Sorenson v. Ferrie
134 F.3d 325
5th Cir.
1998
Check Treatment

*2 WISDOM, DeMOSS, Before SMITH and Judges. Circuit SMITH, Judge: JERRY E. Circuit Kathlyn police Sorenson sued Walling under 42 Steve Ferrie and James after arrested her for U.S.C. in the trunk of her car. summary judg- granted The district court ment for the officers on the basis immunity. We affirm. 46.02(a), provides which

I. Code Ann. person commits an offense if he inten- “[a] A. tionally, knowingly, recklessly carries on knife, handgun, illegal or about his as drove stopped Sorenson she Feme later, or club.” Several months the Dallas Rowlett, stable away from darkened *3 County prosecutor charge, dismissed the con- Texas, May on around 3:00 a.m. ceding that state is “the unable to make a Thinking stable was closed at this wee prima facie ease.” recent vandalism at near- hour and aware of stables, explain by Ferrie asked Sorenson feeding

her business. She said she had been II. way to work as a and was on her her horses security guard. seeking summary judgment, the officers 46.02(a) argued ambiguous that and that open then volunteered to her Sorenson interpretation their of the statute was rea- equipment. Ferrie her horse trunk to show They stating sonable. introduced affidavits bucket, pointed empty to an feed but She (1) taught during training that officers were object in the focused on another officer carrying handgun may trunk be in a holster pistol, nestled trunk: Sorenson’s (2) unlawful; participated in Ferrie had attached to a belt. Ferrie asked Sorenson suspect carrying arrest of another trunk; why pistol in her she she carried a (3) trunk; handgun in the the officers job, adding replied it for her that she needed prosecutions County knew of Dallas Texas, transport a it is not unlawful to carrying handguns magis- in the trunk. The car. also pistol in the trunk of one’s She judge’s report, adopted by the district trate photo indicating that produced identification court, legality concluded that the of security guard.1 was a licensed she clearly in one’s trunk was not Sergeant Walling soon arrived James law at the time of established under Texas conferred, at- The officers then the scene. the incident. story by tempted to confirm Sorenson’s call- she ing nightclub the Dallas where she said pick up evening’s receipts.

was headed to III. answered, No one so Ferrie directed Soren- performing officials Government Instead, supervisor. call her Sorenson son to protected from discretionary functions are husband, he, Walling who told called her qualified liability civil the doctrine of Sorenson, in- Mr. a certified firearms was immunity if their conduct violates no legal that it for Texans to structor and was rights statutory established or constitutional carry in automobile trunks. handguns Wall- reasonable would have of which a disputed reading Mr. Sorenson’s Fitzgerald, 457 known.” Harlow v. U.S. Code, Texas Penal and the call ended. 73 L.Ed.2d S.Ct. Walling decided to arrest Sor- Ferrie and (1982). Claims They she was enson. asked her whether two-step analysis. reviewed under firearms, carrying any more and she directed has first is whether purse in the gun them to another inside a clearly established asserted the violation compartment of the trunk. The spare-tire so, right. If the court decides constitutional brought Sorenson to the station and objec conduct was whether the defendants’ charges. filed criminal In tively v. Houston reasonable. Coleman Dist., Cir. dep. Sch. B. 1997) (applying two-pronged test of Sie 226, 231-32, 111 Gilley, 500 U.S. gert charged unlawfully was with car- Sorenson (1991)). 1789, 1792-93, 114 L.Ed.2d weapon in of Tex. Penal rying a violation security view. See Tex. Texas law allows a licensed Penal Code gun and the is in plain carry handgun, exception applies guard this 46.02(b)(5). Ann. wearing when he is a distinctive uniform satisfy Siegert’s IV. Sorenson cannot first prong allege the violation of a need —the charges that the officers Sorenson clearly right— established constitutional illegal right violated her to be free from merely by asserting right that the not to be arrest, as secured the Fourth and Four probable clearly arrested without cause is clearly teenth Amendments. This is a estab Instead, established. she must show that the right.2 lished constitutional Whether an ar her conduct was estab however, hinges illegal, rest is on the absence say, lished. That is to she must demonstrate McCollan, probable Baker v. cause. arrest, at the it time her was 137, 144-45, 2689, 2694-95, U.S. 99 S.Ct. may lawfully Texas that one (1979).3 Thus, if can L.Ed.2d possess a in one’s If the trunk. law show the officers lacked clearly established, was not “a reasonable *4 cause, she has failed to state the violation of officer could have believed the arrest to be right, Anderson, 641, a constitutional and the officers are lawful.” 483 at U.S. 107 qualified immunity. Particularly to at entitled S.Ct. 3040. in situations statutory language

