Oscar Jimenez, et al v. Texas Alcoholic Beverage Cmsn, et al

Filing

PUBLISHED OPINION FILED. [09-40892 Affirmed ] Judge: EMG , Judge: FPB , Judge: BML Mandate pull date is 10/13/2010 [09-40892]

Oscar Jimenez, et al v. Texas Alcoholic Beverage Cmsn, et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40892 September 22, 2010 Lyle W. Cayce Clerk O S C A R GABRIEL JIMENEZ; CHANDRA RAE JIMENEZ, P la in t if f s - A p p e lle e s v. W O O D COUNTY, TEXAS; SHERIFF DWAINE DAUGHERTY, D e fe n d a n t s -A p p e lla n t s

A p p e a l from the United States District Court fo r the Eastern District of Texas

B e fo r e GARZA and BENAVIDES, Circuit Judges, and LYNN * , District Judge. E M I L I O M. GARZA, Circuit Judge: A p p e lla n t s Wood County, Texas, and Sheriff Dwaine Daugherty (c o lle c t iv e ly "the County") appeal the judgment against them pursuant to 42 U . S .C . §1983, as well as the district court's award of attorney fees. For the r e a s o n s set forth herein, we affirm. I P la in t iffs Oscar and Chandra Jimenez ("the Jimenezes") operated a bar in a n area of Wood County that Sheriff Daugherty identified as associated with s ig n ific a n t amounts of drug activity. Agents of the Texas Alcoholic Beverage C o m m is s io n (" T A B C " ), in coordination with officers of the Wood County Sheriff's

*

District Judge of the Northern District of Texas, sitting by designation.

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D e p a r t m e n t , conducted a raid on the bar. During the raid, the TABC agents had a n initial confrontation with Mr. Jimenez, after which Mr. Jimenez fled and the a g e n t s were unable to find him. Agents eventually discovered him locked in the t r u n k of an automobile registered to the Jimenezes. Ms. Jimenez, who had the k e y s to the automobile, unlocked the trunk for the agents after multiple r e q u e s ts . Ms. Jimenez was arrested for hindering apprehension, which the p a r tie s agree was a Class A misdemeanor under these circumstances. She was t a k e n to the Wood County jail where an employee of the Wood County Sheriff's D e p a rtm e n t performed a strip search on her. The parties agree that, at the time, it w a s the department's policy to perform strip searches on all detainees entering t h e jail who were arrested for a felony, Class A misdemeanor, or Class B m is d e m e a n o r .1 Mr. Jimenez was also arrested. T h e Jimenezes sued the TABC, Wood County, and Sheriff Daugherty u n d e r 42 U.S.C. § 1983, alleging violations of their constitutional rights arising o u t of their arrests, the TABC's alleged use of excessive force against Mr. J im e n e z , and the strip search of Ms. Jimenez. The claims against the TABC w e r e eventually settled and dismissed. The claim against the County based on t h e strip search of Ms. Jimenez proceeded to trial. The jury entered a verdict fin d in g the County liable for violating Ms. Jimenez's rights under the Fourth A m e n d m e n t and imposing actual damages of $55,000, as well as punitive d a m a g e s of $5,000 against Sheriff Daugherty. The Jimenezes then sought $ 2 2 2 ,7 8 0 in attorney fees and $43,337.83 in expenses pursuant to 42 U.S.C. § 1 9 8 8 . Upon review of the claimed fees, the district court granted $157,394.60 in fe e s and $37,153.95 in expenses. The County appeals from both the judgment a g a in s t it and the fee award.

The sheriff's actual testimony is that this policy applied to all detainees "charged" with a Class B misdemeanor or above. Both parties, however, characterize the policy as applying to all detainees arrested for such offenses.

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T h e County argues that it was not required to base its search of Ms. J im e n e z on reasonable suspicion for two reasons. First, it argues that we

