Anthony A. Davis, Bill Lazenby, Crayton McGee, and Henry L. Whitman, Jr. v. Carroll Parker--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00316-CV

Anthony A. DAVIS, Bill Lazenby, Crayton McGee and Henry Whitman, Jr. ,

Appellants

v.

Carroll PARKER,

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-10911

Honorable Barbara Hanson Nellermoe , Judge Presiding

Opinion by: Sandee Bryan Marion , Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: November 29, 2006

REVERSED AND RENDERED

Carroll Parker sued Anthony A. Davis, Bill Lazenby, Crayton McGee and Henry Whitman, Jr. alleging they unlawfully arrested him. The appellants, who are law enforcement officers, appeal the trial court's order denying their motion for summary judgment based on qualified immunity. We reverse the trial court's order and render judgment in the appellants' favor.

Background

An inmate, Dion Clack, sent a letter to a newspaper reporter stating that another inmate, Robert Lee, had solicited him to hire his cousin, Tony Higgins, to murder a district judge. Lee was serving time for attempting to hire someone to murder his wife, and he reportedly did not want the district judge to rule on his writ of habeas corpus. Clack's letter stated that Lee's girlfriend, Jill, was arranging payment. In order to correspond about the scheme, Clack and Lee referred to the scheme as involving the purchase of a "truck."

After the reporter turned the letter over to TDCJ, Captain Bill Lazenby was assigned to lead an investigation into the matter on June 30, 2000, assisted by Officer Crayton McGee, Officer Earl Bowie, Officer Henry Whitman, Jr., and Officer Anthony Davis. On June 30, 2000, McGee, posing as Clack's cousin Tony Higgins, phoned Lee's girlfriend, Jill Holfinger, and arranged to meet her. McGee was accompanied by Bowie, posing as a friend named Chris. McGee told Holfinger they were meeting to collect the money for the truck. Holfinger phoned Parker who she knew was also working with Lee to arrange payment. Holfinger told Parker that she was unaware that she was to have the money that day. Parker stated that he needed to contact another person to see if he could get the money. Later on that day, Holfinger, who believed the money was to purchase an actual truck, was advised of the true nature of the scheme and agreed to cooperate in the investigation. Holfinger again contacted Parker about the earlier meeting, and Parker told Holfinger that he would take care of everything and to have the men call him if they contacted Holfinger again. McGee subsequently contacted Parker, who stated that he would need to write Lee and that Holfinger was not to be contacted again. In response to McGee's question as to whether Parker knew "what this is all about" because it was not "about a truck," Parker stated, "I know. I know what this is about but she [Holfinger] doesn't know. ... She doesn't know anything about it. Like I said she thinks it's a real truck."

A few days later, Parker wrote Lee and told him about Holfinger's meeting with the men. Parker stated that the timing was terrible and nothing had been organized. Upon returning from a vacation several days later, Parker discovered his house had been burglarized. When McGee contacted Parker, Parker accused McGee of burglarizing his house. Parker told McGee he was no longer willing to help Lee. In response to whether Lee still wanted the truck, Parker responded, "if you go handle it, you can handle it, uh, all I know is you [sic] supposed to take care of stuff from the police station, and if you do that, great for him, if not, hey, I don't want to hear it, I don't want nothing to do with it."

Based on the information gathered in the investigation, Officer Davis prepared an affidavit requesting an arrest warrant. The affidavit stated that a confidential informant disclosed information regarding a conspiracy to have a judge murdered. The affidavit further stated that the informant disclosed that Lee and Clack were involved in the conspiracy to murder the judge because the judge had denied Lee's writs of habeas corpus. During the subsequent investigation, letters were intercepted in which Lee and Clack would correspond using the word "truck" to signify the conspiracy. In one letter, Clack stated that Higgins was to contact either Holfinger or Parker for the initial payment. The affidavit stated that Parker's telephone number was disclosed in correspondence between Holfinger, Clack, and Lee. The affidavit also detailed the conversation between McGee posing as Higgins and Parker, in which Parker indicated that the task to be performed was not connected with the purchase of a truck. Based on the affidavit, Justice of the Peace Joe Lyvers found sufficient probable cause and issued a warrant for Parker's arrest.

