IN THE UNITED STATES COURT OF APPEALS 1

FOR THE FIFTH CIRCUIT 2

_______________ 3

4

No. 97-10231 5

_______________ 6

7

KATHLYN SORENSON, 8

Plaintiff-Appellant, 9

VERSUS 10

STEVE FERRIE and JAMES M. WALLING, 11

Defendants-Appellees. 12

_________________________ 13

14

Appeals from the United States District Court 15

for the Northern District of Texas 16

_________________________ 17

February 11, 1998 18

Before WISDOM, SMITH, and DeMOSS, Circuit Judges. 19

JERRY E. SMITH, Circuit Judge: 20

Kathlyn Sorenson sued police officers Steve Ferrie and James 21

Walling under 42 U.S.C. § 1983 after they arrested her for carrying 22

a handgun in the trunk of her car. The district court granted 23

summary judgment for the officers on the basis of qualified 24

immunity. We affirm. 25

I. 26

A. 27

Ferrie stopped Sorenson as she drove away from a darkened 28

stable in Rowlett, Texas, around 3:00 a.m. on May 13, 1995. 291 Although Texas law allows a licensed security guard to carry a handgun,

this exception applies only when he is wearing a distinctive uniform and the gun is in plain view. See T EX

. P ENAL C ODE A NN . § 46.02(b)(5).

2 Thinking the stable was closed at this wee hour and aware of recent 30

vandalism at nearby stables, Ferrie asked Sorenson to explain her 31

business. She said she had been feeding her horses and was on her 32

way to work as a security guard. 33

Sorenson then volunteered to open her trunk to show Ferrie her 34

horse equipment. She pointed to an empty feed bucket, but the 35

officer focused on another object in the trunk: Sorenson's pistol, 36

nestled in a holster attached to a belt. Ferrie asked Sorenson why 37

she carried a pistol in her trunk; she replied that she needed it 38

for her job, adding that in Texas, it is not unlawful to transport 39

a pistol in t he trunk of one's car. She also produced photo 40

identification indicating that she was a licensed security guard. 1 41

Sergeant James Walling soon arrived on the scene. The 42

officers conferred, then attempted to confirm Sorenson's story by 43

calling the Dallas nightclub where she said she was headed to pick 44

up the evening's receipts. No one answered, so Ferrie directed 45

Sorenson to call her supervisor. Instead, Sorenson called her 46

husband, who told Walling that he, Mr. Sorenson, was a certified 47

firearms instructor and that it was legal for Texans to carry 48

handguns in a utomobile trunks. Walling disputed Mr. Sorenson's 49

reading of the Texas Penal Code, and the call ended. 50

Ferrie and Walling decided to arrest Sorenson. They asked her 51

whether she was carrying any more firearms, and she directed them 52

to another gun inside a purse in the spare-tire compartment of the 533

trunk. The officers brought Sorenson to the station and filed 54

criminal charges. 55

B. 56

Sorenso n was charged with unlawfully carrying a weapon in 57

violation of T EX

. P ENAL C ODE A NN

. § 46.02(a), which provides that “[a] 58

person commits an offense if he i ntentionally, knowingly, or 59

recklessly carries on or about his person a handgun, illegal knife, 60

or club.” Several months later, the Dallas County prosecutor 61

dismissed the charge, conceding that “the state is unable to make 62

a prima facie case.” 63

II. 64

In seeking summary judgment, the officers argued that 65

§ 46.02(a) is ambiguous and that their interpretation of the 66

statute was reasonabl e. They introduced affidavits stating that 67

(1) officers were taught during training that carrying a handgun in 68

the trunk may be unlawful; (2) Ferrie had participated in the 69

arrest of another suspect for carrying a handgun in the trunk; and 70

(3) the officers knew of prosecutions in Dallas County for carrying 71

handguns in the trunk. The magistrate judge's report, adopted by 72

the district court, concluded that the legality o f carrying a 73

handgun in one's trunk was not clearly established under Texas law 74

at the time of the incident. 752 See Eugene v. Alief Indep. Sch. Dist.

, 65 F.3d 1299, 1305 (5th Cir. 1995)

(acknowledging the “right under the Fourth and Fourteenth Amendments to be free from

. . . false arrest”); Duckett v. City of Cedar Park

, 950 F.2d 272, 278 (5th Cir.

1992) (“An individual has a federally protected right to be free from unlawful

arrest and detention resulting in a significant restraint of liberty and violation

of this right may be grounds for suit under 42 U.S.C. § 1983.”).

3 “The Constitution does not guarantee that only t he guilty will be

arrested. If it did, § 1983 would provide a cause of action for every defendant

acquitted SS indeed, for every suspect released.” I d. at 145. Instead, “Police

officers are . . . required under the Fourth Amendment to make a determination

(continued...)

