United States Court of Appeals

Fifth Circuit



## FILED

November 18, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-20411

MICHAEL HAGGERTY,

Plaintiff-Appellee,

versus

TEXAS SOUTHERN UNIVERSITY; ET AL,

Defendants,

W WILLIAMS, Individually and in

His Capacity as a Texas Southern

University Campus Police Officer,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before GARWOOD, WIENER and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Willie Williams, a Texas Southern

University Police Officer, appeals the partial denial of his motion

for summary judgment based on qualified immunity. We affirm in

part and reverse in part.1 Haggerty’s petition does not clearly define his c laims. His claims

co nsisted of violations of 42 U.S.C. § 1983 and false imprisonment, malicious

prosecution, and assault and battery, but Haggerty did not define his § 1983

claims in detail or clearly dif ferentiate between his § 1983 and state law

claims. For instance, in Haggerty’s response to Williams’s motion for summary

judgment, Haggerty recounted the allegations in his petitio n, declaring that

Williams had “purposely deprived [Haggerty] of his rights

. . . afforded by the

4th, 5th and 14th Amendments to the United States Constitution and the Te xas

Constitution, in violation of 42 U.S.C. § 1983, and that such conduct toward

[Haggerty] constituted false imprisonment, malicious prosecution and assault and

battery”; however, Haggerty did not specifically state whether any (or which) of

these claims were based on state law.

In ruling on Williams’s motion f or summary judgment, the district court

divided the claims between § 1983 cla i ms (false arrest/false imprisonment,

excessive force, and malicious prosecution), and state law claims (assault and

battery, state constitutional claims, false imprisonment, and malicious

prosecution). At oral argument before this court, the parties agreed with the

district court’s categorization of Haggerty’s claims.

2 The district court initially granted summary judgment on Haggerty’s

§ 1983 excessiv e force claim and his state law assault and battery and

constitutional tort claims. Later on rehearing, however, the district court

reinstated the 1983 excessive force claim.

2 Plaintiff-appellee Michael Haggerty brought several claims for

damages against Williams in his individual capacity based on 42

U.S.C. § 1983 and Texas law. 1 Williams sought summary judgment

based on qualified immunity respecting Haggerty’s section 1983

claims and based on official immunity respecting Haggerty’s state

law claim s. The district court denied summary judgment on

Haggerty’s claims under section 1983 for false arrest/false

imprisonment, excessive force, and malicious prosecution a nd on

Haggerty’s claims under state law for false imp risonment and

malicious prosecution. 2

Discussion

I. Jurisdiction over this Appeal

“Denial of summary judgment on the ground of qualified

immunity is immediately appealable to the extent that the question3

on appeal is whether the undisputed facts amount to a violation of

clearly established law.” K elly v. Foti

, 77 F.3d 819, 821 (5th

Cir. 1996).

II. Qualified Immunity and Claims Under § 1983

We review de novo the denial of summary judgment predicated on

qualified immunity. B eltran v. City of El Paso

, 367 F.3d 299, 302

(5th Cir. 2004). In an interlocutory appeal in which the defendant

asserts qualified immunity, to the extent that the district court

f ound that genuine factual disputes exist, we accept the

plaintiff’s version of the facts (to the extent reflected by proper

summary judgment evidence) as true. Id.

We use a two-step approach to analyze qualified immunity

claims. P rice v. Roark

, 256 F.3d 364, 369 (5th Cir. 2001). First,

we “consider whether the facts alleged, taken in the light most

favorable to th e party asserting the injury, show that the

officer’s conduct violated a c onstitutional right.” I d. (citing

Saucier v. Katz

, 121 S.Ct. 2151, 2156 (2001)). If the plaintiff’s

allegations could make out a constitutional violation, we then “ask

whether the right was clearly established—that is, whet her ‘it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.’” Id. (quoting Saucier

,

121 S.Ct. at 2156). “If, upon viewing the evidence in the light

most favorable to the [plaintiff], reasonable publi c officials

could differ on the lawfulness of the defendant's actions, the4

defendant is entitled to qualified immunity.” S outhard v. Tex. Bd.

of Criminal Justice

, 1 14 F.3d 539, 550 (5th Cir. 1997). This

inquiry is an objective one, not dependant on the particular

officer’s subjective belief s. A nderson v. Creighton

, 107 S.Ct.

3034, 3040 (1987).

A. False Arrest/False Imprisonment Under Section 1983

To ultimately prevail on his section 1983 false arrest/false

imprisonment claim, Haggerty must show that Williams did not have

probable cause to arrest him. See Brown v. Lyford , 243 F.3d 185,

189 (5th Cir. 2001) (“The ‘constitutional torts’ of false arrest

.