where —as here —the is vague, bright the caselaw must a in draw line depends Probable cause on whether order for the law to be classified as “possess[ed] knowledge the officers Curtis, Kelly established.” v. See 21 F.3d prudent person’s would warrant a belief that 1544, 1554 (11th Cir.1994).6 suspect] already [the had committed or was committing Eugene, a crime.” 65 F.3d at Thus, question

1305.4 the central in our V. qualified immunity inquiry objective is “the A. (albeit fact-specific) question a whether rea sonable officer could have ar [the believed The law at issue here is Tex. Penal lawful, in light rest] of estab 46.02(a), which, § subject to listed Code Ann. lished law and the information [arresting] the 46.02(b), (c), exceptions (d), §in punish and possessed.” Creighton, Anderson v. anyone es who per “carries or about his 635, 641, 483 107 U.S. 97 handgun.” son a relevant is (1987).5 whether, arrest, L.Ed.2d 523 at the time of Sorenson’s the Dist., Eugene Indep. 2. See v. Sch. subjective 65 F.3d 5. the officers’ intent is irrele- Alief 1299, (5th Cir.1995) (acknowledging 1305 the vant analysis, our "right Anderson, under the 641, 3040, Fourth and Fourteenth Amend- 483 U.S. at 107 S.Ct. at we arrest"); ments to be free ... from false Duckett supporting note the evidence Sorenson's claim Park, 272, City (5th v. Cedar 950 F.2d 278 Walling improper that Ferrie and acted with Cir.1992) ("An federally protect- individual has a arresting motives in her. Sorenson’s husband right ed to be free from arrest unlawful stated that the officers told him were arrest- resulting significant detention in a restraint of prove point" his wife "to a and that he liberty right grounds may and violation of this be copy needed a of the Texas "new" Penal Code. At 1983.”). § for suit under 42 U.S.C. argument, oral the officers' counsel conceded his familiarity saying, with the "You can beat the guarantee "The Constitution does not ride,” rap, you but can’t beat the but insisted that did, guilty the will be arrested. If it 1983 night jail Sorenson’s in was not the result of a provide every a cause of action for defen- personal grudge. acquitted indeed, every suspect dant re- — 145, Instead, at leased.” Id. 99 S.Ct. at 2695. 6. We do not mean to that all conduct is "Police officers are ... the presumptively illegal proven unless otherwise. Fourth Amendment to make a determination of example, innocently For a arrested for probable any significant pretrial cause before walking public identify down a street need not Duckett, liberty.” restraint of at 278. F.2d statute or case in order to validate his conduct. Dorman, 472, distinguishes What this case Sorenson’s See also Babb v. Cir.1994) ("[W]e arguably statutory conduct falls within the plain lan- must look to whether [the guage alleged surrounding why tiff] has and the caselaw. That is sufficient facts from which it can require be discerned we that no reasonable her to demonstrate the officer could of her probable probable have believed that cause existed ar conduct to establish the absence of him_" (Citation omitted.)). rest cause. clearly- years, Texas courts have interpretation of 46.02 had Over echoed courts’ applied applied guns carried this formulation and have it to a the law as State, variety settings. of factual a car. We conclude that the Boles in the trunk of (Tex.Crim.App.1967), regard was not S.W.2d state law court that a under the car’s Accordingly, fails un- held knife floor- established. person.” prong, she has not board was carried “on or about the Siegert’s first because der Similarly, pistol glove compartment probable lacked cause shown that the officers was held to violate the statute Franklin v. her. The Fourth Amendment’s to arrest State, only in 147 Tex.Crim. 183 S.W.2d protections triggered the absence (1944). cause; State, Spears 573-74 the officers therefore did And (1929), right. Tex.Crim. S.W.2d not violate a constitutional pistol court that a concluded stored pocket passenger-side side door was B. person.8 carried on or about the driver’s reported eases direct- There is dearth construing Our review of the caselaw ly addressing legality, under Texas time, § 46.02 reveals over