Defendants Owens, Trevino and Bridwell-Oglesby appeal the denial of their motions for summary judgment based upon qualified immunity. Plaintiff-Appellee has failed to state a claim for or tender evidence of a constitutional violation against Defendant Appellant Owens and we reverse and order dismissal of Plaintiffs claims against Owens with prejudice. Plaintiff-Appellee has stated a proper claim against Defendants-Appellants Trevino and Bridwell-Oglesby; a genuine dispute as to material facts remains. Therefore, we dismiss the аppeal as to those defendants.
*1058 THE FACTS
On May 28,1989, Plaintiff-Appellee Edwin Johnston (“Johnston”) participated in a political protest demonstration at the consulate of the People’s Republic of China in Houston, Texas. The demonstrators were primarily Asian, there to protest the human rights abuses in the People’s Republic of China during the Tiananmen Square massacre. Assigned to the area for the purpose of traffic assistance and crowd control were Defendant-Appellant R.C. Owens (“Owens”), attired in plainclothes, and Defendant Humberto Lopez (“Lopez”) and Defendants-Appellants J.P. Trevino (“Trevino”) and B.A. Brid-well-Oglesby (“Oglesby”), all uniformed.
Divergent versions of what happened have been offered by Appellants and Johnston. According to Owens, he noticed Johnston “pumрing his fist into the air and yelling ‘right-wing white supremist’ [sic] remarks.” Johnston obtained a megaphone and began making remarks about then-President George Bush, governmental repression, and other declarations such as “down with President Bush” and “long live skin heads.” According to Trevino and Oglesby, Jоhnston “took control” of the megaphone which was then “forcibly taken away” from him by, apparently, the rightful possessor. This resulted in a confrontation between Johnston and the unidentified protestor. According to Johnston, after being given the megaphone, he was asked to return it after his comments strayed from the central issues of the protest. He and several protestors then began discussing the propriety of voicing comments unrelated to the People’s Republic of China.
Owens, Trevino and Oglesby uniformly contend that, at Owens’ direction, 2 Officer Lopez approached Johnston and tapped him on the shoulder in a non-offensive manner in order to get his attention. Suddenly, Johnston swung his arms, striking Lopez’ hand. Trevino, Oglesby and Lopez then arrested Johnston.
Not surprisingly, Johnston’s depictiоn contrasts sharply with the above. Johnston contends that he was asked by a Houston police officer if there was any problem. After replying in the negative, Johnston told the officer that he and the protestors were discussing the merits of democracy. He thеn resumed his high volume, angered diatribe against the policies of the United States government, its president and “governmental repression generally.” Plaintiffs Original Complaint at 5. Johnston was then approached from several directions by Houston police officers, subdued and arrested. At the Houston Police Department Montrose substation, Johnston was charged with assault and resisting arrest. Johnston argues that he was arrested for his political activism. Moreover, he claims that the Criminal Intelligence Division of the Houston Poliсe Department (“CID”) has followed a long-standing policy of engaging in the surveillance of political demonstrations and maintaining dossiers on the protestors regardless of their participation or nonparticipation in criminal activity. Johnston submits a settlеment agreement between the Houston chapter of the American Civil Liberties Union and the City of Houston prohibiting the CID’s maintenance of surveillance files “based solely on a citizen’s political affiliation or activities.” Johnston claims to fall within the protective scope of the settlement agreement and offers the depositions of several individuals prominent in the dissident community to support his claim that the agreement has been breached.
On May 28, 1991, Johnston filed suit against the City of Houston and five Houston Policе Department Officers under 42 U.S.C. §§ 1983 and 1988. In his original complaint, Johnston asserted that:
[e]ach of the officers named as individual defendants in this complaint participated in, directed, supervised, controlled, or was otherwise responsible for PlaintifPs unconstitutional apprehension, detention, imprisonment, and criminal prosecution on pre-textual charges of assault and resisting arrest that were unsupported by probable cause. Such actions by such individual officers violated PlaintifPs rights under the *1059 First, Fourth, and Fourteenth Amendments 3 to the Constitution of the United States.
To support his allegatiоns, Johnston submitted his sworn affidavit and that of Victor Lavergne. The criminal charges against Johnston were eventually dismissed. Owens, Trevino and Oglesby moved for summary judgment based upon qualified immunity, supported by the depositions of Owens, Lopez and Trevino. On July 9, 1992, Judge Lynn N. Hughes of the Southern District of Texas denied the officers’ motions. This appeal followed.
THE LAW
Standard of Review
The standard of review in this Court following the denial of summary judgment is
de novo. Mozeke v. International Paper Co.,
Principles of Qualified Immunity
The qualified or “good faith” immunity doctrine was established to reconcile two competing interests. One interest is the compensation оf persons whose federally protected rights have been violated. Opposing this is the fear that personal liability will inhibit public officials in the discharge of their duties.
4
Qualified immunity has therefore been recognized to protect “all but the plainly incompetеnt or those who knowingly violate the law.”
Malley v. Briggs,
The jurisprudence of the qualified immunity doctrine is familiar. “[Gjovernment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly estаblished rights of which a reasonable person would have known.” Harlow v. Fitzgerald,457 U.S. 800 , 818,102 S.Ct. 2727 , 2738,73 L.Ed.2d 396 (1982).... Qualified immunity is available to state officials sued for constitutional violations pursuant to 42 U.S.C. § 1983. See Harlow,457 U.S. at 818 n. 30,102 S.Ct. at 2738 n. 30 (citing Butz v. Economou,438 U.S. 478 , 504,98 S.Ct. 2894 , 2911,57 L.Ed.2d 895 (1978)).
