1 IN THE UNITED STATES COURT OF APPEALS

2 FOR THE FIFTH CIRCUIT

3 _______________

4

5 No. 97-10231

6 _______________

7

8 KATHLYN SORENSON,

9 Plaintiff-Appellant,

10 VERSUS

11 STEVE FERRIE and JAMES M. WALLING,

12 Defendants-Appellees.

13 _________________________

14

15 Appeals from the United States District Court

16 for the Northern District of Texas

17 _________________________

18 February 11, 1998

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

20 JERRY E. SMITH, Circuit Judge:

21 Kathlyn Sorenson sued police officers Steve Ferrie and James

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

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

24 summary judgment for the officers on the basis of qualified

25 immunity. We affirm.

26 I.

27 A.

28 Ferrie stopped Sorenson as she drove away from a darkened

29 stable in Rowlett, Texas, around 3:00 a.m. on May 13, 1995.
 

1 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 TEX. PENAL CODE ANN. § 46.02(b)(5).

2

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

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

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

33 way to work as a security guard.

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

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

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

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

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

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

40 a pistol in the trunk of one's car. She also produced photo

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

42 Sergeant James Walling soon arrived on the scene. The

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

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

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

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

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

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

49 handguns in automobile trunks. Walling disputed Mr. Sorenson's

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

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

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

53 to another gun inside a purse in the spare-tire compartment of the
3

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

55 criminal charges.

56 B.

57 Sorenson was charged with unlawfully carrying a weapon in

58 violation of TEX. PENAL CODE ANN. § 46.02(a), which provides that “[a]

59 person commits an offense if he intentionally, knowingly, or

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

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

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

63 a prima facie case.”

64 II.

65 In seeking summary judgment, the officers argued that

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

67 statute was reasonable. They introduced affidavits stating that

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

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

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

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

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

73 the district court, concluded that the legality of carrying a

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

75 at the time of the incident.
 

2 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 the guilty will be

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

acquittedSSindeed, for every suspect released.” Id. at 145. Instead, “Police

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

(continued...)

4

76 III.

77 Government officials performing discretionary functions are

78 protected from civil liability under the doctrine of qualified

79 immunity if their conduct violates no “clearly established

80 statutory or constitutional rights of which a reasonable person

81 would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

82 Claims of qualified immunity are reviewed under a two-step

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

84 the violation of a clearly established constitutional right. If

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

86 objectively reasonable. Coleman v. Houston Indep. Sch. Dist., 113

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

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

89 IV.

90 Sorenson charges that the officers violated her right to be

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

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

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

probable cause. Baker 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, Anderson, 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

95 Thus, if Sorenson cannot show that the officers lacked probable

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

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

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

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

100 suspect] had already committed or was committing a crime.” Eugene,

65 F.3d at 1305.4 101 Thus, the central question in our qualified

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

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

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

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

635, 641 (1987).5 106

107 Sorenson cannot satisfy Siegert's first prongSSthe need

108 to allege the violation of a clearly established constitutional

109 rightSSmerely by asserting that the right not to be arrested

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

111 show that the legality of her conduct was clearly established.
 

6 We do not mean to suggest that all conduct is presumptively illegal

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

walking down a public street need not identify a statute 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

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

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

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

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

116 to be lawful.” Anderson, 483 U.S. at 641. Particularly in

117 situations whereSSas hereSSthe statutory language is vague, the

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

119 classified as “clearly established.” See Kelly v. Curtis, 21 F.3d

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

121 V.

122 A.

123 The law at issue here is TEX. PENAL CODE ANN. § 46.02(a), which,

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

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

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

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

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

129 the state law in that regard was not clearly established.

130 Accordingly, Sorenson fails under Siegert's first prong, because

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

132 her. The Fourth Amendment's protections are triggered only in the
 

7 Sorenson directs us to a 1988 civil forfeiture case, $2067 in U.S.

Currency v. State, 745 S.W.2d 109, 112 (Tex. App.SSFort 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 nothing 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 purse to see if it contained another weapon.” The court's

language, concerning a peripheral issue in a civil forfeiture case, is dictum

that hardly constitutes clearly established law.