. . and false imprisonment . . . require a showing of no probable

cause.”). Probable cause exists “when the totality of the facts

and circumstances within a police officer’s knowledge at the moment

of arrest are sufficient for a reasonable person to conclude that

the suspect had committed or was committing an offense.” G lenn v.

City of Tyler

, 242 F.3d 307, 313 (5th Cir. 2001) (internal

quotation and citation omitted). Therefore, Williams is entitled

to qualified immunity if a reasonable officer in his position could

have believed that, in light of the totality of the facts and

circumstances of which Williams was aware, there was a fair

probability that Haggerty had committed or was committing an

offense. S ee id.; see also United States v. Watson

, 273 F.3d 599,

602 (5th Cir . 2001) (explaining that probable cause’s “fair

probability” requires more than a bare suspicion but less than a5

preponderance of evidence). “Even law enforcement officials who

reasonably but mistakenly conclude that probable cause is present

are entitled to immunity.” M endenhall v. Riser

, 213 F.3d 226, 230

(5th 2000 ) (emphasis added) (internal quotation and citation

omitted); see also Anderson v. Creighton , 107 S.Ct. 3034, 3039-40

(1987) (“.

. . it is inevitable that law enforcement officials will

in some cases reasonably but mistakenly conclude that probable

cause is present, and we have indicated that in such ca ses those

officials

– like other officials who act in ways they reasonably

believe to be lawful

– should not be held personally liable”). In

sum, Haggerty “must clear a significa nt hurdle to defeat

[William’s] qualified immunity.” B rown

, 243 F.3d at 190. “[T]here

must not even arguably be probable cause for the . . . arrest for

immunity to be lost.” I d. (internal quotation and citation

omitted).

Haggerty was arre sted for interference with the duties of a

public servant. S ee T EX

. P ENAL C ODE A NN

. § 38.15(a)(1) (2004). “A

person commits an offense if the person with criminal negligence

interrupts, disrupts, impedes, or otherwise interferes with . . .

a peace officer while the peace officer is performing a duty

. . .

.” I d. However, “it is a defense” that the alleged “interruption,

disruption, impediment or interference” “consisted of speech only.”

§ 38.15(d).3 Haggerty alleged in his petition that he “rushed outside” and told

Williams not put Randolph in handcuffs.

4 Haggerty alleged in his petition that Williams advised him to “stay away”

and that he would be arrested if he interfered.

6 Viewing the facts in the light most favorable to Haggerty and

based on the totality of the circumstances within Williams’s

knowledge, a reasonable officer in Williams’s position could have

believed with “fair probability” that Haggerty had interfered with

his duties. Haggerty claimed in his affidavit that on July 27,

2000 Kendrick Randolph, a student from Haggerty’ s group who

allegedly had just been attacked (by eight males, according to

Haggerty’s response to the motion for summary judgment) in the

cafeteria of Texas Southern University (TSU), “was out of control

and was trying to fight all those that had jumped on him. ” When

Haggerty went outside, he saw Williams handcuffing Randolph; he

told Williams not to handcuff Randolph and that he was Randolph’s

teacher. 3 Haggerty acknowledges that Williams told him to “step

back or get away and if [he] didn’t [he] would be put under

arrest.” 4 Haggerty claims to have stepped back without touching

Williams.

Williams then took Randolph back into the TSU student center.

Randolph saw some of the individuals who had attacked him and began

pulling away from Williams to again combat those individuals. When

Haggerty went back into the student center, he saw Williams slam

Randolph into a wall. Haggerty claims that he then “took a few5 Haggerty alleged in his petition that when he saw Williams slam Randolph

against the wall, “he st epped forward and stated loudly ‘stop, stop don’t do

that, that’s wrong!’”

7 steps forward, but never got closer tha n 10–15 feet to . . .

Williams” and said “don’t do that, don’t slam that b oy into the

wall” and “don’t manhandle that juvenile.” 5 Haggerty states that

he was not cursing, but “was speaking up loudly.” He also observed

“many young children and others seeing [wha t] was going on.”

Williams then said something that Haggerty cannot recall, and “the

next thing I (Haggerty) recall” is several other officers (not

Williams) tackled Haggerty.

