Petition for Writ of Certiorari — Sanchez v. Swyden

Suweme Court, U.S.

FILED

98 104 WL 14199

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

+

OSCAR F. SANCHEZ; LILIANA SANCHEZ,

Petitioners,

CHARLES SWYDEN, Inspector, and

WARREN K. HAYWARD, Officer, et al.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

2

PETITION FOR A WRIT OF CERTIORARI

Sf

HERIBERTO MEDRANO Janice A. Cassipy

Counsel of Record JANice A. Cassipy, P.C.

1100 West Tyler P.O. Box 592

Harlingen, Texas 78550 550 North Sam Houston

(956) 428-2412 San Benito, TX 78586

(956) 428-2495 FAX (956) 399-3327

(956) 399-0688 FAX

Attorney for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED

Is it a violation of a clearly established constitutional

right to detain an individual when officials know that

detainee is not the person wanted on a warrant outstand-

ing for someone other than the detainee?

Is the length of time of detainment the determinant

of a due process violation where officials know that

detainee is not the person wanted on a warrant outstand-

ing for someone other than the detainee?

Is an arrest warrant facially valid if it is not for the

individual actually being detained under the warrant?

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the

following were parties before the Court of Appeals: War-

ren K. Hayward, Officer, Michael S. Lewellen, Sgt., W. H.

Bearden, Officer, Barry J. McDermott, Officer, P. Pohl,

Sgt., Sam Nuchia, Police Chief, Frank Jackson, Lt. Cpt.,

Mark V. Mancuso, Cpt., and Other Unnamed Persons

employed by the City of Houston, Bill Delmore, Judy

Porter, Johnny Klevenhagen, Sheriff, Andrew White, Sgt.,

and Other Unnamed Persons employed by Harris County,

Sarah Hunter, Floyd Duncan, John P. Chandler, Sheriff,

and other Unnamed Persons employed by Cheatham

County, Tennessee.

lil

TABLE OF CONTENTS

Page

ROME MGAEMEe SP MREIEOE TED oc ee bok sd evens vevescsies i

RURURRREE BRP SEEKS GP RIEIGS coc cece cise cacnes ii

rs kel ine eh ahh bees hs o5s cadeuens 1

Sarees OF JURISDICTION. ..........00.0000 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED IN THIS CASE............... 1

PRPRR UAE SAE BEAR QAM. cs cee cece acc c ence eeen 3

ep ae Pee 3

iy MAM BWOCINEIIE CERO oc ccc v ease nesas 4

REASONS FOR GRANTING THE WRIT ........... 5

I. THE PETITION SHOULD BE GRANTED

BECAUSE THE OPINION BELOW CON-

FLICTS WITH THE CONCURRING OPINION

OF JUSTICE BLACKMUN IN THE BAKER

OT RGR NaS eh AWas eas sche seni bn es We eess 5

Il. THE PETITION SHOULD BE GRANTED

BECAUSE THE OPINION BELOW ASSUMES

THAT REGARDLESS OF THE FACTS A

DETENTION OF UP TO THREE DAYS CAN-

NOT GIVE RISE TO A VIOLATION OF A

CLEARLY ESTABLISHED CONSTITU-

EE C2 os cig bc REN MS eh AN eh sts eae e's 6

Ill. THE PETITION SHOULD BE GRANTED

BECAUSE THE OPINION BELOW IS BASED

ON ERRONEOUS FACTS CONCERNING

THE VALIDITY OF THE ARREST WARRANT

EERE RI a GIES Se PR ie aR a ea 8

ee ee a bee iene App. 1

iv

TABLE OF AUTHORITIES

Page

Cases CITED:

Baker v. McCollan, 443 U.S. 137, 61 L.Ed. 2d 433, 99

i Ss CRP ons 5b ce ekka bok ie knetiee, 3 26

Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th

Gas RE soak WS Sirk Che Ole eee tk ee ee 7

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727,

Fe Week Ce CA is Kk os hv CR Kk Rk ks 5

Lewis v. O’Grad, 853 F.2d 1366 (7th Cir. 1988) ....... 6

Moore v. Marketplace, 754 F.2d 1336 (7th Cir. 1985) ..... 7

STATUTES CITED:

Ge Seis, We a 5 nb dha vi xeeei ee hat ees 2

BD ne AEE oo a ha cs RRs CE ee i

Unrtrep States CONSTITUTION CITED:

The Fifth and Fourteenth Amendments............... 1

Rutes CIrep:

Rule 5 of the Federal Rules of Criminal Procedure ..... 2

Texas Rules of Criminal Procedure 14.06 and 15.17..... 2

spe Camrt Baie TEE oii cccs a paso ak ea cceiess 1

PETITION FOR WRIT OF CERTIORARI

Petitioners, Oscar F. Sanchez, and Liliana Sanchez,

respectfully request that a writ of certiorari be issued to

review the judgment of the United States Court of

Appeals for the Fifth Circuit in this case.

°

OPINIONS BELOW

The opinion of the United States Court of Appeals,

Fifth Circuit, is published at 131 Federal Reporter 3d,

1144. The opinion of the United States Court of Appeals

on rehearing is not published but appears at Appendix

24.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit on rehearing was entered on April 15,

1998. Pursuant to Supreme Court Rule 13.1, this petition

has been timely filed within ninety (90) days of the

rehearing.

The jurisdiction of the Court is invoked pursuant to

28 U.S.C. § 1254(1).

a

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THIS CASE

The Fifth and Fourteenth Amendments to the United

States Constitution provide in relevant part:

“No person shall be .. . deprived of life, liberty,

or property, without due process of law... ”

42 U.S.C. § 1983 provides:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory of 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 .. . ”

Rule 5 of the Federal Rules of Criminal Procedure pro-

vides that:

“An officer making an arrest under a warrant

issued upon a complaint or any person making

any arrest without a warrant shall take the

arrested person without unnecessary delay

before the nearest available federal magistrate

judge or, in the event that a federal magistrate

judge is not reasonably available, before a state

or local judicial officer authorized by 18 U.S.C.

a ep.

Texas Rules of Criminal Procedure 14.06 and 15.17 pro-

vide:

“(a) In each case enumerated in this Code, the

person making the arrest shall without unneces-

ay delay take the person arrested or have him

‘sen before some magistrate of the county

where the accused was arrested or, if necessary

to provide more expeditiously to the person

arrested the warnings described in this article,

3

before a magistrate in a county bordering the

county in which the arrest was made... ”

+

STATEMENT OF THE CASE

The fundamental question is whether detaining an

individual on an arrest warrant intended for someone

other than the detainee when the detaining officials know

he is not the wanted person gives rise to the deprivation

of a clearly established constitutional right regardless of

the length of the detention. The Federal Magistrate and

Fifth Circuit Court of Appeals determined that Petitioner,

Oscar F. Sanchez, suffered no deprivation of a clearly

established constitutional right thus affording the detain-

ing officials qualified immunity since Petitioner’s deten-

tion occurred over a twenty six (26) hour period and this

Court previously determined in Baker v. McCollan, 443

U.S. 137, 61 L.Ed. 2d 433, 99 S. Ct. 2689 that a three day

detention did not amount to a constitutional deprivation.

A. Background of the Case.

Oscar F. Sanchez, a United States citizen and an

employee of Southwest Airlines, was returning to the

United States from Mexico at the Houston Airport at

approximately 7:40 P. M. on Thursday, August 20, 1992.

U.S. Customs ascertained there was a warrant outstand-

ing for one “Oscar F. Sanchez” in Cheatham County,

Tennessee and detained him for questioning. At 9:36 P.M.

on the same evening Cheatham County provided via

telephone and fax all identifiers on the warrant including

a photograph, physical description and fingerprints.

When Petitioner had a parrot tattoo on his right shoulder

and the suspect had a rose tattoo on his left shoulder,

Cheatham County Sheriff Floyd Duncan testified at depo-

sitions that when he went home at 11:00 P.M. (10:00 P.M.

C.S.T.) on that evening he felt the detainee was not his

man. By the time that Petitioner was transferred to

Houston Police Department at 12:15 A.M. on Friday,

August 21, 1992, U. S. Customs Agent Cromer stated on

sworn affidavit that in his opinion “” . . . the detainee was

not the wanted person” and that he so advised both

Cheatham County and City of Houston officials. Sworn

Affidavit of U.S. Customs Agent Terry M. Cromer dated

January 31, 1995.