4 III. 76

Government officials performing discretionary functions are 77

protected from civil liabil ity under the doctrine of qualified 78

immunity if their conduct violates no “clearly established 79

statutory or constitution al rights of which a reasonable person 80

would have known.” H arlow v. Fitzgerald

, 457 U.S. 800, 818 (1982). 81

Claims of quali fied immunity are reviewed under a two-step 82

analysis. The first question is whether the plaintiff has asserted 83

the violation of a clearl y established constitutional right. If 84

so, the court decides whether the defendants' conduct was 85

objectively reasonable. C oleman v. Houston Indep. Sch. Dist.

, 113 86

F.3d 528, 533 (5th Cir. 1997) (applying the two-pronged test of 87

Siegert v. Gilley , 500 U.S. 226, 231-32 (1991)). 88

IV. 89

Sorenson charges that the officers violated her right to be 90

free from illegal arrest, as secured by the Fourth and Fourteenth 91

Amendments. This is a clearly established constitutional right. 2 92

Whether an arrest is illegal, however, hinges on the absence of 93

p robable cause. B aker v. McCollan

, 443 U.S. 137, 144-45 (1979)

. 3 94(...continued)

of probable cause before any significant pretrial restraint of liberty.”

Duckett , 950 F.2d at 278.

4 See also Babb v. Dorman

, 33 F.3d 472, 477 (5th Cir. 1994) (“[W]e must look

to whether [the plaintiff] has alleged sufficient facts from which it can be

discerned that no reasonable officer could have believed that probable cause existed

to arrest him . . . .” (Citation omitted.)).

5 Although the officers' subjective intent is irrelevant to our qualified

immunity analysis, A nderson

, 483 U.S. at 631, we note the evidence supporting

Sorenson's claim that Ferrie and Walling acted with improper motives in arresting

her. Sorenson's husband stated that the officers told him they were arresting

his wife “to prove a point” and that he needed a “new” copy of the Texas Penal

Code. At oral argument, the officers' counsel conceded his familiarity with the

saying, “You can beat the rap, but you can't beat the ride,” but insisted that

Sorenson's night in jail was not the result of a personal grudge.

5 Thu s, if Sorenson cannot show that the officers lacked probable 95

cause, she has failed to state the violation of a constitutional 96

right, and the officers are entitled to qualified immunity. 97

Probable cause depends on whether the officers “ possess[ed] 98

knowledge that would warrant a prudent person's belief that [the 99

suspect] had already committed or was committing a crime.” E ugene

, 100

65 F.3d at 1305. 4 Thus, the central question in our qualified 101

immunity inquiry is “the objective (albeit fact-specific) question 102

whether a reasonable officer could have believed [the arrest] to be 103

lawful, in light of clearly established law and the information the 104

[arresting] officers possessed.” Anderson v. Creighton , 483 U.S. 105

635, 641 (1987). 5 106

Sorenson cannot satisfy Siegert 's first prong SS the need 107

to allege the violation of a clearly establ ished constitutional 108

right SS

merely by asserting that the right not to be arrested 109

without probable cause is clearly established. Instead, she must 110

show that the legality of her conduct was clearly established. 1116 We do not mean to suggest that all con duct is presumptively illegal

unless proven otherwise. For example, a plaintiff arrested for innocently

walking down a public street need not identify a statu te or case in order to

validate his conduct. What distinguishes this case is that Sorenson's conduct

arguably falls within the statutory language and the surrounding caselaw. That

is why we require her to demonstrate the legality of her conduct to establish the

absence of probable cause.

6 That is to say, she must demonstrate that, at the time of her 112

arrest, it was clearly established in Texas that one may lawfully 113

possess a handgun in one's trunk. If the law was not clearly 114

established, “a reasonable officer could have believed the arrest 115

to be lawful.” A nderson

, 483 U.S. at 641. Particularly in 116

situations where SS as here SS the statutory language is vague, the 117

caselaw must dr aw a bright line in order for the law to be 118

classified as “clearly established.” S ee Kelly v. Curtis

, 21 F.3d 119

1544, 1554 (11th Cir. 1994). 6 120

V. 121

A. 122

The law at issue here is T EX

. P ENAL C ODE A NN

. § 46.02(a), which, 123

subject to listed exceptions in § 46.02(b), (c), and (d), punishes 124

anyone who “carries on or a bout his person a handgun.” The 125

relevant question is whether, at the time of Sorenson's arrest, the 126

courts' interpretation of § 46.02 had clearly established the law 127

as applied to guns carried in the trunk of a car. We conclude that 128

the state law in that regard was not cl early established. 129

Accordingly, Sorenson fails under Sie gert ' s first prong, because 130

she has not shown that the officers lacked probable cause to arrest 131

her. The Fourth Amendment's protections are triggered only in the 1327 Sorenson directs us to a 1988 civil forfeiture case, $2067 in U.S.