Parker was arrested on July 26, 2000. In response to questioning, Parker stated that the plan was to pay money to get rid of a knife that was used as evidence in Lee's trial. Parker was then released on a $2,000.00 personal appearance bond after agreeing to cooperate with investigators by meeting with Lee. When Captain Lazenby contacted Judge Lyvers and informed him that Parker subsequently refused to cooperate, Judge Lyvers was concerned about Parker "jumping bail" partly because Parker was a school teacher and school was out for the summer and because the full extent of the scheme in which Parker was involved was still unknown. Judge Lyvers revoked the personal appearance bond and authorized Parker's arrest on July 31, 2000.

Parker was subsequently indicted for criminal conspiracy to tamper with or fabricate evidence; however, the charges were dismissed after he agreed to testify against Lee. At Lee's plea hearing, Parker admitted that he participated in a scheme to collect money to pay Clack's cousin to take evidence regarding Lee's prior offense from the evidence bin at the police department.

Jurisdiction and Standard of Review

In his brief, Parker summarily challenges our jurisdiction to consider this appeal. Section 51.014(a)(5) of the Texas Civil Practice and Remedies Code permits a person to appeal from an interlocutory order that denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state. Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(5) (Vernon Supp.2006). The availability of interlocutory appeal to address the defense of qualified immunity does not distinguish between claims brought under federal or state law. Leo v. Trevino, No. 13-05-516-CV, 2006 WL 1550839, at *2 (Tex. App.--Corpus Christi June 8, 2006, no pet.). Furthermore, under federal law, denials of qualified immunity on summary judgment are immediately appealable under the collateral order doctrine if based on an issue of law. Mendenhall v. Riser, 213 F.3d 226, 229-30 (5th Cir. 2000). In reviewing such an order, the plaintiff is given the benefit of the doubt with regard to any disputed issues of fact, and the appellate court reviews as a matter of law whether under such a factual scenario the complaint may proceed. Id. at 230. "If those facts do not materially affect the outcome - i.e., if even under such a factual scenario the officers' actions may be deemed as a matter of law objectively reasonable - the denial of summary judgment is immediately reviewable as a question of law, and qualified immunity should be granted." Id. "Our review of the district court's order denying summary judgment on qualified immunity grounds is conducted de novo." Id.

Discussion

When an individual asserts a claim for wrongful arrest, qualified immunity will shield the defendant officers from suit if a reasonable officer could have believed the arrest at issue to be lawful in light of clearly established law and the information the arresting officers possessed. Mendenhall v. Riser, 213 F.3d at 230. Even law enforcement officers who reasonably but mistakenly conclude that probable cause is present are entitled to immunity. Id. Although a qualified immunity defense cannot succeed if it is obvious that a reasonably competent officer would find no probable cause, immunity is recognized if officers of reasonable competence could disagree on the issue. Id. In determining whether probable cause existed, we look to the totality of the circumstances and consider whether a reasonable officer could have believed there was a fair probability that an offense was committed. Id. at 231. The test is an objective one, and the officer's subjective intent is not relevant. Id. We are to determine the reasonableness of the actions taken in light of the facts that existed at the time of the arrest. Id.

In seeking an arrest warrant, an officer is entitled to qualified immunity so long as the officer did not knowingly provide false information or give false information in reckless disregard of the truth. Freeman v. County of Bexar, 210 F.3d 550, 553 (5th Cir. 2000). When officers make an arrest subject to a warrant, then, even if probable cause is lacking, officers are entitled to qualified immunity unless the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable. Malley v. Briggs, 475 U.S. 335, 344-45 (1986); Abreu-Guzman v. Ford, 241 F.3d 69, 73 (1st Cir. 2001).