Petitioner was placed in a Houston jail with violent

offenders, strip searched three (3) times, refused a tele-

phone call and held until approximately 7:00 P.M. on

Friday evening, August 21, 1992 when he was taken

before a Harris County Judge and a fingerprint compari-

son made. He was released from custody approximately

9:30 P.M., twenty six (26) hours following his initial

detention.

B. The Proceedings Below.

All Defendants filed Motions to Dismiss or Motions

for Summary Judgment which were granted by the Fed-

eral Magistrate on the issue of qualified immunity. The

Honorable Filemon B. Vela on review denied Defendants’

Motions and all Defendants filed an interlocutory appeal

to the United States Court of Appeals, Fifth Circuit. The

Court of Appeals reversed and remanded. On rehearing,

the Court of Appeals again reversed and remanded. The

Court determined that the facts of this case fail the first

prong of the Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct.

2727, 73 L.Ed. 396 test, namely, that Petitioner failed to

establish a violation of a clearly established constitutional

right. This Petition followed.

¢

REASONS FOR GRANTING THE WRIT

I,

THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW CONFLICTS WITH THE CON-

CURRING OPINION OF JUSTICE BLACKMUN IN

THE BAKER CASE

In Baker, supra. ai 444, Justice Blackmun spoke to the

facts of the instant case in his concurring opinion:

“I do not understand the Court’s opinion . . . to

foreclose the possibility that a prisoner in

respondent’s predicament might prove a due

process violation by a sheriff who deliberately

and repeatedly refused to check the identity of a

complaining prisoner against readily available

mug shots and fingerprints. Such conduct

would be far more ‘shocking’ than anything this

petitioner has done.”

In the instant case, the same identifiers that Defen-

dants had in hand at 9:36 P.M. on the evening of Thurs-

day, August 20, 1992 were utilized to release Petitioner

some twenty four (24) hours later. Petitioners do not

allege that Defendants erred in failing to make the com-

parison earlier but rather that they flagrantly disregarded

his constitutionally guaranteed rights when they took no

further steps to verify his protestations of innocence all

the while two of the three detaining officials knew him to

be the wrong person. The conduct inflicted upon Peti-

tioner under the facts of this case give rise to the scenario

referred to by Justice Blackmun in his concurring opinion

and, on that basis, differ from the merely negligent acts

described in Baker.

II.

THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW ASSUMES THAT REGARD-

LESS OF THE FACTS A DETENTION OF UP TO

THREE DAYS CANNOT GIVE RISE TO A VIOLATION

OF A CLEARLY ESTABLISHED CONSTITUTIONAL

RIGHT

This Court needs to revisit the Baker v. McCollan

decision in view of the nearly twenty years since its

determination and the advancement of civil rights in the

interim. In reliance on Baker, supra., the Court of Appeals

failed to consider the reasonableness of Petitioner’s pro-

longed detention beyond receipt of the identifiers as a

violation of a clearly established constitutional right,

namely, the right to liberty and due process. Petitioner

has no quarrel with his initial detention, the officials’

attempts to identify him or any actions taken by Defen-

dants through receipt of the identifiers. In fact, had

Defendants taken Petitioner before a Judge at the start of

business on Friday, August 21, 1992, this cause would not

be before the Court. Is the length of detention the deter-

minant of a constitutional violation or should the facts be

analyzed in view of what the detaining officials knew

during the period of detention? In Lewis v. O'Grady, 853

F.2d 1366 (7th Cir. 1988), the United States Court of

Appeals for the Seventh Circuit reversed the lower

court's granting of a directed verdict and remanded the

case for a jury determination of the reasonableness of the

length of time Lewis was detained after it was deter-

mined by a magistrate that he was not the person named

in the arrest warrant. The Court cited its earlier opinions

in Moore v. Marketplace, 754 F.2d 1336, 1351 (7th Cir. 1985)

and Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437

(7th Cir. 1986) holding “ ... that a detention of more than

four hours, while not necessarily constitutional, requires

7

‘an explanation’.” The latter two cases involve the

amount of time required to determine probable cause and

the reasonableness of the length of the investigation

before taking an arrestee before a magistrate. In each of

the three cases, the Court determined that reasonableness

was an issue for the jury. In Gramenos, supra. at 437, the

Court held, “When the ‘administrative steps’ have been

completed, the police must take the suspect before a

magistrate to establish probable cause, or they must let

him go.” The Court of Appeals has taken the position that

Petitioner’s detention lasted only twenty six (26) hours

and disregarded that the record is devoid of any reason

for his detention. Petitioner concedes that the law cannot

guarantee that only the guilty will be detained nor that

every detaining official must act as a judge and jury on

the offense alleged. But at what point does a lawful

detention become a violation of a clearly established con-

stitutional right and is that point to be determined merely

by length of time?

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW IS BASED ON ERRONEOUS

FACTS CONCERNING THE VALIDITY OF THE

ARREST WARRANT

Eee

The Court of Appeals erroneously determined that

Petitioner did not attack the validity of the arrest warrant

and that the arrest warrant was valid. On the contrary,

Petitioner alleged in his pleading and again on Appeal

that the arrest warrant was not valid as to him because he

was not the person wanted on the warrant. The identi-

fiers supplied in support of the warrant described a dif-

ferent individual with different fingerprints, a different

signature and a different photograph. Although there

apparently was an outstanding warrant in Tennessee, it

was not for Petitioner thus rendering the warrant on

which officials relied in detaining Petitioner invalid.

*

CONCLUSION

This case contains an issue of fundamental impor-

tance to all of us, namely, whether we truly are guaran-

teed liberty and due process under the Constitution of

the United States or whether those fundamental rights

which our forefathers fought so hard to ensure are paid

lip service in theory and disregarded in practice. The

United States Constitution does not include a provision

that we shall be entitled to liberty and due process but

only after three (3) days and neither should the law

founded upon that Constitution contain such a provision.

For the foregoing reasons, the petition for writ of

certiorari should be granted.

HERIBERTO MEDRANO

Counsel of Record

1100 West Tyler

Harlingen, Texas 78550

(956) 428-2412

(956) 428-2495 FAX

Attorney for

Respectfully submitted,

JANice A. Cassipy

Janice A. Cassipy, P.C.

P.O. Box 592

550 North Sam Houston

San Benito, TX 78586

(956) 399-3327

(956) 399-0688 FAX

Petitioners

APPENDIX

Page

Opinion of the Fifth Circuit. ........5.......... App. 1

Order of Trial Court denying Summary

TNO vis na hid ddd 4s 0 he RD a App. 17

Opinion of Fifth Circuit on Rehearing.......... App. 24

App. 1

Oscar F. SANCHEZ; Liliana Sanchez,

Plaintiffs-Appellees,

V.

Charles SWYDEN, Inspector,

et al., Defendants

Warren K. Hayward, Officer, et

al., Defendants-Appellants.

No. 96-40557

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Jan. 13, 1998.

Janice A. Cassidy, San Benito, TX, for Plaintiffs-

Appellees.

Andrea Chan, Office of the City Attorney for the City

of Houston, Houston, TX, for Defendants- -Appellants

Michael S. Lewellen, Barry J. McDermott, P. Pohl, Sam

Nuchia, Frank Frank Jackson, Mark V. Mancuso.

Richard H. Cobb, Houston, TX, for Defendant- -Appel-

lant W.H. Bearden.

Scott Anthony Durfee, Office of the Harris County

District Attorney, Houston, TX, for Defendant- -Appellant

Bill Delmore.

Bobby Nick Turner, Office of the County Attorney for

the County of Harris, Houston, TX, for Defendants-

Appellants Judy Porter, Johnny Klavenhagen, Andrew

White.

CC

App. 2

W. Michael Fisher, Roerig, Oliveira & Fisher, Browns-

ville, TX, for Defendants-Appellants Sarah Hunter, Floyd

Duncan, John P. Chandler.

Appeals from the United States District Court for the

Southern District of Texas.

Before JONES, SMITH and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This is a case about mistaken identity, and it comes to

us on appeal from a denial of qualified immunity in a

§ 1983 suit brought by plaintiffs Oscar F. Sanchez (San-

chez) and Liliana Sanchez against a number of public

officials.! Sanchez alleged that he was illegally detained

for twenty-six hours in violation of his due process

rights. The defendants filed a motion for summary judg-

ment, arguing that they were entitled to qualified immu-

nity as a matter of law. The magistrate judge held that the

defendants’ motion should be granted. After conducting

a de novo review of the record, the district court declined

to follow the magistrate’s recommendation, holding that

' The named defendants are as follows: Inspector Charles

Swyden, Inspector Robert Poole, Officer Warren K. Hayward,

Sergeant Michael S. Lewellen, Officer W.H. Bearden, Officer

Barry J. McDermott, Sergeant P. Pohl, Police Chief Sam Nuchia,

Lieutenant Frank Jackson, Captain Mark V. Mancuso, Sergeant

Andrew White, Sergeant Judy Porter, Sheriff Johnny

Klevenhagen, Assistant District Attorney Bill Delmore,

Dispatcher Sarah Hunter, Investigator Floyd Duncan, and

Sheriff John P. Chandler. Sanchez also sued unnamed persons

employed by the United States of America, unnamed persons

employed by the City of Houston, unnamed persons employed

by Harris County, Texas, and unnamed persons employed by

Cheatham County, Tennessee.

