Avi Adelman v. Dallas Area Rapid Transit

Case: 18-11103 Document: 00515126056 Page: 1 Date Filed: 09/20/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11103

United States Court of Appeals

Fifth Circuit

FILED

AVI S. ADELMAN, September 20, 2019

Lyle W. Cayce

Plaintiff - Appellee Clerk

v.

STEPHANIE BRANCH, Dallas Area Rapid Transit Police Officer,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CV-2579

Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.

PER CURIAM:*

Appellant Stephanie Branch appeals the district court’s denial of her

motion for summary judgment on qualified immunity grounds and on a claim

for punitive damages. For the reasons set forth below, we AFFIRM the district

court’s judgment as to the qualified immunity issue and REMAND for further

proceedings; we DISMISS the punitive damages portion of the appeal for want

of jurisdiction.

* 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.

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I. Background

Branch began working for Dallas Area Rapid Transit (“DART”), the local

transportation entity providing bus and rail services, as a police officer in 2006.

Appellee Avi Adelman is a freelance journalist who publishes a neighborhood

blog and provides photographs to media outlets.

In June 2007, DART issued a directive prohibiting non-DART personnel

from using DART facilities or property for unauthorized non-transportation

purposes. Then, in June 2014, DART issued a new policy (the “Photography

Policy”) allowing people to take photographs on DART property so long as they

did not interfere with transportation or public safety activity. The

Photography Policy provided:

Persons may take photographic or video images, including but not

limited to film, digital or video recordings (Images) of DART

Property, including but not limited to stations, buses, trains, or

other vehicles for their personal use. Persons taking photographic

or video images must not interfere with transportation or public

safety activity while taking images. DART Police Officers may

initiate an inquiry or investigation when photography or

videotaping activity is suspicious in nature or inconsistent with

this policy.

Branch was out on sick leave from May 2014 through January 2016. She

claims that she was thus unaware of DART’s Photography Policy during the

events leading to this suit.

On the evening of February 9, 2016, Adelman was in downtown Dallas

listening to his police scanner when he heard a call for Dallas Fire-Rescue

(“DFR”) paramedics to respond to a K2 overdose victim at the Rosa Parks Plaza

DART station (the “Plaza”) and decided to go to the scene. When he arrived,

he noticed a man lying on the ground and being attended to by DFR

paramedics. He began to photograph the scene. Branch noticed Adelman

taking photographs shortly thereafter. She then positioned herself between

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Adelman and the medical scene in an apparent attempt to block Adelman from

taking photographs.

According to witnesses, Adelman was several feet away from the medical

scene and was not interfering with paramedics or police activity. Nevertheless,

Branch approached Adelman and demanded that he stop taking photographs.

Branch states that she approached Adelman because he appeared suspicious

to her. As captured on Branch’s audio recording device, the first statement

Branch made to Adelman was, “Sir leave.” When Adelman refused to leave,

Branch demanded his identification. She again demanded that Adelman

“leave our property” and told Adelman that the Plaza was not public property. 1

Branch then told Adelman multiple times that he could not take

photographs. Branch first told Adelman he was prohibited from

photographing the medical scene; later she instructed Adelman that he could

“take pictures from the street but [could not] take pictures here” on DART

property. In all, Branch asked Adelman to leave the Plaza nine times and

asked for his identification four times. Adelman repeatedly refused.

While Branch was speaking with Adelman, Branch’s colleague, DART

Police Officer Cannon, remained with DFR paramedics. As Cannon and the

DFR paramedics observed the confrontation, a DART recording device

captured the following exchange:

DFR 1 – He was just taking pictures right?

Officer Cannon – Yea[h] that’s why I don’t know why she’s giving

him a hard time[.]

DFR-1 – Why is she going crazy?

Officer Cannon – I don’t know[,] that’s going to be on her[.] [H]e

can take all the pictures he wants[,] that’s why I’m not getting

involved in that. . . .

DFR-1 – He knows he wasn’t doing nothing wrong so. . . .

...

1 Branch now concedes that the Plaza is public property.

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Officer Cannon – I don’t know why she . . . . There was no need for

that[.]

DFR-2 – Yea[h] I don’t know where that idea came from but this

is . . . because there is freedom of the press[.]

Nevertheless, less than five minutes after first approaching him and

demanding that he stop taking photographs, Branch informed Adelman that

she was detaining him. Branch arrested Adelman for criminal trespass under

Texas Penal Code § 30.05 based on her assertion that the Plaza was “not public

property” and her belief that Adelman was not allowed to photograph the

scene. Branch also issued Adelman a criminal trespass warning, which banned

him from the Plaza and certain other DART transit locations.

