UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-4679

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MINDY MICHELLE BLACKWELL,

Plaintiff-Appellee,

versus

BENNY BARTON, sued individually

and in his official capacity,

Defendant-Appellant.

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Appeal from the United States District Court for the

Eastern District of Texas

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(September 23, 1994)

Before GARWOOD, DAVIS and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Mindy Michelle Blackwell (Blackwell) sued

defendant-appellant Benny Barton (Barton) asserting constitutional

and state law violations arising from an allegedly illegal arrest

and subsequent detention. Barton appeals the denial of his motion

for summary judgment in which he claimed that he was shielded from

personal liability on the constitutional claims by the defense of

qualified immunity. We reverse the denial of his motion for

summary judgment and remand for further proceedings in accordance

with this opinion.
1 According to Allen's driving record, she is a white female;

born November 2, 1964; 5 feet 3 inches tall; weighing 115 pounds;

with brown hair and brown eyes. Blackwell's driving record shows

that she is a white female; born August 8, 1964; 5 feet 4 inches

tall; weighing 125 pounds; with red hair and green eyes. 

2

Facts and Proceedings Below

On December 3, 1990, Barton, a peace officer investigating

"hot checks" for the Nacogdoches County, Texas, District Attorney's

Office, sought to arrest a Melinda K. Allen (Allen) on an

outstanding warrant. Barton knew that Allen worked in health spas

and went by the name "Mindy." He went to the Ultra Fit Health Club

in Nacogdoches, Texas, where, unbeknownst to him, plaintiff

Blackwell taught aerobics. Barton asked a receptionist if he could

speak to "Mindy." The receptionist replied that "Mindy" was

teaching a class but would be out soon. Barton waited. 

After she finished working, Blackwell approached Barton and

identified herself as "Mindy." According to Barton, her appearance

was substantially similar to the physical description of Allen that

he had received from his dispatcher.1 Barton requested that she

accompany him, which she did. Outside the spa, he informed her

that she had $1,000 in outstanding checks. Blackwell protested.

According to her, she told Barton, "I had not signed any hot

checks." She gave him her driver's license, which he put in his

pocket, apparently without looking at it. Barton asked her to

follow him in her car to the county law enforcement center. She

did so.

When Barton and Blackwell arrived at the law enforcement

center, two jailers greeted them who knew Blackwell. The name
2 Blackwell's state law claims are not at issue in this

appeal.

3

Melinda Allen was mentioned, and Blackwell then informed Barton

that her name was not Melinda. When he had confirmed this

information, he escorted Blackwell to her car. While Barton does

not contend that he did not arrest or detain Blackwell, he asserts

without contradiction that she was never handcuffed, fingerprinted, photographed, booked, or placed in a holding cell. Barton

estimated, and Blackwell does not dispute, that twenty-five minutes

elapsed from the time he met Blackwell at the health spa to the

time she was allowed to leave the police station; no more than ten

minutes of that time was spent at the law enforcement center

(Blackwell says she was there "a few minutes").

Blackwell sued Barton, pursuant to 42 U.S.C. § 1983, alleging

that he unlawfully arrested and detained her in violation of the

Fourth and Fourteenth Amendments. In addition, she asserted

pendent state law claims for false imprisonment, intentional

infliction of emotional distress, and negligent infliction of

emotional distress.2 Blackwell sought compensatory damages of

$60,000, as well as punitive damages and attorneys' fees.

Barton filed a motion for summary judgment, supported by his

affidavit describing the events in question, asserting that

Blackwell had failed to state a claim upon which relief could be

granted and that he was shielded from personal liability on the

constitutional claims by the defense of qualified immunity.

Blackwell filed a motion for partial summary judgment limited to

the issue of Barton's liability for arresting her without probable
4

cause. Blackwell's motion was supported by her affidavit, which

does not materially contradict Barton's, and an affidavit of an

individual who said he knew both Blackwell and Allen and that they

do not look alike, having different color hair and eyes and

different skin tone and facial features. Analyzing the motions

under Fourteenth Amendment due process cases, the district court

denied both motions, concluding that the evidence created a

question of fact for the jury. The court reasoned that a

reasonable jury could find either that Barton acted in reckless

disregard of the possibility that he was arresting the wrong person

or that his conduct did not rise to the level of negligence

necessary for personal liability. Finally, the court held that

Blackwell failed to plead facts sufficient to support a section

1983 action against Barton in his official capacity and dismissed

that portion of her complaint. 