Tee

App. 3

the defendants were not entitled to qualified immunity

because Sanchez had shown that he was deprived of a

clearly established constitutional right and that there was

a disputed issue of material fact about whether the defen-

dants acted in an objectively reasonable manner. The

defendants now appeal. We reverse and remand this case

to the district court for further proceedings consistent

with this opinion.

BACKGROUND

On August 20, 1992, Sanchez arrived at Houston’s

Intercontinental Airport from Mexico at approximately

7:50 p.m. When Sanchez passed through the United States

Customs Service, a Customs agent matched his name and

general description to a fugitive warrant issued from

Cheatham County, Tennessee. Because of the match, San-

chez was detained. Defendant John Chandler was the

sheriff of Cheatham County; defendant Floyd Duncan

was an investigator in the criminal investigation division

of Cheatham County’s Sheriff’s Department; and Sarah

Hunter was a dispatcher with the Cheatham County

Sheriff’s Department.

That same night, at approximately 8:33 p.m., the

Cheatham County Sheriff’s Department, through dis-

patcher Hunter, received a request from Customs at the

International Airport in Houston for confirmation that a

person named “Oscar F. Sanchez” was still wanted. The

Cheatham County’s Sheriff’s Department, acting through

either Hunter or investigator Duncan, responded at 8:46

p-m. that a person by the name of “Oscar F. Sanchez”

was, in fact, still wanted.

App. 4

At 8:59 p.m., Duncan received a message from Cus-

toms in Houston that proceedings had been initiated to

take custody of “Sanchez.” At 9:36 p.m., Duncan faxed to

Customs in Houston identifying information, including

photographs, fingerprint copies, and other information,

including the fact that the wanted “Sanchez” had a tattoo

of a rose on his left shou!der.

A unit from the Houston Police Department (HPD)

was dispatched to Customs at approximately 10:29 p-m.

Defendant Officer Warren K. Haywood arrived at the

airport at approximately 11:24 p.m. Defendant Officer

Michael S. Lewellen received a phone call and authorized

a “fugitive hold” on Sanchez. Shortly after 12:15 a.m. on

August 21, 1992, Officer Haywood transported Sanchez

to HPD headquarters.

Later that day, defendant Officer W.H. Bearden along

with defendant Sergeant P. Pohl brought Sanchez before a

Harris County, Texas probable cause court at which time

Sanchez refused to waive extradition proceedings. Dur-

ing the probable cause hearing, Sanchez claimed his inno-

cence and argued that he was not the person named in

the Cheatham County fugitive warrant. During that hear-

ing, Officer Bearden noticed that Sanchez did not have

the same tattoo on his shoulder that was described in the

warrant from Tennessee. At the conclusion of the proba-

ble cause hearing, the judge ordered defendant Sheriff

Johnny Klevenhagen to hold Sanchez until his (Sanchez’s)

identification could be confirmed. Officer Bearden then

took Sanchez to the Harris County jail. Sanchez was

searched and placed in a cell with other offenders.

ee

App. 5 ‘

Pursuant to the judge’s request, defendant Officer

Barry J. McDermott compared the fingerprints provided

by Cheatham County against those of Sanchez. They did

not match. Sanchez was released from custody at approx-

imately 9:00 p.m. on August 21, 1992 - about twenty-six

hours after his initial detention by Customs agents at the

airport two hours and twenty-five minutes after he had

been placed in the Harris County jail and before he was

even booked at the jail. Assistant District Attorney Bill

Delmore filed a motion to dismiss the fugitive complaint

against Sanchez on September 1, 1992.2

Sanchez and his wife brought a § 1983 civil rights suit

against a number of public officials, claiming that San-

chez had been deprived of a clearly established constitu-

tional right and that the officials involved in his twenty-

six hour “ordeal” acted unreasonably.3 The defendants

moved for summary judgment on the ground that they

were entitled to qualified immunity, and a magistrate

judge agreed. However, the district court declined to

follow this recommendation and denied the defendants’

motion. This appeal followed. We have jurisdiction? and

now reverse.

* The motion operated as a procedural device to remove the

fugitive complaint from the docket of the county criminal court.

* Mrs. Sanchez only asserted state-law causes of action.

* See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86

L.Ed.2d 411 (1985); Cantu v. Rocha, 77 F.3d 795 (Sth Cir.1996). We

limit ourselves to the narrow question of whether, under § 1983,

the district court erred in declining to extend qualified

immunity to these defendants. As such, we express no opinion

on the defendants’ other claims.

App. 6

DISCUSSION

We begin by addressing the immunities enjoyed by

the various defendants named in this § 1983 lawsuit. In

concluding that the defendants were not entitled to sum-

mary judgment, the district court threw all of the defen-

dants into the qualified immunity basket, such that the

district court made no distinction (for immunity pur-

poses) between law enforcement officials and Assistant

District Attorney (ADA) Delmore. All defendants, in the

district court’s eyes, were entitled to qualified immunity

(of course, the district court did not believe that the facts

of this case triggered immunity from Sanchez’s suit).

Accordingly, we must first decide whether ADA Delmore

should enjoy the same immunity from § 1983 damages as

the other defendants.

I. Doers ADA Detmore ENsoy QUALIFIED OR ABSOLUTE IMMU-

NITY

We begin with the well-settled principal that

although § 1983 contains no immunities on its face, the

Supreme Court has recognized the potentialiy disruptive

effect of limitless civil liability, and as such, has held that

certain public officials enjoy either absolute or qualified

immunity from § 1983 suits, See Hunter v. Bryant, 502 U.S.

224, 228-29, 112 S.Ct. 534, 536-37, 116 L.Ed.2d 589 (1991);

Malley v. Briggs, 476 U.S. 385, 389, 106 S.Ct. 1092, 1095, 89

L.Ed.2d 271 (1986); Imbler v. Pachtman, 424 U.S. 409, 417,

96 S.Ct. 984, 988-89, 47 L.Ed.2d 128 (1976). The test for

determining whether a particular public official enjoys

immunity from a § 1983 suit is not a rigid one. Rather, the

ee Nae mY

App. 7

Court has said that “whether particular actions of gov-

ernment officials fit within a common law tradition of

absolute immunity, or only the more general standard of

qualified immunity, [courts] have applied a ‘functional

approach,’ . .. which looks to ‘the nature of the functions

performed, not the identity of the actor who performed

it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct.

2606, 2613, 125 L.Ed.2d 209 (1993) (quoting Forrester v.

White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, 98 L.Ed.2d 555

(1988)).

This functional framework has spawned certain gen-

eral principles that operate to guide courts in their deter-

mination of whether prosecutors enjoy qualified

immunity or absolute immunity. Prosecutors, for exam-

ple, are entitled to absolute immunity from civil damages

arising out of any acts geared towards the initiation of a

prosecution or in preparation for judicial proceedings. See

Imbler v. Pachtman, 424 U S. at 427, 96 S.Ct. at 993: Brooks

v. George County, Miss., 84 F.3d 157, 168 & n. 17 (5th Cir.),

cert. denied, __ U.S. __, 117 S.Ct. 859, 166 L.Ed.2d 251

(1996); Young v. Biggers, 938 F.2d 505, 569 (5th Cir.1991).

On the other hand, prosecutors enjoy qualified immunity

only if the “prosecutor’s administrative duties and . . .

investigatory functions . . . do not relate to an advocate’s

preparation for the initiation of a prosecution or for judi-

cial proceedings.” Buckley v. Fitzsimmons, 509 U.S. at 272,

118 S.Ct. at 2615; see Burns v. Reed, 500 U.S. 478, 492-94,

111 S.Ct. 1934, 1942-44, 114 L.Ed.2d 547 (1991) (qualified

immunity for giving legal advice to police); Buckley, 509

U.S. at 274-75, 113 S.Ct. at 2616-17 (qualified immunity

for participating in investigatory functions prior to estab-

lishing probable cause or initiating suit); id. at 277-78, 113

App. 8

S.Ct. at 2617-18 (qualified immunity for making out-of-

court statements to the press). In general, qualified

“aw? sn?

immunity “ ‘represents the norm’ ” for executive officers.

