Tarver v. City of Edna

Decision Date25 May 2005
Docket NumberNo. 04-40734.,04-40734.
Citation410 F.3d 745
PartiesFred TARVER, Plaintiff-Appellee, v. CITY OF EDNA, et al., Defendants, Randy Crider, Individually and as Chief of Police of City of Edna; Kent Bubela, Individually, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Bobby Dewayne Brown (argued), Law Office of Bobby D. Brown, Victoria, TX, for Tarver.

William S. Helfand (argued), Norman R. Giles, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, for Defendants-Appellants.

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

Before JONES, WIENER, and CLEMENT, Circuit Judges.


This case involves an interlocutory appeal from the district court's partial denial of summary judgment. Two police officers asserted qualified immunity for claims arising out of an incident where they placed plaintiff-appellee Fred Tarver, Sr. ("Tarver") in a police car during a custody dispute. In his complaint, brought under 42 U.S.C. § 1983, Tarver sued the City of Edna and the officers, Police Chief Randy Crider and Officer Kent Bubela, for unlawful arrest and excessive force. For the reasons set forth below, we reverse and dismiss in part and affirm and remand in part.


On August 1, 2001 in Edna, Texas, a marital dispute between Freddie Tarver, Jr. ("Freddie") and Christina Tarver ("Christina") culminated with Freddie leaving for his parents' house with the couple's two-year-old son, Dylan Tarver ("Dylan"). When Freddie left, Christina called the Edna Police Department and spoke with an officer who explained that the police could not intervene because Freddie had lawful custody of Dylan. The next morning, Christina went to Kidz World, a daycare center owned by Freddie's parents, Tarver and his wife, Vera, where Christina believed Dylan would be. When Christina arrived, she confronted Vera, who explained that Freddie had left Dylan in her care and that she would not be returning the child to Christina. When Christina told Vera that she had the right to take Dylan, Vera fled the facility with the child.

Christina then telephoned the Edna Police Department a second time, requesting assistance in light of the new circumstances. The department dispatched Officer Bubela to Kidz World, where he met with Christina. After hearing Christina's account of the events, Officer Bubela requested that one of the Kidz World employees call Vera and ask her to return with Dylan. After the employee reached Vera, Officer Bubela informed her that if she did not return to the center with Dylan, she could be subject to criminal prosecution. Vera hung up on Officer Bubela but contacted Freddie to inform him that she was returning to Kidz World with Dylan and that he should come there to pick up Dylan.

When Vera reached the center, Officer Bubela reiterated that she must return Dylan to Christina, but Vera again refused. Tarver arrived about this time. Chief Crider arrived within a few minutes to assist Officer Bubela at the scene. After ascertaining the relevant information, Chief Crider informed those present that Dylan needed to be returned to Christina.

Many of the remaining facts are in dispute. Ultimately, Chief Crider directed Officer Bubela to arrest1 Tarver, who was never read his rights. The officers claim that Tarver had repeatedly refused to relinquish Dylan, at one point stating that he would not release Dylan until the officers arrested him. Tarver denies making this statement and alleges that he never attempted to keep Dylan from his mother or the officers. Tarver alleges that while he was calling Freddie's attorney on Vera's cell phone, the officers knocked the phone from his hands and forced handcuffs on him.

The officers contend that because Tarver resisted, Crider assisted Bubela in handcuffing Tarver. Because of Tarver's size, the officers linked two pairs of handcuffs together to provide him more room. When the officers placed Tarver in the back of the police car, he lay down at a 45-degree angle because there was insufficient room for his legs behind the front seat. Tarver alleges that when Vera informed the officers that Tarver had suffered a stroke, was diabetic, and had recently had surgery, Officer Bubela repeatedly replied, "I don't care."

Because the car's air conditioner was turned off (according to Tarver), and Tarver was feeling hot and distressed, he began tapping on the police car window with his feet. Vera, who was speaking with Chief Crider at the side of the car, walked over and opened the vehicle's back door to check on Tarver. She asserts that Officer Bubela rushed over and slammed the car door on Tarver's foot, knocking off his shoe and injuring his back.