Currency v. State

, 745 S.W.2d 109, 112 (Tex . App. SS Fort Worth 1988, no writ).

In discussing an officer's seizure of a purse from the trunk of a car, the court

noted, “[u]pon opening the vehicle's trunk the officer observed a handgun.

Although we can find noth ing illegal per se about carrying a handgun in a

vehicle's trunk, once the officer saw the gun in the trunk he was justified in

taking appellant's pur s e to see if it contained another weapon.” The court's

language, concerning a peripheral issue in a civil forfeiture ca se, is d ictum

that hardly constitutes clearly established law.

7 absence of probable cause; the officers therefore did not violate 133

a constitutional right. 134

B. 135

There is a dearth of reported cases directly addressing the 136

legality, under Texas law, o f carrying a handgun in one's trunk. 7 137

Nonetheless, Texas courts have set down general principles 138

governing when a handgun is carried “on or about” one's person. 139

The general rule in Texas is that “on or about” the person 140

means “c lose at hand” or “within reach.” This rule was first 141

articulated in Wagner v. State

, 188 S.W. 1001, 1002 (Tex. Crim. 142

App. 1916), in which the court construed a predecessor to § 46.02, 143

holding: 144

The Legislature must have meant something w hen it used 145

t he words, “or about the person,” and, on principle, 146

using the word “about” in its ordinary meaning, taking 147

into consideration the context and subject-matter 148

rela tive to which it is employed, the word, not being 149

specially defined, must, as we believe, be held to mean, 150

within the pistol statute, near b y, close at hand, 151

convenient of access, and within such distance o f the 152

party so having it as that such party could, without 153

materially changing his position, get his hand on 154

it. . . . 155

Over the years, Texas courts have echoed this formulation and 156

have applied it to a variety of factual settings. In B oles v. 1578 See also Flores v. State

, 895 S.W.2d 435, 446 (Tex. App. 1995) (holding

that handgun in unlocked console by driver's seat violates statute); Courtney v.

State

, 424 S.W.2d 440, 441 (Tex. Crim. App. 1968) (concluding that ha n dgun in

glove compartment violates statute).

9 The most recent of these cases was decided in 1905; all three involved

wagons, not motor vehicles. S ee Thompson v. State

, 86 S.W. 1033 (Tex. Crim. App.

1905); H ardy v. State

, 40 S.W. 299 (Tex. Crim. App. 1897); George v. State

, 29 S.W. 386 (Tex. Crim. App. 1895).

8 State , 416 S.W.2d 431, 433 (Tex. Crim. App. 1967), the court held 158

that a knife under the car's floorboard was carried “on or about 159

the person.” Similarly, a pistol in the glove compartment was held 160

to violate the statute in Franklin v. State

, 183 S.W.2d 573, 573-74 161

(Tex. Crim. App. 1944). And in S pears v. State

, 17 S.W.2d 809, 810 162

(Tex. Crim. App. 1929), the court concluded that a pistol stored in 163

the side pocket of the passenger-side door was carried on or about 164

the driver's person. 8 165

Our review of the caselaw construing § 46 .02 reveals that, 166

over time, most areas of a car's interior have been swept within 167

the statute's ambit. With the exception of a handful of decisions 168

from the turn of the century, 9 the majority of cour ts have 169

concluded that the statute is violated whenever a gun is found 170

inside the passenger compartment of a car SS even though, in many 171

such instances, a person would “materially chang[e] his position,” 172

Wagner , 188 S.W. at 1002, in order to reach the gun. 173

Sorenson correctly notes that no court has applied the statute 174

specifically to guns carried in the trunk. In C ontreras v. State

, 175

853 S.W.2d 694 (Tex. App. SS Houston [1st Dist.] 1993), however, the 176

court remarked that the wording of the statute (in this case, 177

another predecessor of § 46.02) “clearly reflected the 1781 0 “The Fifth Circuit does not require that an official demonstrate that

he did not violate clearly established federal rights; our precedent places that

burden upon plaintiffs.” S alas v. Carpenter

, 980 F.2d 299, 306 (5th Cir. 1992).