Malley v. Briggs, 475 U.S. at 340, 106 S.Ct. at 1095 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732,

78 L.Ed.2d 396 (1982)).

In this case, our job is to determine whether the

actions of ADA Delmore constitute preparation for judi-

cial proceedings (which would entitle him to absolute

immunity) or whether ADA Delmore was merely per-

forming administrative duties (which would entitle him

to qualified immunity). The record reveals that the only

thing ADA Delmore did was file a motion that would

remove the fugitive complaint against Sanchez from the

docket of the county criminal court. We hold that this act

was simply administrative in nature, thereby entitling

ADA Delmore to qualified (and not absolute) immunity.

Il. Are THE DeFENDANTs ENTITLED TO QUALIFIED IMMUNITY AS

A Matter oF Law?

A. The Doctrine of Qualified Immunity

The test for § 1983 qualified immunity is by now

familiar. We engage in a two-step inquiry. First, we must

determine whether a public official’s conduct deprived a

§ 1983 plaintiff of a “clearly established” constitutional or

statutory right. See Harlow v. Fitzgerald, 457 U.S. at 818,

102 S.Ct. at 2738; Salas v. Carpenter, 980 F.2d 299, 304 (5th

Cir.1992). The constitutional right must be sufficiently

clear to put a reasonable officer on notice that certain

conduct violates that right. See Anderson v. Creighton, 483

U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523

App. 9

(1987); Feagley v. Waddill, 868 F.2d 1437, 1439 (5th

Cir.1989); Melear v. Spears, 862 F.2d 1177, 1187 (5th

Cir.1989). The Supreme Court has warned against vague

or general assertions of constitutional rights and has

required a § 1983 plaintiff to state with specificity the

constitutional right that has been allegedly violated -

otherwise, liability could be imposed in every case. See

Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. at 3038-39.

The federal courts of appeal have taken an especially

strict approach to determining whether a constitutional

right is cognizable, thus resolving any doubts in the law

against § 1983 plaintiffs.° We have followed this trend,

S See Kernats v. O'Sullivan, 35 F.3d 1171, 1178 (7th Cir.1994)

(“([W’hen the factual setting is unique in non-trivial aspects,

with no clear parallel in other cases, the relevant constitutional

factors must point strongly in the direction of constitutional

transgressions before immunity is lost.”); Giuffre v. Bissell, 31

F.3d 1241, 1256 (3d Cir.1994) (finding that a decision that “broke

new [constitutional] ground” and was in conflict with other

circuit decisions meant that the constitutional right was not

“clearly established”); Spivey v. Elliott, 29 F.3d 1522, 1527 (11th

Cir.1994) (“Where there is so much room for differing

interpretations, we cannot say the contours of the right were

clearly established.”); Chew v. Gates, 27 F.3d 1432, 1449-50 (9th

Cir.1994) (finding that officers implementing a policy that had

never been declared unconstitutional by any court are entitled

to qualified immunity), cert. denied, 513 U.S. 1148, 115 S.Ct. 1097,

130 L.Ed.2d 1065 (1995); Horta v. Sullivan, 4 F.3d 2, 14 (lst

Cir.1993) (holding that conflicting circuit decisions indicate that

the constitutional right is not “clearly established”), modified, 36

F.3d 210 (1st Cir.1994). See generally Kit Kinports, Qualified

Immunity in Section 1983 Cases: The Unanswered Questions, 23

GA.L.REV. 597, 605-07 n. 41 (1989) (discussing the questions left

unanswered by the Court regarding the meaning of “clearly

established constitutional right”).

App. 10

mindful that “a constitutional violation does not occur

every time someone feels that they have been wronged or

treated unfairly.” Shinn ex rel. Shinn v. College Station

Indep. Sch. Dist., 96 F3d 783, 786 (5th Cir.1996), cert.

denied, _.. U.S. _, 117 S.Ct. 1695, 137 L.Ed.2d 822

(1997).6

Second, a public official may successfully assert the

defense of qualified immunity even though the official

‘6 See Babb v. Dorman, 33 F.3d 472, 478 (5th Cir.1994) (“[W]e

can confidently state that it is not clearly established that the

offense of public intoxication requires, in all instances, a degree

of intoxication greater than that for DWI.”); Foster v. City of Lake

Jackson, 28 F.3d 425, 431 (Sth Cir.1994) (holding that the fact that

the alleged right was expanded by the courts after incident does

not mean the right was “clearly established” at the time of the

conduct in question); Salas v. Carpenter, 980 F.2d at 309-10

(holding that the Fourteenth Amendment imposes no duty ona

sheriff’s department to train and equip police officers to handle

hostage situations); White v. Taylor, 959 F.2d 539, 546 (5th

Cir.1992) (holding that a decision issued by the Supreme Court

after the defendant officer’s trial, which held that the Court’s

standard regarding probable cause determinations had not

provided guidance, was sufficient to show that the plaintiff had

not been deprived of a clearly established constitutional right);

Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir.1988) (reversing

the district court’s decision that “family integrity” is a clearly

established constitutional right); cf. Brewer v. Wilkinson, 3 F.3c

816, 825-26 (Sth Cir.1993) (stating that most recent decisions of

the Supreme Court indicated that opening of prisoners’

incoming mail is not a violation of the prisoner’s constitutional

rights, but opening outgoing mail is a violation), cert. denied, 510

U.S. 1123, 114.S.Ct. 1081, 127 L.Ed.2d 397 (1994); James v. Sadler,

909 F.2d 834, 838 (5th Cir.1990) (“The right to be free from an

unreasonable pat-down search is a constitutional right

sufficiently contoured to remove the defendant’s actions from

the protection of the immunity doctrine.”).

App. 11

violates a person’s civil rights, provided the official’s

conduct was objectively reasonable. Moville v. City of Live

Oak, 918 F.2d 548, 551 (5th Cir.1990); Pfannstiel v. City of

Marion, 918 F.2d 1178, 1183 (5th Cir.1990). Whether an

official’s conduct is objectively reasonable depends upon

the circumstances confronting the official as well as

“clearly established law” in effect at the time of the

official’s actions. Anderson v. Creighton, 483 U.S. at 641,

107 S.Ct. at 3039-40. The subjective intent of the public

official is irrelevant, and the official’s knowledge of the

relevant law need not rise to the level of a “constitutional

scholar.” Harlow v. Fitzgerald, 457 U.S. at 815-17, 102 S.Ct.

at 2736-38; Babb v. Dorman, 33 F.3d at 478.7

This two-part test sits atop a firm policy foundation.

Foremost among these policy considerations is the deter-

rent effect that civil liability may have on the willingness

of public officials to fully discharge their professional

duties. See Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213,

1218, 18 L.Ed.2d 288 (1967); Anderson v. Creighton, 483

U.S. at 638, 107 S.Ct. at 3038; Harlow v. Fitzgerald, 457 U.S.

at 814, 102 S.Ct. at 2736; Scheuer v. Rhodes, 416 U.S. 232,

? Prior to the Supreme Court’s decision in Harlow, the

Court’s determination of whether a public official’s actions

were reasonable included a subjective component. See Wood v.

Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214

(1975). In Harlow, however, the Court abandoned the subjective

component of the qualified immunity analysis. 457 U.S. at

815-17, 102 S.Ct. at 2736-38; see also Stephen J. Shapiro, Public

Officials’ Qualified Immunity in Section 1983 Actions Under

Harlow v. Fitzgerald and its Progeny: A Critical Analysis, 22

U.MICH.j.L.Rpr. 249, 273-74 (1989); John D. Kirby, Note,

Qualified Immunity for Civil Rights Violations: Refining the

Standard, 75 Corne.t L.Rev. 462, 484-85 (1990).

App. 12

239-41, 94 S.Ct. 1683, 1687-89, 40 L.Ed.2d 90 (1974). For

example, the Supreme Court has expressed concern that

expansive civil liability for actions taken while on duty

may cause police officers to hesitate before acting - a

situation that could produce unwelcome results. See Mal-

ley v. Briggs, 475 U.S. at 341, 106 S.Ct. at 1096; Briscoe v.

LaHue, 460 U.S. 325, 343, 103 S.Ct. 1108, 1119-20, 75

L.Ed.2d 96 (1983). Balanced against these concerns is the

right of injured persons to receive redress for a violation

of their constitutional rights, with the threat of monetary

damages operating to deter public officials from violating

citizens’ constitutional rights. See Butz v. Economou, 438

U.S. 478, 504-07, 98 S.Ct. 2894, 2909-11, 57 L.Ed.2d 895

(1978).

