* District Judge of the Eastern District of Louisiana, sitting

by designation.

** Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 1, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-31053

N’YICHI BYERS,

Plaintiff-Appellant,

versus

CITY OF EUNICE; RONALD PAPILLION, individually and in his

official capacity as an employee of Eunice Police Department,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

(6:03-CV-1523-TLM-MEM)

Before BARKSDALE and CLEMENT, Circuit Judge s

, and ENGELHARDT,

District Judge. *

PER CURIAM: **

N’Yichi Byers challenges the summary judgment awarded

Detective Papillion and the City of Eunice, Louisiana. Among other

claims, Byers sued pursuant to 42 U.S.C. § 1983 for violations of

her civil rights, stemming from her arr est for alleged

participation in a felony theft. The district court held, i nter

alia , the Detective entitled to qualified immunity. AFFIRMED

.2 I.

On 12 November 2001, a theft occurred at Leger’s Grocery Store

in Eunice; Byers was the c ashier. Following an initial

investigation by other Officers of the Eunice Police Department,

Detectives Papillion and Kennedy took over the investigation, the

results of which caused them to believe Byers committed the crime.

John Clay, an inmate in the Eunice County Jail, asked to speak with

Detective Papillion in December 2001. He told Detectives Papillion

and Kennedy: while in the store on the day of the theft, he

witnessed Byers take a box from behind the counter and give it, as

well as money from the cash register, to Phillip Hebert in a set-up

burglary. Clay also implicated Lindsey Freeman in the theft.

Detective Pap illion spoke with Freeman, who admitted his

involvement and corroborated Clay’s statement that Byers and Hebert

were also involved.

Relying upon Clay’s and Freeman’s statements, Detective

Papillion sought an arrest warrant for Byers from a city judge, who

determined prob able cause existed and issued the warrant. After

Byers was arrested, another judge found probable cause and set

bail.

At Byers’ trial for felony theft in 2002, Clay recanted his

earlier statement and testified: he had not been in the store on

the day of the theft; he had lied when he implicated Byers; and3

Detective Papillion told him what to say during the December 2001

interview. Byers was found not guilty.

Byers then filed this action in state court against Detective

Papillion, in both his individual and official capacities, and the

City of Eunice, claiming, pursuant to 42 U.S.C. §§ 1983, 1985, and

1988, violations of numerous constitutional rights. Byers also

raised state-tort claims for slan der, false arrest, false

imprisonment, and malicious prosecution.

Following removal to district court, summary judgment was

award ed against Byers; her claims were dismissed with prejudice.

The court held: in his individual capacity, Detective Papillion

was protected by qualified immunity because probable cause

sup ported Byers’ arrest; Byers failed to establish the requisite

constitutional violation for proceeding again st the Detective in

his official capacity, or the City; and Byers’ state-law claims

were precluded because she could show neither malice nor a lack of

probable cause.

II.

Byers has briefed neither (1) her claims against the City and

Detective Papillion, in his official capacity, nor (2) her statelaw claims. They are waived. S ee F ED

. R. A PP P. 28(a); Yohey v.

Collins

, 985 F.2d 222, 225 (5th Cir. 1993) (“[O]nly the issues

presented and argued in the brief are addressed”.). Thus, the only

issue is the summary judgment a warded the Detective in his4

individual capacity; Byers contends it should not be granted based

on qualified immunity.

A summary judgment is reviewed de novo , viewing the facts in

the light most favorable to the non-movant. E .g.

, Freeman v.

C ounty of Bexar

, 210 F.3d 550, 553 (5th Cir.), cert. den ied , 531

U.S. 933 (2000). Such judgment is proper if there exists no

genuine issue of material fact and the movant is entitled to a

judgment as a matter of law. F E D

. R. C IV

. P. 56(c); Celotex Corp.

v. Catrett

, 477 U.S. 317, 322-23 (1986); Freeman

, 210 F.3d at 553.

Qualified immunity “shield[s public officials] from undue

interference with their dutie s and from potentially disabling

threats of liability”. H arlow v. Fitzgerald

, 457 U.S. 800, 806

(1982); see Sanchez v. Swyden

, 139 F.3d 464, 467 (5th Cir.) (noting

“the deterrent effect that civil liabilit y may have on the

willingness of public officials to fully discharg e their

profes sional duties”), c ert. denied

, 525 U.S. 872 (1998).

