Opinion

COURT OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-05-338-CV

PHILLIP K. POTEET, INDIVIDUALLY APPELLANT

AND

AS NEXT FRIEND FOR

JEFFREY

POTEET, A MINOR

V.

COLIN J. SULLIVAN, HENRY APPELLEES

LUCIO,

BYRON LAKE AND TOWN

OF

FLOWER MOUND, TEXAS

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FROM

THE 367TH DISTRICT COURT OF DENTON COUNTY

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OPINION

ON REHEARING

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After considering our prior

opinion on appellant = s and

appellees Colin J. Sullivan and Henry Lucio = s motions for rehearing, we deny the motions, but withdraw our opinion

and judgment dated November 30, 2006, and substitute the following.

I. Introduction

Appellant Phillip K. Poteet

appeals the trial court = s grant of

summary judgment in favor of the Town of Flower Mound and Flower Mound police

officers Colin J. Sullivan, Henry Lucio, and Byron Lake. Because we hold that Poteet produced

sufficient evidence raising a genuine question of material fact regarding

whether Officers Sullivan and Lucio were entitled to the defense of qualified

immunity, we reverse the trial court = s grant of summary judgment to Sullivan and Lucio. In all other respects, we affirm.

II.

Background

This is the case of the bad

breakup. Around January 2001, Poteet and

his fiancee, Tanya Chin, moved from Oklahoma to Flower Mound, Texas, into a

home that Poteet purchased. A year and a

half later, on June 6, 2002, Poteet told Chin that he had accepted a job in

Atlanta, Georgia, and that he wanted to break off their engagement. The events surrounding their division of

property after their breakup form the basis of Poteet = s lawsuit and appeal.

A. Initial Calls to Police

The morning after the

breakup, Chin called police to complain about a verbal argument between the two

over property issues. According to the

police report, Chin and Poteet eventually agreed to return each other = s belongings, and Chin stated that she intended to pack up her

personal items and move out. The report

also observed that the officers saw no signs of physical violence.

Two days later, on Sunday,

June 9, 2002, Chin = s parents

and brother-in-law came to Flower Mound to help her move. They loaded most of Chin = s personal items into their vehicles, but Chin also attempted to take

property belonging to Poteet as well.

This time, Poteet called police.

The police arrived and requested Chin and her family to leave; they did

so, taking Chin = s personal

property with them. Later that

afternoon, Poteet found some additional items belonging to Chin that she had

left behind. Chin = s aunt came to his home and collected the items. Poteet then changed the locks on the doors to

his home and the security code to the home = s alarm system.

The next morning, Chin

returned to Poteet = s home with

her parents, her brother-in-law and his wife, her aunt, and a locksmith. As the locksmith began to pick the lock on

the front door, Poteet called police to report that the group was attempting to

break into his home. Officers arrived

and requested the group to leave, and they complied. Later that day, Poteet again found items that

Chin had left behind; he called Chin = s aunt, who returned to the home and picked up the items. The next day, Poteet posted a A no trespassing @ sign on his

front door expressly stating that Chin did not live in the home and that he did

not give her permission to enter the home.

Then on Wednesday, June 12,

2002, Poteet called police to file a report about Chin = s behavior. The responding

officer told Poteet that Chin could come on the premises and into the house

because she had established residency there.

According to the police report, the officer told Poteet that A this was all a civil matter. @ Poteet disagreed and A said if someone came back and tried to get into the house, he had a

right to protect it and something big would happen. @

Later that day, Poteet

received a message on his home answering machine from Eric Hill, an attorney

calling on Chin = s

behalf. Poteet returned the call the

next day. Hill told Poteet that Chin

wanted some items from the home, but Poteet claimed that those items belonged

to him. Poteet told Hill that he would

be willing to give Chin some of these items in exchange for Chin = s engagement ring. Hill faxed

Poteet a list of items that Chin wanted; Poteet faxed it back with notations

showing items that he agreed to give Chin as well as items that he had already

returned to Chin via her aunt. Poteet

also informed Hill that he had allowed Chin to remove her personal property on

June 9 and that none of Chin = s property remained in the home; but if Poteet found any more property

belonging to Chin, he would A exercise reasonable care in ensuring that the items are returned to

her. @

B. The Civil Standby

On Wednesday, the same day

that Poteet called police to file a report, Chin also contacted police to

request a A civil

standby @ so that she could remove her property from Poteet = s home. She told Flower Mound

Police Captain Byron Lake that Poteet had engaged in physical contact and

abusive behavior towards her while they had dated, that Poteet had grabbed her

several times as she was packing her belongings, and that she was afraid that

Poteet would be violent towards her if she came back to his home to get her

personal property. Captain Lake told

Chin that police would conduct a thirty-minute civil standby and subsequently

requested Officer Colin J. Sullivan to perform it. Officer Sullivan then contacted Chin, and

they scheduled the standby to take place the next afternoon. Officer Sullivan arranged for Officer Henry

Lucio to assist him with the civil standby.