B. Analysis

With these background principles in mind, we now

turn to the merits of this appeal. Sanchez alleges that he

was wrongfully detained and falsely imprisoned by the

defendants when they knew that he was not the person

wanted on the fugitive warrant. Notably, Sanchez does

not attack the validity of the warrant, which he concedes

had been issued for “Oscar F. Sanchez” with his date of

birth and social security number. Sanchez argues instead

that because the defendants were in possession of the

actual suspect’s photographs, fingerprints, and informa-

tion that the suspect had a rose tattoo on his left shoulder

within two hours after Sanchez’s initial detention, the

defendants had “conclusive proof” that he was not the

person wanted on the outstanding arrest warrant. From

this, Sanchez concludes that his constitutional rights were

violated because no one compared his fingerprints to

App. 13

those of the suspect until almost twenty-four hours after

his initial detention.

We disagree, go no further than step one of the

qualified immunity analysis, and conclude that Sanchez

has not shown that the defendants deprived him of a

clearly established constitutional right.

In Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61

L.Ed.2d 433 (1979), the Supreme Court held that the

detention of an individual for three days on the basis of a

facially valid search warrant did not amount to a depriva-

tion of liberty without due process of law — despite the

individual’s protestations of innocence. Id. at 143-45, 99

S.Ct. at 2694-95; see also Douthit v. Jones, 619 F.2d 527, 532

(Sth Cir.1980).8 The Court reasoned that officials charged

with maintaining custody of the accused named in a

warrant are not required by the Constitution to perform

8 Of course, the Court qualified this statement and

suggested that at some point, even though law enforcement

officials are proceeding pursuant to a valid warrant in the face

of protestations of innocence, detention of that individual

would run afoul of the Constitution. 443 U.S. at 144-45, 99 S.Ct.

at 2694-95. However, the Court held that three days “does not

and could not amount to sucha deprivation.” Id. at 145, 99 S.Ct.

at 2695; Simons v. Clemons, 752 F.2d 1053, 1054-55 (5th Cir.1985)

(plaintiff who alleged that she had ¥een illegally arrested and

detained for 14 to 16 hours failed to allege any constitutional

deprivation because she had been arrested on a facially valid

warrant); compare Douthit, 619 F.2d at 532 (detention of prisoner

for 30 days beyond the expiration of his sentence in the absence

of a facially valid court order or warrant constitutes a

deprivation of due process). Accordingly, to the extent Sanchez

bases his constitutional claim on the amount of time he was

detained (approximately twenty-six hours), we reject the

argument under the authority of Baker.

App. 14

an error-free investigation of a claim of innocence. Id. at

145-46, 99 S.Ct. at 2694-96. “The Constitution does not

guarantee that only the guilty will be arrested,” for “[i]f it

did,” reasoned the Court, “§ 1983 would provide a cause

of action for every defendant acquitted - indeed, for

every suspect released.” Id. at 145, 99 S.Ct. at 2695.9 The

Court concluded that the three-day detention did not

amount to a violation of the plaintiff’s constitutional right

to due process. Id.

We find that the facts of this case come within the

compass of Baker; in fact, we fail to see any meaningful

distinction between Baker and this case. Federal law

enforcement officials and officials from Houston and

Cheatham County, Tennessee held Sanchez on the basis of

a valid arrest warrant. Those same officials also declined

to release Sanchez even though he consistently asserted

his innocence. Under these facts, Baker compels the con-

clusion that the actions of the defendants in this case did

not deprive Sanchez of any clearly established constitu-

tional right.

That law enforcement officials were in possession of

information that exculpated Sanchez does not change this

result. Although we have held that illegal detention by

way of false imprisonment is a recognized § 1983 tort,

Simmons v. McElveen, 846 F.2d 337 (5th Cir.1988), we have

required proof that the official’s actions went beyond

mere negligence before that tort takes on constitutional

° This conclusion makes perfect sense in light of the

important policy underlying qualified immunity, namely, that

public officials should not be deterred from discharging their

professional obligations out of fear of civil liability.

App. 15

dimensions. Sanders v. English, 950 F.2d 1152, 1159 (5th

Cir.1992) (cases cited therein). Sanchez has failed to show

that failure to act on the exculpatory information went

beyond mere negligence. We need not look any further

than Sanchez’s own testimony for support for this conclu-

sion. In his deposition, Sanchez said that there was “con-

siderable debate amongst the officers involved as to

whether he [Sanchez] matched the appearance of the

suspect wanted in the warrant.” Given this fact, we sim-

ply cannot say that the defendants’ failure to release

Sanchez sooner was anything more than negligent. See,

e.g., Simmons v. McElveen, 846 F.2d at 339 (failure to

compare suspect's fingerprints with those on a cigarette

package amounted to no more than mere negligence).)!°

A contrary conclusion would produce the anomalous

result that the defendants were required to conduct a

virtually error-free investigation. In light of clear lan-

guage to the contrary in Baker, we decline to so hold.

10 Both Sanchez and the district court point to the

testimony of one defendant which illustrates the view that

Sanchez should have been released sooner. It is ironic that

Sanchez chose to name so many defendants and now relies on

the testimony of a single defendant for his claim that the

defendants deprived him of his constitutional right to due

process. In any event, the mere fact that one of the actors in the

events surrounding Sanchez’s detention believed that Sanchez

was not the person named in the warrant does not alter our

conclusion that there was an ongoing debate among the officers

as to whether Sanchez was the Tennessee fugitive.

App. 16

CONCLUSION

Finding that Sanchez has not shown that he has been

deprived of a clearly established constitutional right, we

hold that all defendants named in Sanchez’s § 1983 suit

are entitled to qualified immunity as a matter of law.

Accordingly, we REVERSE the district court’s conclusion

to the contrary and REMAND this case to that court for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.

App. 17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

OSCAR F. SANCHEZ, §

ET AL §

VS § CIVIL ACTION NO.

is § B-94-242

INSPECTOR CHARLES §

SWYDEN, §

ET AL §

ORDER

(Filed May 09, 1996)

Before the Court is the Magistrate Judge’s Report and

Recommendation in the above referenced cause of action.

After a de novo review of the entire file, it is the opinion

of this Court that the Magistrate Judge’s Report and

Recommendation should not be adopted.

The Report and Recommendation (R&R) filed by

Magistrate Judge Garza recommends that Defendants’

Motions for Summary Judgment be granted. However,

the R&R misstates several conclusions of law which are

critical to Plaintiff's case. Consequently for the reasons

forthcoming, Summary Judgment does not appear to be

warranted.

FACTS

On August 20th, 1992, Plaintiff Oscar F. Sanchez, was

apprehended as he was passing through the United States

Customs Service at Houston’s Intercontinental Airport.

Plaintiff had just arrived from Mexico City after which

App. 18

Customs agents matched his name and general descrip-

tion to a fugitive warrant from Cheatham County, Ten-

nessee.!

At approximately 8:59 p.m. on the night in question,

the Cheatham County Sheriff’s Department, received

information from Houston, Texas, that proceedings had

been initiated to take custody of Oscar F. Sanchez. There-

after, at approximately 9:36 p.m., Floyd Duncan of the

Cheatham County Sheriff’s Department, faxed identify-

ing information, including photographs, fingerprint

copies, and other information of the individual wanted,

including information that the wanted person had a tat-

too of a rose on his left shoulder.

The Houston Police Department (HPD) then dis-

patched a unit to the Customs Service at 10:29 p.m. At

approximately 11:24 p.m. Officer Warren K. Haywood

arrived at Intercontinental Airport. Officer Haywood

then transported Plaintiff to HPD Central Headquarters

shortly after 12:15 am. Later that day, HPD Officers W.H.

Bearden, and B.A. Pohl, took Plaintiff before a Harris

County court for a probable cause hearing. During the

hearing Plaintiff professed to be a person other than the

one named in the warrant. In addition, Officer Bearden

noticed the Plaintiff’s lack of a tattoo described in the

Warrant from Tennessee.?

1 The Court notes that Plaintiff in his deposition testified as

to considerable debate amongst the officers involved as to

whether he matched the appearance of the suspect wanted in

the warrant. See Generally Deposition of Oscar F. Sanchez, P.27-29,

and 101-102.

