The opinion
Case: 10-11298 Document: 00511644970 Page: 1 Date Filed: 10/25/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2011
No. 10-11298 Lyle W. Cayce
Clerk
FRED MOORE, Individually and as Next Friends of AM, a minor and JM, a
minor; TANYA MOORE, Individually and as Next Friend of AM, a minor and
JM, a minor; KARMEN SHAVER, Individually and as Next Friend of AC, a
minor,
Plaintiffs-Appellants
v.
CITY OF DESOTO; ERIN BLUST; STEVE THOMAS; DUSTIN MUNN;
WARREN TILLMAN; LIONHEART INVESTMENT GROUP INC., doing
business as Papa John’s Pizza #1823; GARY PERKINS; MICHAEL SHARP,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-710
Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiffs sued the City of DeSoto, individual police officers, and a Papa
John’s pizza franchise owner for violations of their civil rights and for numerous
state-law torts. The district court granted summary judgment in favor of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 10-11298
city and Papa John’s. It also granted the individual officers’ motions for
summary judgment on qualified immunity grounds. We AFFIRM.
FACTS
This case is the result of a sting operation in which, with the help of Papa
John’s, the DeSoto Police Department attempted to catch a thief.
On the evening of March 11, 2008, Fred Moore ordered pizza from the local
Papa John’s to be delivered to his new residence, 1109 Angie Lane in DeSoto,
Texas. Moore attempted to pay with a credit card, but it was declined. He then
successfully paid with a debit card. Moore’s new residence had a sordid past.
Six months earlier, police were called to respond to an aggravated assault. Since
then, the residence had been the destination for hundreds of dollars worth of
pizzas that had been ordered from Papa John’s with a stolen credit card. When
Moore’s credit card was declined, Papa John’s thought it was another such
attempt. Before delivering the pizza, Papa John’s called the police to inform
them of the possible crime. The police were appreciative of the tip, because they
had been searching for the thief for months. The police decided to conduct a
controlled delivery. A police officer, Erin Blust, would deliver the pizza dressed
in a Papa John’s uniform and thereby catch the thief in the act. The police
department had used this technique successfully in the past.
The police went to Papa John’s, received the pizza and a uniform, and then
drove to Moore’s residence. As Officer Blust prepared to deliver the pizza, the
other officers were out of sight. Officer Blust rang the doorbell. Moore
answered. After Moore took the pizza, he saw a man running towards him and
the person he thought was from Papa John’s. In what Moore later said was an
attempt to shield the delivery person from the charging man, Moore grabbed her.
What the other officers saw, though, was that the suspect had grabbed a police
officer. They rushed towards the front door with their guns drawn. Moore was
quickly subdued and placed in handcuffs. The officers then began a protective
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sweep of the house. During the sweep, the officers discovered a few children,
frightened and hiding in the bathroom. The officers concluded that Moore was
not the person who had been committing credit card fraud. He was released
from custody and the officers departed.
Fred Moore, Tanya Moore, and Karmen Shaver, individually and on behalf
of the children, sued the City of DeSoto, the police officers, and Papa John’s for
assault, false imprisonment, intentional infliction of emotional distress,
defamation, negligence, bystander liability, and violations of their civil rights.
Summary judgment was granted to all defendants. The plaintiffs appealed.
DISCUSSION
This court reviews a district court’s grant of summary judgment de novo,
“applying the same standard as the district court.” Compliance Source, Inc. v.
GreenPoint Mortg. Funding Inc., 624 F.3d 252, 258 (5th Cir. 2010). Summary
judgment is proper when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“We view the evidence in the light most favorable to the non-moving party and
avoid credibility determinations and weighing of the evidence.” Compliance
Source, 624 F.3d at 258.
There are two issues presented for our review.1 The first is whether the
officers are entitled to qualified immunity. The plaintiffs claimed a violation of
federal rights for which damages could be obtained under 42 U.S.C. § 1983.
Qualified immunity shields a government official from liability under Section
1983 if a reasonable official would not know that his conduct violated clearly
1
The plaintiffs failed to brief arguments related to the district court’s denial of their
other claims against the officers, waiving those arguments. See Walker Int’l Holdings Ltd. v.
Republic of Congo, 395 F.3d 229, 232 (5th Cir. 2004). The plaintiffs also did not brief, and thus
waived, arguments related to the district court’s grant of summary judgment to the City of
DeSoto and the grant of summary judgment for Papa John’s on the defamation and intentional
infliction of emotional distress claims. Id.
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established law. Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir. 2010). When
the claim stems from an arrest, the arresting officers are entitled to qualified
immunity if a reasonable officer could have believed the arrest to be lawful at
that time. Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000).
The burden is on the plaintiff to show that the officers could not
reasonably believe that probable cause existed at the time of the arrest. Good
v. Curtis, 601 F.3d 393, 401 (5th Cir. 2010). Viewing the evidence in the light
most favorable to the plaintiffs, that burden was not met. Moore grabbed Officer
Blust. The police did not know his motivation. Rather, they knew they had
responded to an aggravated assault at the residence six months earlier and that,
over the preceding six months, a person had ordered hundreds of dollars worth
of pizzas to that address using stolen credit cards. They also knew that Moore
attempted to pay with a credit card for pizza but was unable to do so because the
card was declined. The district court concluded that the officers reasonably
believed they had probable cause to arrest Moore. We agree.
Because they had probable cause to arrest Moore, a protective sweep of
any area where another assailant could be hiding was permissible. United
States v. Maldonado, 472 F.3d 388, 393 (5th Cir. 2006). The police officers
searched the closets, bathrooms, and other areas of the house – all places where
another person could hide. Police discovered children hiding in the bathroom.
Once the officers were sure of their safety and Moore’s innocence, they left.
Given the information known at the time, the officers’ conduct was
reasonable. The officers therefore are entitled to qualified immunity.
The only other issue presented on appeal is whether three state-law claims
against Papa John’s should have been dismissed. First, the plaintiffs claim that
Papa John’s falsely imprisoned them. Under Texas law, as long as the police
retained the power to decide whether to make the arrest, a person who reports
a possible crime cannot be liable for the police’s subsequent false imprisonment.
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See Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 507-08 (Tex. 2002). The
district court found that the police retained unbridled control over their conduct.
The evidence supports that finding. Papa John’s therefore cannot be liable for
false imprisonment.
Next, the plaintiffs argue that Papa John’s assaulted Moore through the
police officers’ conduct. As we have explained, the police officers had probable
cause to use reasonable force to secure and detain him. Their actions were
legally justifiable, not an assault. See Hereford v. State, 339 S.W.3d 111, 119
(Tex. Crim. App. 2011). Without any assault by the police officers, Papa John’s
cannot be found derivatively liable.
The plaintiffs’ last claim is that Papa John’s was negligent by informing
police about a possible fraud. They allege that there were sufficient factual
differences between Moore’s order and the fraudulent orders – such as using a
different name, a different credit card, and a different method of ordering – to
make Papa John’s conduct unreasonable.
Texas public policy is to encourage “citizens to report crimes, real or
perceived.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 (Tex. 2006).
This “strong public policy in favor of exposing crime” means individuals who
report crimes cannot be held liable unless it is proven they reported the crime
with a malicious intent. Smith v. Stead, 938 S.W.2d 181, 184 (Tex. App. –
Austin 1997, no writ). Here, Papa John’s called the police when it became aware
of what appeared to be fraud. Papa John’s had been the victim of similar,
though not identical, fraud originating from the same address. Papa John’s
thought it was happening again. Its actions reflected that of a concerned citizen.
AFFIRMED.
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