The next day, Thursday, June

13, 2002, Officer Sullivan and Chin had several telephone conversations

discussing the coordination of a locksmith, the people whom Chin needed to help

her move her belongings, and whether Poteet would be present during the civil

standby. At about 3:30 p.m., Officers

Sullivan and Lucio arrived at Poteet = s home to execute the civil standby; meeting them in the front yard

were Chin and her parents, brother, and uncle, three of Poteet = s neighbors, a locksmith, and other people whom Poteet did not

recognize. Chin also had brought a

U-Haul moving van, which was parked in the driveway. Poteet was inside his home along with his

six-year-old son, nineteen-year-old daughter, and her two friends.

When the locksmith began to

pick the lock on the front door, Poteet opened the door and saw Officers

Sullivan and Lucio. According to Poteet,

the officers ordered him to keep the door open and pushed him away from the

doorway. Poteet claimed that the

officers told him they were there to keep the peace and A to assist Tanya in getting her things, @ and that if he touched Chin or anyone in her group, they would arrest

him and take him to jail. Poteet had

packed up many of his personal belongings in preparation for his move to

Atlanta, and these boxes were sitting in the front entryway. Chin and her companions loaded up all these

boxes into the moving van and then scattered throughout the rest of the house,

gathering up his unboxed property and carrying it off.

Poteet claimed that, while

Chin and her group were moving throughout his house and taking his personal

property from the home, the police officers confined him to a corner of the

home = s entryway and physically restrained him by holding his shoulders,

arms, and wrists. Poteet repeatedly

tried to move out of the corner to stop Chin and her companions from carrying

off his property, but each time he tried to move, the officers would shove him

back into the corner. According to

Poteet, when he tried to push back or resist the confinement, an officer put

his finger in Poteet = s face and

said, A You move one more time, you touch me again, you = re going straight to jail. @ Both officers, however, deny

ever making any effort to stop Poteet or his family from moving about the

house.

As the situation progressed,

shouting and arguing ensued between Poteet and his family and Chin and her

group, creating a situation that both Poteet and Officer Lucio described as A chaotic. @ Several struggles over property also broke

out between the two sides. Poteet = s daughter and Chin fought over a picture; when Poteet tried to go to

his daughter, the officers continued blocking him in a corner of the entryway

and would not let him out. Poteet

claimed that he finally slipped around the officers when he saw Chin = s brother and father carrying out file boxes containing Poteet = s tax documents, receipts, and other personal papers. Poteet grabbed the boxes and struggled with

the men, hurting his back in the process.

Meanwhile, the persons whom Poteet did not recognize, along with Chin = s father and uncle, began to move Poteet = s refrigerator out the front door.

Poteet and his daughter pushed on the opposite side of the refrigerator,

resisting their efforts to remove the refrigerator from his home. In addition, Poteet and Chin = s father fought over a picture and broke the glass, which sprayed into

the foyer of Poteet = s home.

Finally, Officer Sullivan

told Chin and her companions that they were out of time and needed to leave the

house. According to Poteet, after Chin

left, Officer Lucio searched through his house by A perform[ing] a sweep of the premises @ ; Officer Lucio denies this.

Poteet claims that Chin took most of his property that had been in the

house, including items such as his kitchen and dining room tables and chairs,

the comforter and pillows from his daughter = s bedroom, and his son = s board games and Nintendo 64 video game system.

C. Procedural History

Poteet, on behalf of himself

and his son, Jeffrey, sued Chin, Chin = s friends and relatives who participated in the removal of items from

his home, Officers Sullivan and Lucio, Captain Lake, and the Town of Flower

Mound for damages stemming from the incident.

In this lawsuit, Poteet asserted a ' 1983 claim against appellees,

arguing that they were liable to him because they deprived him of his Fourth

and Fifth Amendment rights to be free from unreasonable searches and seizures

and from being deprived of his property without due process of law. U.S.

Const . amend. IV, V; 42 U.S.C.A. ' 1983 (West 2003). [1] Officers Sullivan and Lucio, Captain Lake,

and the Town of Flower Mound all filed motions for summary judgment, which the

trial court granted. [2] Poteet now appeals.

III. Officers Sullivan and Lucio

Officers Sullivan and Lucio

moved for summary judgment on the grounds of qualified immunity, and the trial

court granted their motions. In his

first three issues, Poteet argues that the trial court erred in granting

summary judgment, contending that the officers are not entitled to qualified

immunity because they violated his constitutional rights by entering his house

without a warrant and confining him to a portion of his home while allowing

Chin and her entourage to take his personal property from the home.

A. Standard of Review

In a summary judgment case, the

issue on appeal is whether the movant met the summary judgment burden by

establishing that no genuine issue of material fact exists and that the movant

is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Sw.

Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of

Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979). When reviewing a summary judgment, we take as

true all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant = s favor. Valence Operating

Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant = s position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio

Plumbing Supply Co. , 391 S.W.2d 41, 47 (Tex. 1965).

Generally, a defendant is

entitled to summary judgment on an affirmative defense if the defendant

presents evidence that establishes each element of the affirmative defense as a

matter of law. Ryland Group, Inc. v.

Hood, 924 S.W.2d 120, 121 (Tex. 1996).