Barton timely appeals the denial of his motion for summary

judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291, as

the district court's denial of Barton's motion for summary judgment

based on qualified immunity, to the extent it turns on a question

of law, is deemed a final judgment for purposes of appeal.

Mitchell v. Forsyth, 105 S.Ct. 2806, 2817 (1985); Reese v.

Anderson, 926 F.2d 494, 498 n.3 (5th Cir. 1991).

Discussion

I. Standard of Review

We review the district court's denial of summary judgment for

Barton de novo, applying the same standard as the district court.

Brewer v. Wilkinson, 3 F.3d 816, 819 (5th Cir. 1993). Thus,
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summary judgment for Barton is appropriate only if there is no

genuine issue as to any material fact, and if Barton is entitled to

judgment as a matter of law. FED. R. CIV. P.56(c); Brewer, 3 F.3d

at 819. As Barton asserted his entitlement to qualified immunity

in a properly supported motion for summary judgment, the burden was

on Blackwell to come forward with summary judgment evidence

sufficient to sustain a determination that Barton's actions

violated clearly established federal law. Salas v. Carpenter, 980

F.2d 299, 304, 306 (5th Cir. 1992). We consider the evidence in

the light most favorable to Blackwell, the nonmovant.

 The first inquiry in the examination of a defendant's claim of

qualified immunity is whether the plaintiff alleged the violation

of a clearly established constitutional right. Siegert v. Gilley,

111 S.Ct. 1789, 1793 (1991). The second inquiry is to determine

whether the defendant is entitled to qualified immunity. State

officials are entitled to qualified immunity unless they violate a

constitutional right that was clearly established at the time of

their conduct. Pfannstiel v. Marion, 918 F.2d 1178, 1183 (5th Cir.

1990).

II. Constitutional Violation

The standard in this Circuit for addressing section 1983

claims arising from allegedly unlawful arrests based on mistaken

identity is not readily ascertainable from our prior decisions, for

in similar contexts we have turned to both the Fourth and

Fourteenth Amendments. The Fourth Amendment establishes the right

to be secure against unreasonable seizures and provides that no

warrant shall issue but upon probable cause. Blackwell asserts
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violations of both Amendments in her complaint. 

In addressing the propriety of Barton's actions, the district

court relied on Fourteenth Amendment due process cases, discussing

Daniels v. Williams, 106 S.Ct. 662 (1986), and Herrera v. Millsap,

862 F.2d 1157 (5th Cir. 1989). In Daniels, faced with a claim by

an inmate in a city jail who slipped on a pillow negligently left

on a stairway by a prison deputy, the Supreme Court concluded "that

the Due Process Clause is simply not implicated by a negligent act

of an official causing unintended loss of or injury to life,

liberty, or property." 106 S.Ct. at 663 (original emphasis). 

In Herrera v. Millsap, this Court applied the holding of

Daniels to a case of mistaken arrest. 862 F.2d at 1160. A police

officer investigating a theft was told that "Gerald Herrera" was

the perpetrator of the crime. In police records and in the case

submitted to a grand jury, however, the name of the perpetrator was

mistakenly given as that of "Gerardo Herrera," the plaintiff. The

grand jury indicted Gerardo Herrera, and an arrest warrant issued

under that name. Gerardo Herrera was arrested pursuant to the

warrant and incarcerated several days before the mistake was

discovered. In considering Gerardo Herrera's claim for false

arrest and incarceration, this Court concluded that the evidence

showed, at most, negligence, and we affirmed summary judgment for

the defendants. Id. The Herrera Court did not apply Fourth

Amendment analysis; in that case, however, unlike the present

appeal, the wrongdoing was not of the arresting officers but a

result of misinformation given to the grand jury. 

