Gomez v. City of Plainview

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-10640
_____________________

JESSE GOMEZ; STELLA GOMEZ

Plaintiffs - Appellants

v.

CITY OF PLAINVIEW; ET AL

Defendants

CITY OF PLAINVIEW; HALE COUNTY TX; LLOYD WOODS, Individually and
as Mayor of the City of Plainview; DWAYNE DODSON, Individually
and as City Councilman of the City of Plainview; ROY OSBORN,
Individually and as chief of police of the City of Plainview;
WILLIAM MULL, Individually and as chief of police of the City of
Plainview; MICHAEL CARROL, Individually and as officer for the
City of Plainview Police Department; ROLAND ASEBEDO, Individually
and as officer for the City of Plainview Police Department; EDDIE
GARZA, Individually and as officer for the City of Plainview
Police Department; MANUEL BALDERAS, Individually and as officer
for the City of Plainview Police Department; RALPH MAY,
Individually and as officer for the City of Plainview Police
Department; JESSE BARRERA, Individually and as officer for the
City of Plainview Police Department; JAIME SALINAS, Individually
and as officer for the City of Plainview Police Department; JIM
FOSTER, Individually and as officer for the City of Plainview
Police Department; BOBBY CHANDLER, Individually and as officer
for the City of Plainview Police Department; FRED BRADLEY,
Individually and as officer for the City of Plainview Police
Department; RUBEN LIZCANO, Individually and as officer for the
Hale County Sheriff’s Department; LARRY MONKRIES, Individually
and as officer for the Hale County Sheriff’s Department

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
 (5:98-CV-200-C)
_________________________________________________________________
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
August 15, 2000

Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.

KING, Chief Judge:*

Plaintiffs-Appellants appeal from an order of the district

court granting summary judgment in favor of Defendants-Appellees.

We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jesse Gomez, Sr., and his wife, Stella Gomez (“Appellants”

and, together with their relatives, the “Gomez Family”), brought

this 42 U.S.C. § 1983 action against the City of Plainview,

Texas, its mayor, city manager, one of its council members, and

numerous officers for its police department (the “City

Appellees”), and Hale County and several of its deputy sheriffs

(the “County Appellees”).1 Appellants are long-term residents of

Plainview, which is located in Hale County. Appellants have four

sons: Jesse, Jr., Ricardo, Jason, and Jezbenob. Ricardo is

*
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.

1
On December 5, 1998, Appellants’ claims against Roy
Osborn, individually and as Chief of Police of the City of
Plainview, and Eddie Garza and Jim Foster, individually and as
officers for the City of Plainview Police Department, were
dismissed without prejudice for failure to serve the summons and
complaint.

2
married to Sally Gomez, and they have two children of their own.

Stella Gomez’s sister, Maria Teresa “Terry” Diaz, also plays a

part in this controversy.

A group of Plainview citizens formed a group known as Turn

Around Plainview (“TAP”).2 The principal purpose of forming TAP,

it appears, was to reduce the level of illegal drug activity in

the Plainview area. As a means to that end, members of TAP

conduct so-called marches outside residences in which they

suspect that illegal drug-related activities occur or in which

they suspect drug offenders reside. TAP members arrive on a

chartered bus, often on a Friday evening, and conduct these so-

called marches, which can probably best be described as protests

or targeted picketing, until late that same night or early the

following morning. The marches are held on public streets and

consist primarily of chanting and name-calling.3

TAP targeted the Gomez Family in their quest to turn the

city around, apparently because certain members of the family

have a history of involvement in drug-related activities. In

1995, Ricardo Gomez was arrested for, inter alia, possession of

drug paraphernalia, and Jason Gomez was arrested for possession

2
This case was decided on summary judgment; therefore, the
actions that Appellants claim gives rise to their § 1983 action
will be described in the light most favorable to them, as the
nonmoving party. See Johnson v. Merrell Dow Pharmaceuticals,
Inc., 965 F.2d 31, 32 (5th Cir. 1992).
3
Appellants do not allege that any state laws or local
ordinances are violated during these marches.

3
of marijuana. Later that same year, Jason pleaded guilty to

delivery of cocaine. The City Appellees also contend that Terry

Diaz was, prior to the incidents giving rise to this law suit,

convicted of possession of cocaine and arrested for possession of

marijuana.4 TAP conducted several marches outside of Appellants’

home, in which they resided with their son, Jezbenob. Of

particular relevance here is the march that began during the

evening hours of August 16, 1996, and lasted until the early

morning hours of the following day. On that particular occasion,

all members of the Gomez Family were present.