For the defense of qualified immunity under federal law and section 1983

claims, however, such is not the case: A [A] defendant asserting immunity is not required to establish the

defense beyond peradventure, as he would have to do for other affirmative

defenses. @ Cousin v. Small , 325 F.3d 627, 632

(5th Cir.), cert. denied , 540 U.S. 826 (2003). The moving party is not required to put forth

evidence to meet its summary judgment burden for a claim of qualified immunity;

rather, it is sufficient that the movant in good faith pleads that it is

entitled to immunity. Id. Once the movant asserts this affirmative

defense, the burden shifts to the plaintiff to rebut it. Id. Accordingly, to survive summary judgment,

Poteet was required to come forward with competent controverting evidence

raising a genuine issue of material fact with regard to the issue of whether

the officers were entitled to qualified immunity. See Centeq Realty, Inc. v. Siegler ,

899 S.W.2d 195, 197 (Tex. 1995).

B. Qualified Immunity

Government officials

performing discretionary functions are protected from civil liability under the

doctrine of qualified immunity if their conduct violates no clearly established

statutory or constitutional rights of which a reasonable person would have

known. Harlow v. Fitzgerald , 457

U.S. 800, 818 , 102 S. Ct. 2727, 2738 (1982).

To review claims of qualified immunity, a court first asks whether,

taken in the light most favorable to the party asserting the injury, the facts

alleged show that the officers = conduct violated a constitutional right. Saucier v. Katz , 533 U.S. 194 , 201,

121 S. Ct. 2151 , 2156 (2001). If so, the

court must then consider whether the right was clearly established, that is,

whether it would be clear to a reasonable officer that his conduct was unlawful

in the situation he confronted. Id.

at 202, 121 S. Ct. at 2156.

1. Did Officers Sullivan and Lucio violate

Poteet = s

constitutional rights?

In his first issue, Poteet

argues that all appellees were not entitled to judgment as a matter of law that

they had not violated his civil rights because the evidence showed that

appellees violated the Fourth and Fourteenth Amendments when Officers Sullivan

and Lucio accompanied Chin into his home, obstructed him from preventing the

seizure of most of his possessions, and supervised and assisted with this

intrusion and seizure. See U.S. Const . amend. IV, XIV. [3]

a. The officers =

entry constituted a A search @

under the Fourth Amendment

Appellees argue that no

Fourth Amendment violation occurred because the officers entered Poteet = s home just to keep the peace while Chin removed her property, not to

search through it for the purpose of finding something. However, A [a] search occurs when an expectation of privacy that society is

prepared to consider reasonable is infringed. @ United States v. Jacobson ,

466 U.S. 109, 113 , 104 S. Ct. 1652, 1656 (1984). Therefore, A > the issue is not = the law

enforcement officer = s > state of mind = C whether he was intentionally rummaging about for contraband or wished

to find something in particular C > but the objective effect of his actions = C whether a reasonable expectation of privacy was infringed. @ United States v. Maple ,

348 F.3d 260 , 263 (D.C. Cir. 2003) (op. on reh = g) (quoting Bond v. United States , 529 U.S. 334 , 338 n.2, 120

S. Ct. 1462 , 1465 n.2 (2000)).

Accordingly, we do not agree with appellees that a person = s right to be secure in his home would not be infringed when police

enter the home and block the homeowner in a corner while allowing other people

to carry away the homeowner = s property merely because the police did not enter for the purpose of

looking through the home for some item.

Rather, viewing the record in the light most favorable to Poteet, we

conclude that the officers = actions did violate Poteet = s reasonable expectation of privacy and, thus, constituted a A search @ for

purposes of the Fourth Amendment.

b. The officers =

entry may have constituted a A seizure @

under the Fourth Amendment

Appellees also argue that

Poteet did not come forward with any evidence that Officer Sullivan or Lucio

seized and removed his property or that they supervised and assisted with the

seizure of his property. A A seizure @ of property occurs when there is some

meaningful interference with an individual = s possessory interests in that property. Jacobson , 466 U.S. at 133 , 104 S. Ct.

at 1656 . The question here, then, is

whether the assistance provided by Officers Sullivan and Lucio to Chin and her

group during the civil standby rose to the level of constituting an interference

with Poteet = s possessory

interests in the property that Chin removed from his home.

It is well settled that

police officers who perform civil standbys to keep the peace during a private

party = s repossession of property when right to possession of that property

is disputed are not state actors if they act only to keep the peace, A but they cross the line if they affirmatively intervene to aid the

repossessor. @ Marcus v. McCollum , 394 F.3d 813, 818

(10th Cir. 2004) (citing Barrett v. Harwood , 189 F.3d 297, 302 (2d Cir.