The Fourth Amendment controlled this Court's decision in Brown
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v. Byer, 870 F.2d 975 (5th Cir. 1989), decided approximately three

months after Herrera. In Brown, a deputy constable received arrest

warrants for a "Tamie Brown." The officer decided to write upon

the warrants the name of "Tammy Brown," the plaintiff. The officer

deliberately altered the driver's license number, address,

appearance, and date of birth to match information applicable to

Tammy Brown. The altered warrants were then entered into the

computer system in the area where the plaintiff lived, leading to

her arrest several months later when she was stopped for a traffic

offense. We determined that the jury was justified in finding the

officer who had altered the warrant knew the plaintiff was not the

person named in warrant and affirmed judgment for the plaintiff

against that officer. 870 F.2d at 979.

On the basis of Daniels and Herrera, the district court

determined that the evidence created a fact question for the jury:

whether Barton's conduct constituted mere negligence or whether it

amounted to reckless disregard for Blackwell's rights. The court

mentioned Brown but chose instead to evaluate the evidence under

the Fourteenth Amendment.

We hold that Blackwell's section 1983 claim against Barton for

illegal arrest and detention is properly considered under the

Fourth Amendment, the more specific constitutional right implicated

by her allegations. In Graham v. Connor, 109 S.Ct. 1865 (1989),

the Supreme Court held that all allegations of excessive force

during an arrest, investigatory stop, or other seizure should be

analyzed under the Fourth Amendment's "reasonableness" standard,

rather than under a substantive due process approach: 
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"Because the Fourth Amendment provides an explicit

textual source of constitutional protection against this

sort of physically intrusive governmental conduct, that

Amendment, not the more generalized notion of

`substantive due process,' must be the guide for

analyzing these claims." 109 S.Ct. at 1871.

See also Tennessee v. Garner, 105 S.Ct. 1694 (1985) (analyzing

claim of excessive force to effect arrest solely under Fourth

Amendment notwithstanding complaint's allegations of violations of

Fourth and Fourteenth Amendments); Albright v. Oliver, 114 S.Ct.

807, 811-813 (1994) (plurality opinion). Although the present case

does not involve a claim of excessive force, the reasoning of

Graham is equally applicable to Blackwell's claim for illegal

arrest based on mistaken identity. 

Thus, the district court erred in examining Barton's claim of

qualified immunity under the Fourteenth Amendment and the

negligence analysis of Daniels and Herrera. Nevertheless,

Blackwell has asserted a clearly established constitutional right:

to be free from unreasonable seizure, or not to be arrested absent

probable cause. Our task must be to weigh Barton's qualified

immunity defense in light of this Fourth Amendment right. 

III. Qualified Immunity

Barton is entitled to qualified immunity unless he violated a

constitutional right that was clearly established at the time of

his conduct. Pfannstiel, 918 F.2d at 1183. "If reasonable public

officials could differ on the lawfulness of the defendant's

actions, the defendant is entitled to qualified immunity." Id.

Therefore, even if Barton violated Blackwell's constitutional

rights, he is entitled to qualified immunity if his conduct was
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objectively reasonable. Id. 

Blackwell has asserted that Barton violated her Fourth

Amendment right to be free from an unreasonable seizure by

arresting her without probable cause. The clearly established law

at the time of Barton's conduct provided that an arrest, with or

without a warrant, must be based on probable cause. United States

v. Raborn, 872 F.2d 589, 593 (5th Cir. 1989). Probable cause

exists when the facts available at the time of the arrest would

support a reasonable person's belief that an offense has been, or

is being, committed and that the individual arrested is the guilty

party. Id. Although applying an objective standard, we may

consider Barton's experience and expertise in evaluating the

reasonableness of his conduct. Id. 