Whether a government official is entitled to qualified immunity “generally turns on the ‘objective reasonablenеss of the action’ assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Texas Faculty Ass’n v. University of Texas at Dallas,946 F.2d 379 , 389 (5th Cir.1991) (quoting Anderson v. Creighton,483 U.S. 635 , 639,107 S.Ct. 3034 , 3038,97 L.Ed.2d 523 (1987)). The law is deemed to be clearly established if the contours of a right asserted are sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. at 389-90. The standard is formulated at this level of generality in order to afford the measure of protection that the doctrine is intended to confer. See Anderson,483 U.S. at 639-40 ,107 S.Ct. at 3039 . Therefore, “the right the official is alleged to have violated must have been ‘clеarly established’ in a more particularized, and hence, more relevant sense.” Id. at 640,107 S.Ct. at 3039 . “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right.” Id. If reasonable public officials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified immunity. Pfannstiel v. City of Marion,918 F.2d 1178 , 1183 (5th Cir.1990). Whether the conduct of which the plaintiff complains violated clearly established law is an essentially legal question. Mitchell v. Forsyth,472 U.S. 511 , 526,105 S.Ct. 2806 , 2815,86 L.Ed.2d 411 (1985); Pfannstiel,918 F.2d at 1183 .
White v. Taylor,
Methodology of Review
Consistent with these principles, the Supreme Court adopted a distinсt analytical
*1060
structure for reviewing an appeal of a denial of summary judgment asserting qualified immunity.
Siegert v. Gilley,
Next, this Court must examine whether the summary judgment evidence entitles appellants to qualified immunity. Summary judgment is proper if the movant demonstrates that there is an absence of genuine issues of material fact.
See Anderson v. Liberty Lobby, Inc.,
In the absence of a genuine issue as to a material fact, we review the summary judgment record to ascertain the objective reasonableness of the defendants’ actions. This is done by deciding whether the contours of the rights in question were clearly established. “The contour, or standard, for a constitutional right may expand after the time of the alleged violation, and may be the benchmark for рroof at trial of that right and its claimed violation; but as stated, the benchmark for objective reasonableness is that which existed at the time of the alleged violation — we look to clearly established law at that time.”
Spann v. Rainey,
Moreover, “if disputed factual issues material to [qualified] immunity are present, the district court’s denial of summary judgment is not appealable.”
Feagley v. Waddill,
THE OFFICERS
Owens
The record demonstrates that Owens instructed Lopez to determine who Johnston was and what he was doing. Nowhere has Plaintiff-Appellee alleged that Owens instructed Lopez to detain Johnston in any manner. Additionally, in Johnston’s version, he moved away from Lopez after that officer made his inquiry, eliminating the possibility that he reasonably felt detained. Thus, Johnston has utterly failed to carry his burden with respect to Defendant-Appellant Owens. Johnston’s complaint regarding Owens is east in broad, indefinite and conclusory terms. Although Johnston asserts a constitutional violation, his complaint fails to allege sufficient involvement by Owens to lay a foundation for recovery under § 1983. Quite simply, even if all of Johnstоn’s evidence were true, no constitutional infringement oc *1061 curred. Johnston has not submitted any cases, law review articles or other authorities bolstering his conclusion that Owens’ instructions to Lopez constituted First, Fourth and Fourteenth amendment violations. Therefore, Plaintiff-Appellee has not stated a constitutional claim against Owens pursuant to Siegert and its progeny within this Circuit. Accordingly, the district court erred in denying Owens’ motion for summary judgment on the basis of qualified immunity.
Trevino and Oglesby
Although Johnston levels charges against Owens, Trevino and Oglesby jointly, his complaint includes specific facts regarding the actions of Trevino and Oglesby. In his version, Johnston was subdued by several officers, including Trevino and Oglesby after he answered Lopez’ question and continued to protest. “The right of an American citizen to criticize public officiаls and policies and to advocate peacefully ideas for change is the central meaning of the First Amendment.”
New York Times v. Sullivan,
Since Plaintiff-Appellee has complied with the first step of the Siegert analysis, this Court must determine whether qualified immunity is аppropriate given the evidence submitted and the contours of the rights allegedly violated. Both sides have offered proper summary judgment evidence to corroborate their version of the facts. Clearly, a genuine dispute as to the material аnd operative facts of this case exists, as seen by the differing accounts of the various deponents. Summary judgment is inappropriate unless plaintiffs version of the violations does not implicate clearly established law. This is not the case. Plaintiffs claims аre neither novel nor obscure. Rather, he has asserted gross infringements of fundamental constitutional protections. If Johnston’s facts prove to be true, Defendants-Appellants are either “plainly incompetent or knowingly violated the law.” Thereforе, under Feagley and Lampkin, supra, note 4, the district court’s denial of summary judgment is not appealable. Trevino and Oglesby’s appeal must be dismissed.
Accordingly Trevino and Oglesby’s appeal is DISMISSED and the district court order denying Owens’ motion for summary judgment is REVERSED.
Notes
. Owens’ involvement appears to have beеn limited to instructing Lopez to approach Johnston and inquire as to his identity.
. Since Johnston has not referred to the specific passages of the Fourteenth Amendment implicated, this Court assumes that he was referring to the incorporation feature of that amendment applying the Bill of Rights to the States.
. Martin A. Schwartz and John E. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees 513 (1991).