ZANE SWEETIN; REBECCA FOSTER, as personal representative and next friend of A.S., a minor, in place and stead of MICHAEL STEFEK, deceased, Plaintiffs-Appellants, versus CITY OF TEXAS CITY, TEXAS; WENDELL WYLIE, Defendants-Appellees.
No. 21-40784
United States Court of Appeals for the Fifth Circuit
September 2, 2022
Appeal from the United States District Court for the Southern District of Texas USDC No. 3:19-CV-233
Before STEWART, ELROD, and GRAVES, Circuit Judges.
Texas City‘s “permit officer” handles applications for ambulance permits for the City. One day, he spotted an ambulance without a permit. He knew he was powerless to issue citations to the drivers himself, so he summoned someone who could (the Fire Marshal). While waiting for the Fire Marshal to show up, the officer repeatedly told the ambulance drivers that they were detained, that they could not leave, and that they must stay. Hе did not have that power, but he did it anyway. The Fire Marshal showed up about thirty minutes later and issued them citations. The ambulance drivers sued, claiming this violated their Fourth Amendment rights. We agree. And because the officer acted beyond the scope of his discretionary duties as “permit officer,” he is not entitled to qualified immunity. But the claim against the City fails because the officer did not have final policymaking authority. Thus, we AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this opinion.
I.
Wendell Wylie is a captain in the Texas City Fire Department. The Fire Marshal authorized him to serve as the City‘s “EMS Administrator,” to handle the permitting of private-sector, non-emergency ambulancеs. Wearing this hat, he can investigate whether permit-applicants meet state and local ambulance requirements. He is also given the authority to “[d]evelop such reasonable regulations subject to the approval of the City Commission as may be necessary for the proper enforcement and implementation” of the City‘s rules about ambulance services.
Zane Sweetin and Michael Stefek worked for Windsor as emergency
Around this time, Sweetin and Stefek came out with their patient. Once the patient was in the ambulance, Wylie pulled up and asked Sweetin and Stefek some questions about why they were there and where they were headed. They declined to answer, citing the patient‘s confidentiality. Then Wylie said he would let them complete their trip beforе talking with them. Off they went to drop the patient off at a dialysis clinic in La Marque. During the drive, Wylie called the Fire Marshal and asked him to come issue citations to Sweetin and Stefek. Sweetin and Stefek parked under the awning outsidе the entrance of the clinic; Wylie backed into a spot near the front of the ambulance.
The Fire Marshal had not yet arrived when Sweetin and Stefek finished their drop-off. As they loaded the stretcher back into the аmbulance, Wylie approached them and said: “You are detained. You are not allowed to leave. You must wait right here.” This struck Sweetin and Stefek as bizarre—a man in a paramedic‘s uniform, driving a Texas City Fire Department vehicle, detaining them in a city other than
They ended up waiting around and submitting to Wylie‘s apparent show of authority. Sweetin finished some of the paperwork for the transfer they had just completed. Stefek called their supervisor аt Windsor to try and talk with Wylie, but Wylie told them to stay in the ambulance and wait for the Fire Marshal. Sweetin recalls that Wylie was “rude” and told them to “get the F back into the vehicle.” They waited there until the Fire Marshal showed up. He asked thеm a few questions, gave them their citations, and they went on with their work day.
Wylie knew he did not have the authority to detain Sweetin and Stefek. He called the Fire Marshal because he did not even have the power to issue thеm a citation. But he maintains that they were free to leave whenever they wanted. By his telling, he identified himself as the EMS supervisor, sat in his vehicle while they waited, and never displayed a weapon or used any physical forсe.
Subsequently, Sweetin and Stefek sued Wylie (in his individual capacity) and the City under
The сourt held that even if there was a genuine dispute of material fact about whether Wylie unconstitutionally seized Sweetin and Stefek, the law was not clearly established enough to survive qualified immunity. And as for the City, the court held that under Texas law, Wylie did not have “final policymaking authority,” so the City could not be held liable for his actions. Sweetin and Stefek appealed.
II.
We review the grant of summary judgment de novo. Lewis v. Sec‘y of Pub. Safety & Corr., 870 F.3d 365, 368 (5th Cir. 2017). Summary judgment is proper if the movant shows that there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020) (citing
A.
Qualified immunity protects government officials acting within their authority from individual liability “when their actions could reasonably have been believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 412 (5th Cir. 2011) (en banc). Once a government official establishes that his conduct was within the scope of his discretionary authority, it is up to the plaintiff to show that (1) the official “violated a statutory or constitutional right,” and (2) the right was “clearly established at the time.” Bevill v. Fletcher, 26 F.4th 270, 275 (5th Cir. 2022) (quoting Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019)). The first part of the rule often gets overlooked: To even get into the qualified-immunity framework, the government official must “satisfy his burden of establishing that the challenged conduct was within the scope of his discretionary authority.” Cherry Knoll, L.L.C. v. Jones, 922 F.3d 309, 318 (5th Cir. 2019).
That oft-overlooked threshold requirement is dispositive here. Tо figure out whether an official was acting within the scope of his duties, we look to state law. See id. at 318-19; see also Cummings v. Davenport, 906 F.3d 934, 943 (11th Cir. 2018) (W. Pryor, J.) (relying on state law to define the scope of discretionary authority).
Wylie was not acting within the scope of his discretionary authority because state law does not give a permit officer the authority to conduct stops of any kind. Cherry Knoll, 922 F.3d at 318-19 (looking to how state law defines the duties of an official to determine the scope of his discretionary duties). In fact, it says the contrary: Texas law criminalizes a public official‘s act of “intentionally subject[ing]” a person to “seizure” “that he knows is unlawful.”
B.
While Sweetin and Stefek prevail on their first claim, they fail on the second. The City cannot be held liable under
And there are three ways to show an “official policy“: (1) “written policy statements, ordinances, or regulations“; (2) a “widespread practice that is so common and well-settled as to constitute a custom that fairly represents” the city‘s policy; or (3) under “rare circumstances,” a single act can bе considered a policy if done by an official or entity with “final policymaking authority.” Webb v. Town of Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019) (citations and quotations omitted). Sweetin and Stefek do not try to establish either of the first two, but instead argue that Wylie had “final policymaking authority.”
Whether Wylie had final policymaking authority is a question of state law. Id. at 215. A final policymaker is one that has “the responsibility for making law or setting policy in any given area of a local government‘s business,” Robinson v. Hunt County, 921 F.3d 440, 448 (5th Cir. 2019) (quotation omitted)—one that “decide[s] the goals for a particular city function and devise[s] the means of achieving those goals,” Zarnow v. City of Wichita Falls, 614 F.3d 161, 167 (5th Cir. 2010). Where state law does not show that a
Texas City is a home-rule city named after the State of Texas. See
Sweetin and Stefek argue that this subsection is a delegation of final policymaking authority. But as is clear from the text of that subsection, any authority the permit officer is given is “subject to the approval of the City Commission.” Id. Thus, any authority Wylie has is not “final.” Webb, 925 F.3d at 214.
Furthеrmore, the fact that Wylie is “responsible for the everyday operations of the EMS Department” is immaterial because such a responsibility only indicates decision-making authority rather than policymaking authority. Seе Webb, 925 F.3d at 214; Valle, 613 F.3d at 542-43; Bennett, 728 F.2d at 769. Consequently, we hold that Wylie does not have any final policymaking authority, either by delegation or otherwise. And thus, the City cannot be held liable.
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Accordingly, we AFFIRM in part, REVERSE in part, and REMAND to the district court for further proceedings consistent with this opinion.