holding that threatened arrest constituted a seizure because at the time of the threat, sheriff deputies surrounded a police officer’s vehicle, displayed a “menacing behavior and tone, ” and prevented the officer from leaving the scene while the threats were being made
How later courts described this case
- holding that threatened arrest constituted a seizure because at the time of the threat, sheriff deputies surrounded a police officer’s vehicle, displayed a “menacing behavior and tone, ” and prevented the officer from leaving the scene while the threats were being made
Written by the judges who cited it.
The opinion
Case: 10-50992 Document: 00511652908 Page: 1 Date Filed: 11/02/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 2, 2011
No. 10-50992 Lyle W. Cayce
Clerk
MICHAEL SHORT,
Plaintiff - Appellee
v.
SHERIFF ARVIN WEST, Individually and in his capacity as Sheriff of
Hudspeth County, Texas,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:
In this action brought under 42 U.S.C. § 1983, Defendant-Appellant
Sheriff Arvin West (“Sheriff West”) filed an interlocutory appeal of the district
court’s denial of his motion for summary judgment based on qualified immunity.
We DISMISS the appeal in part and AFFIRM the district court’s order in part.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Michael Short (“Short”) is an officer in the El Paso Police
Department (“EPPD”). He was assigned to a narcotics task force, and was cross-
deputized by the District Attorney, Jaime Esparza, to be a narcotics task force
Case: 10-50992 Document: 00511652908 Page: 2 Date Filed: 11/02/2011
No. 10-50992
officer for the 34th Judicial District. The 34th Judicial District includes both El
Paso and Hudspeth counties.
On December 4, 2008, members of the task force, including Officer Short,
went to Hudspeth County after hearing a tip that narcotics would be traveling
from Hudspeth County to El Paso County. Short wore his uniform and was in
a marked EPPD vehicle. In Hudspeth County, Short stopped a car matching the
description of the suspected vehicle. During the traffic stop, a Hudspeth County
Sheriff Department (“HCSD”) deputy, Laura Galvan (“Galvan”), arrived on the
scene. After the traffic stop was completed, Galvan asked Short about his
purpose in Hudspeth County, and Short explained the nature of his assignment.
Satisfied with his identification, Galvan offered to assist Short if needed, and
returned to her unit. Galvan then notified HCSD dispatch about the presence
of EPPD officers in Hudspeth County and the purpose of their assignment.
HCSD dispatch contacted Sheriff West at home to inform him of the EPPD
officers’ presence and that they were performing traffic stops in Hudspeth
County. Sheriff West is the top law enforcement officer in Hudspeth County.
He knew that cloned police cars had been used by criminals in the area, so he
decided to investigate the EPPD officers’ presence personally. Sheriff West
instructed dispatch to contact his deputies and find out whether the EPPD
officers were in fact law enforcement personnel. Further, Sheriff West ordered
the deputies to round up the task force officers and escort them to his office in
Sierra Blanca. HCSD dispatch then notified the HCSD deputies of Sheriff
West’s orders.
HCSD Lieutenant Robert Wilson (“Wilson”), responding to Sheriff West’s
orders, located Short’s operational supervisor, EPPD Sergeant Steven Lopez
(“Lopez”), and asked to see Sergeant Lopez’s identification. Sergeant Lopez
produced identification showing him to be an officer with the EPPD and the task
force, and as a cross-deputized agent of Immigration and Customs Enforcement.
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No. 10-50992
Lieutenant Wilson returned Lopez’s identification without examining it. Wilson
instructed Lopez to round up the task force members and follow him to the
HCSD office in Sierra Blanca. Sergeant Lopez refused and indicated the task
force would return to El Paso County. Lieutenant Wilson reiterated his
instructions, and, upon Lopez’s further refusal to follow him, contacted Sheriff
West to apprise him of the situation. Sheriff West instructed Lieutenant Wilson
to escort the officers to the Fort Hancock Substation in lieu of the Sierra Blanca
HCSD office.