s h o u ld reverse our prior precedents and hold that, under Bell v. Wolfish, 441 U .S . 520 (1979), the Fourth Amendment permits visual strip searches of all jail d e t a in e e s upon being booked into a detention facility, regardless of reasonable s u s p ic io n . Second, the County argues in the alternative that the district court e r r e d in classifying hindering apprehension as a "minor offense," and that the n a t u r e of Ms. Jimenez's offense therefore justified the search regardless of the la c k of individualized reasonable suspicion. d is a g re e . A The County argues that we should hold that there is no requirement of r e a s o n a b le suspicion for strip searches of newly arrested detainees regardless o f the offense giving rise to the arrest, overruling a number of cases we have d e c id e d under Wolfish.2 In Wolfish, the Supreme Court held that strip searches in a prison setting could be performed based on "less than probable cause." 441 U .S . at 560. We have repeatedly concluded that, under Wolfish, a strip search o f an individual arrested for a minor offense must be premised on reasonable s u s p ic io n that the detainee is carrying weapons or contraband. See, e.g., Kelly v . Foti, 77 F.3d 819, 821 (5th Cir. 1996) ("Jail officials may strip search a person a r r e s t e d for a minor offense and detained pending the posting of bond only if t h e y possess a reasonable suspicion that he is hiding weapons or contraband."); For the following reasons, we

Although overruling is not appropriate at this stage, there may be compelling reasons to reconsider these precedents en banc in an appropriate case. Recent en banc panels of the Ninth and Eleventh Circuits have reconsidered similar precedents in their circuits and ultimately agreed with the County's position. See Bull v. City & County of San Francisco, 595 F.3d 964,977 (9th Cir. 2010) (en banc) (overruling Thompson v. City of Los Angeles, 885 F.2d 1439, 1446-47 (9th Cir. 1989); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984)); Powell v Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc) (overruling Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir. 2001)).

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W a tt v. City of Richardson Police Dep't, 849 F.2d 195, 198 (5th Cir. 1988) (h o ld in g that visual strip search of arrestee for failure to register a dog, based s o le ly on the arrestee's prior drug offense conviction, was unconstitutional); S te w a r t v. Lubbock County, Tex., 767 F.2d 153, 156­57 (5th Cir. 1985) ("Because L u b b o c k County's strip search policy was applied to minor offenders awaiting b o n d when no reasonable suspicion existed that they as a category of offenders o r individually might possess weapons or contraband, under the balancing test o f Wolfish we find such searches unreasonable and the policy to be in violation o f the Fourth Amendment."). The County argues that we should overrule those cases to bring our p r e c e d e n t s into line with "the growing trend" among courts. As the County con c e d e s , interpretations of Wolfish vary greatly between circuits. See, e.g., Bull, 5 9 5 F.3d at 980-81 (9th Cir. 2010) (en banc) (holding that mandatory, routine v is u a l strip search policy for all arrestees who were to be introduced into general ja il population was constitutional); Powell, 541 F.3d at 1314 (en banc) (holding t h a t a policy of strip searching every arrestee booked into a jail or detention fa c ilit y does not violate the Fourth Amendment); Roberts v. Rhode Island, 239 F .3 d 107, 112-13 (1st Cir. 2001) (holding that mandatory visual strip search p o lic y at correctional institution intake center was unconstitutional); Weber v. D e ll, 804 F.2d 796, 802 (2d Cir. 1986) (holding that mandatory visual strip s e a r c h policy in county jail was unconstitutional), cert. denied, 483 U.S. 1020 (1 9 8 7 ). "[A] panel of this court can only overrule a prior panel decision if `such o v e r r u lin g is unequivocally directed by controlling Supreme Court precedent.'" Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001) (quoting United S ta te s v. Zuniga-Salinas, 945 F.2d 1302, 1306 (5th Cir.1991)). Thus, even if t h e r e is a trend in favor of abolishing reasonable suspicion requirements in this s e t t in g , a trend alone does not justify a panel reversing prior decisions of the c o u r t. Because the County has not identified a Supreme Court case that 4

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u n e q u iv o c a lly directs us to do otherwise, we must consider this case under our e x is t in g precedents. B T h e County argues next that the district court erred in concluding that h in d e r in g apprehension is a "minor offense" and by instructing the jury a c c o r d in g ly . Specifically, it argues that the seriousness of the offense and the fa c t that it could result in up to a year of incarceration establish that the offense i s not "minor." A party challenging a jury instruction must show that the c h a r g e , as a whole, created a "substantial and ineradicable doubt" as to whether t h e jury was properly instructed and that the error "could . . . have affected the o u tc o m e of the case." Taita Chem. Co. Ltd. v. Westlake Styrene, LP, 351 F.3d 6 6 3 , 667 (5th Cir. 2003) (quoting FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1 9 9 4 ); Bender v. Brumley, 1 F.3d 271, 276-77 (5th Cir. 1993)). Under our