DART dropped the criminal trespass charge against Adelman shortly

after his arrest. In a letter explaining the decision, DART stated that Branch’s

actions were “not in line with department directives” and that DART would

undertake a formal review. Nearly six months later, DART released its

investigation results, which indicated that Branch “did not establish Probable

Cause to effect the arrest” and that she improperly arrested Adelman while he

was “simply taking photographs of a person in a public place.” The report also

contained the following conclusions:

• “Adelman was not breaking any laws and would not lead a reasonable

person to believe that he was committing a crime or had committed a

crime or [was] about to engage in committing a crime. . . . [T]herefore

the arrest of Adelman for criminal trespass was not based on sufficient

probable cause.”

• “Adelman is viewed simply taking photographs of a person in a public

place on DART property who appeared to have passed out. Adelman is

never viewed less than approximately 10 feet from the actual medical

scene. Officers Cannon, Craig or DFR personnel did not witness

Adelman ever interfere with medical treatment or medical personnel.”

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• “The evidence indicates that Officer Branch did violate the DART

Administrative Employment Manual and did not refrain from activity

which was illegal or could reflect negatively on DART when she made

various inconsistent or mistaken statements on her DART Police

[I]ncident Report . . . and made the arrest of Avi Adelman for criminal

trespass.”

The report also indicated that Branch made numerous false statements

in her incident report, including a statement that Adelman was within a few

feet of DFR paramedics and that DFR instructed her to keep Adelman back.

The report specified that Branch’s incident report contained twenty-three false

or inaccurate statements. Branch was suspended for three days as a result of

the investigation.

In September 2016, Adelman filed suit against DART and Branch under

42 U.S.C. § 1983. Adelman asserted that Branch arrested him for taking

photographs and that she lacked probable cause for the arrest, violating the

First and Fourth Amendments. He sought punitive damages based on

Branch’s alleged “evil motive or intent and/or reckless and callous indifference”

to his rights.

Branch and DART both moved for summary judgment. The district court

granted in part and denied in part DART’s motion and granted in part and

denied in part Branch’s motion. It held in relevant part that Branch was

entitled to qualified immunity on Adelman’s First Amendment claim but that

“the evidence demonstrate[d] at least a fact issue regarding the element of

reasonableness of Branch’s arrest of Adelman.” The court also denied

summary judgment on Adelman’s punitive damages claim. This appeal

followed.

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II. Jurisdiction and Standard of Review

The denial of a motion for summary judgment is ordinarily not an

immediately appealable final decision. Kinney v. Weaver, 367 F.3d 337, 346

(5th Cir. 2004) (en banc). But when a party moves for summary judgment on

qualified immunity grounds, that party may immediately appeal the district

court’s denial of summary judgment under the collateral order doctrine.

Mitchell v. Forsyth, 472 U.S. 511, 524–27, 530 (1985).

In the context of such an interlocutory appeal, we lack jurisdiction to

evaluate the district court’s finding that genuine factual disputes exist. See

Kinney, 367 F.3d at 348. Rather, we “consider only whether the district court

erred in assessing the legal significance of the conduct that the district court

deemed sufficiently supported.” Id. (citing Behrens v. Pelletier, 516 U.S. 299,

313 (1996); Johnson v. Jones, 515 U.S. 304, 313 (1995)). We review this legal

question de novo. Lytle v. Bexar County, 560 F.3d 404, 409 (5th Cir. 2009).

Where, however, the district court fails to identify the particular factual

disputes that preclude summary judgment, “this Court has two choices. We

can either scour the record and determine what facts the plaintiff may be able

to prove at trial and proceed to resolve the legal issues, or remand so that the

trial court can clarify the order.” Thompson v. Upshur County, 245 F.3d 447,

456 (5th Cir. 2001). In reviewing the record, we are “required to view the facts

and draw reasonable inferences in the light most favorable to the party

opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378

(2007) (internal quotation marks and alteration omitted). Thus, “on

interlocutory appeal the public official must be prepared to concede the best

view of the facts to the plaintiff.” Gonzales v. Dallas County, 249 F.3d 406, 411

(5th Cir. 2001).

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Although it is typically the better course for the district court to

articulate the disputed facts in the first instance, we conclude that it is

unnecessary for us to remand for that purpose in this case.

III. Discussion

A. Branch’s Qualified Immunity Appeal

“The doctrine of qualified immunity protects government officials from

civil damages liability when their actions could reasonably have been believed

to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).

Adelman bears the burden of negating Branch’s qualified immunity defense by

showing “(1) that [Branch] violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Turner v. Lt. Driver, 848 F.3d 678, 685 (5th Cir. 2017) (quoting

Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)).

Adelman asserts that Branch violated his constitutional rights by

arresting him without probable cause. The Supreme Court has interpreted the

Fourth Amendment to mean that persons have a right to be free from arrest

absent a warrant or probable cause. See, e.g., Gerstein v. Pugh, 420 U.S. 103,

112 (1975). This right has long been clearly established. See id.; see also Club

Retro, LLC v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009) (“The Fourth

Amendment right to be free from false arrest—arrest without probable cause—

was clearly established at the time of [the] arrests.”).