In the meantime, Sergeant Lopez contacted EPPD Lieutenant Fernando
Yañez (“Yañez”) via cell phone. Yañez asked to speak to Lieutenant Wilson, and,
Lopez having passed the phone to Wilson, asked Wilson what charges were being
brought against the task force officers. Wilson indicated that no charges existed,
but stated Sheriff West had ordered that he round up the task force. Lieutenant
Yañez stated that such an order violated the constitutional rights of the task
force officers. Wilson handed the phone back to Sergeant Lopez and reiterated
his order three times that Lopez round up the task force and accompany Wilson
to Fort Hancock, raising his voice each time. Finally, Sergeant Lopez contacted
the task force members and ordered them to return to El Paso County, as he
prepared to follow Lieutenant Wilson to Fort Hancock.
On Sergeant Lopez’s command, Officer Short drove toward the location of
EPPD Officer Mike Tevis (“Tevis”) to inform him of Lopez’s order, leaving the
company of EPPD Officer Herman Joe Hicks (“Hicks”), as Hicks began to return
to El Paso County. Having located Tevis, both Tevis and Short then caravanned
toward Interstate 10 West (“I-10”), but were delayed as a crossing train blocked
their route. While waiting for the train, they received a radio communication
from Officer Hicks indicating he was surrounded by five to seven HCSD deputies
just over the I-10 overpass. Hicks stated he had been ordered to return to the
Fort Hancock substation with the HCSD deputies.
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No. 10-50992
Once the train passed, Officers Tevis and Short traveled to Hicks’ location
and observed the HCSD blockade. Tevis and Short stopped, and, at that point,
an HCSD deputy drove his car to block the officers’ path forward, and another
HCSD officer pulled behind Tevis to block their retreat, surrounding Officers
Tevis and Short. An HCSD deputy then approached Short’s vehicle and,
standing with his belt buckle to Short’s driver’s side window, ordered Short and
Tevis to return to the Fort Hancock substation. The HCSD deputy further
informed Short that he would be arrested if he failed to comply. Short contacted
Sergeant Lopez via radio to inform him of his situation. Sergeant Lopez ordered
Short to comply and not to resist.
Officers Tevis, Hicks, and Short were then escorted by the HCSD officers
to the Fort Hancock substation, where they met Sergeant Lopez. Each officer
drove his own vehicle and remained in possession of his service weapon. Sheriff
West, arriving shortly thereafter, spoke with the officers for between twenty to
thirty minutes. Specifically, West stated that he had not been notified of the
task force’s operation within his jurisdiction, and that he would receive future
notice of any such activity. None of the task force officers were asked to produce
identification, nor were they taken inside the Substation. Sheriff West
concluded the meeting by stating that whatever the task force was working on
“is fucked up now.” He then informed the task force officers that they were free
to leave.
Short thereupon sued Hudspeth County and Sheriff West under 42 U.S.C.
§ 1983 for violation of his rights under the Fourth Amendment. Both Hudspeth
County and Sheriff West filed for summary judgment. The district court granted
summary judgment for Hudspeth County, but not for West, finding that genuine
disputes of material fact precluded a determination of the application of
qualified immunity. In particular, the district court found genuine disputes
existed as to West’s knowledge of Short’s status as an EPPD officer and Short’s
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No. 10-50992
authority to operate in Hudspeth County as part of the 34th Judicial District
task force.
JURISDICTION & STANDARD OF REVIEW
“A defendant in a § 1983 action can immediately appeal a district court’s
denial of a motion for summary judgment based on qualified immunity under the
collateral order doctrine to the extent that the appeal turns on a question of
law.” Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). “Where the district
court has denied summary judgment on the ground that material issues of fact
exist as to the plaintiff’s claims, this court lacks jurisdiction to review the
[district] court’s determination that a genuine fact issue exists.” Id. “This court
can, however, review whether any factual dispute found by the district court is
material for summary judgment purposes; that is, the court can consider the
legal sufficiency of the facts that the district court found to be supported by the
summary judgment record.” Id. “Therefore, we do not apply the standard of
Rule 56 but instead consider only whether the district court erred in assessing
the legal significance of the conduct that the district court deemed sufficiently
supported for purposes of summary judgment.” Kinney v. Weaver, 367 F.3d 337,
348 (5th Cir. 2004) (en banc). “That is, we have jurisdiction only to decide
whether the district court erred in concluding as a matter of law that officials
are not entitled to qualified immunity on a given set of facts.” Id. at 347.