p r e c e d e n t s , the question of whether hindering apprehension is a minor offense is a component of the broader Wolfish balancing test for determining the r e a s o n a b le n e s s of the search. See Stewart, 767 F.2d at 156-57 (discussing "the b a la n c in g test of Wolfish"). "We review questions of law, including whether the d is t r ic t court's ultimate conclusions of Fourth Amendment reasonableness are c o r r e c t , de novo." United States v. Maldonado, 472 F.3d 388, 392 (5th Cir. 2006) (c it in g United States v. Paige, 136 F.3d 1012, 1017 (5th Cir.1998)). The Jimenezes argue that this challenge was not sufficiently preserved d u e to the cursory nature of the County's objection at trial, in particular the fact t h a t the objection did not explicitly challenge the court's instruction to the jury t h a t reasonable suspicion was required for the search. The County, however, did n o te its objection to the district court's "finding that [misdemeanor hindering a r r e s t ] was a minor offense as a matter of law," and the district court replied t h a t it had considered the relevant precedent and concluded that it was. The C o u n t y is correct to point out that, under our precedents, the "minor offense" d e t e r m in a t io n foreclosed the possibility of a ruling that reasonable suspicion was 5

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n o t required. Although the County might have been better served by a more t h o r o u g h and explicit challenge, its actions were sufficient to preserve the issue o f whether hindering apprehension was a minor offense. A n individual commits hindering apprehension when he, "with intent to h in d e r the arrest, prosecution, conviction, or punishment of another for an o ffe n s e . . . (1) harbors or conceals the other; (2) provides or aids in providing the o t h e r with any means of avoiding arrest or effecting escape; or (3) warns the o t h e r of impending discovery or apprehension." 3 8 .0 5 (a ) . TEX. PENAL CODE ANN. §

The County concedes that, under these circumstances, hindering

a p p r e h e n s io n is a Class A Misdemeanor punishable by a fine not to exceed $ 4 ,0 0 0 , incarceration for a term not to exceed one year, or both. Id. § 38.05(c), § 12.21. However, "if the person who is harbored, concealed, provided with a m e a n s of avoiding arrest or effecting escape, or warned of discovery or a p p r e h e n s io n is under arrest for, charged with, or convicted of a felony," and the in d iv id u a l charged with hindering apprehension had knowledge of that fact, h in d e r in g apprehension is a felony in the third degree. Id. § 38.05(d). T h e question of whether hindering apprehension is a minor offense for the p u r p o s e of a strip search is an issue of first impression. However, the

classification of a crime as a misdemeanor has been treated by other circuits as a relevant or even determinative factor in ascertaining whether there is a r e a s o n a b le suspicion requirement. See Roberts, 239 F.3d at 112 ("[W]hen the in m a t e has been charged with only a misdemeanor involving minor offenses or t r a ffic violations, crimes not generally associated with weapons or contraband, c o u r ts have required that officers have a reasonable suspicion that the in d iv id u a l inmate is concealing contraband."); Weber, 804 F.2d at 804 ("We c o n c lu d e that a reasonable suspicion that an accused misdemeanant or other m in o r offender is concealing weapons or other contraband--suspicion based on t h e particular traits of the offender, the arrest and/or the crime charged--is n e c e s s a r y before subjecting the arrestee to the indignities of a strip/body cavity 6

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s e a r c h ." ) .

In other settings, as well, misdemeanors have historically been In Stewart, we cited the applicability of the

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c h a lle n g e d policy to individuals arrested for misdemeanors in support of our c o n c lu s io n that the challenged policy was unconstitutional because it applied to m in o r offenders when no reasonable suspicion existed that they might possess w e a p o n s or contraband. See Stewart, 767 F.2d at 156 (noting that "the detainees w e r e arrestees awaiting bond on misdemeanor or traffic violation charges"). In S te w a r t, however, the detainees had been arrested pursuant to Class C m is d e m e a n o r s , which, unlike the Class A misdemeanor in this case, were p u n is h a b le only by fine. Nevertheless, in light of the persuasive authority, we h o ld that hindering apprehension--other than felony hindering apprehension u n d e r section 38.05(d), the status of which is not before us--is, given its m is d e m e a n o r status, a minor offense for these purposes and reasonable s u s p ic io n was therefore required for a strip search. Accordingly, any instruction t o that effect did not amount to error. III T h e County argues next that Sheriff Daugherty was entitled to qualified im m u n it y from § 1983 liability because he did not violate a clearly established r ig h t . When a defendant invokes the qualified immunity defense, the burden is o n the plaintiff to show its inapplicability. Atteberry v. Nocona Gen. Hosp., 430 F .3 d 245, 253 (5th Cir. 2005). To do so, the plaintiff must show not only a

v io la t io n of a constitutional right, but also that the defendant's actions were o b je c t iv e ly unreasonable in light of clearly established law at the time of the c o m p la in e d of actions. Id. "To be clearly established for purposes of qualified