1999), cert. denied , 530 U.S. 1262 (2000)); Abbott v. Latshaw ,

164 F.3d 141, 149 (3d Cir. 1998), cert. denied , 527 U.S. 1035 (1999); Cofield

v. Randolph County Comm = n , 90 F.3d 468 , 471 (11th Cir. 1996); Jones

v. Gutschenritter , 909 F.2d 1208, 1211-12 (8th Cir. 1990); Greco v. Guss ,

775 F.2d 161, 168 (7th Cir. 1985); Harris v. City of Roseburg , 664 F.2d

1121, 1127 (9th Cir. 1981); United States v. Coleman , 628 F.2d 961 , 964

& n.1 (6th Cir. 1980); Menchaca v. Chrysler Credit Corp. , 613 F.2d

507, 513 (5th Cir.), cert. denied , 449 U.S. 953 (1980). A [T]he overarching lesson of the case law is that officers may act to

diffuse a volatile situation, but may not aid the repossessor in such a way

that the repossession would not have occurred but for their assistance. @ Marcus , 394 F.3d at

819 . In other words, although mere

acquiescence by the police to A stand by in case of trouble @ is insufficient to constitute state action, police intervention and

aid will constitute state action. Harris ,

664 F.2d at 1127 .

Our analysis is not affected

by the fact that the foregoing cases do not specifically deal with the domestic

violence context because the role of police in all civil standbys C whether in the domestic violence or any other context C is to prevent violence from occurring.

See Tex. Code Crim. Proc.

Ann. art. 5.045 (Vernon 2005) (providing that a peace officer A may stay with a victim of family violence to protect the victim and

allow the victim to take the personal property of the victim or of a child in

the care of the victim to a place of safety in an orderly manner @ ); Marcus , 394 F.3d at 818 .

Like a repossessor, Chin went onto property owned by another to retrieve

items, and the ownership of those items was disputed. Nothing in the law gives police a greater

right to provide affirmative aid to a domestic violence victim who goes onto

another = s property and removes items to which ownership is disputed merely

because the dispute occurs during a domestic violence standby, as opposed to

any other type of standby. The

peacekeeping role of the police is the same no matter the subject matter of the

standby.

Viewing the evidence in the

light most favorable to Poteet, we conclude that the evidence raises a fact

issue as to whether the actions of Officers Sullivan and Lucio went beyond

keeping the peace into providing affirmative aid to the seizure of most of the

contents of Poteet = s home. Without the officers = assistance, Chin may not have been able to gain entrance into Poteet = s home; Poteet had made clear that Chin was not allowed on his

property, but the officers ordered him to keep the door open to Chin and her

group and pushed him away from the door so that they could enter. Furthermore, Poteet claimed that, at least

for the first part of the standby, the officers = physical restraint and threats of jail precluded him from even

attempting to stop Chin and her companions from carrying off his property

because they confined him to a corner of his home and held his shoulders, arms,

and wrists while Chin and her companions took property from the home. When Poteet attempted to get away from the

officers and stop Chin from taking items that did not belong to her, one of the

officers threatened him that he would go straight to jail if he moved

again. Further, the officers not only

told Poteet that they were present at his home to keep the peace but also

asserted that they were there A to assist Tanya in getting her things. @

Accordingly, in light of the

foregoing, we hold that Poteet provided sufficient evidence of police

interference with his possessory interest in the contents of his home to raise

a fact issue on whether the officers participated in the unconstitutional seizure

of his property. See Marcus , 394

F.3d at 822-23 .

c. The officers =

entry was not merely an exercise of their A community

caretaking @

function

Appellees also argue that the

officers did not violate the Fourth Amendment because, based on Poteet and Chin = s volatile breakup and quarrels over property, the officers were

legitimately exercising their A community caretaking @ function when they entered Poteet = s home. See Cady v.

Dombrowski , 413 U.S. 433, 441 , 93 S. Ct. 2523, 2528 (1973) (observing that police

frequently perform A community

caretaking functions, totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal statute @ ).

We disagree with appellees

that United States v. York , 895 F.2d 1026 (5th Cir. 1990), is analogous

to this case. In York , the

circuit court stated that A activities or circumstances within a dwelling may lessen the owner = s reasonable expectation of privacy by creating a risk of intrusion

which is > reasonably

foreseeable. = @ Id. at 1029 . In that case, York had allowed a man and his

family to stay as guests in his home.

When York came home drunk one night and threatened them, the man and his

sons left and called police to accompany them back into the house so that they

could remove their personal belongings.

The court held that the police = s intrusion into York = s home that night became foreseeable A when York became intoxicated and belligerent and threatened [the man]

and his children, whom he had allowed to occupy his home. @ Id. Therefore, the police = s limited entry into the house to keep the peace while the man removed

his family = s personal

possessions was reasonable and did not constitute a Fourth Amendment A search. @ Id. at 1030 .

Here, in contrast, Chin

called police to conduct a civil standby not the same day she left Poteet = s home but three days after she, along with her parents and

brother-in-law, had already removed most of her personal belongings from the

home. When Poteet had subsequently found

items that Chin had left behind, he had not kept them but rather had called Chin = s aunt and allowed the aunt to come to his home and collect the

items. Furthermore, he was in the

process of negotiating with Chin = s attorney regarding the further exchange of property when the civil

standby occurred. In light of Poteet = s return of property to Chin via her aunt, his ongoing communications

with Chin = s attorney

about exchanging property with her, and his statement to Chin = s attorney that he would make sure that any remaining property

belonging to Chin was returned to her, we cannot say that Poteet should have

foreseen that Officers Sullivan and Lucio would enter his home and allow not

just Chin but also an entire group of people with a U-Haul moving van to remove

most of the items in the home.