According to Appellants, in the early evening hours of

August 16, Defendants-Appellees Mull, Carrol, Lizcano, and other

law enforcement personnel arrived at Appellants’ home and

notified them that a TAP march was soon to occur there. Carrol

stated to Jason and Ricardo Gomez that he would arrest the family

that night because they were drug dealers. During this

encounter, several officers, including Lizcano, pointed guns or

rifles at Ricardo and Sally Gomez and their two children. Mull

allegedly told Jason Gomez something to the effect of, “I’ve got

you.” Lizcano allegedly said to Jason, “Shut up. You know

you’re going down.”

4
In 1997, after the events at issue in this case occurred,
Jesse Gomez, Jr. pleaded guilty to possession of marijuana. In
1998, Jesse, Jr. was indicted for delivery of cocaine.

4
 TAP members arrived shortly thereafter and began targeted

picketing in front of Appellants’ home. According to the sworn

depositions of Appellants, no fewer than twelve officers

participated in the targeted picketing that occurred that night.

This participation included chanting with the protestors that the

Gomez Family was “mighty dumb,” that they were “drug users” and

“child abusers” and that they “had to go.” It also included

laughing at the Gomez Family and prompting protestors to yell

louder. Jesse, Sr. alleges that Carrol made obscene gestures

directed towards him. Members of the Gomez Family also aver in

affidavits that they were told by Plainview police officers that

they could not leave the house. These affidavits do not name any

specific officers accused of making such statements. Several of

the affidavits complain that Dodson and others spit at members of

the Gomez Family and that Mull refused to stop the picketing when

asked.

According to the police officers involved, they were at

Appellants’ residence to provide police protection, security, and

crowd control. The Hale County deputy sheriffs were there at the

request of the Plainview City Police Department. The Gomez

Family was in front of Appellants’ house during the picketing

and, according to Lizcano, they were yelling obscenities at the

crowd. Jesse Gomez, Sr. was grabbing his groin and making

obscene gestures, and another member of the Gomez Family was

making obscene gestures while sitting atop a commode in

5
Appellants’ front yard. At some point, a member of the Gomez

Family was arrested for having made these obscene gestures.

Jesse, Sr. claims that Dodson called him a son-of-a-bitch, at

which point Jason Gomez spit in Dodson’s face and was arrested.

In the view of law enforcement personnel, Jesse, Sr. interfered

with this arrest and was likewise arrested. In all, Jason Gomez,

Jesse Gomez, Jr., Ricardo Gomez, Terry Diaz, and Jesse Gomez, Sr.

were arrested that night. There is no indication in the record

that any member of TAP was arrested.

Appellants filed suit under § 1983, seeking injunctive

relief and actual and punitive damages. They alleged that the

actions of the City and County Appellees violated their clearly

established constitutional rights. They asserted that:

[Appellants], while secluded in the privacy of their home,
have a constitutional right to be free from unwarranted
governmental intrusion which right was violated by the
[Appellees] by their conduct of participating in,
encouraging, and enabling marches and demonstration targeted
specifically at [Appellants] at [their] private residence.

The rights of privacy and association possessed by
[Appellants] while in the security and seclusion of their
private residence are rights which are secured to
[Appellants] by the Constitution of the United States and
such rights outweigh any First Amendment rights of
[Appellees] to target and demonstrate against [Appellants]
at [their] home.

In October 1998, City Appellees filed a motion to dismiss

or, in the alternative, for summary judgment and County Appellees

filed a motion for summary judgment. Both motions raised the

affirmative defense of qualified immunity. In separate orders,

6
the district court granted summary judgment in favor of all

Appellees, and Appellants timely appeal.

II. STANDARD OF REVIEW

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first

instance. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th

Cir. 1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.

1994). Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

“A fact is ‘material’ if its resolution in favor of one party

might affect the outcome of the lawsuit under governing law. An

issue is ‘genuine’ if the evidence is sufficient for a reasonable

jury to return a verdict for the non-moving party.” Ginsberg

1985 Real Estate Partnership v. Cadle Co., 39 F.3d 528, 531 (5th

Cir.1994) (internal citations omitted). We must view all

evidence in the light most favorable to the party opposing the

motion and draw all reasonable inferences in that party’s favor.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

7
 III. DISCUSSION

Appellants assert a cause of action under 42 U.S.C. § 1983.5

“To prevail on § 1983 claim against a state official performing a

discretionary function, and to overcome the qualified immunity

defense, a plaintiff must show that the officer violated ‘clearly

established . . . constitutional rights of which a reasonable

person would have known.’” Saenz v. Heldenfels Brothers, Inc.,

183 F.3d 389, 391 (5th Cir. 1999) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)) (omission in original). Local

governing bodies are liable under § 1983 where the plaintiff

“prove[s] that his constitutional rights were violated as a

result of a custom or policy of the [local governing body].”

Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000). In

either case, we must first inquire whether the deprivation of a

constitutional right has been alleged. See Saenz, 183 F.3d at

391. If we conclude that the complained of conduct does not

violate a constitutional right, we need not decide whether the

state actors are entitled to qualified immunity. See Atwater v.

5
The statute provides, in pertinent part, that:

[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., subjects,
or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured . . . .

42 U.S.C. § 1983.

8
City of Lago Vista, 195 F.3d 242, 246 n.5 (5th Cir. 1999) (en

banc). Appellants allege that the complained of conduct in this

case violated their right to privacy grounded in the First,

Third, Fourth, Fifth, Ninth, and Fourteenth Amendments of the

United States Constitution, and their right to freedom of

association grounded in the First Amendment of the United States

Constitution.6 We address each alleged violation in turn.

A. Right to privacy

Appellants argue that the Supreme Court has recognized a

constitutional right to privacy and that this right precludes the

government from interfering in certain ways with one’s desire and

attempt to be let alone to enjoy the company of his family in the

sanctity of his home. They argue that the alleged actions of the

state actors in this case constituted just the sort of

interference from which they have a constitutional right to be

free. They state that the “City and County Appellees organized,

6
Appellants also claim in their brief before us that the
alleged actions of Appellees “caused [them] to suffer [a]
deprivation[] of . . . their right to enjoy life and liberty and
the right to use and enjoy their property.” Appellants’ Brief at
14. Appellants raised these claims in their complaint. They
failed, however, to advance them in their response to Appellees’
motions for summary judgement, and the district court did not
address them in its orders. Appellants fail to develop any
argument before us that the district court erred in this regard,
and we therefore consider the argument and the underlying claims
waived. See Rutherford v. Harris County, 197 F.3d 173, 193 (5th
Cir. 1999) (“[W]e will not consider an issue that is inadequately
briefed . . . .”); Justiss Oil Co., Inc. v. Kerr-McGee Refining
Corp., 75 F.3d 1057, 1067 (5th Cir. 1996) (same).

9
participated in, and encouraged demonstrations targeted directly

at the Gomezes while the Gomezes attempted to enjoy the privacy

of their home. By demonstrating against the Gomezes in this

manner, City and County Appellees clearly violated the Gomezes’

right to be free of unwarranted governmental intrusions.”

Appellants’ Brief at 21. Appellants rely on a number of cases

that support, but do not compel, recognition of the

constitutional protection they advance. Ultimately, however, we

need not decide whether the constitution affords individuals this

sort of protection because we conclude that, even if it does, the

actions asserted here and supported by adequate summary judgement

evidence do not amount to a constitutional violation.

In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme

Court held that a Connecticut statute forbidding the use of

contraceptives unconstitutionally violated the right of marital

privacy. In its opinion, the Court explained that “specific

guarantees in the Bill of Rights have penumbras, formed by

emanations from those guarantees that help give them life and

substance. Various guarantees create zones of privacy.” Id. at

484 (citations omitted). Appellants rely on the case for the

proposition that “[a]n individual’s constitutional right to

privacy has long been recognized by the Supreme Court as a

fundamental right of each American.” Appellants’ Brief at 17.

They argue that the right to privacy is particularly strong

regarding matters of the family, and that “the courts have

10
continuously provided a shelter for such relationships from

unjustified intrusion.” Id. at 19.

Quoting Katz v. United States, 389 U.S. 347 (1967),

Appellants define the right to privacy “as, very simply, ‘the

right to be let alone.’” Appellants’ Brief at 17 (quoting Katz,

389 U.S. at 350). Appellants rely on Katz and Oliver v. United

States, 466 U.S. 170 (1984), for the proposition that “‘[c]ertain

areas deserve the most scrupulous protection from government

invasion.’” Appellants’ Brief at 19 (quoting Oliver, 466 U.S. at

178). They argue that the home is just such an area. Both

Oliver and Katz, however, dealt with the Fourth Amendment issue

of warrantless searches and seizures. Aside from fleeting

references to being a captive audience in their own home,

Appellants do not argue that the actions alleged to have been

taken by any of the Appellees amounted to an unreasonable search

or seizure within the meaning of the Fourth Amendment. As the

Supreme Court explained in Katz:

the Fourth Amendment cannot be translated into a general
constitutional ‘right to privacy.’ That Amendment protects
individual privacy against certain kinds of governmental
intrusion, but its protections go further, and often have
nothing to do with privacy at all. Other provisions of the
Constitution protect personal privacy from other forms of
governmental invasion. But the protection of a person’s
general right to privacy--his right to be let alone by other
people--is, like the protection of his property and of his
very life, left largely to the law of the individual States.