A. July 26, 2000 Arrest

Parker was initially arrested after a neutral and detached magistrate reviewed the arrest warrant affidavit and determined that probable cause existed. See McKinney v. Richland County Sheriff's Dept., 431 F.3d 415, 419 (4th Cir. 2005) (noting reasonable officer would not second-guess determination by magistrate unless probable cause was plainly lacking). Parker contends, however, that the arrest warrant affidavit contained false and misleading information. In order to constitute a constitutional violation sufficient to overcome the qualified immunity of an arresting officer, the material misstatements and omissions in the warrant affidavit must be of such character that no reasonable official would have submitted it to a magistrate. Morin v. Caire, 77 F.3d 116, 122 (5th Cir. 1996). Furthermore, specific omitted facts must be clearly critical to a finding of probable cause. Id.

The affidavit first details the information provided by a confidential informant. An informant's information is considered reliable if the informant speaks with personal knowledge. Abreu-Guzman, 241 F.3d at 74. Parker asserts that the affidavit is misleading because it appears that the confidential informant is a third person other than Clack. Although the affidavit does not state that Clack is the confidential informant, the affidavit accurately states the information that had been gathered from Clack. Parker seeks to rely on actions taken by Clack subsequent to Parker's arrest to challenge Clack's trustworthiness; however, we only consider the facts known to the officers at the time the affidavit was prepared. See Mendenhall, 213 F.3d at 231.

Parker also challenges the statement in the affidavit that the officers became aware of his telephone number through correspondence between Holfinger, Clack, and Lee. Although the transcript of McGee's meeting with Holfinger reveals that Holfinger looked up Parker's telephone number and called him during the meeting, the source for the telephone number is not material for purposes of establishing probable cause.

Based on the information received from Clack, the officers corroborated facts through their subsequent investigation, lending support to the reliability of the information. See Abreu-Guzman, 241 F.3d at 74. The transcript of the subsequent phone conversation between McGee and Parker substantiated that the reference to a "truck" was a cover for a criminal scheme, that Parker was aware of the scheme, and that Parker was involved in gathering payment in furtherance of that scheme. Although further investigation revealed that the scheme was to destroy evidence and not to murder a judge, the fact that a more thorough investigation was not conducted before seeking the arrest warrant does not negate the probable cause established during the investigation, particularly taking into consideration the phone conversation between McGee and Parker. See McKinney, 431 F.3d at 418-19.

B. July 31, 2000 Arrest

The appellants filed an original motion for summary judgment and an amended partial motion for summary judgment. The amended motion was primarily directed at addressing the second arrest. Parker contends that the officers' affidavits attached to the original motion are inconsistent with the affidavits attached to the amended motion. Having reviewed the affidavits, we conclude that the affidavits attached to the amended motion simply provide more explanation regarding the second arrest and are not materially inconsistent with the original affidavits. (1)

Parker contends that the second arrest was in retaliation for his refusal to cooperate with the officers by meeting with Lee regarding the scheme. "An action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate." Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995). "Mere conclusory allegations of retaliation will not withstand a summary judgment challenge." Id. at 1166. To state a claim for retaliation, Parker was required to allege that but for the retaliatory motive, the complained of incident would not have occurred. Id. To establish retaliation, Parker was required to produce direct evidence of the retaliatory motivation or allege a chronology of events from which retaliation may plausibly be inferred. Id.

In this case, the record contains evidence that Judge Lyvers authorized the revocation of Parker's bond and his arrest. Although Parker's refusal to cooperate was a factor that Judge Lyvers considered, the evidence establishes that Judge Lyvers's decision to revoke the bond was not in retaliation for Parker's refusal to cooperate but was based on other concerns. First, the judge was concerned that because Parker was a teacher and school was out for the summer, he might jump bail given the low amount that was initially set. In addition, the judge was concerned that the investigators still were uncertain of the extent of the scheme and who else might be involved. Therefore, the record establishes that Parker was not arrested in retaliation for his refusal to cooperate but due to the judge's concerns with regard to the nature of the scheme in which Parker was involved and the possibility that Parker might jump bail.

Conclusion

The trial court's order is reversed, and judgment is rendered that appellants are entitled to qualified immunity.

Sandee Bryan Marion , Justice

1. Parker also contends that "the documents" attached by the appellants as summary judgment evidence are defective; however, Parker does not provide any citation to establish that he obtained a ruling from the trial court on these objections. Accordingly, this complaint is not preserved for our review. Tex. R. App. P. 33.1(a).