Accordingly, we conclude that this was not the type of foreseeable incursion

that York exempts from the scope of the Fourth Amendment.

d. The circumstances of the officers =

entry did not constitute a valid civil standby performed for a victim of

domestic violence

Finally, appellees argue that the officers = actions did not

violate the Fourth Amendment because article 5.045 of the Texas Code of

Criminal Procedure authorizes police to conduct civil standbys for victims of

family violence:

(a)

In the discretion of a peace officer, the officer may stay with a victim of

family violence to protect the victim and allow the victim to take the personal

property of the victim or of a child in the care of the victim to a place of

safety in an orderly manner.

(b) A

peace officer who provides assistance under Subsection (a) of this article is

not:

(1) civilly liable for an act or omission of the

officer that arises in connection with providing the assistance or determining

whether to provide the assistance; or

(2) civilly or criminally liable for the wrongful

appropriation of any personal property by the victim.

Tex. Code Crim. Proc.

Ann. art. 5.045.

Because

article 5.045 does not require police officers to procure a warrant before

accompanying a domestic violence victim to retrieve his or her personal

property, appellees argue, the actions of Officers Sullivan and Lucio were not

unlawful.

First, we observe that no court has held that article 5.045

provides a blanket exception to the Fourth Amendment = s prohibition

against unreasonable searches and seizures.

Nor does the plain language of the statute state as much. Instead, the statute provides protection for

officers who assist domestic violence victims against civil liability stemming

from the officers = performance of that assistance. Therefore, the statute seems to contemplate

situations in which an officer might violate the law while providing standby

assistance to a domestic violence victim but nevertheless would not be held

civilly liable for that violation.

But even if we assume that article 5.045 automatically

renders the officers = actions lawful, when we view the evidence

in the light most favorable to Poteet, we nevertheless conclude that a genuine

issue of fact arose with regard to whether the civil standby performed by

Officers Sullivan and Lucio was outside the scope of the statute. The statute permits officers to stay with and

protect the victim so that the victim can A take the personal

property of the victim . . . to a place of safety in an orderly manner . @ [4] Id. art. 5.045(a) (emphasis

added). The statute does not authorize

the police to aid the victim in removing property from a residence. See id. Here, however, Poteet has produced evidence

that Officers Sullivan and Lucio prevented him from stopping Chin and her

companions from taking his property by confining him to a corner of his home,

physically restraining him by his shoulders, arms, and wrists, and threatening

him with going to jail. Accordingly,

Poteet has raised a fact issue as to whether the officers = actions went

beyond mere protection into actually aiding Chin in removing property from the

home and, therefore, whether the officers = actions complied

with the statute.

Furthermore, when Chin and Officer Sullivan planned the

standby, she revealed to Officer Sullivan her plans to use a locksmith to break

into Poteet = s home and discussed with him the group of

friends and family that she was assembling to move items out of Poteet = s home. The next day, Officers Sullivan and Lucio

arrived to execute the civil standby and saw a group of more than ten people

massed in front of Poteet = s house as well as a locksmith ready to

pick the lock of Poteet = s home.

The situation then became A chaotic @ with the Chin = s group scattering

throughout the house and struggling over property. We conclude that this evidence also raises a

question of fact regarding whether this civil standby exceeded the scope of the

assistance contemplated by the statute.

Therefore, because an issue of material fact existed as to

whether the officers = conduct complied with article 5.045, the

record does not establish as a matter of law that Officers Sullivan and Lucio = s warrantless

entry into Poteet = s home was lawful.

All in all, the issues of constitutional violations in this

case are extremely fact-intensive, and under Poteet = s version of the

events a fact finder could determine that Officers Sullivan and Lucio did more

than merely stand by to prevent violence but also unlawfully entered Poteet = s home and aided

Chin in seizing most of Poteet = s and his children = s personal

property. We sustain Poteet = s first issue. [5]

2. Were the constitutional rights violated by

Officers Sullivan and Lucio clearly established?

In his second and third

issues, Poteet argues that the police officers were not entitled to summary

judgment based on the affirmative defense of qualified immunity because there

were genuine issues of material fact underlying their assertions of

immunity. Having found that Poteet

produced evidence establishing a violation of his Fourth Amendment right to be free from

unreasonable searches and seizures , we must

now consider whether the right was clearly established, that is, whether it

would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted. Saucier ,

533 U.S. at 202, 121 S. Ct. at 2156. When various courts have determined that

certain factually similar conduct is a constitutional violation, the

constitutional right to be protected against such conduct is considered clearly

established even if courts have not agreed upon a precise formulation of the

violation. Id. at 202-03, 121 S.

Ct. at 2157. And while

objective reasonableness is a matter of law for the courts to decide, a denial

of summary judgment based on a material factual dispute is appropriate if there

are underlying historical facts in dispute that are material to the resolution

of the question of whether the defendants acted in an objectively reasonable

manner. Mangieri v. Clifton , 29

F.3d 1012, 1015-16 (5th Cir. 1994 ).

