143 F.3d 895 (5th Cir. 1998), 95-40157, Petta v. Rivera

Docket Nº:95-40157.
Citation:143 F.3d 895
Party Name:Melinda PETTA, as Next Friend of Nikki Petta and Cavin Petta, Minors; Nikki Petta, a Minor; Cavin Petta, a Minor, Plaintiffs-Appellees, v. Adrian RIVERA, Individually and in his official capacity as Texas Department of Public Safety Highway Patrolman, Defendant-Appellant, and Texas Department of Public Safety, Defendant.
Case Date:June 09, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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143 F.3d 895 (5th Cir. 1998)

Melinda PETTA, as Next Friend of Nikki Petta and Cavin

Petta, Minors; Nikki Petta, a Minor; Cavin

Petta, a Minor, Plaintiffs-Appellees,


Adrian RIVERA, Individually and in his official capacity as

Texas Department of Public Safety Highway

Patrolman, Defendant-Appellant,


Texas Department of Public Safety, Defendant.

No. 95-40157.

United States Court of Appeals, Fifth Circuit

June 9, 1998

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[Copyrighted Material Omitted]

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Roy Stewart Dale, William Daniel Mount, Jr., Dale & Klein, McAllen, TX, for Plaintiffs-Appellees.

Paul G. Kratzig, Corpus Christi, TX, for Nikki and Cavin Petta.

Demetri Anastasiadis, Austin, TX, for Rivera and Texas Dept. of Public Safety.

Appeal from the United States District Court for the Southern District of Texas.

Before DUHE and DENNIS, Circuit Judges, and DUVAL, District Judge 1.



IT IS ORDERED that the petition for rehearing is DENIED. The original opinion and dissent 2 are vacated and the following are substituted therefor.

Officer Adrian Rivera ("Rivera") appeals the district court's denial of his motion for summary judgment based on the defense of qualified immunity. For the reasons that follow, we reverse and render.


Because the parties dispute certain facts, we summarize the relevant incidents drawing inferences in the light most favorable to the nonmovants. See Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990).

On January 15, 1990, Rivera, a Texas Department of Public Safety ("TDPS") Patrol Officer, stopped Melinda Petta ("Petta") for speeding on Farm Road 70, southwest of Corpus Christi. Inside the car were Petta's two children ("the Petta children"): a son, Cavin, age 3, and a daughter, Nikki, age 7. Following a brief argument over the speed Petta had been driving, Petta alleges Rivera ordered her out of the vehicle. When Petta refused to exit and rolled up her window, Petta alleges Rivera "lost his temper, becoming agitated, irrational, threatening and verbally and physically abusive." Rivera then threatened to have her car towed. When Petta still refused to exit her vehicle, she claims Rivera began screaming and cursing her, tried to jerk her door open, and attempted to smash her driver's side window with his nightstick. The alleged tirade culminated when Rivera menaced her with his .357 Magnum handgun. Petta panicked and fled the

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scene. She claims that Rivera fired a shot at her car as she drove away.

What followed was a high-speed pursuit, involving other TDPS officers as well as Rivera, that covered some 19 miles through the crowded city streets of Corpus Christi. Petta claims that during the chase Rivera again shot at her vehicle, attempting to blow out her tires. The record shows that Rivera's superiors ordered him not to fire at the fleeing car and that Rivera disregarded those orders. The pursuit ended with Petta's arrest by several officers at her apartment. Petta's children were never taken into custody nor were they touched by any officers.


Petta, on behalf of her two minor children, sued the TDPS and Rivera, in both his official and individual capacities, asserting various state law claims and § 1983 claims for use of excessive force in violation of the Fourth and Fourteenth Amendments. The court dismissed all state and federal claims against the TDPS and Rivera, in his official capacity, as barred by the Eleventh Amendment. As to Rivera in his individual capacity, the court granted his motion for summary judgment on plaintiffs' § 1983 claim based on the Fourth Amendment. The court, citing Brower v. Inyo County, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 1381-82, 103 L.Ed.2d 628 (1989), and California v. Hodari D., 499 U.S. 621, 624-26, 111 S.Ct. 1547, 1548-50, 113 L.Ed.2d 690 (1991), found that no "seizure" of the children had occurred 3 that would trigger Fourth Amendment protections.