“This court reviews de novo the district court’s resolution of legal issues on
a motion for summary judgment on the basis of qualified immunity.” Freeman,
483 F.3d at 410. “This court applies a two-step analysis to determine whether
a defendant is entitled to summary judgment on the basis of qualified
immunity.” Id. “First, we determine whether, viewing the summary judgment
evidence in the light most favorable to the plaintiff, the defendant violated the
plaintiff’s constitutional rights.” Id. “If so, we next consider whether the
defendant’s actions were objectively unreasonable in light of clearly established
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No. 10-50992
law at the time of the conduct in question.” Id. at 411. “To make this
determination, the court applies an objective standard based on the viewpoint
of a reasonable official in light of the information then available to the defendant
and the law that was clearly established at the time of the defendant’s actions.”
Id. Judges are “permitted to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
ANALYSIS
Sheriff West appeals the district court’s denial of summary judgment on
the basis of qualified immunity. As noted above, the district court found genuine
disputes of material fact precluded a determination of the applicability of
qualified immunity.
To a large extent, Sheriff West’s arguments challenge the district court’s
judgment that facts in the record create a genuine dispute as to whether Short
was detained without reasonable suspicion and arrested without probable cause,
and whether West acted reasonably in light of clearly established law. The
district court reached that judgment after reviewing the evidence in the record,
including circumstantial evidence, in the light most favorable to the non-moving
party. So viewed, the district court found the record raised an inference that
West knew Short was not impersonating a police officer, but was an authentic
EPPD officer, and that Short had authority to operate in Hudspeth County as
a member of the 34th Judicial District task force. The district court found the
record supported an inference that West, despite this knowledge, ordered the
arrest of Officer Short, as well as the other task force members. Sheriff West’s
argument that the evidence shows he merely requested to meet with the task
force officers, and that he did not know of the task force’s existence or the
authenticity of the EPPD officers, clearly indicates a genuine dispute of material
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fact, as the district court found, but does not show a legal error in the district
court’s judgment. Rather, Sheriff West seeks to challenge the sufficiency of the
evidence to support the district court’s finding, and this Court lacks jurisdiction
to hear such an argument on interlocutory appeal. See Juarez v. Aguilar, ---
F.3d ----, 2011 WL 4509529, at *4 (5th Cir. Sept. 30, 2011) (holding court lacked
jurisdiction over defendant’s argument that, contrary to district court’s finding,
evidence showed defendant did not make an adverse employment decision,
defendant did not know of plaintiff’s protected speech, and speech did not cause
employment decision; finding arguments implicated factual disputes
unreviewable on interlocutory appeal).
Putting aside West’s factual disputes, his appeal raises few legal issues.
Although this Court has jurisdiction to hear those issues, they are also
unavailing.
First, Sheriff West argues that Short could not, as a matter of law, have
been subject to seizure because (a) no physical contact was made with Short, (b)
he drove his own vehicle to Fort Hancock, and (c) he retained his service weapon
at all times. West’s argument would, however, convert the required inquiry
from one where “all of the circumstances surrounding the incident” are
considered, see United States v. Mendenhall, 446 U.S. 544, 554 (1980), to one
where one or two factors are determinative. The district court properly refused
to do so. See United States v. Chavez, 281 F.3d 479, 484 (5th Cir. 2002)
(cautioning, in Fourth Amendment analysis, “[n]o one factor is necessarily
determinative”). Instead, the district court found that the record, when viewed
as a whole and in the light most favorable to Short, supported a finding that
Short was seized for Fourth Amendment purposes. In particular, the district
court found the HCSD deputies’ surrounding of the EPPD officers’ vehicles,
preventing either their continued path to I-10 or retreat, the menacing behavior
and tone of the HCSD officer who approached Short’s vehicle, and the threat of
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No. 10-50992
arrest if Short did not comply constituted a sufficient show of force that a
reasonable person in such a situation would not feel free to leave.1 We find no
legal error in that analysis. See Mendenhall, 446 U.S. at 554 (noting “[e]xamples
of circumstances that might 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”).