2 The Court takes notice of the fact that Cheatham County

Investigator, Floyd Duncan testified in his deposition that the

App. 19

At the conclusion of the hearing, the judge ordered

Harris County Sheriff Johnny Klevenhagen to hold Plain-

tiff until his identification could be confirmed. Plaintiff

was then taken to the Harris county Sheriff’s Department

to be booked into the County Jail. Officer Bearden then

caused a fingerprint comparison to be made. HPD Officer

Barry J. McDermott, later determined that the finger-

prints of the suspect were not of the same classification as

the wanted subject. When Plaintiff’s fingerprints failed to

match those of the fugitive, Officer Bearden took the

information to the Harris county Jail on the evening of

August 21, 1992. Plaintiff was thereafter released from

custody at about 9:00 p.m. that evening.

HOLDING

“Rule 56(c) mandates . . . summary judgment, . .

against a party who fails to make a showing sufficient to

establish the existence of an element essential to that

Party’s case... ”. Celotex Corp. v. Catrett, 477 U.S. 317, 106

S.Ct. 2548, 2552 (emphasis added).3 In the present case,

Plaintiffs have made sufficient showings to survive sum-

mary judgment.

individual wanted out [sic] Tennessee had a tattoo of a rose on

his left shoulder. Plaintiff in this case had a tattoo of a parrot on

‘his right shoulder. See Deposition of Floyd Duncan P.35 L.4-6,

16-25.

* In conclusion of law #3 the Report & Recommendation

inaccurately states Plaintiff’s burden by Stating “To defeat

summary judgment, Plaintiffs . . . must ‘make a showing

sufficient to establish the existence of each element essential to

[their] case”. The distinction is minor. However, the Court feels

that Celotex should be quoted correctly.

ea a ai i ai a

App. 20

Plaintiffs have alleged constitutional Deprivation as

part of their cause of action. In the twelfth conclusion of

law, the R&R states “Plaintiff ... did not suffer a constitu-

tional deprivation simply because he was detained for 26

hours. Where an individual has been arrested pursuant to

a valid arrest warrant, even a three-day detention does

not deprive him of any constitutional rights”. Baker v.

McCollan, 443 U.S. 137 (1979). However, Baker is distin-

guishable from the present case in that the cause of action

sounded in negligence. In Baker, Mr. Justice Rehnquist

writing for a four member maiority acknowledge that

“liJn the instant case, the Court of Appeals for the Fifth

Circuit saw the focal issue as whether petitioner Baker,

the Sheriff of Potter County, Texas, had negligently failed

to establish certain identification procedures which

would have revealed that respondent was not the man

wanted in connection with the drug charges on which he

was arrested”. Id. Furthermore, Mr. Justice Blackmun in

his concurring opinion stated that

here there is no indication that petitioner was

aware, or should have been aware, either of the

likelihood of misidentification or of his subordi-

nates’ action in this case. I do not understand

the Court’s opinion . . . foreclose the possibility

that a prisoner in respondent’s predicament

might prove a due process violation by a sheriff

who deliberately and repeatedly refused to

check the identity of a complaining prisoner

against readily available mug shots and finger-

prints. Such conduct would be far more “shock-

ing” than anything this petitioner had done. The

Court notes that intent is relevant to the exis-

tence of a constitutional violation... .

App. 21

Id. at 2696-2697. In the present case, Plaintiffs are not

alleging that Defendants negligently failed to check the

identifying information. On the contrary, Plaintiffs are

alleging that Defendants held and detained him despite

the fact they knew he was not the man described in the

warrant.

In the sixth conclusion of law the R&R states “Plain-

tiffs may not rely on 42 U.S.C. §1983 to sue the Federal

Defendants since no cause of action under §1983 is cogni-

zable against the United States or federal Officers”. Davis

v. United States, 439 F.2d 1118, 1119 (8th Cir. 1971). The

Fifth Circuit recognized in Knights of the Ku Klux Klan v.

United States Department of Health and Human Services,

however, that Congress intended t”. the federal govern-

ment and its agents would be liab.e under §1983 when

participating in schemes under which state actors would

have been liable. 735 F.2d 895, 900 (5th Cir. 1984). This is

the so called conspiracy exception to §1983. Further on

point is Hampton v. Hanrahn, in which the Court stated

that “when federal officials are engaged in a conspiracy

with state officials to deprive constitutional rights, the

state officials provide the requisite state action to make

the entire conspiracy actionable under section 1983.” 600

F.2d 600, 623 (7th Cir. 1979). Thus, because the Plaintiffs’

have alleged a conspiracy between federal and local

police departments, suite under §1983 is proper.

Finally, in the ninth and fourteenth conclusions of

law the R&R asserts that qualified immunity would

shield all defendants from liability. Qualified immunity

however, is not absolute immunity. Consequently, the

Supreme Court has held “that government officials per-

forming discretionary functions generally are shielded

App. 22

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known”. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.

2727, 2738 (1982). Defendants have not met this two

prong test. As the Plaintiffs note in their objections,

“[djefendants . . . cannot argue .. . that continuing to

detain an individual whom they know is not the party on

the warrant for which he was originally detained and

with no other pending allegations against him... [would

not] violate clearly established statutory or constitutional

rights of which a reasonable person would have known”.

See Plaintiffs’ Objections to Magistrate Judge's Report And

Recommendation. In fact, Cheatham County Investigator,

Floyd Duncan, testified in his deposition that because of

discrepancies in the identifying information and the

appearance of the Plaintiff, he felt as if they did not have

his man. See Deposition. Floyd Duncan P.36, L.1-7.

Thus, in light of the information before the Court at

this time, Summary Judgment is not warranted. It is clear

from Plaintiffs’ petition that they have alleged a depriva-

tion of their constitutional rights. Furthermore, this Court

believes that Plaintiffs have not failed to make a showing

sufficient to establish the existence of an element essen-

tial to their claim. It is therefore, ORDERED, ADJUDGED

AND DECREED that Defendants’ Motion for Summary

Judgment shall be DENIED.

App. 23

Done in Brownsville, Texas, this 9th day of May, 1996.

‘'s/ Filemon B. Vela

Filemon B. Vela

United States

District Judge

TRUE COPY |

CERTIFY ATTEST:

MICHAEL N. MILBY,

Clerk

By /s/ Ed Leandro

Deputy Clerk

App. 24

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40557

Summary Calendar

OSCAR F. SANCHEZ; LILIAN A. SANCHEZ,

Plaintiffs-Appellees,

versus

CHARLES SWYDEN, Inspector, ET Al.,

Defendants,

WARREN K. HAYWARD, Officer, ET AL.,

a

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

(Filed Apr. 15, 1998)

OPINION ON PETITION FOR REHEARING

(Opinion, January 13, 1998,

Sth Cir, 1998, _ F.3d_ )

Before JONES, SMITH and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The petition for rehearing is granted. The opinion

reported at 131 F.3d 1144 (5th Cir. 1998) is withdrawn,

and the opinion below is substituted in all respects for

the withdrawn opinion.

App. 25

This is a case about mistaken identity, and it comes to

us on appeal from a denial of qualified immunity in a

§ 1983 suit brought by plaintiffs Oscar F. Sanchez (San-

chez) and Liliana Sanchez against a number of public

officials.! Sanchez alleged that he was illegally detained

for twenty-six hours in violation of his due process

rights. The defendants filed a motion for summary judg-

ment, arguing that they were entitled to qualified immu-

nity as a matter of law. The magistrate judge held that the

defendants’ motion should be granted. After conducting

a de novo review of the record, the district court declined

to follow the magistrate’s recommendation, holding that

the defendants were not entitled to qualified immunity

because Sanchez had shown that he was deprived of a

clearly established constitutional right and that there was

a disputed issue of material fact about whether the defen-

dants acted in an objectively reasonable manner. The

defendants now appeal. We reverse and remand this case

to the district court for further proceedings consistent

with this opinion.

' The named defendants are as follows: Inspector Charles

Swyden, Inspector Robert Poole, Officer Warren K. Hayward,

Sergeant Michael S. Lewellen, Officer W.H. Bearden, Officer

Barry J. McDermott, Sergeant P. Pohl, Police Chief Sam Nuchia,

Lieutenant Frank Jackson, Captain Mark V. Mancuso, Sergeant

Andrew White, Sergeant Judy Porter, Sheriff Johnny

Klevenhagen, Assistant District Attorney Bill Delmore,

Dispatcher Sarah Hunter, Investigator Floyd Duncan, and

Sheriff John P. Chandler. Sanchez also sued unnamed persons

employed by the United States of America, unnamed persons

employed by the City of Houston, unnamed persons employed

by Harris County, Texas, and unnamed persons employed by

Cheatham County, Tennessee.

