Brown v. Wilson County

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 29, 2001
• Docket: 00-50893
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50893 Summary Calendar

ALLAN BROWN; LOIS BROWN,

Plaintiff-Appellees,

versus

WILSON COUNTY, Etc.; ET AL.,

Defendants,

JOSEPH CICHERSKI, Wilson County Animal Control Officer in his official and individual capacity; JOE D. TACKITT, Wilson County Sheriff in his official and individual capacity; JASON PRICE, Sheriff’s Deputy in his official and individual capacity; CHRISTOPHER AYALA, Sheriff’s Deputy in his official and individual capacity;

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-97-CV-1473 -------------------- May 28, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Joseph Cicherski, Jason Price, and Christopher Ayala appeal

the district court’s denial of their motion for summary judgment

based on the defenses of qualified and official immunity. Joe D.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-50893 -2-

Tackitt likewise appeals the district court’s judgment to the

extent that it denied his motion for summary judgment based on the

defenses of qualified and official immunity.

In an appeal from the denial of summary judgment, this court

reviews the record de novo. Nerren v. Livingston Police Dep’t, 86

F.3d 469, 472 (5th Cir. 1996). Summary judgment is proper when,

viewing the evidence in the light most favorable to the nonmovant,

there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Amburgey v. Corhart

Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991); Fed. R. Civ.

P. 56(c).

Whether a public official is qualifiedly immune depends on two

inquiries. Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 223

(5th Cir.), cert. denied, 528 U.S. 1022 (1999). First, a defendant

is entitled to qualified immunity when a plaintiff has failed to

allege the violation of a clearly established constitutional right.

Id. Second, a defense of qualified immunity will succeed if the

defendant’s conduct was objectively reasonable at the time in light

of clearly established law. Id. Under Texas law, government

officials are immune from claims arising out of (i) their

discretionary duties (ii) when performed in good faith (iii) in the

scope of their authority. Cantu v. Rocha, 77 F.3d 795, 804 (5th

Cir. 1996).

The appellants’ motions should have been granted based on the

Browns’ failure to show a violation of their clearly established

constitutional rights and on the appellants’ good faith. The

appellants adduced evidence indicating that the Browns had No. 00-50893 -3-

consented to the search. The Browns did not produce competent

summary-judgment evidence to rebut this showing. Because the

search was consensual, it was valid. See United States v. Kelley,

981 F.2d 1464, 1470 (5th Cir. 1993).

The Browns likewise cannot show a Fourth Amendment violation

with respect to the presence of the media and volunteers at the

search. The Supreme Court did not recognize that a Fourth

Amendment violation arises from the presence of the media at a

search until two years after the search that is at issue in the

instant case. See Wilson v. Layne, 526 U.S. 603 (1999). Because

this right was not clearly established at the time of the search,

this claim falls to the defense of qualified immunity.

The Browns also have not shown that any clearly established

rights were violated by the decision to use volunteers to help

execute a warrant that authorized the seizure of over 100 animals.

The Browns have likewise not shown that their clearly

established rights were violated in connection with the seizure of

their dogs. We have previously confronted this issue in another

appeal arising from this case, Brown v. Wilson County, No. 99-

50442, slip op. at 11 (5th Cir. May 30, 2000). In that case, we

reviewed Texas law and noted its “willingness, even if conditional,

to view animals as something more than personal property subject to

the vicissitudes of an owner’s rage, abuse, or neglect.” Id. at

11, quoting Pine v. State, 921 S.W.2d 866, 873 (Tex. App. 1996).

We thus determined that “the law is not clearly established that an

animal control officer cannot constitutionally seize all of a large No. 00-50893 -4-

number of animals if a substantial number of them are being

mistreated.” Id.

Although the opinion in the prior appeal is nonprecedential,

its analysis of the issue whether the seizure of the Browns’

animals presents a violation of a clearly established

constitutional rights applies with equal force to the instant case.

Because it is not clear whether the seizure of the dogs violated

the Browns’ constitutional rights, the appellants’ motions for

summary judgment should have been granted with respect to the

claims arising from this seizure. Our analysis of Pine similarly

leads us to the conclusion that the appellants acted in good faith

in connection with the search and seizure. They are entitled to

assert the state-law defense of official immunity.

The Browns have not shown any violations of their clearly

established rights in connection with the search and seizure that

forms the basis for this suit. They also have not shown that the

appellants acted in bad faith in carrying out this search and

seizure. Accordingly, the judgment of the district court denying

the motion for summary judgment of Ayala, Price, and Cicherski is

REVERSED. The district court’s judgment regarding Tackitt’s motion

for summary judgment is also REVERSED to the extent that it denied

Tackitt’s motion. Judgment is RENDERED in favor of Tackitt, Ayala,

Price, and Cicherski.