389 U.S. 350-51 (emphasis in original).

11
 Appellants place heavy reliance upon Frisby v. Schultz, 487

U.S. 474 (1988). In Frisby, the Town Board of Brookfield,

Wisconsin, enacted an ordinance banning targeted picketing of any

dwelling in the town. Those wishing to engage in targeted

picketing in front of the home of a Brookfield doctor challenged

the ordinance as a violation of the First Amendment. The Supreme

Court began its analysis in the case by stating that “[t]he

antipicketing ordinance operates at the core of the First

Amendment by prohibiting appellees from engaging in picketing on

an issue of public concern.” Id. at 479. The Court determined

that the ordinance served the significant government interest of

protecting the privacy of the residents of the town, see id. at

484, that it was narrowly tailored to serve this interest, see

id. at 487-88, and that it left open “ample alternative channels

of communication.” Id. at 484.

Appellants glean two proposition from Frisby. First, they

argue that the Supreme Court in Frisby “held in favor of the

sanctity of the home where to hold otherwise would create in the

residents a captive audience.” Appellants’ Brief at 20. Second,

they argue that focused picketing is not protected by the First

Amendment. See id. at 23. They conclude from these propositions

that in cases of targeted picketing, “the privacy interests of

the residents in their home far outweigh the rights of the

speaker.” Id. at 24.

12
 After considering Appellants’ similar arguments below, the

district court concluded that because Appellants’ “relied-upon

case law is factually distinguishable from the instant case, and

Fifth Circuit precedent upholds [Appellees’] asserted free speech

rights, [Appellants’] right of privacy claim is defeated . . . .”

Unlike the district court, we find it unnecessary to balance

Appellants’ asserted privacy right against Appellees’ asserted

free speech right, or, for that matter, even to embrace the

constitutional right asserted by Appellants. We conclude instead

that the conduct alleged by Appellants and supported by summary

judgment evidence would not offend the asserted constitutional

right to be free from government interference in the privacy of

the home.

Our thorough review of the summary judgment record in this

case reveals that Appellants have presented no evidence, aside

from bald assertions, to support their factual claim that any of

the City or County Appellees, acting under color of state law,

organized the march in question. Likewise, they have presented

no evidence that the alleged conduct of the individual Appellees

was engaged in pursuant to the official policy or custom of the

City of Plainview or Hale County. Appellants have presented no

evidence that might establish that either Appellee Mayor Lloyd

Woods or Appellee City Councilman Dwayne Dodson was present at

the march in his official capacity. Finally, in their affidavits

appended to their response to Appellees’ motions for summary

13
judgment, Appellants assert that certain City and County

Appellees, who came onto Appellants’ property to notify them that

a march would be occurring that night, pointed rifles at them.

In their prior depositions, however, Appellants stated that the

rifles were only pointed at their grandchildren, who are not

parties to this suit. In this circuit, “a plaintiff may not

manufacture a genuine issue of material fact by submitting an

affidavit that impeaches prior testimony without explanation.”

Doe v. Dallas Indep. School Dist., 2000 WL 1014682, at *6 (5th

Cir. Jul. 24, 2000). Appellants have offered no explanation for

their changed account of the facts. Consequently, this case

hangs on their assertions that certain of the Appellee officers

sent to their home to keep the peace laughed at them, that

certain of these officers joined in chants against them, that

certain of these officers provided encouragement to the

protesters, and that an Appellee officer blocked the street in

front of their house with a fire truck. These actions simply do

not offend the asserted constitutional right to be free from

government interference in the privacy of the home.

B. Freedom of Association

Appellants also argue that the alleged actions of Appellees

violated their familial rights of association. As the Supreme

Court explained in Board of Directors of Rotary Int’l v. Rotary

14
Club of Duarte, it “has recognized that the right to engage in

activities protected by the First Amendment implies a

corresponding right to associate with others in pursuit of a wide

variety of political, social, economic, educational, religious,

and cultural ends. For this reason, [i]mpediments to the

exercise of one’s right to choose one’s associates can violate

the right of association protected by the First Amendment

. . . .” 481 U.S. 537, 548 (1987) (internal citations and

quotation marks omitted) (alteration and omission in original).

The district court held that Appellants failed to plead a

cognizable claim for a violation of their freedom of association

rights. Based upon our discussion of Appellants’ summary

judgment evidence, we agree.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

judgment.

15