Thus, viewing the totality of circumstances in the light most

favorable to Hagge rty, but from the perspective of a reasonable

officer in Williams’s pos ition, we have: police called because

Haggerty concluded he and TSU staff could not handle the matter

(see note 6, infra ), an out-of-control victim/witness/suspect

(Randolph) who was occupying Williams’s efforts and attention, a

nearby group of some eight alleged attackers, an approaching person

in relative proximity to Willi ams (Haggerty)—who had previously

been told to “step back” and that he would be arrested if he did

not—speaking loudly and telling Williams to stop, and a gathering

crowd. A reasonable officer in Williams’s position could have

believed that the situation was tense and dangerous, Haggerty’s

actions were serving to stir up the potentially explosive6 Haggerty claims that the situation was not potentially violent because

“this was a college campus not [t]he back streets of Third Ward and there were

youth participants, educators, TSU staff and employees looking in shock at what

was going on.” This claim by Haggerty from his point of view , however, is not

controlling to our qualified immunity analysis in that it does not determine what

a reasonable officer in Williams’s positio n might have believed. Indeed,

Haggerty’s affidavit states respecting the original cafeteria confrontation “I

along with other PIP staff tried our best to stop it. When I realized we

couldn’t stop it I told Texas Southern Cafeteria staff to call the Texas Southern

police department for help . . . .” A bystander witness, another adult leader

of the student group, made a statement (which was submitted by Haggerty in his

response to Willia ms’ motion for summary judgment) in which she described the

situation as: “confusion ,” a “crowd rush[ing] to the center of the scene and

every body

. . . pushing and shubbing [sic],” a “wild heard [herd] of students,”

and “the crowd was too wild.” In light of the undisputed facts—fighting, an

extremely agi t ated person (Randolph), loud speaking, a crowd—an officer in

Williams’s position could reasonably have perceived the presence of “many young

children and others” observing—as described by Haggerty —in the same way that this

witness did.

8 situation, 6 and there was a fair probab ility that Haggerty’s

actions constituted interference with his duties.

Further, while Haggerty’s relevant actions included speech, a

reasonable officer could have believed that they were not limited

to speech: Haggerty stepped forward toward Wi lliams after having

previously been warned to not interfere a nd was within relative

proximity (10 to 15 feet away). Under the circumstances, it is not

unreasonable that an officer could have believed that this

constituted more than “speech only ” and that the statutory defense

of section 38.15(d) was not established. As “law enforcement

officials who reasonably but mistaken ly conclude that probable

cause is present are entitled to immunity,” Mendenhall

, 213 F.3d at

230 (internal q uotations and citations omitted), it is not

determinative that Haggerty’s interruption, disruption, impediment

or interference could ultimately be determined to have been by7 At oral argument, both parties acknowledged that Haggerty did not bring

a state law excessive force claim, but only a § 1983 excessive force claim.

9 sp eech o nly and that Williams’s probable cause judgment may have

been wrong. Cf

. Saucier v. Katz , 121 S.Ct. 2151, 2159-60 (2001).

We conclude that Williams is en titled to qualified immunity from

Haggerty’s false arrest/false imprisonment claim under section

1983.

B. Malicious Prosecution Under Section 1983

Subsequent to the district c ourt’s denial of Williams’s

summary judgment, and to when the briefs in this appeal were filed,

we held that “‘malicious prosecution’ standing alone is no

violation o f the United States Constitution, and that to proceed

under 42 U.S.C. § 1983 such a claim must re st upon a denial of

rights secured under federal and not state law.” C astellano v.

Fragozo

, 352 F.3d 939, 942 (5th Cir. 2003) (en banc). Thus, we

order that Haggerty’s 1983 section malicious prosecution claim be

dismissed.

C. Excessive Force Claim Under Section 1983

Williams br iefly argues that he is entitled to o fficial

immunity on a state law excessive force claim. However, the record

does not indicate that Haggerty brought a state law excessive force

claim, and the district court made no ruling on such a claim. 7 The

district court did hold that Haggerty’s s ection 1983 excessive

force claim could proceed; but because Williams has not argued that8 In his statement of the issues, Williams does not list anything with

respect to an excessive force claim, under § 1983 or state law.

10 issue in his brief, 8 it is waived on appeal. S ee United States v.

Mullin , 178 F.3d 334, 340 n.1 (5th Cir. 1999).

III. Official Immunity and Claims Under State Law

As with the section 1983 false arrest/false imprisonment

claim, the r esolution of Haggerty’s remaining state law claims,

false imprisonment and malicious pros ecution, turns on whether a

reasonable officer in Williams’s po sition could have reasonably

believed he had probable cause to order the arrest of Haggerty.

See Villegas v. Griffin Industries, Indus. , 975 S.W.2d 745, 754

(Tex. App.—Corpus Christi 1998, pet. denied) (stating that whether

the imprisonment was without authority of law “depends on whether

the officers had probable cause to effect an arrest”); Richey v.