App. 26

BACKGROUND

On August 20, 1992, Sanchez arrived at Houston’s

Intercontinental Airport from Mexico at approximately

7:50 p.m. When Sanchez passed through the United States

Customs Service, a Customs agent matched his name and

general description to a fugitive warrant issued from

Cheatham County, Tennessee. Because of the match, San-

chez was detained. Defendant John Chandler was the

sheriff of Cheatham County; defendant Floyd Duncan

was an investigator in the criminal investigation division

of Cheatham County’s Sheriff's Department; and Sarah

Hunter was a dispatcher with the Cheatham County

Sheriff’s Department.

That same night, at approximately 8:33 p.m., the

Cheatham County Sheriff’s Department, through dis-

patcher Hunter, received a request from Customs at the

Intercontinental Airport in Houston for confirmation that

a person named “Oscar F. Sanchez” was still wanted. The

Cheatham County’s Sheriff’s Department, acting through

either Hunter or investigator Duncan, responded at 8:46

p-m. that a person by the name of “Oscar F. Sanchez”

was, in fact, still wanted.

At 8:59 p.m., Duncan received a message from Cus-

toms in Houston that proceedings had been initiated to

take custody of “Sanchez.” At 9:36 p.m., Duncan faxed to

Customs in Houston identifying information, including

photographs, fingerprint copies, and other information,

including the fact that the [sic] wanted “Sanchez” had a

tattoo of a rose on his left shoulder.

A unit from the Houston Police Department (HPD)

was dispatched to Customs at approximately 10:29 p.m.

App. 27

Defendant Officer Warren K. Haywood arrived at the

airport at approximately 11:24 p.m. Defendant Officer

Michael S. Lewellen received a phone call and authorized

a “fugitive hold” on Sanchez. Shortly after 12:15 a.m. on

August 21, 1992, Officer Haywood transported Sanchez

to HPD headquarters.

Later that day, defendant Officer W.H. Bearden along

with defendant Sergeant P. Pohl brought Sanchez before a

Harris County, Texas probable cause court at which time

Sanchez refused to waive extradition proceedings. Dur-

ing the probable cause hearing, Sanchez claimed his inno-

cence and argued that he was not the person named in

the Cheatham County fugitive warrant. During that hear-

ing, Officer Bearden noticed that Sanchez did not have

the same tattoo on his shoulder that was described in the

warrant from Tennessee. At the conclusion of the proba-

ble cause hearing, the judge ordered defendant Sheriff

Johnny Klevenhagen to hold Sanchez until his (Sanchez’s)

identification could be confirmed. Officer Bearden then

took Sanchez to the Harris County jail. Sanchez was

searched and placed in a cell with other offenders.

Pursuant to the judge’s request, defendant Officer

Barry J. McDermott compared the fingerprints provided

by Cheatham County against those of Sanchez. They did

not match. Sanchez was released from custody at approx-

imately 9:00 p.m. on August 21, 1992 - about twenty-six

hours after his initial detention by Customs agents at the

airport, two hours and twenty-five minutes after he had

been placed in the Harris County jail, and before he was

even booked at the jail. Assistant District Attorney Bill

App. 28

Delmore filed a motion to dismiss the fugitive complaint

against Sanchez on September 1, 1992.2

Sanchez and his wife brought a § 1983 civil rights suit

against a number of public officials, claiming that San-

chez had been deprived of a clearly established constitu-

tional right and that the officials involved in his twenty-

six hour “ordeal” acted unreasonably.* The defendants

moved for summary judgment on the ground that they

were entitled to qualified immunity, and a magistrate

judge agreed. However, the district court declined to

follow this recommendation and denied the defendants’

motion. This appeal followed. We have jurisdiction* and

now reverse.

DISCUSSION

We begin by noting that ADA Delmore challenges the

district court’s rejection of the magistrate’s recommenda-

tion that Delmore be accorded absolute and qualified

immunity from suit. Under the test for qualified immu-

nity, Sanchez has failed to prove that he was deprived of

a clearly established constitutional right. Because we

find that no conduct by the defendants’ deprived the

plaintiff of a clearly established constitutional right, we

2 The motion operated as a procedural device to remove the

fugitive complaint from the docket of the county criminal court.

3 Mrs. Sanchez only asserted state-law causes of action.

4 See Mitchell v. Forsyth, 472 U.S. 511 (1985); Cantu v. Rocha,

77 F.3d 795 (Sth Cir. 1996). We limit ourselves to the narrow

question of whether, under § 1983, the district court erred in

declining to extend qualified immunity to these defendants. As

such, we express no opinion on the defendants’ other claims.

App. 29

need not reach the issue of absolute immunity. Instead,

we conclude that it is only necessary to address the

qualified immunity claims of the defendants.

I. Are THE DEFENDANTS ENTITLED TO QUALIFIED IMMUNITY

AS A Matter oF Law?

A. The Doctrine of Qualified Immunity

The well-established test for qualified immunity

requires us to engage in a two-step inquiry. First, we

must determine whether a public official’s conduct

deprived a § 1983 plaintiff of a “clearly established”

constitutional or statutory right. See Harlow v. Fitzgerald,

457 U.S. at 818; Salas v. Carpenter, 980 F.2d 299, 304 (Sth

Cir. 1992). The constitutional right must be sufficiently

clear to put a reasonable officer on notice that certain

conduct violates that right. See Anderson v. Creighton, 483

U.S. 635, 639 (1987); Feagley v. Waddill, 868 F.2d 1437, 1439

(Sth Cir. 1989); Melear v. Spears, 862 F.2d 1177, 1187 (5th

Cir. 1989). The Supreme Court has warned against vague

or general assertions of constitutional rights and has

required a § 1983 plaintiff to state with specificity the

constitutional right that has been allegedly violated -

otherwise, liability could be imposed in every case. See

Anderson v. Creighton, 483 U.S. at 639. The federal courts

of appeal have taken an especially strict approach to

determining whether a constitutional right is cognizable,

thus resolving any doubts in the law against § 1983

plaintiffs.5 We have followed this trend, mindful that “a

5 See Kernats v. O'Sullivan, 35 F.3d 1171, 1178 (7th Cir. 1994)

(“[W]hen the factual setting is unique in non-trivial aspects,

App. 30

constitutional violation does not occur every time some-

one feels that they have been wronged or treated

unfairly.” Shinn ex rel. Shinn v. College Station Indep. Sch.

Dist., 96 F.3d 783, 786 (Sth Cir. 1996), cert. denied, 117 S.Ct.

1695, 137 L.Ed.2d 822 (1997).°

with no clear parallel in other cases, the relevant constitutional

factors must point strongly in the direction of constitutional

transgressions before immunity is lost.”); Spivey v. Elliott, 29

F.3d 1522, 1527 (11th Cir. 1994) (“Where there is so much room

for differing interpretations, we cannot say the contours of the

right were clearly established.”); Chew v. Gates, 27 F.3d 1432,

1449-50 (9th Cir. 1994) (finding that officers implementing a

policy that had never been declared unconstitutional by any

court are entitled to qualified immunity), cert. denied, 115 S.Ct.

1097 (1995). See generally Kit Kinports, Qualified Immunity in

Section 1983 Cases: The Unanswered Questions, 23 GA.L.Rev. 597,

605-07 n. 41 (1989) (discussing the questions left unanswered by

the Court regarding the meaning of “clearly established

constitutional right”).

6 See Babb v. Dorman, 33 F.3d 472, 478 (5th Cir. 1994) (“[W]e

can confidently state that it is not clearly established that the

offense of public intoxication requires, in all instances, a degree

of intoxication greater than that for DWI.”); Foster v. City of Lake

Jackson, 28 F.3d 425, 431 (5th Cir. 1994) (holding that the fact that

the alleged right was expanded by the courts after incident does

not mean the right was “clearly established” at the time of the

conduct in question); Salas v. Carpenter, 980 F.2d at 309-10

(holding that the Fourteenth Amendment imposes no duty on a

sheriff’s department to train and equip police officers to handle

hostage situations); White v. Taylor, 959 F.2d 539, 546 (5th Cir.

1992) (holding that a decision issued by the Supreme Court after

the defendant officer’s trial, which held that the Court’s

standard regarding probable cause determinations had not

provided guidance, was sufficient to show that the plaintiff had

not been deprived of a clearly established constitutional right);

Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir. 1988) (reversing

the district court’s decision that “family integrity” is a clearly

App. 31

Second, a public official may successfully assert the

defense of qualified immunity even though the official vio-

lates a person’s civil rights, provided the official’s conduct

was objectively reasonable. Mouille v. City of Live Oak, 918

F.2d 548, 551 (5th Cir. 1990); Pfannstiel v. City of Marion, 918

F.2d 1178, 1183 (5th Cir. 1990). Whether an official’s conduct

is objectively reasonable depends upon the circumstances

confronting the official as well as “clearly established law” in

effect at the time of the official’s actions. Anderson v.