The parties have not

supplied us with, and we have not found, any case law specifically dealing with

domestic violence civil standbys under code of criminal procedure article

5.045. However, the concept of the civil

standby is not a novel one. Police often

provide assistance in civil matters to preserve the peace in situations such as

service of process, see Open Inns, Ltd. v. Chester County Sheriff = s Dept. , 24 F.Supp.2d 410 (E.D. Pa.

1998), evictions, see Thomas v. Cohen , 304 F.3d 563 (6th Cir. 2002), cert.

denied , 538 U.S. 1032 (2003), and repossessions, see Soldal v. Cook

County , 506 U.S. 56 , 113 S. Ct. 538 (1992).

And as previously stated, the law is well settled that police officers

who perform civil standbys must act only to keep the peace, not to aid one

party over another or to effectuate the seizure of property. See Marcus , 394 F.3d at 818 . Federal law recognizing that an unlawful

taking of property during a civil standby can amount to state action and a ' 1983 violation is clearly established. Id. at 825 .

In Marcus , the circuit

court reversed summary judgment for officers who were present while a creditor

repossessed a plaintiff = s car

because the evidence of the officer = s participation in the repossession raised fact issues regarding

whether reasonable officers would consider the participation violative of the

plaintiffs =

rights. Id. at 824 . Even though the officers told plaintiffs that

they A could not get involved @ in the repossession and that they were present A to keep the peace and make sure no one would get hurt, @ one officer also poked a plaintiff several times in the chest with

sufficient force to knock the plaintiff backwards and threatened to take

plaintiffs immediately to jail if they did not let the repossessor take the

car, keep their mouths shut, and go back into the house. Id. at 816-17 .

Similarly, here, Poteet has

produced evidence raising a fact issue regarding whether Officers Sullivan and

Lucio did more in this civil standby than merely accompany Chin to keep the

peace while she removed her property.

The officers told Poteet that they were at his home to keep the peace

and ordered him not to touch Chin or anyone in her group, and these comments

reflect their knowledge of a police officer = s proper role of preventing violence while conducting a civil

standby. But Officers Sullivan and Lucio

also allegedly confined Poteet to a corner of his home, physically restrained

him, and threatened to take him to jail when he attempted to get away from the

officers and stop Chin from taking property that did not belong to her. Furthermore, Poteet claims that the officers

also told him that they were there A to assist Tanya in getting her things. @

Crediting Poteet = s version of the events, as we must, we conclude that a reasonable

officer would know that this conduct amounted to an unlawful assistance of Chin

during the civil standby and a violation of Poteet = s constitutional rights.

However, this evidence is disputed; the officers claimed that they never

physically restrained Poteet or prevented him from moving about the house and

that they were present only to make sure no physical violence occurred during

the standby. Accordingly, the

differences in the parties = factual accounts must be resolved before a court can make the legal

determination of whether the officers acted in an objectively reasonable

manner. See Mangieri , 29 F.3d at

1016 .

Therefore, we hold that, under the singular facts of this case, Officers

Sullivan and Lucio were not entitled to summary judgment on the grounds of

qualified immunity. See Saucier ,

533 U.S. at 201, 121 S. Ct. at 2156; Marcus , 394 F.3d at 824 . We sustain Poteet = s second and third issues with regard to Officers Sullivan and Lucio.

IV. Captain

Byron Lake

Captain Lake also moved for

summary judgment on the grounds of qualified immunity, and the trial court

granted his motion. To determine whether

summary judgment for Captain Lake was proper, we first consider whether Captain

Lake = s conduct violated Poteet = s constitutional rights. See

Saucier , 533 U.S. at 201, 121 S. Ct. at 2156. Captain Lake = s involvement in the civil standby consisted only of his discussion

with Chin regarding her request that police perform a civil standby and his

authorization of it. According to Chin,

Captain Lake told her that the officers conducting the civil standby would

provide protection only and would not assist or get involved in any property

dispute.

Personal involvement is an essential element in a civil

rights cause of action alleging constitutional deprivation . Thompkins v. Belt , 828

F.2d 298, 303 (5th Cir. 1987) . Under ' 1983, supervisors may be held liable if they affirmatively

participated in the acts giving rise to the constitutional deprivation

or if there is a causal connection between a supervisor = s wrongful conduct

and the constitutional violation. Id.

at 304 . Therefore,

to survive summary judgment, Poteet must have produced evidence showing that

Captain Lake = s

involvement in the civil standby C which consisted of his authorizing the standby and directing Officer

Sullivan to perform it C violated

Poteet = s constitutional rights.

Poteet argues that police

should not have conducted the civil standby because Chin was not A a victim of family violence. @ Tex. Code Crim. Proc. Ann. art. 5.045(a) (allowing police to

assist A a victim of family violence @ in removing property belonging to the victim or a child in the victim = s care). The definition of A family violence @ includes an

act by a member of a household against another member of the household, other

than an act in self-defense, that is intended to result in physical harm or a

threat that reasonably places the member in fear of imminent physical

harm. Tex.