Finding that Rivera had not moved for dismissal or summary judgment with regard to the Fourteenth Amendment claims, the court allowed Rivera an additional ten days to file an appropriate motion. Rivera accordingly filed a supplemental motion for summary judgment based on qualified immunity as to the Fourteenth Amendment claims. The court, however, denied Rivera's motion without explanation and set for jury trial plaintiffs' Fourteenth Amendment claims and supplemental state law claims of assault and battery and negligence against Rivera, in his individual capacity. The court later granted Rivera's motion to stay trial pending his interlocutory appeal.



Generally, appellate courts have jurisdiction to hear appeals only from "final decisions" of district courts. See 28 U.S.C. § 1291 (West 1993). Certain collateral orders have been recognized as "final decisions" within the meaning of § 1291, i.e., those which " conclusively determine the disputed question, resolve an important issue completely separate form the merits of the action, and [are] effectively unreviewable on appeal from a final judgment." Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-43, 113 S.Ct. 684, 686-87, 121 L.Ed.2d 605 (1993); see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). A district court's order denying a defendant's motion for summary judgment based on the defense of qualified immunity is an immediately appealable "final decision" under the collateral order doctrine where the order denies qualified immunity purely as a matter of law. Johnson v. Jones, 515 U.S. 304, 310-12, 115 S.Ct. 2151, 2155, 132 L.Ed.2d 238 (1995); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985); Boulos v. Wilson, 834 F.2d 504, 509 (5th Cir.1987). By contrast, when a district court denies a qualified immunity defense based on its determination that the summary judgment record raises a genuine issue of fact concerning the applicability of the defense, such order is not immediately appealable under the collateral order doctrine. Johnson, 515 U.S. at 312-14, 115 S.Ct. at 2156; Boulos, 834 F.2d at 509.

Here, the district court denied Rivera's motion for summary judgment based on the defense of qualified immunity without supporting

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explanation. We are not precluded, however, from reviewing the order. In such a case, the movant can claim on appeal "that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of 'objective legal reasonableness.' " Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). We must therefore review the record to determine what conduct the district court attributed to Rivera in finding that he had violated clearly established law and was not, therefore, entitled to the defense of qualified immunity. Behrens, 516 U.S. at 312-13, 116 S.Ct. at 842; Johnson, 515 U.S. at 318-19, 115 S.Ct. at 2159; Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

As our discussion, infra, demonstrates, our review of the record shows that Rivera is entitled to the defense of qualified immunity based on the undisputed fact that the Petta children alleged purely psychological harm as a result of Rivera's actions. At the time of these events, it was not "clearly established" in our law that such non-physical harm gave rise to a constitutional tort.


A police officer who, acting under color of state law, subjects a United States citizen to a deprivation of his constitutional rights is liable for damages to the injured party. See 42 U.S.C. § 1983 (West 1997); Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974). The Supreme Court has read § 1983 "in harmony with general principles of tort immunities and defenses rather than in derogation of them." Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976); see Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). Thus, a police officer may interpose a defense of qualified immunity when faced with a § 1983 action. Imbler, 424 U.S. at 418, 96 S.Ct. at 989; Pierson v. Ray, 386 U.S. 547, 555-557, 87 S.Ct. 1213, 1218-19, 18 L.Ed.2d 288 (1967); Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir.1993).

The doctrine of qualified immunity shields a government official performing discretionary functions from civil damages liability, provided his complained of actions meet the test of "objective legal reasonableness." Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982). We assess the "objective reasonableness" of an officer's actions in light of legal rules that were "clearly established" at the time those actions were taken. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

We must take care to identify the relevant "clearly established law" at the proper level of generality so that the defense of qualified immunity will serve its intended purpose, i.e., to allow officers "reasonably [to] anticipate when their conduct may give rise to liability for damages." Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39, quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019-20, 82 L.Ed.2d 139 (1984). To that end, for a right to be "clearly established" we require that its "contours ... must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. It is not necessary, however, that prior cases have held the particular action in question unlawful; "but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id., citing Mitchell, 472 U.S. at...

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