The Fourth Amendment is not violated by an arrest based on

probable cause, even if the wrong person is arrested, if the

arresting officer had a reasonable, good faith belief that he was

arresting the correct person. Hill v. California, 91 S.Ct. 1106

(1971). In Hill, police officers had probable cause to arrest

Hill, but did not have an arrest or search warrant. The officers

arrived at Hill's residence where they were confronted by a man who

fit the description of Hill but who identified himself as Miller

and produced identification in that name. The officers, believing

that Miller was Hill, searched the residence; Hill was ultimately

found guilty of robbery based on the fruits of that search. The

Court upheld the search, concluding that the officers had probable

cause to arrest Hill and a reasonable, good faith belief that

Miller was Hill. Therefore the arrest of Miller was valid (even
10

though Miller was not Hill), and the search of the residence

incident to that arrest, under then-current law, was proper. 91

S.Ct. at 1110-1111.

The Court has extended this reasonableness analysis to other

elements of search and seizure law. See, e.g., Illinois v.

Rodriguez, 110 S.Ct. 2793, 2800 (1990), in which the Court held

that the Fourth Amendment is not violated when a warrantless entry

is based on an officer's reasonable, though erroneous, belief that

the person who has consented to the entry has authority to give

that consent. 

Unlike Hill, our case of Brown v. Byer involved an intentional

and knowing alteration of an arrest warrant to match the

information pertaining to the plaintiff. We expressly

distinguished from that situation, however, circumstances in which

an officer arrested another person by an honest mistake:

"The existence of a facially valid warrant for the arrest

of one person does not authorize a police officer to

effect the arrest of another person, even if the officer

believes the second person guilty of the first person's

crimes and even if the two people have similar names.

The fact that officers may sometimes arrest the second

person by an honest mistake does not constitute a legal

excuse for the conduct of an officer who makes no such

mistake." 870 F.2d at 979 (emphasis added).

See Simons v. Clemons, 752 F.2d 1053, 1055 (5th Cir. 1985)

(plaintiff asserted no deprivation of constitutional right where

she was arrested on a facially valid warrant because of an honest

mistake).

Barton arrested Blackwell pursuant to a facially valid warrant

for Melinda K. Allen. At issue is the question posed by Hill,

whether he had probable cause to believe Blackwell was Allen, i.e.,
3 Anderson concerned facts similar to those at issue here, but

in the context of a warrantless search of an innocent third

party's home rather than an allegedly illegal arrest of the wrong

person. 

11

whether he reasonably mistook Blackwell for Allen. Couched in

terms of qualified immunity, however, we must address one further

level of reasonableness and ask ourselves whether a reasonable

officer in Barton's position could believe that there was

reasonable cause to believe that Blackwell was the person named in

the warrant. Anderson v. Creighton, 107 S.Ct. 3034 (1987).3 "The

relevant question in this case, for example, is the objective

(albeit fact-specific) question whether a reasonable officer could

have believed [Barton's arrest of Blackwell on the warrant naming

Allen] to be lawful, in light of clearly established law and the

information [Barton] possessed." Anderson, 107 S.Ct. at 3040. 

In this case, no inference can be drawn that Barton knew or

believed he was or likely was arresting someone other than Melinda

Allen. The person he arrested was of the same height and weight,

sex, race, age, nickname, and at the location where he expected to

find Melinda Allen. There is no evidence that Barton had available

information as to Allen's skin tone or facial features. Moreover,

discrepancies in hair and eye color or skin tone are not

determinative in this day when use of hair dyes, cosmetic contact

lenses, and tanning salons is relatively common. 

Blackwell relies on the fact that Barton took her driver's

license and put it in his pocket without looking at it as evidence

that he acted unreasonably. This is not determinative. The

question is only whether a reasonable officer, in Barton's position
4 In addition, even had Barton looked at the license and

realized that the name was not that of Melinda K. Allen, a

reasonable officer still might have believed that Blackwell was

Allen. The Supreme Court has held that officers in good faith

believed an arrestee was their suspect even after the arrestee

had produced identification to show that he was not the man they

were seeking, observing that "aliases and false identifications

are not uncommon." Hill v. California, 91 S.Ct. at 1110. Here,

while Blackwell told Barton she "had not signed any hot checks,"

there is nothing to indicate that she ever suggested there might

be a mistake of identity, or stated her name, until at the

station just before she was released.

