IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50893
Summary Calendar
ALLAN BROWN; LOIS BROWN,
Plaintiff-Appellees,
versus
WILSON COUNTY, Etc.; ET AL.,
Defendants,
JOSEPH CICHERSKI, Wilson County
Animal Control Officer in his
official and individual capacity;
JOE D. TACKITT, Wilson County Sheriff
in his official and individual capacity;
JASON PRICE, Sheriff’s Deputy
in his official and individual capacity;
CHRISTOPHER AYALA, Sheriff’s Deputy
in his official and individual capacity;
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CV-1473
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May 28, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Joseph Cicherski, Jason Price, and Christopher Ayala appeal
the district court’s denial of their motion for summary judgment
based on the defenses of qualified and official immunity. Joe D.
*
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that this opinion should not be published and is not precedent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.
No. 00-50893
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Tackitt likewise appeals the district court’s judgment to the
extent that it denied his motion for summary judgment based on the
defenses of qualified and official immunity.
In an appeal from the denial of summary judgment, this court
reviews the record de novo. Nerren v. Livingston Police Dep’t, 86
F.3d 469, 472 (5th Cir. 1996). Summary judgment is proper when,
viewing the evidence in the light most favorable to the nonmovant,
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Amburgey v. Corhart
Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991); Fed. R. Civ.
P. 56(c).
Whether a public official is qualifiedly immune depends on two
inquiries. Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 223
(5th Cir.), cert. denied, 528 U.S. 1022 (1999). First, a defendant
is entitled to qualified immunity when a plaintiff has failed to
allege the violation of a clearly established constitutional right.
Id. Second, a defense of qualified immunity will succeed if the
defendant’s conduct was objectively reasonable at the time in light
of clearly established law. Id. Under Texas law, government
officials are immune from claims arising out of (i) their
discretionary duties (ii) when performed in good faith (iii) in the
scope of their authority. Cantu v. Rocha, 77 F.3d 795, 804 (5th
Cir. 1996).
The appellants’ motions should have been granted based on the
Browns’ failure to show a violation of their clearly established
constitutional rights and on the appellants’ good faith. The
appellants adduced evidence indicating that the Browns had
No. 00-50893
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consented to the search. The Browns did not produce competent
summary-judgment evidence to rebut this showing. Because the
search was consensual, it was valid. See United States v. Kelley,
981 F.2d 1464, 1470 (5th Cir. 1993).
The Browns likewise cannot show a Fourth Amendment violation
with respect to the presence of the media and volunteers at the
search. The Supreme Court did not recognize that a Fourth
Amendment violation arises from the presence of the media at a
search until two years after the search that is at issue in the
instant case. See Wilson v. Layne, 526 U.S. 603 (1999). Because
this right was not clearly established at the time of the search,
this claim falls to the defense of qualified immunity.
The Browns also have not shown that any clearly established
rights were violated by the decision to use volunteers to help
execute a warrant that authorized the seizure of over 100 animals.
The Browns have likewise not shown that their clearly
established rights were violated in connection with the seizure of
their dogs. We have previously confronted this issue in another
appeal arising from this case, Brown v. Wilson County, No. 99-
50442, slip op. at 11 (5th Cir. May 30, 2000). In that case, we
reviewed Texas law and noted its “willingness, even if conditional,
to view animals as something more than personal property subject to
the vicissitudes of an owner’s rage, abuse, or neglect.” Id. at
11, quoting Pine v. State, 921 S.W.2d 866, 873 (Tex. App. 1996).
We thus determined that “the law is not clearly established that an
animal control officer cannot constitutionally seize all of a large
No. 00-50893
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number of animals if a substantial number of them are being
mistreated.” Id.
Although the opinion in the prior appeal is nonprecedential,
its analysis of the issue whether the seizure of the Browns’
animals presents a violation of a clearly established
constitutional rights applies with equal force to the instant case.
Because it is not clear whether the seizure of the dogs violated
the Browns’ constitutional rights, the appellants’ motions for
summary judgment should have been granted with respect to the
claims arising from this seizure. Our analysis of Pine similarly
leads us to the conclusion that the appellants acted in good faith
in connection with the search and seizure. They are entitled to
assert the state-law defense of official immunity.
The Browns have not shown any violations of their clearly
established rights in connection with the search and seizure that
forms the basis for this suit. They also have not shown that the
appellants acted in bad faith in carrying out this search and
seizure. Accordingly, the judgment of the district court denying
the motion for summary judgment of Ayala, Price, and Cicherski is
REVERSED. The district court’s judgment regarding Tackitt’s motion
for summary judgment is also REVERSED to the extent that it denied
Tackitt’s motion. Judgment is RENDERED in favor of Tackitt, Ayala,
Price, and Cicherski.
Brown v. Wilson County
Combined Opinion