Second, Sheriff West argues the district court erred in finding that,
because of the genuine disputes of material fact, it could not determine whether
Sheriff West’s actions were objectively reasonable in light of clearly established
law. In particular, West argues that the district court erroneously engaged in
a post hoc evaluation of his conduct in performing an investigatory detention,
and that the district court improperly considered evidence of West’s subjective
motivations.
With regard to the district court’s post hoc analysis, the district court
appropriately analyzed “‘whether [the investigative detention] was reasonably
related in scope to the circumstances which justified the interference in the first
place.’” See United States v. Sharpe, 470 U.S. 675, 682 (1985) (applying two part
analysis to determine reasonableness of investigative stop) (quoting Terry v.
Ohio, 392 U.S. 1, 20 (1968)). That analysis requires the court to “examine
whether the police diligently pursued a means of investigation that was likely
to confirm or dispel their suspicions quickly, during which time it was necessary
to detain the defendant.” Id. at 686. Although courts are cautioned against
“post hoc evaluations,” see id., such an examination inevitably requires an
analysis of counterfactuals which will inform the court on the reasonableness of
the detention. Here, Sheriff West ordered the task force officers detained and
1
Further, Sheriff West admitted Short was subjected to an investigatory stop.
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No. 10-50992
brought to his office, and later Fort Hancock, so that he could personally
examine them, actions which were not likely to “confirm or dispel [his]
suspicions quickly.” See id. (emphasis added). As the district court identified,
there were various alternative means, such as contacting the EPPD Police Chief,
whom Sheriff West knew, or running the plates of the vehicles, which were not
merely “available,” but were unreasonable to either not recognize or pursue as
alternatives to seizing Short and escorting him to Fort Hancock. See id. at 687
(“The question is not simply whether some other alternative [to seizure] was
available, but whether the police acted unreasonably in failing to recognize or
pursue it.”). Consequently, the district court was correct in finding Sheriff
West’s actions were not reasonably related in scope to investigatory detention.
With regard to Sheriff West’s argument that the district court erred in
relying on his subjective motivations in analyzing the objective reasonableness
of his actions, we do not find the district court so improperly relied on evidence.
Sheriff West’s statement, at the close of his meeting with the officers, that their
investigation “was fucked up now” could be evidence of a subjective intent to
violate Short’s Fourth Amendment rights, an intent irrelevant to determining
whether West’s actions were objectively unreasonable. See Sanchez v. Swyden,
139 F.3d 464, 467 (5th Cir. 1998) (noting “[t]he subjective intent of the public
official is irrelevant”). The statement is also evidence, however, that could
indicate to a reasonable fact finder that West knew from the beginning that the
task force officers, including Short, were authentic EPPD officers and not
impersonators, and that they were operating lawfully in Hudspeth County.
Such knowledge is “information then available to the defendant” necessary to
consider in evaluating the objective reasonableness of the defendant’s action.
Freeman, 483 F.3d at 411. We understand the district court’s order as utilizing
the evidence to support such a relevant inference. Consequently, the district
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No. 10-50992
court appropriately relied on the evidence of West’s statement in refusing to find
West’s actions were objectively reasonable.
Accordingly, West fails to show legal error in the district court’s analysis.
CONCLUSION
For the reasons stated above, the appeal is DISMISSED in part, and the
order of the district court is AFFIRMED in part.
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