7

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

134 a constitutional right.

135 B.

136 There is a dearth of reported cases directly addressing the

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

138 Nonetheless, Texas courts have set down general principles

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

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

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

142 articulated in Wagner v. State, 188 S.W. 1001, 1002 (Tex. Crim.

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

144 holding:

145 The Legislature must have meant something when it used

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

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

148 into consideration the context and subject-matter

149 relative to which it is employed, the word, not being

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

151 within the pistol statute, near by, close at hand,

152 convenient of access, and within such distance of the

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

154 materially changing his position, get his hand on

155 it. . . .

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

157 have applied it to a variety of factual settings. In Boles v.
 

8 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 handgun in

glove compartment violates statute).

 

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

wagons, not motor vehicles. See Thompson v. State, 86 S.W. 1033 (Tex. Crim. App.

1905); Hardy v. State, 40 S.W. 299 (Tex. Crim. App. 1897); George v. State,

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

8

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

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

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

161 to violate the statute in Franklin v. State, 183 S.W.2d 573, 573-74

162 (Tex. Crim. App. 1944). And in Spears v. State, 17 S.W.2d 809, 810

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

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

the driver's person.8 165 

166 Our review of the caselaw construing § 46.02 reveals that,

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

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

from the turn of the century,9 169 the majority of courts have

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

171 inside the passenger compartment of a carSSeven though, in many

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

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

174 Sorenson correctly notes that no court has applied the statute

175 specifically to guns carried in the trunk. In Contreras v. State,

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

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

178 another predecessor of § 46.02) “clearly reflected the
 

10 “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.” Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992).

9

179 legislature's view that carrying on or about the person included

180 weapons present on or within one's personal means of

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

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

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

184 language only underscores the uncertainty in the law regarding guns

185 in trunks. 

186 C.

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

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

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

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

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

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

193 to prove the reverse in order to win qualified immunitySSthat is,

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

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

time of arrest.10 196

197 Were officers to bear the burden of proving clearly

198 established law, the first officer to make an arrest under a newly199 passed statute could be subjected to personal liability if the

200 prosecutor chose not to press charges. Similarly, the first

201 officer to conclude that an existing statute applies to a new form
 

11 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 his case.

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

Pierce v. Smith, 117 F.3d 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. See 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 explicitly 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.”).

 

12 We hold only that, for purposes of qualified 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

202 of criminal conduct would risk personal liability by making the

203 arrest. “The qualified immunity doctrine recognizes that officials

204 can act without fear of harassing litigation only if they

205 reasonably can anticipate when their conduct may give rise to

206 liability for damages.” Davis v. Scherer, 468 U.S. 183, 195

(1984).11 207

208 As we noted in Pierce v. Smith, 117 F.3d 866 (5th Cir. 1997),

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

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

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

212 reasonable government agent that what defendant is doing violates

213 federal law in the circumstances.” Id. at 882 (quoting Lassiter v.

214 Alabama A & M Univ., 28 F.3d 1146, 1150 (11th Cir. 1994)

(en banc)). Given the ambiguity of the statute12 215 and the

216 surrounding caselaw, the officers violated no clearly established

217 right, and, accordingly, they are entitled to qualified immunity.
11

218 AFFIRMED.

219 ENDRECORD 
220 DeMOSS, Circuit Judge, specially concurring.

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

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

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

224 all, Officers Ferrie and Walling should know precisely what

225 evidence is required by the prosecuting attorney for their

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

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

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

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

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

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

232 the factual information and circumstances presented by this

233 incident and then discussed the facts involved with the prosecuting

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

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

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

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

238 my mind any exigent circumstances necessitating an arrest on the

239 spot. 

240 On the other hand, Sorenson really did not suffer any

241 significant injury or damage as a result of this unnecessary

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

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

244 puts her claim in a class which does not warrant consideration by
13

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

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

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

248 all such cases.