Fam. Code Ann . ' 71.004(1)

(Vernon 2002); Tex. Code Crim. Proc. Ann .

art. 5.02 (applying family code = s definition of A family

violence @ to article 5.045). [6]

Chin told Captain Lake that

Poteet had engaged in physical contact and abusive behavior towards her in the

past and that he had grabbed her several times as she was packing her

belongings after their breakup. Chin

also had expressed fear that Poteet would become violent towards her if she

went back to his home to get her personal property. Furthermore, Poteet himself had told police

that A something big would happen @ if anyone came back and tried to get into his house. Accordingly, there was evidence of at least

the existence of a threat of violence C not just from Chin = s allegations but also from Poteet = s own statements to police C should Chin return to remove items from Poteet = s home. Therefore, we conclude that Captain Lake did not violate

Poteet = s constitutional rights by determining either that Chin was a A victim of family violence @ for purposes of performing a family violence civil standby or by

determining that a civil standby was warranted in this situation. See Tex.

Fam. Code Ann . ' ' 71.004(1),

71.0021(a).

Poteet also argues that

article 5.045 could not grant Chin a right to go upon Poteet = s property without his consent.

According to Poteet, the Flower Mound Police Department knew that Chin

was not married to Poteet and had no ownership interest in the house and that

he had forbidden her to return. While we agree that nothing in article 5.045

permits unlawful entry or trespass, we also observe that article 5.045 does not

require the victim of family violence to have an ownership interest in the

place where the victim = s personal

property is located before the victim may return to gather the property. Furthermore, there is no evidence that Captain

Lake was aware that Chin was planning to use a locksmith to break into Poteet = s home and allegedly trespass on his property. In contrast to Officers Sullivan and Lucio,

Captain Lake did not observe the locksmith, moving van, and group of friends

and family assembled in front of Poteet = s house in anticipation of the civil standby, and he did not witness

the A chaotic @ scene that

ensued.

Accordingly, we conclude that

Poteet did not satisfy his burden of showing that Captain Lake = s authorization of the civil standby violated his constitutional

rights. We hold that summary judgment

for Captain Lake on the grounds of qualified immunity was proper and overrule

Poteet = s first three issues with regard to Captain Lake.

V. Town

of Flower Mound

The Town of Flower Mound

moved for summary judgment on Poteet = s claims, arguing that Poteet = s constitutional rights were not violated or, alternatively, that his

constitutional rights were not violated as a result of any official policy,

custom, or practice of Flower Mound. In

his fourth and fifth issues, Poteet argues that the trial court erred by

granting summary judgment to Flower Mound because Flower Mound had an official

policy or custom of violating persons = civil rights and because Captain Lake and Officers Sullivan and Lucio

violated Poteet = s civil

rights pursuant to this official policy or custom.

Section 1983 does not provide

for vicarious or respondeat superior liability.

Pineda v. City of Houston , 291 F.3d 325, 328 (5th Cir. 2002), cert.

denied , 537 U.S. 1110 (2003).

Municipalities face ' 1983 liability when the constitutional violation results

from the A execution of a government = s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official policy. @ Id.

(quoting Monell v. Dep = t of Social Servs. ,

436 U.S. 658, 694 , 98 S. Ct. 2018, 2037 (1978)). Proof

of municipal liability under ' 1983 requires (1) an official policy (or custom), of

which (2) a policy maker can be charged with actual or constructive knowledge,

and (3) a constitutional violation whose A moving force @ is that policy (or custom). Piotrowski v. City of Houston , 237

F.3d 567, 578 (5th Cir.), cert. denied , 534 U.S. 820 (2001).

Here, summary

judgment evidence of Flower Mound = s official policy with regard to civil standbys came in

the form of affidavit and deposition testimony from Flower Mound Police Chief

Kenneth G. Brooker. Chief Brooker stated

that the Flower Mound Police Department does not have an official written

policy with regard to civil standbys, but in practice the police force adheres

to articles 5.04(a) and 5.045 of the code of criminal procedure when conducting

civil standbys. [7] According to Chief Brooker, all Flower Mound

police officers are instructed on procedures and guidelines for conducting

civil standbys during field training.

Flower Mound police officers are trained that the purpose of a civil

standby is not to conduct searches and seizures but rather to prevent violence,

ensure that no breach of the peace occurs, and provide protection to a victim

of family violence so that the victim can take his or her personal property to

a place of safety in an orderly manner.

Further, the officers are instructed and trained that they are not to

get involved in any property disputes nor assist in the division, selection, or

removal of property during the civil standby.

Poteet complains

that Flower Mound = s official policy precipitated the officers = violation of his civil rights because it allows a

warrantless entry into a person = s home, and property to be removed from the home, solely

on the basis of a verbal, unsworn representation to the police that the person

seeking the property owns it. Poteet

bases this argument on deposition testimony from Chief Brooker, Captain Lake,

and Officer Sullivan that Flower Mound = s civil standby procedure does not require police to

independently verify that the person requesting a civil standby actually owns

the property that he or she wants to retrieve.

Instead, as explained by Chief Brooker, police A take the person or both parties = word for it. . . .