9 legislature's view that carrying on or about the person i ncluded 179

weapo ns present o n or within one's personal means of 180

t ransportation .” I d

. at 696 (emphasis added). It is not an 181

unreasonable reading of Contreras to conclude that a handgun in the 182

trunk is “within the driver's means of transportation.” This 183

language only underscores the uncertainty in the law regarding guns 184

in trunks. 185

C. 186

The absence of a specific holding on the issue does not 187

preclude qualified immunity. That is because Sorenson, as the 188

plain tiff in a false arrest suit arising under § 1983, bears the 189

burden of proving that the officers lacked probable cause, which in 190

this case means she must show that the legality of her conduct was 191

clearly established. The officers, in contrast, are not required 192

to prove the reverse in order to win qualified immuni ty S S that is, 193

the officers do not bear the burden of demonstrating that the 194

illegality of the suspect's conduct was clearly established at the 195

time of arrest. 10 196

Were officers to bear the burden o f proving clearly 197

established law, the first officer to make an arrest under a newly198

passed statute could be subjected to personal liability if the 199

prosecutor ch ose not to press charges. Similarly, the first 200

officer to conclude that an existing statute applies to a new form 2011 1 We do not suggest, of course, that an officer is automatically entitled

to qualified immunity just because no court has specifically held the plaintiff's

conduct legal. “[I]n order to preclude qualified immunity it is not necessary

that the very action in question has previously been held unlawful, or that the

plaintiff point to a previous case that differs only trivially from h i s case.

However, the facts of the previous case do need to be ma terially similar.”

Pierce v. Smith

, 117 F.3 d 866, 882 (5th Cir. 1997) (internal citations and

quotation marks omitted). The Supreme Court has said as much in construing

liability for a warrantless search. S ee Mitchell v. Forsyth

, 472 U.S. 511, 535

n. 12 (“We do not intend to suggest that an official is always immune from

liability or suit for a warrantless search merely because the warrant requirement

has never ex plicitly been held to apply to a search conducted in identical

circumstances. But in cases where there is a legitimate question whether an

exception to the warrant requirement exists, it cannot be said that a warrantless

search violates clearly established law.”).

1 2 We hold only that, for purposes of quali fied immunity in this civil

case, the law was not clearly established on this question as of the date of this

incident. We do not mean to express a view as to whether § 46.02 does or does

not prohibit the possession of a weapon in one's trunk. That is for the state

courts to decide. Nor do we opine on whether the statute is so vague as to

trigger the rule of lenity or any other similar defense.

10 of criminal conduct would risk personal liability by making the 202

arrest. “The qualified immunity doctrine recognizes that officials 203

can act without fear of harassing l itigation only if they 204

reasonably can ant icipate when their conduct may give rise to 205

liability for damages.” D avis v. Scherer

, 468 U.S. 183, 195 206

(1984). 11 207

As we noted in Pierce v. Smith

, 117 F.3d 866 (5th Cir. 1997), 208

“[f]or qualified immunity to be surrendered, pre-existing law must 209

dictate, that is, truly compel (not just suggest or allow or raise 210

a question about), the conclusion for every like-situated, 211

reasonable government agent that what defendant is doing violates 212

federal law in the circumstances .” I d

. at 882 (quoting Lassiter v. 213

Alabama A & M Univ.

, 28 F.3d 1146, 1150 ( 11th Cir. 1994) 214

(en banc)). Given the ambiguity of the statute 1 2 an d the 215

surrounding caselaw, the officers violated no clearly established 216

right, and, accordingly, they are entitled to qualified immunity. 21711

AFFIRMED. 218

ENDRECORD 219DeMOSS, Circuit Judge, specially concurring. 220

I concur in the result but not the reasoning of this opinion. 221

In my view, this case inv olves an arrest that should never have 222

been made and a suit that should never have been filed. First of 223

all, Officers Ferrie and Walling should know precisel y what 224

e vidence is required by the prosecuting attorney for thei r 225

jurisdiction in order to accept a borderline case for prosecution. 226

This is a borderline case because there has never been a decision 227

in any Texas court which held that carrying a handgun in the trunk 228

of a car is a violation of Texas Penal Code Ann. § 46.02(a). What 229

Officers Ferrie and Walling could have done (and in my opinion 230

should have done) was to have made detailed notations as to all of 231

the factual information and circumstances presented by this 232

incident and then discussed the facts involved with the prosecuting 233

attorney as to whether he would accept the case for prosecution. 234

If the prosecutor had said yes, they then could have sworn out an 235

arrest warrant based on the facts which they noted down and 236

arrested Ms. Sorenson pursuant to that warrant. There were not in 237

my mind a ny exigent circumstances necessitating an arrest on the 238

spot. 239

On the other hand, Soren son really did not suffer any 240

significant injury or damage as a result of this unne cessary 241

arrest. While her claim is phrased in the language of a 242

constitutional violation, the absence of any real or lasting injury 243

puts her claim in a class which does not warrant consideration by 24413

the federal courts. I sympathize with Sorenson’s feelings of 245

aggravation about this incident, but life is full of aggravations 246

of all sorts and the Constitution cannot possibly provide relief in 247

all such cases. 248