Creighton, 483 U.S. at 641. The subjective intent of the public

official is irrelevant, and the official’s knowledge of the

relevant law riced not rise to the level of a “constitutional

scholar.” Harlow v. Fitzgerald, 457 U.S. at 815-17; Babb v.

Dorman, 33 F.3d at 478.7

established constitutional right); cf. Brewer v. Wilkinson, 3 F.3d

816, 825-26 (5th Cir. 1993) (stating that most recent decisions of

the Supreme Court indicated that opening of prisoners’

incoming mail is not a violation of the prisoner’s constitutional

rights, but opening outgoing mail is a violation), cert. denied, 114

S.Ct. 1081 (1994); James v. Sadler, 909 F.2d 834, 838 (5th Cir. 1990)

(“The right to be free from an unreasonable pat-down search is a

constitutional right sufficiently contoured to remove the

defendant’s actions from the protection of the immunity

doctrine.”).

7 Prior to the Supreme Court’s decision in Harlow, the

Court’s determination of whether a public official’s actions

were reasonable included a subjective component. See Wood v.

Strickland, 420 U.S. 308, 321 (1975). In Harlow, however, the

Court abandoned the subjective component of the qualified

immunity analysis. 457 U.S. at 815-17; see also Stephen J.

Shapiro, Public Officials’ Qualified Immunity in Section 1983

Actions Under Harlow v. Fitzgerald and its Progeny: A Critical

Analysis, 22 U.Micu.J.L.Rer. 249, 273-74 (1989); John D. Kirby,

Note, Qualified Immunity for Civil Rights Violations: Refining the

Standard, 75 Cornett L.Rev. 462, 484-85 (1990).

App. 32

This two-part test sits atop a firm policy foundation.

Foremost among these policy considerations is the deter-

rent effect that civil liability may have on the willingness

of public officials to fully discharge their professional

duties. See Pierson v. Ray, 386 U.S. 547, 555 (1967); Ander-

son v. Creighton, 483 U.S. at 638; Harlow v. Fitzgerald, 457

U.S. at 814; Scheuer v. Rhodes, 416 U-S. 232, 239-41 (1974).

For example, the Supreme Court has expressed concern

that expansive civil liability for actions taken while on

duty may cause police officers to hesitate before acting —

a situation that could produce unwelcome results. See

Malley v. Briggs, 475 U.S. at 341; Briscoe v. LaHue, 460 USS.

325, 343 (1983). Balanced against these concerns is the

right of injured persons to receive redress for a violation

of their constitutional rights, with the threat of monetary

damages operating to deter public officials from violating

citizens’ constitutional rights. See Butz v. Economou, 438

U.S. 478, 504-07 (1978).

B. Analysis

With these background principles in mind, we now

turn to the merits of this appeal. Sanchez alleges that he

was wrongfully detained and falsely imprisoned by the

defendants when they knew that he was not the person

wanted on the fugitive warrant. Notably, Sanchez does

not attack the validity of the warrant, which he concedes

had been issued for “Oscar F. Sanchez” with his date of

birth and social security number. Sanchez argues instead

that because the defendants were in possession of the

actual suspect’s photographs, fingerprints, and informa-

tion that the suspect had a rose tattoo on his left shoulder

App. 33

within two hours after Sanchez’s initial detention, the

defendants had “conclusive proof” that he was not the

person wanted on the outstanding arrest warrant. From

this, Sanchez concludes that his constitutional rights were

violated because no one compared his fingerprints to

those of the suspect until almost twenty-four hours after

his initial detention.

We disagree, go no further than step one of the

qualified immunity analysis, and conclude that Sanchez

has not shown that the defendants deprived him of a

clearly established constitutional right.

In Baker v. McCollan, 443 U.S. 137 (1979), the Supreme

Court held that the detention of an individual for three

days on the basis of a facially valid search warrant did

not amount to a deprivation of liberty without due pro-

cess of law - despite the individual’s protestations of

innocence. Id. at 143-45; see also Douthit v. Jones, 619 F.2d

527, 532 (Sth Cir. 1980).8 The Court reasoned that officials

® Of course, the Court qualified this statement and

suggested that at some point, even though law enforcement

officials are proceeding pursuant to a valid warrant in the face

of protestations of innocence, detention of that individual

would run afoul of the Constitution. 443 U.S. at 144-45.

However, the Court held that three days “does not and could

not amount to such a deprivation.” Id. at 145; Simons v. Clemons,

752 F.2d 1053, 1054-55 (5th Cir. 1985) (plaintiff who alleged that

she had been illegally arrested and detained for 14 to 16 hours

failed to allege any constitutional deprivation because she had

been arrested on a facially valid warrant); compare Douthit, 619

F.2d at 532 (detention of prisoner for 30 days beyond the

expiration of his sentence in the absence of a facially valid court

order or warrant constitutes a deprivation of due process).

Accordingly, to the extent Sanchez bases his constitutional claim

App. 34

charged with maintaining custody of the accused named

in a warrant are not required by the Constitution to

perform an error-free investigation of a claim of inno-

cence. Id. at 145-46. “The Constitution does not guarantee

that only the guilty will be arrested,” for “[i]f it did,”

reasoned the Court, Ҥ 1983 would provide a cause of

action for every defendant acquitted — indeed, for every

suspect released.” Id. at 145.9 The Court concluded that

the three-day detention did not amount to a violation of

the plaintiff’s constitutional right to due process. Id.

We find that the facts of this case come within the

compass of Baker; in fact, we fail to see any meaningful

distinction between Baker and this case. Federal law

enforcement officials and officials from Houston and

Cheatham County, Tennessee held Sanchez on the basis of

a valid arrest warrant. Those same officials also declined

to release Sanchez even though he consistently asserted

his innocence. Under these facts, Baker compels the con-

clusion that the actions of the defendants in this case did

not deprive Sanchez of any clearly established constitu-

tional right.

That law enforcement officials were in possession of

information that exculpated Sanchez does not change this

result. Although we have held that illegal detention by

way of false imprisonment is a recognized § 1983 tort,

on the amount of time he was detained (approximately twenty-

six hours), we reject the argument under the authority of Baker.

° This conclusion makes perfect sense in light of the

important policy underlying qualified immunity, namely, that

public officials should not be deterred from discharging their

professional obligations out of fear of civil liability.

App. 35

Simmons v. McElveen, 846 F.2d 337 (Sth Cir. 1988), we have

required proof that the official’s actions went beyond

mere negligence before that tort takes on constitutional

dimensions. Sanders v. English, 950 F.2d 1152, 1159 (5th

Cir. 1992) (cases cited therein). Sanchez has failed to show

that failure to act on the exculpatory information went

beyond mere negligence. We need not look any further

than Sanchez’s own testimony for support for this conclu-

sion. In his deposition, Sanchez said that there was “con-

siderable debate amongst the officers involved as to

whether he [Sanchez] matched the appearance of the

suspect wanted in the warrant.” Given this fact, we sim-

ply cannot say that the defendants’ failure to release

Sanchez sooner was anything more than negligent. See,

e.g., Simmons v. McElveen, 846 F.2d at 339 (failure to

compare suspect's fingerprints with those on a cigarette

package amounted to no more than mere negligence).!0 A

contrary conclusion would produce the anomalous result

that the defendants were required to conduct a virtually

error-free investigation. In light of clear language to the

contrary in Baker, we decline to so hold.

10 Both Sanchez and the district court point to the

testimony of one defendant which illustrates the view that

Sanchez should have been released sooner. It is ironic that

Sanchez chose to name so many defendants and now relies on

the testimony of a single defendant for his claim that the

defendants deprived him of his constitutional right to due

process. In any event, the mere fact that one of the actors in the

events surrounding Sanchez’s detention believed that Sanchez

was not the person named in the warrant does not alter our

conclusion that there was an ongoing debate among the officers

as to whether Sanchez was the Tennessee fugitive.

App. 36

CONCLUSION

Finding that Sanchez has not shown that he has been

deprived of a clearly established constitutional right, we

hold that all defendants named in Sanchez’s § 1983 suit

are entitled to qualified immunity as a matter of law.

Accordingly, we REVERSE the district court’s conclusion

to the contrary and REMAND this case to that court for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.