Brookshire Grocery Co.

, 95 2 S.W.2d 515, 517 (Tex. 1997) (listing

“absence of probable cause for the proceeding” as an element of

malicious prosecution).

“Texas law of official immunity is substantially the same as

federal qualified immunity law.” Wren v. Towe , 130 F.3d 1154, 1160

(5th Cir. 1997). We therefore reverse the denial of summary

judgment based on official immunity from Haggerty’s remaining state

law claims fo r the same reasons that we reverse the denial of

summary judgment on the section 1983 false arrest/false

imprisonment claim.11 Conclusion

For the reasons stated herein, we AFFIRM the denial of summary

judgment with respect to the section 1983 excessive force claim and

REVERSE the denial of summary judgment with respect to the section

1983 false arrest/false imprisonment and the stat e law false

imprisonment and malicious prosecution claims. We also order that

Haggerty’s section 1983 malicious prosecution claim be dismissed.

AFFIRMED in part;

REVERSED in part.DeMOSS, Circuit Judge, dissenting in part:

Insofar as the majority’s opin ion reverses the district

court’s denial of qualified immunity on the § 1983 claims of false

imprisonment or false arrest, I respectfully dissent. On these

particular facts, a Texas statute, section 38.15 of the Penal Code,

provides both the offense for which Officer Williams arrested

Haggerty, T EX

. P EN

. C ODE § 38.15(a) (1), and a defense when the

interfering conduct is merely speech, id. § 38.15(d).

The majority correctly states that Haggerty must, to prevail

on these claims, demonstrate that Williams lacked probable cause to

arrest him under section 38.15. S e e Brown , 243 F.3d at 189. On

this record and because of the peculiar nature of the explicit mere

speech defense found in section 38.15(d), I cannot agree that

Officer Williams had probable cause to arrest Haggerty. A

reasonable officer in Williams’s position would have been familiar

with and trained in the application of section 38.15, which in its

original form in 1989 included the “mere speech” defense. Act

effective Sept. 1, 1989, 71st Leg., R.S., ch. 1162, § 1, 1989 Tex.

Sess. Law Serv. 4780. The law, as to what constituted interference

with a police officer and the existence of the speech only defense,

was in place and well established at the time of Haggerty’s arrest.

Any reasonable police officer would know of and recognize his

obligations to abide by the language of the statutory provision,

including the obl igation to refrain from arresting one whose

objections are expressed merely by speech.13

In Carney v. State

, 31 S.W.3d 392, 397 (Tex. App.--Austin

2000, no pet.), the Texas court of appeals reversed a jury’s

conviction under section 38.15. There, although the defendant

argued with the officers, delayed their entrance into his home, and

lied to them, the Texas court held that the speech only defense of

§ 38.15(d) applied and that “a rati onal trier of fact could not

have found, beyond reasonable doubt, the essential element of

interference.” Id. at 398.

In resolving that Williams is entitled to qualified immunity,

the majority relies upon factors other than Haggerty’s own conduct

(e.g., an out-of-control victim occupying Williams’s attention, a

nearby group of students and teachers, some allegedly involved in

an attack, and a crowd). This resolution is in tension with the

treatment of section 38.15 in Carney

, where the Texas court did not

look to surrounding factors, but instead limited its review to

whether the defendant’s conduct alone included more t han speech.

Although Carney was decided after the incident leading to this

appeal, the opinion suggests that Texas limits its analysis of the

applicability of the mere s peech defense to the individual’s

conduct alone. The only fact offered by Williams in support of the

arrest in the criminal information was the allegation that Haggerty

grabbed Williams. Because of this limited language, in combination

with the evidence adduced by Haggerty, the primary fact question is

whether Haggerty grabbed or attempted to grab Officer Williams.14

The majority de termines that this factual dispute is

immaterial to the legal question of qualified immunity in this

case. I disagree, based upon the record and my view that Texas’s

statute requires consideration of whether the mere speech defense

applied. The question must be resolved in the light most favorable

to Haggerty. S ee Price

, 256 F.3d at 369. Therefore, we must

assume that Haggerty never touched nor attempted to tou ch the

officer and his only interfering conduct was speech. Based upon

this view of th e record and Texas’s treatment of the mere speech

defense in Carney

, I cannot say that any reasonable officer would

find probable cause to arrest Haggerty under section 38.15.

For these reasons, I would affirm the district court’s denial

of summary judgment on the § 1983 false arrest or false

imprisonment claims and permit Haggerty to develop facts further,

even if Officer Williams were ultimately entitled to qualified

immunity on a more developed showing. In all other aspects of the

majority’s opinion, I concur.