked Williams

whether he was required to go with the officers to PIB headquarters, and she

responded that he was. When he asked whether he could return to his home,

Williams called PIB and relayed to Darryl Watson that Von Derhaar “said

that if he’s not under arrest he wants to go back into his house,” and Darryl

Watson responded, over speakerphone, “tell [Von Derhaar] he is being put

back on the clock, he’s being ordered to come into work to take this test.” In

the context of Williams’ question to Darryl Watson, Von Derhaar cannot

credibly argue that Williams was not ordered to bring Von Derhaar into PIB

headquarters. He does not argue that Williams was objectively unreasonable

in following this order but instead re-urges that his seizure was unreasonable

in violation of the Fourth Amendment. Without argument as to why the

order was facially outrageous such that following it was objectively

unreasonable, that is insufficient. See Heaney v. Roberts, 846 F.3d 795, 805

(5th Cir. 2017) (following order to remove and detain non-disruptive citizen

at council meeting was not objectively unreasonable even absent probable

cause).

Von Derhaar argues that Khalid Watson “actively participated in the

detention and seizure . . . which was beyond the scope of [the] alleged original

orders to accompany [Stalbert] and [Williams] solely for purposes of

videotaping the wellness check.” But Von Derhaar makes no argument as to

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the subsequent orders that Khalid Watson received throughout the

encounter from Stalbert and Williams to take Von Derhaar to the police car,

pat him down before entering it, and drive him to PIB headquarters. Von

Derhaar thus fails to carry his burden to show that Williams and Khalid

Watson violated clearly established law in seizing him.

We therefore conclude that the district court properly denied

qualified immunity on the seizure claim to Stalbert but erred in denying

qualified immunity to Williams and Khalid Watson on this claim.

* * *

For the foregoing reasons, we DISMISS Von Derhaar’s appeal of the

summary judgment to the City and superintendent, including the exclusion

of expert testimony; DENY as moot Von Derhaar’s motion for certification

of that summary judgment; DISMISS Stalbert’s appeal of the denial of

summary judgment on punitive damages; and DISMISS Von Derhaar’s

appeal of the summary judgment to Khalid Watson on the search claim. We

AFFIRM the denial of summary judgment to Stalbert on the search and

seizure claims. We REVERSE the denial of summary judgment to Williams

and Khalid Watson on the seizure claim, and REMAND for further

proceedings consistent with this opinion.

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