IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11103

AVI S. ADELMAN, 

 Plaintiff - Appellee

v.

STEPHANIE BRANCH, Dallas Area Rapid Transit Police Officer, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:16-CV-2579

Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.

PER CURIAM:*

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

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

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

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

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

of jurisdiction.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 20, 2019

Lyle W. Cayce

Clerk

 Case: 18-11103 Document: 00515126056 Page: 1 Date Filed: 09/20/2019
No. 18-11103

2

I. Background

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

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

Appellee Avi Adelman is a freelance journalist who publishes a neighborhood 

blog and provides photographs to media outlets.

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

from using DART facilities or property for unauthorized non-transportation 

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

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

did not interfere with transportation or public safety activity. The 

Photography Policy provided:

Persons may take photographic or video images, including but not 

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

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

other vehicles for their personal use. Persons taking photographic 

or video images must not interfere with transportation or public 

safety activity while taking images. DART Police Officers may 

initiate an inquiry or investigation when photography or 

videotaping activity is suspicious in nature or inconsistent with 

this policy.

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

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

events leading to this suit.

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

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

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

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

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

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

taking photographs shortly thereafter. She then positioned herself between 

 Case: 18-11103 Document: 00515126056 Page: 2 Date Filed: 09/20/2019
No. 18-11103

3

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

taking photographs.

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

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

Branch approached Adelman and demanded that he stop taking photographs. 

Branch states that she approached Adelman because he appeared suspicious 

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

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

Branch demanded his identification. She again demanded that Adelman 

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

Branch then told Adelman multiple times that he could not take 

photographs. Branch first told Adelman he was prohibited from 

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

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

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

asked for his identification four times. Adelman repeatedly refused.

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

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

DFR paramedics observed the confrontation, a DART recording device 

captured the following exchange:

DFR 1 – He was just taking pictures right?

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

him a hard time[.]

DFR-1 – Why is she going crazy?

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

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

involved in that. . . .

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

. . . 

 

1 Branch now concedes that the Plaza is public property.

 Case: 18-11103 Document: 00515126056 Page: 3 Date Filed: 09/20/2019
No. 18-11103

4

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

that[.]

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

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

Nevertheless, less than five minutes after first approaching him and 

demanding that he stop taking photographs, Branch informed Adelman that 

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

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

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

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

him from the Plaza and certain other DART transit locations.

DART dropped the criminal trespass charge against Adelman shortly 

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

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

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

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

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

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

contained the following conclusions:

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

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

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

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

probable cause.”

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

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

never viewed less than approximately 10 feet from the actual medical 

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

Adelman ever interfere with medical treatment or medical personnel.”

 Case: 18-11103 Document: 00515126056 Page: 4 Date Filed: 09/20/2019
No. 18-11103

5

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

Administrative Employment Manual and did not refrain from activity 

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

various inconsistent or mistaken statements on her DART Police 

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

trespass.”

The report also indicated that Branch made numerous false statements 

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

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

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

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

the investigation.

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

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

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

First and Fourth Amendments. He sought punitive damages based on 

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

to his rights.

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

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

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

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

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

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

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

followed.

 Case: 18-11103 Document: 00515126056 Page: 5 Date Filed: 09/20/2019
No. 18-11103

6

II. Jurisdiction and Standard of Review

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

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

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

qualified immunity grounds, that party may immediately appeal the district 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(5th Cir. 2001).

 Case: 18-11103 Document: 00515126056 Page: 6 Date Filed: 09/20/2019
No. 18-11103

7

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

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

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

III. Discussion

A. Branch’s Qualified Immunity Appeal

“The doctrine of qualified immunity protects government officials from 

civil damages liability when their actions could reasonably have been believed 

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

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

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

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

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

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

Adelman asserts that Branch violated his constitutional rights by 

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

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

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

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

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

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

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

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

actual probable cause for the arrest and the officers were objectively 

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

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

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

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

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

 Case: 18-11103 Document: 00515126056 Page: 7 Date Filed: 09/20/2019
No. 18-11103

8

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

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

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

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

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

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

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

Branch asserts that she arrested Adelman because she believed he had 

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

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

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

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

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

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

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

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

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

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

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

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

no pet.)). 

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

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

 

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

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

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

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

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

 Case: 18-11103 Document: 00515126056 Page: 8 Date Filed: 09/20/2019
No. 18-11103

9

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

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

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

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

DART investigation determined that Branch’s claims that Adelman was 

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

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

paramedics during the confrontation shows that even Branch’s colleagues 

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

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

with the Photography Policy.3

 

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

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

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

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

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

of the property than does the accused.”).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Case: 18-11103 Document: 00515126056 Page: 9 Date Filed: 09/20/2019
No. 18-11103

10

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

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

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

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

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

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

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

establishes that the absence of exclusion authority negates a criminal trespass 

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

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

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

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

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

Adelman, no reasonable officer under these circumstances would conclude that 

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

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

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

immunity grounds.

B. Branch’s Punitive Damages Appeal

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

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

portion of Branch’s appeal.

The Supreme Court has enumerated three requirements for appeal 

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

 

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

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

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

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

 Case: 18-11103 Document: 00515126056 Page: 10 Date Filed: 09/20/2019
No. 18-11103

11

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

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

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

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

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

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

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

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

(citation omitted).

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

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

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

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

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

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

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

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

district court issues a final judgment assessing punitive damages against 

Branch, we may review an appeal of that judgment, meaning that the 

opportunity for review is not “irretrievably lost if it is not reviewed in this 

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

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

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

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

 

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

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

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

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

 Case: 18-11103 Document: 00515126056 Page: 11 Date Filed: 09/20/2019
No. 18-11103

12

IV. Conclusion

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

summary judgment on qualified immunity grounds and REMAND for further 

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

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

Adelman’s punitive damages claim.

 

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

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

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

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

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

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

are not within the collateral order exception).

 Case: 18-11103 Document: 00515126056 Page: 12 Date Filed: 09/20/2019