A ccordingly, a qualified immunity defense should be resolved as

early as possible in the litigation. S ee Brown v. Lyford

, 243 F.3d

185, 191 (5th Cir.) (“Since qualified immunity is immunity not only

from damages but also from suit itself, it is to be determined as

early as possible.”), cert. denied

, 534 U.S. 817 (2001). To

overcome qualified immunity at the summary-judgment stage, Byers

must satisfy a two-prong test.5 A.

First, she must state a claim for the violation of “a ‘clearly

established’ constitutional or statutory right” under current law.

Sanchez

, 139 F.3d at 466 (citi ng H arlow

, 457 U.S. at 818); see

Siegert v. Gilley , 500 U.S. 226, 227 (1991) (requiring plaintiffs

to “state a claim for violation of any rights secur ed to [them]

under the United States Constitution”); see also Saucier v. Katz

,

533 U.S. 194, 201 (2001) (“This must be the initial inquiry.”);

Si egert , 500 U.S. at 231 (stating that, at the summary-judgment

stage, plaintiffs need only “allege the violation of a clearly

established constitutional right”).

Byers appears to claimwrongful or illegal arrest. She

maintains: because the Detective lacked probable cause to procure

a warrant for her arrest, her Fourth Amendment right (through the

Fourteenth Amendment) to be free from unreasona ble seizure was

violated. S ee Thomas v. Kippermann

, 846 F.2d 1009, 1011 (5th Cir.

1988) (“Claims of false arrest

... involve the guarantees of the

fourth and fourteenth amendments when the individual complains of

an arrest, detention, and p rosecution without probable cause.”).

Byers satisfies the first prong.

B.

F or the second prong, Byers must show: (1) the right was

clearly est ablished when the violation occurred; and (2) the

official’s conduct was “objectively unreasona ble in the light of6

that then clearly established law”. Hare v. City of Corinth , 135

F.3d 320, 326 (5th Cir. 1998); see Tarver v. City of Edna

, 410 F.3d

745, 750 (5th Cir. 2005) (“If officers of reason able competence

could disagree as to whether the plaintiff's rights were violated,

the officer's qualified immunity remains inta c t.”); Felton v.

Polles

, 315 F.3d 470, 478 (5th Cir. 2002) (“ For the second prong

... ‘the right ... alleged to have [been] violated must have been

‘clearly established’ in a more particularized, a nd hence more

relevant, sense: The contours of the right must be sufficiently

clear that a reasonable official would understand that what he is

doing violates that right.’”) (quoting Anderson v. Creighton , 483

U.S. 635, 640 (1987)) (alterations to Anderson in original).

1.

For a law to be “clearly established”, for purposes of the

second prong, it “is not enough” that a “broad general proposition”

is well established. S aucier

, 533 U.S. at 201-0 2. Again, the

“contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right”. G oodson v. City of Corpus Christi

, 202 F.3d 730, 736 (5th

Cir. 2000) (quoting Anderson

, 483 U.S. at 640). “The relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier , 533 U.S. at 202.7

Here, “[t]he relevant question

... is the objecti ve (albeit

fact-specific) question whether a reasonable officer could have

believed” probable cause existed to seek an arrest warrant for

Byers, “in [the] light of clearly established law and the

information [the Detective] possessed”. A nderson

, 483 U.S. at 641.

That Byers was not to be arrested without probable cause was

clearly established, ne edless to say, long before the arrest in

2001. B lackwell v. Barton

, 34 F.3d 298, 302-03 (5th Cir. 1994).

Further, it was also clearly established that a police officer

could not manufacture probable cause by usi ng knowingly or

recklessly false statements or omissions. United States v. Cavazos

,

288 F.3d 706, 709-10 (5th Cir.) (requiring the excision of false

information from a probable cause determination) (citing U nited

States v. Alvarez

, 127 F.3d 372, 374 (5th Cir. 1997)), cert.

denied , 537 U.S. 910 (2002).

2.

Thi s “clearly established” law provides the framework from

which t o examine, for summary-judgment purposes, the objective

reasonableness of the Detective’s conduct. Restated, the Detective

is protected by qualified immunity unless a genuine issue of

material fact e xists for whether his actions were “objectively

reasonable”. G oodson

, 202 F.3d at 736. “Only where the warrant

application is so lacking in indicia of probable cause as to render

official belief in its existence unreasonable will the shie ld of8

immunity be lost.” Malley v. Briggs , 475 U.S. 335, 344-45 (1986)

(internal citation omitted).