most areas of in one’s trunk.7 swept a car’s interior have been within Nonetheless, Texas courts have set down exception statute’s ambit. With the general principles governing when *5 handful of decisions from the turn of the person. one’s is carried “on or about” century,9 majority the of courts have conclud- that ed the statute is violated whenever a general rule in Texas is that “on The gun passenger compart- the is found inside person the means “close at hand” or about” though, many in ment of a car —even such “within reach.” This rule was first articu or instances, person “materially State, 66, Wagner in v. 80 Tex.Crim. lated chang[e] position,” Wagner, at his 188 S.W. 1001, 1002(1916),in which the court 188 S.W. 1002, gun. in to reach the order 46.02, holding: § predecessor to construed correctly notes that no court has Legislature must have meant some- words, specifically guns car- applied it the “or about the statute to thing when used State, and, principle, using in the trunk. In Contreras v. 853 person,” the on the ried (Tex.App. ordinary meaning, [1st Dist.] in tak- S.W.2d 694 word “about” its —Houston 1993), however, the court remarked that the ing into consideration the context and (in case, wording this another subject-matter to which it is em- of the statute relative 46.02) word, being specially predecessor of reflected ployed, the not de- must, believe, fined, legislature’s view that on about as we be held to statute, present mean, by, weapons on or pistol near included within the hand, access, transporta- personal within one’s means at convenient of close added). It is not party (emphasis tion.” Id. at 696 so hav- within such distance could, reading to con- party an unreasonable of Contreras ing it as that such without handgun in the trunk is “within materially changing position, get his clude that a his transportation.” This the driver’s means hand on it.... State, 435, 446 v. 895 S.W.2d to 1988 civil forfeiture 8. See also Flores 7.Sorenson directs us State, case, Currency (Tex.App.1995) (holding handgun in 745 S.W.2d un $2067 U.S. that in 109, 1988, writ). (Tex.App. statute); Worth no locked console driver’s seat violates —Fort discussing purse officer’s from State, (Tex. In an seizure Courtney v. 424 S.W.2d noted, car, "[u]pon the trunk of a the court (concluding Crim.App.1968) in opening trunk the officer observed a the vehicle's statute). glove compartment violates nothing illegal handgun. we can find per carrying a in a vehicle’s se about in was decided 9. The most recent of these cases trunk, gun in the trunk once the officer saw the 1905; wagons, motor vehi all three involved not purse justified taking appellant’s in to see he was State, Thompson Tex.Crim. cles. See weapon.” The court's if it contained another language, concerning State, (1905); Hardy v. 37 Tex. S.W. 1033 peripheral a civil issue in State, (1897); George v. 40 S.W. 299 Crim. case, hardly dictum that constitutes forfeiture is 1895). (Tex.Crim.App. S.W. 386 clearly established law. Smith, language only uncertainty underscores the we noted Pierce v. As (5th Cir.1997), regarding guns the law in trunks. qualified F.3d 866 im “[f]or munity surrendered, pre-existing law dictate, (not is, truly must compel just C. about), or allow or raise a specific holding The absence of a like-situated, every the conclusion for reason preclude qualified immuni issue does government agent able that what defendant Sorenson, ty. That is because as the doing violates federal law in the circum arising a false suit arrest (quoting stances.” Id. at 882 Lassiter v. proving bears the burden of that the officers Univ., Alabama A & M cause, lacked which in this ease (en Cir.1994) banc)). Given the ambi means she must show of her guity of the surrounding statute12 and the clearly conduct was established. The offi caselaw, clearly the officers violated no es cers, contrast, prove are not and, right, tablished accordingly, the reverse in order to win immuni qualified immunity. entitled to ty is, the officers do not bear the bur —that den of AFFIRMED. demonstrating illegality suspect’s conduct was established at the time of arrest.10 DeMOSS, Judge, specially Circuit concurring;