“Officers are . . . entitled to qualified immunity unless there was no

actual probable cause for the arrest and the officers were objectively

unreasonable in believing there was probable cause for the arrest.” Davidson

v. City of Stafford, 848 F.3d 384, 391 (5th Cir. 2017). Thus, we must determine

whether there were “facts and circumstances within [Branch’s]

knowledge . . . sufficient to warrant a prudent person, or one of reasonable

caution, in believing, in the circumstances shown, that [Adelman] ha[d]

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committed, [was] committing, or [was] about to commit an offense.” Id.

(quoting Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013)). “The right

to be free from arrest without probable cause is a clearly established

constitutional right” for qualified immunity purposes. Westfall v. Luna, 903

F.3d 534, 542 (5th Cir. 2018) (quoting Mangieri v. Clifton, 29 F.3d 1012, 1016

(5th Cir. 1994)). The focus is on what a “reasonable officer” would conclude,

not Branch’s subjective beliefs. See Westfall, 903 F.3d at 544–45.

Branch asserts that she arrested Adelman because she believed he had

violated Texas Penal Code § 30.05. Section 30.05 provides: “A person commits

an offense if the person enters or remains on or in property of

another . . . without effective consent and the person: (1) had notice that the

entry was forbidden; or (2) received notice to depart but failed to do so.” TEX.

PENAL CODE § 30.05. “Notice” means “oral or written communication by the

owner or someone with apparent authority to act for the owner.” Id.

§ 30.05(b)(2). Therefore, criminal trespass occurs where “(1) a person

(2) without effective consent (3) enters or remains on the property or in a

building of another (4) knowingly or intentionally or recklessly (5) when he had

notice that entry was forbidden or received notice to depart but failed to do so.”

Pena v. Bexar County, 726 F. Supp. 2d 675, 692 (W.D. Tex. 2010) (quoting Tex.

Dep’t of Pub. Safety v. Axt, 292 S.W.3d 736, 740 (Tex. App.—Forth Worth 2009,

no pet.)).

Branch had probable cause for most of these elements: Adelman was a

person who intentionally remained on the property of another. 2 But,

2 Texas Courts of Appeals have held that individuals can trespass on public property

by failing to leave when asked. See, e.g., Spingola v. State, 135 S.W.3d 330, 335 (Tex. App.—

Houston [14th Dist.] 2004, no pet.); Allen v. State, No. 12-01-00079-CR, 2003 WL 1090366, at

*3 (Tex. App.—Tyler Mar. 12, 2003, no pet.) (unpublished) (“Whether the property upon

which the alleged trespass was committed is a public place is not a relevant consideration

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importantly, Branch did not have authority to order Adelman to depart.

Adelman was taking photos in accordance with DART’s Photography Policy,

which permits people to take photographs on DART property as long as they

do not interfere with transportation or public safety activity in doing so. The

DART investigation determined that Branch’s claims that Adelman was

within a few feet of DFR paramedics and that DFR instructed her to keep

Adelman back were false. Indeed, the exchange between Cannon and two DFR

paramedics during the confrontation shows that even Branch’s colleagues

knew Branch was acting outside of her authority when she told Adelman to

leave. Thus, at a minimum, fact issues exist as to whether Adelman complied

with the Photography Policy. 3

under section 30.05. The germane consideration for purposes of section 30.05 is whether the

property is ‘property of another.’” (citing TEX. PENAL CODE § 30.05)); Bader v. State, 15

S.W.3d 599, 607–08 (Tex. App.—Austin 2000, pet. ref’d) (“We hold that in cases involving

public property, the State satisfies the ‘of another’ element of the criminal-trespass statute

by proving beyond a reasonable doubt that the complainant has a greater right of possession

of the property than does the accused.”).

3 Branch asserts that she was reasonable in believing she had authority to order Adelman to

leave because she was on sick leave when DART implemented the new Photography Policy

that permits the public to take photos on DART property. The old policy apparently would

have prohibited Adelman from being on DART property if he wasn’t using it for

“transportation purposes.” If Branch’s mistaken understanding of DART policy was

reasonable, then her belief that she had authority to order Adelman to leave was also

reasonable, and she had probable cause to arrest him for trespassing when he stayed. See

Heien v. North Carolina, 135 S. Ct. 530, 537 (2014) (“‘[P]robable cause’ . . . encompasse[s]

suspicion based on reasonable mistakes of both fact and law.”). See also Wilson v. Layne, 526

U.S. 603, 615 (1999) (holding that the officers were entitled to qualified immunity because,

although a violation of the Fourth Amendment occurred, “it was not unreasonable for a police

officer in April 1992 to have believed that bringing media observers along during the

execution of an arrest warrant (even in a home) was lawful”); Anderson v. Creighton, 483 U.S.