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(with Blackwell's driver's license in his pocket) could believe

that Blackwell was Allen, not whether a reasonable officer would

have looked at the driver's license to confirm the name and other

identifying information.4 See Hunter v. Bryant, 112 S.Ct. 534, 537

(1991) ("[T]he court should ask whether the agents acted reasonably

under settled law in the circumstances, not whether another

reasonable, or more reasonable, interpretation of the events can be

constructed . . . .") (emphasis added).

In United States v. De Leon-Reyna, 930 F.2d 396 (5th Cir.

1991) (en banc), a United States Border Patrol agent noticed a

suspicious truck near the Texas-Mexico border and radioed in the

truck's license plate number to a dispatcher. The dispatcher

misunderstood the number given and radioed back the information

that the plates were issued to a truck different from that the

agent was following. The agent stopped the truck; a later search

of the truck revealed over half a ton of cocaine. 

The defendant moved to suppress the evidence, on the ground

that the initial stop was without reasonable suspicion because the

agent had not followed the standard procedure of using code words

when radioing in the license plate letters. The district court
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granted the motion to suppress. This Court, sitting en banc,

reversed. We determined that, regardless of whether the agent

acted negligently in calling in the license plate information, his

good faith reliance on the license information was objectively

reasonable in the circumstances. 930 F.2d at 399. We observed

that the code word policy was not constitutionally mandated, nor

did it establish "a constitutional minimum for reliability." Id.

at 400.

Similarly, under the facts in the present case, we may not

determine the reasonableness of Barton's actions by considering,

with the benefit of hindsight, what other, more reasonable actions

might have been available to him.

Because a reasonable officer in Barton's position could have

believed that there was reasonable cause to believe Blackwell was

Melinda Allen, Barton is entitled to qualified immunity.

IV. Propriety of Summary Judgment for Barton

Summary judgment is appropriate only where there are no

disputed issues of material fact. Counsel for Blackwell asserted

during oral argument that summary judgment for Barton is improper,

alleging that the similarity of appearance, or lack thereof,

between his client and Melinda Allen is material to the

reasonableness of Barton's mistake. This issue was raised below by

an affidavit of someone who knew both women attesting that they did

not look alike, as their hair and eye color, skin tone, and facial

features were different. The affidavit does not suggest any

contradiction of what is otherwise shown by the evidence, namely

that both are of the same sex, race, age, height, weight, and
14

nickname and did similar type work. The district court concluded

that "Blackwell's appearance substantially matched the physical

description of Melinda Allen that Barton had earlier obtained from

his dispatcher." We hold that, under the circumstances, the

similarities between Blackwell and Allen were sufficient to allow

a reasonable officer to conclude therefrom that there was probable

cause to believe that Blackwell was Allen.

To the extent underlying facts are undisputed, as they

essentially are here, we may resolve questions such as probable

cause and reasonable suspicion as questions of law. Hunter v.

Bryant, 112 S.Ct. 534, 537 (1991). See also Crescent City v.

Butchers' Union, 7 S.Ct. 472, 476 (1887) ("when there is no dispute

of fact, the question of probable cause is a question of law, for

the determination of the court"); United States v. Kye Soo Lee, 962

F.2d 430, 435 n.17 (5th Cir. 1992), cert. denied, 113 S.Ct. 1057

(1993) (where determinative facts are not disputed, probable cause

is a question of law); United States v. Basey, 816 F.2d 980, 988

(5th Cir. 1987) (reasonableness in investigatory stop cases

ultimately a question of law).

Because we conclude, as discussed above, that Barton's actions

were objectively reasonable under Anderson v. Creighton, he is

entitled to judgment as a matter of law on his plea of qualified

immunity. We remand this case to the district court for entry of

judgment for Barton on Blackwell's section 1983 claims.

Conclusion

For the reasons stated above, the order of the district court

denying summary judgment to defendant Barton is REVERSED, and the
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cause is REMANDED for proceedings consistent with this opinion. 

REVERSED AND REMANDED