Were officers to bear the burden proving the first offi I concur the result but reasoning not the cer to make an newly-passed opinion. view, arrest under a my of this this in- case subjected personal statute could be liabili volves arrest that should never have been ty prosecutor if press chose not made and suit that should never have been charges. Similarly, all, the first officer to con filed. First of Officers Ferrie and Wall- *6 existing applies clude statute ing to a precisely should know what evidence is new form of criminal conduct risk by would the prosecuting attorney for personal liability by making jurisdiction the arrest. their accept in order to a border- qualified immunity “The recognizes doctrine prosecution. line case for This is a border- that officials can act without fear of harass line case because there has never been ing litigation only if they reasonably any can decision Texas court which held that anticipate may give when their conduct rise in the trunk of a car is a liability Scherer, for damages.” Davis violation of Texas Penal Code Ann. 183, 195, 46.02(a). 468 U.S. What Officers Ferrie and Wall- (1984).11 (and L.Ed.2d 139 my could have opinion done 12, 86 require ("We 10. "The Fifth Circuit does not that an L.Ed.2d 411 do not intend to official demonstrate that he did always not violate clear- liability that an official is immune from or ly rights; precedent established federal our merely suit for a warrantless search because the places upon plaintiffs." that burden requirement explicitly Salas warrant has never been (5th Cir.1992). Carpenter, 980 F.2d apply held to to a search conducted in identical circumstances. But in cases where there ais legitimate question exception whether an to the course, suggest, 11. We do not that an officer is exists, requirement warrant it cannot be said automatically qualified immunity just entitled to a warrantless search violates specifically plain- because no court has held the law.”). legal. preclude qual- tiff's conduct "[I]n order to immunity necessary very ified it is not that the question previously action in has held purposes been un- 12. We hold for lawful, case, plaintiff point previous or that the ato in this civil the law was not only trivially case that However, differs from his case. established on this as of the date previous the facts of the express case do need of this incident. We do not mean to materially Smith, similar.” Pierce v. view as to whether 46.02 does or does not (5th Cir.1997) (internal F.3d prohibit possession weapon citations in one's omitted). quotation and Supreme marks trunk. That is for the state courts to decide. construing liability Court has said opine as much in Nor do we on whether the statute is so Forsyth, vague trigger warrantless search. See Mitchell v. lenity any as to the rule of or other 472 U.S. 535 n. 105 S.Ct. 2820 n. similar defense. done) have made detailed was to have should all of the factual information as to

notations by presented this incident circumstances

and with the facts involved then discussed he attorney as to whether prosecuting If prosecution. accept the case have yes, said then could

prosecutor had on the an arrest warrant based

sworn out they noted down and arrested

facts which warrant. pursuant to that

Ms. Sorenson my any exigent not mind

There were necessitating an arrest on the

circumstances

spot. hand, really did the other

On injury damage as a any significant

suffer unnecessary arrest. While her of this

result language of a consti- phrased

claim is violation, any real or the absence

tutional in a class which

lasting injury puts her claim warrant consideration the federal

does not feel- sympathize I with Sorenson’s

courts. incident, but about this

ings aggravation aggravations of all sorts and

life is full of possibly provide relief cannot

Constitution

all such cases. Cynthia Mullanix,

Robyn SANDERS;

Plaintiffs-Appellants-Appellees, CHURCH,

CASA VIEW BAPTIST al., Defendants,

et Church, Baptist

Casa View

Defendant-Appellee,

Shelby Baucum, Defendant-Appellant.

No. 96-10870. Appeals,

United States Court . Fifth Circuit

Feb.

Rehearing March Denied