For this inquiry, we look to a totality of the circumstances

surrounding an officer’s probable-cause determination. M endenhall

v. Riser

, 213 F.3 d 226, 231 (5th Cir. 2000) (citing I llinois v.

Gates

, 462 U.S. 213, 238 (1983)), cert. denied

, 531 U.S. 1071

(2001). The qualified-immunity standard gives officers flexibility

for mistaken judgments “by protecting ‘all but the plainly

incompetent or those who knowingly violate the law’”. Id. at 230

(quoting M

alley

, 475 U.S. at 341). Again, it is an objective

standard. I d. at 231. In other words, as discussed s upra

, “[e]ven

if officers of reasonable competence could disagree”, an officer

would still be entitled to qualified immunity. Freeman , 210 F.3d

at 554; see also Tarver , 410 F.3d at 750.

Along this line, rather than operating with the benefit of

hindsight, we consider the reasonableness vel non of an officer’s

conduct at the time of arrest

. M endenhall

, 213 F.3d at 231.

Accordingly, Clay’s recantation at trial of his statement and

Byers’ being found not guilty have no bearing on our inquiry. I d.

at 237. Again, we examine the information existing when the

Detective sought the arrest warrant.

Nevertheless, Byers challenges the district court’s failure to

consider that recantation. As discussed, it is irrelevant to the

Detective’s probable cause determination at the time of arrest.9

Moreover, Byers challenges th e district court’s excluding the

expert testimony of her law-enforcement-p rocedures expert. That

decision must be shown to be “manifestly erroneous”. H ayter v.

City of Mount Vernon

, 154 F.3d 269, 273-74 (5th Cir. 1998). Byers

fails to do so.

As part of our review, we must consider Byers’ assertion that

a genuine issue of material fact exists for whether the Detective

attempted to set Byers up by providing false information to obtain

an arrest warrant and by providing Clay all information regarding

the theft. S ee Freeman , 210 F.3d at 553. This contention arises

out of Clay’s failure to identify Byers by name when interviewed by

Detective Papillion in December 2001. Although Clay was unable to

do so, he told the Detective he entered Leger’s Grocery and

witnessed the theft. B efore the Detective provided Byers’ name to

Clay, the colloquy proceeded as follows:

[Clay]: And I entered the store. There’s this girl

– I forgot her name.

[Detective] Papillion: Uh.

[Clay]: Uh, this short, heavy shaped girl.

[Detective] Papillion: She works over there at Leger’s?

[Clay]: Yes sir. She’s a cashier over there.

[Detective] Papillion: Would that would uh that female would

that be Niesha Bias [sic].

[Clay]: Yes sir.

[Detective] Papillion: Ok, and she was working that night?

[Clay]: Yes sir.

Byers met this description. Based on this testimony and Freeman’s

corroborating statement, Detective Papillion’s conduct in deeming

Byers a suspect was not objectively unreasonable.10

B yers fails otherwise to address the second prong; nowhere

does she maintain the Detective acted objectively unreasonably in

procuring the arrest warrant. Arguably, her claim is waived on

this basis alone, as discussed supra

.

In any event, when Byers’ arrest was effected, the Detective

and his fellow officers had learned that: Byers was working at the

store when the theft occurred; Clay, a recurrent criminal, claimed

to be an eyewitness and identified a person matching Byers’

physical description as one of the participants, although he did

not know her name; and Freeman implicated both Byers and himself in

the crime. Although no physical evidence tied Byers to the theft,

it was not objectively unreasonable for Detective Papillion to rely

on the results of his investigation. Based on Freeman’s

independent corroboration of Clay’s testimony, “officers of

reasonable competence” would not agree that the Detective’s conduct

was objectively un reason able. S ee Freeman

, 210 F.3d at 554.

In sum, for summary-judgment purposes, Byers fails to satisfy

the second prong of the qualified immunity analysis: the

Detective’s conduct was not objectively unreasonable in the light

of then clearly established law. (Accordingly, we need not decide

whether the state judge’s independent assessment of probable cause

for Byers’ arrest broke the chain of causation for the false-arrest

claim. S ee Murray v. Earle

, 405 F.3d 278, 290-92 (5th Cir.), cert.11

denied

, 2005 WL 3144163 (U.S. 28 Nov. 2005) (No. 05-396); Taylor v.

Gregg , 36 F.3d 453, 456 (5th Cir. 1994).)

III.

For the foregoing reasons, the judgment is

AFFIRMED

.