Freddie then arrived and had Chief Crider speak with Freddie's attorney on his cell phone. Freddie informed Officer Bubela that his father suffered from numerous medical ailments and appeared to need some air. According to Freddie, Officer Bubela angrily told him that he didn't care. Seeing that Tarver was red-faced and sweating profusely, Freddie opened the police car's back door to give Tarver some air. Because Tarver's head and neck were propped up against the door, his head fell out of the car when Freddie opened the door. Officer Bubela hurried over and shut the car door. According to Tarver, Officer Bubela slammed it on his head, causing the door to bounce back. When Freddie protested, Officer Bubela, allegedly angrily responded that he didn't care because Tarver was not his father. Chief Crider concluded his conversation with Freddie's attorney, and Tarver was released.

Tarver filed suit against Chief Crider, Officer Bubela, and the City of Edna under 42 U.S.C. § 1983, claiming that the officers violated his Fourth and Fourteenth Amendment rights by arresting him without probable cause and by using excessive force in three instances: handcuffing him, slamming the police car door on his foot, and slamming the car door on his head. Tarver averred that he suffered physical injuries, emotional pain and suffering, mental anguish, headaches, and depression, and required surgery as a result of the officers' violations of his clearly established rights.

The officers moved for summary judgment based on qualified immunity. The district court granted only Chief Crider's motion for summary judgment as to the excessive force claims regarding the police car door based on the fact that Chief Crider was not involved in closing the door. The court denied the officers' other summary judgment motions and the officers timely appealed.


We review the district court's summary judgment decision de novo. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir.2002); FED. R. CIV. P. 56. In making this determination, we review the facts in the light most favorable to the nonmoving party. In re Millette, 186 F.3d 638, 641 (5th Cir.1999).2


In performing our qualified immunity analysis, we must first determine whether Tarver has alleged a violation of a constitutional right; if so, we turn to whether the officers' conduct was objectively reasonable in light of clearly established law at the time the challenged conduct occurred. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The second prong of the analysis "`is better understood as two separate inquiries: whether the allegedly violated constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendants was objectively unreasonable in light of that then clearly established law.'" Felton v. Polles, 315 F.3d 470, 477 (5th Cir.2002) (emphases omitted) (quoting Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir.1998)). If officers of reasonable competence could disagree as to whether the plaintiff's rights were violated, the officer's qualified immunity remains intact. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

A. Unlawful Arrest Claim

Tarver first alleges that his constitutional rights were violated when he was unlawfully detained. As an initial matter, the parties dispute whether Tarver was temporarily arrested or merely detained. While Tarver claims that he was subject to arrest, which requires probable cause, U.S. CONST. amend. IV, the officers claim that their conduct amounted to a Terry stop, which is constitutional if supported by a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Tarver argues that the officers lacked either probable cause to arrest him or reasonable suspicion to detain him because he never had possession or control of Dylan at any time during the incident. The officers contend that their conduct—whether it amounted to a Terry stop or an arrest—was lawful. They assert that even if their conduct violated Tarver's constitutional rights, they acted as objectively reasonable officers.

We conclude that the officers are entitled to qualified immunity regardless of whether Tarver was arrested or merely detained. Tarver cannot satisfy the second prong of the qualified immunity analysis because even arresting Tarver was not objectively unreasonable in light of the circumstances surrounding the incident. A police officer who reasonably but mistakenly concludes that he has probable cause to arrest a suspect is entitled to qualified immunity. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Tarver does not dispute that it is clear law that a child's parents, rather than his grandparents, are his primary custodians. See Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re G.M., 596 S.W.2d 846, 846 (Tex.1980). As the district court recognized, the officers were "confronted with a situation where the mother of the child in question claimed that another individual was keeping her son from her. Since...

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