In now-repealed statutes governing the authority of United States Commissioners, for example, "minor offenses" were defined as "misdemeanors punishable under the laws of the United States, the penalty for which does not exceed imprisonment for a period of one year, or a fine of not more than $1,000, or both." Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 901 n.18 (3rd Cir. 1992) (quoting 82 Stat. 1116, formerly codified at 18 U.S.C. § 3401(f) (1964 Supp IV)).

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im m u n it y , the contours of the right must be sufficiently clear that a reasonable o ffic ia l would understand that what he is doing violates that right." Id. at 256 (in t e r n a l citations omitted). The Jimenezes argue first that this issue has not b e e n preserved for appeal and that, even if the issue is preserved, the district c o u r t did not err because Ms. Jimenez's rights were clearly established. W e agree with the Jimenezes that this issue was not properly preserved fo r appeal and that, therefore, it is inappropriate for our consideration. See State Indus. Prods. Corp. v. Beta Tech. Inc., 575 F.3d 450, 456 (5th Cir. 2009) (d is c u s s in g waiver of arguments not raised at trial). In its reply brief, the C o u n ty cannot point to any instance in which it argued that Daugherty was, as a matter of law, entitled to qualified immunity because Ms. Jimenez's rights w e r e not clearly established. Instead, it merely cites its objection to the jury in s t r u c t io n that hindering apprehension was a minor offense. The County a r g u e s that the district court's decision to include this instruction over its o b je c t i o n "essentially required the jury to find that Sheriff Daugherty was not e n tit le d to qualified immunity," and, "[t]herefore, the [d]istrict [c]ourt essentially r u le d on the issue of qualified immunity." We disagree. The questions of what t h e law is ­ here, whether the offense was minor ­ and whether the law is c le a r ly established are distinct. By ruling and instructing the jury that

h in d e r in g apprehension is a minor offense, the district court did nothing to f o r e c lo s e an argument that the relevant law was not clearly established. Therefore, we cannot consider the County's late-arising arguments for qualified im m u n it y , regardless of their merit. IV T h e County has also argued ­ albeit only briefly ­ that the search was m a d e pursuant to reasonable suspicion that Ms. Jimenez possessed weapons or

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Reasonable suspicion arises where there are "specific and

a r t ic u la b le facts which, taken together with rational inferences from those facts, r e a s o n a b ly warrant [the] intrusion" ­ in this case, specific and articulable facts w a r r a n tin g the suspicion that Ms. Jimenez was carrying weapons or contraband. Terry v. Ohio, 392 U.S. 1, 21 (1968). The County bases its argument that it had r e a s o n a b le suspicion on two facts: that Ms. Jimenez was arrested in an area w h e r e "drug use abounds" and that she had allegedly concealed her husband in t h e trunk of her automobile. Whether specific facts give rise to reasonable s u s p ic io n is a question of law that we review de novo. Goodson v. City of Corpus C h r is ti, 202 F.3d 730, 737 (5th Cir. 2000). W e are unpersuaded that Ms. Jimenez's presence in a "high drug area" g iv e s rise to reasonable suspicion that she was in possession of weapons or c o n t r a b a n d . "An individual's presence in an area of expected criminal activity, s t a n d in g alone, is not enough to support a reasonable, particularized suspicion t h a t the person is committing a crime." Illinois v. Wardlow, 528 U.S. 119, 124 (2 0 0 0 ). Likewise, it cannot support a reasonable, individualized suspicion of p o s s e s s io n of weapons or contraband. The County's argument is further

u n d e r m in e d by the fact that Ms. Jimenez's presence in the area was explained b y the fact that the bar was located there ­ that is to say, she was not simply in t h e area with no apparent explanation. We also cannot conclude that Ms. Jimenez's possible concealment of her h u s b a n d gave rise to reasonable suspicion that she was carrying weapons or

We note preliminarily that it is questionable whether the County has adequately preserved this argument for appeal. The argument was omitted from the statement of the issues and is included in the brief within a subsection devoted to the question of whether hindering apprehension is a minor offense. See Quick Techs., Inc. v. Sage Group PLC, 313 F.3d 338, 343 n.3 (5th Cir. 2002) (holding that issue raised in conclusion of brief, but omitted from statement of issues and body of brief, was not preserved). Nevertheless, because the issue was argued with appropriate citations to the record and precedent in the main body of the brief, and the Jimenezes have had adequate opportunity to respond in their brief, we will consider this argument, assuming without deciding that it was adequately preserved.