635, 641 (1987) (“[I]t is inevitable that law enforcement officials will in some cases reasonably

but mistakenly conclude that probable cause is present, and we have indicated that in such

cases those officials—like other officials who act in ways they reasonably believe to be

lawful—should not be held personally liable.”); Stacey v. Emery, 97 U.S. 642, 646 (1878)

(holding that a certificate of probable cause (which, per Heien, 135 S. Ct. at 537, “function[s]

much like a modern-day finding of qualified immunity”) barred a suit where a government

official improperly seized property, but had “reasonable cause”—also known as “probable

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Because, taking the facts in the light most favorable to Adelman, he

complied with the Photography Policy, Branch lacked authority to order him

to depart. As a result, she also lacked probable cause to believe that Adelman

was violating section 30.05. See Anthony v. State, 209 S.W.3d 296, 301, 310–

11 (Tex. App.—Texarkana 2006, no pet.) (reversing the appellant’s conviction

for criminal trespass in a city park under section 30.05 because the arresting

officer lacked authority to exclude him from the park). Anthony clearly

establishes that the absence of exclusion authority negates a criminal trespass

claim. Id. Thus, no reasonable officer would conclude that she has probable

cause to arrest someone for criminal trespass after that person refuses to follow

her instructions to leave when she lacks the authority to exclude the person

from the property. Accordingly, Branch’s assumption of probable cause was

objectively unreasonable. Taking the facts in the light most favorable to

Adelman, no reasonable officer under these circumstances would conclude that

she had authority to eject a person complying with DART policies from public

property—and then arrest that person for criminal trespass when he failed to

depart. We affirm the district court’s denial of summary judgment on qualified

immunity grounds.

B. Branch’s Punitive Damages Appeal

Branch also appeals the district court’s denial of summary judgment on

Adelman’s punitive damages claim. We lack jurisdiction to consider this

portion of Branch’s appeal.

The Supreme Court has enumerated three requirements for appeal

under the collateral order doctrine: the order must “[1] conclusively determine

cause”—for the seizure). But Branch’s mistake was not reasonable. She didn’t misinterpret

an unclear policy or law; she simply failed to learn about DART’s updated policy. And “an

officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is

duty-bound to enforce.” Heien, 135 S. Ct. at 539–40.

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the disputed question, [2] resolve an important issue completely separate from

the merits of the action, and [3] be effectively unreviewable on appeal from a

final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).

The Court has specified that “the ‘narrow’ [collateral order] exception should

stay that way and never be allowed to swallow the general rule that a party is

entitled to a single appeal, to be deferred until final judgment has been

entered.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)

(citation omitted).

A district court’s order denying summary judgment on a claim for

punitive damages does not fall within the “narrow and selective” class of

collaterally appealable orders. Hallock, 546 U.S. at 350. Such a denial does

not “conclusively determine the disputed question” or “resolve an important

issue completely separate from the merits of the action”; rather, the issue of

damages is enmeshed with the merits—specifically, whether Branch violated

Adelman’s Fourth Amendment rights. Id. at 349. Nor is the denial

“effectively unreviewable on appeal from a final judgment.” See id. If the

district court issues a final judgment assessing punitive damages against

Branch, 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.” Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541,

546–47 (7th Cir. 2001); see also Hallock, 546 U.S. at 349. We conclude that

Branch’s punitive damages appeal does not fall within the collateral order

doctrine. 4 We thus lack jurisdiction over that portion of the appeal.

4Several of our sister circuits have held in related contexts that punitive damages

appeals are not within the collateral order doctrine. See, e.g., Farhat v. Bruner, 384 F. App’x

783, 786 (10th Cir. 2010) (“[Defendant] contends that the district court erred in denying

summary judgment regarding punitive damages. The court’s denial of summary judgment

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IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s order denying

summary judgment on qualified immunity grounds and REMAND for further

proceedings consistent with this opinion. We DISMISS for want of jurisdiction

Branch’s appeal of the district court’s order denying summary judgment on

Adelman’s punitive damages claim.

on this issue does not fall within the collateral order doctrine, so we lack jurisdiction to review

it.”); Cherry, 265 F.3d at 547 (“We also decline to address the Board’s claim that it is immune

from a punitive damages award . . . . A claim of immunity to a certain class of damages is

‘far removed’ from a claim of immunity from litigation.” (quoting Burns-Vidlak v. Chandler,

165 F.3d 1257, 1260 (9th Cir. 1999))); Rein v. Socialist People’s Libyan Arab Jamahiriya, 162

F.3d 748, 756 (2d Cir. 1998) (holding on appeal of a motion to dismiss that punitive damages

are not within the collateral order exception).

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