We do not get involved in the property settlement issues. @ Further, police do

not confirm who owns the house where the property is located; according to

Chief Brooker, the police A have no interest in the property . . . . It = s a civil issue between the two parties involved. @

In other words,

the summary judgment evidence showed that Flower Mound = s unwritten policy was to perform civil standbys solely to

keep the peace C without participating in any unconstitutional searches or

seizures and without getting involved in issues of property ownership C when requested to do so by a victim of family

violence. Nothing in this policy gives

police carte blanche to violate the Fourth Amendment = s prohibition against unreasonable searches and seizures,

and nothing in this policy authorizes police to give any unlawful assistance or

aid to one party over another. The mere

fact that Flower Mound does not verify the true owner of the real or personal

property before performing the standby does not make the policy violative of

citizens = constitutional rights because if police perform the

standby according to the guidelines, they will not commit any unlawful search,

seizure, or assistance.

A defendant who

conclusively negates at least one essential element of a cause of action is

entitled to summary judgment on that claim.

IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason , 143

S.W.3d 794 , 798 (Tex. 2004). Once the

defendant produces sufficient evidence to establish the right to summary

judgment, the burden shifts to the plaintiff to come forward with competent

controverting evidence raising a genuine issue of material fact with regard to

the element challenged by the defendant.

Centeq Realty, Inc. , 899 S.W.2d at 197 . We hold that Poteet did not establish that a

genuine issue of material fact existed as to whether Flower Mound = s official policy was the A moving force @ behind any constitutional violation that Officers

Sullivan and Lucio may have committed during the civil standby. See Piotrowski , 237 F.3d at 578 . Accordingly, the trial court did not err by

granting summary judgment to Flower Mound.

See Centeq Realty, Inc ., 899 S.W.2d at 197 . We overrule Poteet = s fourth and fifth issues.

VI. Conclusion

Having overruled Poteet = s issues pertaining to Captain Byron Lake and the Town of

Flower Mound, we affirm the trial court = s orders granting those parties = motions for summary judgment. However, having sustained Poteet = s first three issues with regard to the remaining

appellees, we reverse the trial court = s summary judgment in favor of Officers Colin J. Sullivan

and Henry Lucio and remand the case to the trial court for further proceedings.

BOB MCCOY

JUSTICE

PANEL B: LIVINGSTON, HOLMAN, and MCCOY, JJ.

DELIVERED: February 1, 2007

[1] Section 1983 provides,

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress.

[2] Subsequently, Poteet = s claims against all remaining

parties were either nonsuited or dismissed for want of prosecution.

[3] The Fourth Amendment requires that

the people = s right A to

be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized . @

U.S. Const . amend. IV .

The Fourteenth Amendment makes the Fourth Amendment applicable to the

States. Mapp v. Ohio , 367 U.S.

643, 655 , 81 S. Ct. 1684, 1691 (1961).

The Fourteenth Amendment also provides that no state may A deprive any person of life,

liberty, or property, without due process of law. @

U.S. Const . amend. XIV, ' 1 .

[4] We recognize that the language of

the statute, A the officer may stay with

the victim, @ could be read to inject a temporal

requirement C that is, the statute could be read

as authorizing the officer to remain at the scene at the time of a domestic

assault to assist the victim in retrieving his or her belongings, not to return

with the victim at a later time.

However, the legislative history of the statue indicates that later

civil standbys, occurring after the victim has already vacated the premises,

were specifically within the contemplation of the legislature. Op. Tex. Att = y Gen. No. JC-0112 (1999).

Furthermore,

interpreting the statute to allow police to return with the victim furthers the

underlying policy of protecting victims and avoiding further violence;

otherwise, victims who make the decision to leave an abusive partner at a time

when violence is not then occurring would have to wait until yet another

abusive episode involving police response happens before being able to ask for

police assistance in removing their belongings.

[5] Based on our holding that the

officers = conduct violated the Fourth

Amendment = s prohibition against unreasonable

searches and seizures, we need not address Poteet = s additional arguments that the

officers further violated the Fourth and Fourteenth Amendments by making a

seizure of his person and depriving him of his liberty and property without due

process of law. See Tex. R. App. P. 47.1.

[6] Family

violence also includes A dating

violence, @

which means A an

act by an individual that is against another individual with whom that person

has or has had a dating relationship and that is intended to result in physical

harm, bodily injury, assault, or sexual assault or that is a threat that

reasonably places the individual in fear of imminent physical harm, bodily

injury, assault, or sexual assault, but does not include defensive measures to

protect oneself. @ Tex.

Fam. Code Ann. ' '

71.004(3), 71.0021(a).

[7] Article 5.04(a) provides, A The primary duties of a peace

officer who investigates a family violence allegation or who responds to a

disturbance call that may involve family violence are to protect any potential

victim of family violence, enforce the law of this state, enforce a protective

order from another jurisdiction . . . , and make lawful arrests of violators. @

Tex. Code Crim. Proc. Ann.

art. 5.04(a) (Vernon 2005).

As previously

discussed, article 5.045 gives police discretion to A stay with a victim of family

violence to protect the victim and allow the victim to take the personal

property of the victim or of a child in the care of the victim to a place of

safety in an orderly manner. @ Id. art.

5.045(a).