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c o n t r a b a n d . Even when an offense is minor, we may consider the nature of that o ffe n s e in determining whether there was reasonable suspicion. See Watt, 849 F .2 d at 197 (5th Cir. 1988) (stating that reasonable suspicion may be based on fa c t o r s including "the nature of the offense, the arrestee's appearance and c o n d u c t , and the prior arrest record"). In this instance, however, the nature of t h e offense is simply too attenuated from the possibility that Ms. Jimenez was c o n c e a lin g contraband or a weapon. Ms. Jimenez was not arrested for concealing w e a p o n s or contraband; she had allegedly been concealing an individual, who h a d been found. Were we to hold that this fact gave rise to reasonable suspicion, w e would have little choice but to extend that reasonable suspicion to all in d iv id u a ls arrested for offenses involving some manner of concealment, r e g a r d le s s of what was concealed ­ or, at the very least, all such defendants a r r e s t e d in areas identified by police as associated with criminal activity. The C o u n ty has cited no authority in support of so broad a holding. Accordingly, we h o ld that there was no reasonable suspicion to justify the strip search. V T h e County argues that the district court erred in determining the amount o f fees by attributing fees and costs to the County and the sheriff that were in c u r r e d in litigating against the TABC before settlement. The County further a r g u e s that the fees were "grossly disproportionate" to the damages the J im e n e z e s recovered. The Jimenezes argue that it was appropriate to consider t h e pre-settlement fees because the claims against the County were inextricably in t e r t w in e d with Mr. Jiminez's claims against the TABC. T h e determination of a fees award is a two-step process. Rutherford v. H a r r is County, 197 F.3d 173, 192 (5th Cir. 1999). First the court calculates the " lo d e s t a r " which is equal to the number of hours reasonably expended multiplied b y the prevailing hourly rate in the community for similar work. Id. The court s h o u l d exclude all time that is excessive, duplicative, or inadequately d o c u m e n t e d . Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). Once the 10

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lo d e s t a r amount is calculated, the court can adjust it based on the twelve factors s e t forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th C ir . 1974). But see Perdue v. Kenny A., 130 S.Ct. 1662, 1669 (2010) (limiting u p w a r d adjustments in light of "a strong presumption that the lodestar is s u ffic ie n t " ). The court must provide "a reasonably specific explanation for all a s p e c t s of a fee determination." Perdue, 130 S.Ct. at 1676. We review the award fo r abuse of discretion. Id. The district court's detailed order plainly takes into account the fact that t h e TABC had been dismissed as a party to the litigation. Specifically, the court fo u n d that the issues raised against the TABC and the County were closely in te r tw in e d . Accordingly, the court found that much of the discovery the

J im e n e z e s conducted from TABC was relevant in the case at trial, even though t h e TABC claims had settled. The court nevertheless reduced the hours spent b y attorney Edwin Wright by 25% to reflect the dismissal of the TABC claims. The court also noted that the Jimenezes' other attorney had already deducted o r reduced hours billed where the entry was not relevant to the County or where w o r k was applicable to both the County and TABC and concluded that further r e d u c t io n was not necessary. For unrelated reasons, the court reduced the r e q u e s te d hourly rate from $300 to $275. The court finally considered the J o h n s o n factors and reduced the lodestar amount by 20% accordingly. We agree that the district court's allocation of hours to the claims against t h e County was within its discretion in light of the close relationship between t h e claims against the TABC and the County. The circumstances of the raid and M s . Jimenez's subsequent arrest are relevant to the ultimate question of the r e a s o n a b le n e s s of the search. Because the raid involved coordination between t h e TABC and the County, the issues and resulting attorney hours underlying t h e claims against the various defendants, though not perfectly coextensive, were closely intermingled. Moreover, the County's argument, in the alternative, t h a t the fee award is unreasonable solely in light of the ratio between the fees 11

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a n d the recovery is conclusory and unsupported. Accordingly, the district court d id not abuse its discretion in the calculation of the fees. VI F o r the foregoing reasons, we AFFIRM the judgment of the district court in all respects.

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