Case: 13-30202 Document: 00512372924 Page: 1 Date Filed: 09/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 13, 2013
No. 13-30202 Lyle W. Cayce
Summary Calendar Clerk
GEORGE RAYMOND THOMAS,
Plaintiff–Appellant,
v.
TOWN OF JONESVILLE; WALTER BARBER; ELDRED ROY; X Y Z
INSURANCE COMPANY,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:11-CV-408
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant George Raymond Thomas appeals the district court’s
grant of summary judgment in favor Defendants–Appellees Town of Jonesville,
Walter Barber, Eldred Roy, and X Y Z Insurance Company (collectively,
Defendants) on his federal and state claims related to his arrest on March 15,
2010. We affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 13-30202 Document: 00512372924 Page: 2 Date Filed: 09/13/2013
No. 13-30202
The sequence that led to Thomas’s arrest began with Defendant–Appellee
Officer Barber’s investigatory stop of Thomas when responding to a report of a
fight and a large crowd at the scene of a shooting that had occurred hours
earlier. On appeal, Thomas argues that the district court erroneously
determined that Officer Barber had reasonable suspicion of criminal activity
sufficient to support the investigatory stop. Although Thomas’s complaint does
not allege that his Fourth Amendment rights were violated by Officer Barber’s
investigatory stop, Thomas asserts that the district court’s grant of summary
judgment on the claims raised in his complaint is “fatally flawed.”
We reject Thomas’s argument that Officer Barber did not have reasonable
suspicion to perform an investigatory stop. Thomas asserts that multiple reports
directly to Officer Barber by citizens at the scene that Thomas possessed a gun
could not provide a basis for reasonable suspicion. This argument ignores the
totality of the circumstances surrounding Officer Barber’s investigatory stop of
Thomas.
“Under Terry v. Ohio1 and its progeny, a temporary investigative stop (a
seizure of the person) is proper if the stop is based on reasonable suspicion ‘that
criminal activity may be afoot.’”2 We determine whether a police officer had
reasonable suspicion based on the totality of the circumstances.3 In this case,
Officer Barber and one other officer were the first responders to the scene of a
murder that had occurred hours earlier following reports of a large crowd and
a fight. No suspect had yet been apprehended, and the murder weapon had not
been recovered. When the officers arrived, there was a crowd of dozens people.
1
392 U.S. 1 (1968)
2
United States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987) (quoting Terry, 392 U.S. at
30).
3
United States v. Hopes, 286 F.3d 788, 790 (5th Cir. 2002) (citing Alabama v. White,
496 U.S. 325 (1990)).
2
Case: 13-30202 Document: 00512372924 Page: 3 Date Filed: 09/13/2013
No. 13-30202
A fight was taking place. By Thomas’s own admission, the scene was “hectic”
and “intense.” As soon as the officers exited their vehicles, several bystanders,
including two that Officer Barber could identify by nickname, shouted that
someone in or around Thomas’s vehicle “had a gun.” Accordingly, Officer Barber
asked Thomas to come to the back of Thomas’s vehicle in order to verify whether
Thomas possessed a firearm. Officer Barber then attempted to conduct a pat-
down search of Thomas.
Viewed together, these facts are more than sufficient to support Officer
Barber’s investigatory stop of Thomas. Thomas’s lone argument to the
contrary—that eyewitness tips are the equivalent of anonymous tips submitted
over the phone—is not persuasive. This circuit and other circuits have
recognized that face-to-face reports are qualitatively different from anonymous,
telephoned tips.4 Taking into account the recent murder that occurred at the
same scene, the fact that a fight was taking place, the scene’s otherwise hectic
and crowded nature, and the eyewitness reports that someone in Thomas’s
vehicle possessed a firearm, Officer Barber had reasonable suspicion to conduct
the investigatory stop.5
* * *
AFFIRMED.
4
E.g., Hopes, 286 F.3d at 789-90; United States v. Heard, 367 F.3d 1275, 1279 (11th Cir.
2004); United States v. Valentine, 232 F.3d 350, 354-55 (3d Cir. 2000); United States v.
Christmas, 222 F.3d 141, 144-45 (4th Cir. 2000); United States v. Salazar, 945 F.2d 47, 50-51
(2d Cir. 1991); United States v. Sierra-Hernandez,581 F.2d 760, 763 (9th Cir. 1978); see also
Adams v. Williams, 407 U.S. 143, 146 (1972).
5
See Hopes, 286 F.3d at 789-90; United States v. Sanders, 994 F.2d 200, 207-10 (5th
Cir. 1993) (holding that the holding at gunpoint and handcuffing of a reportedly “suspicious”
person with a gun was permissible under Terry); see also United States v. Conner, 699 F.3d
1225, 1230-32 (10th Cir. 2012) (holding that an investigatory stop in a high-crime area based
on a 911 call stating that the defendant possessed a gun was reasonable); Valentine, 232 F.3d
at 352, 356-57 (upholding an investigatory stop in a high-crime area based on a face-to-face
tip that the informant had “just seen a man with a gun”).
3