                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                            December 13, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 04-51284




     BRIAN SCOTT SPRUILL,


                                    Plaintiff-Appellant,


          versus


     RONNIE WATSON; JOHN DOE 1-5,

                                    Defendants-Appellees.




           Appeal from the United States District Court
                 for the Western District of Texas



Before GARWOOD, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Brian Scott Spruill appeals from the district court's grant

of summary judgment, on the basis of qualified immunity, for

Ronnie Watson, an officer of the Texas Department of Public

Safety.   Spruill had sued Watson asserting claims under 42 U.S.C.

§1983 for false arrest and deprivation of liberty without due

     *
       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this opinion should not be published and is not precedent except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.
process of law in violation of the Fourth and Fourteenth

Amendments.1   After a de novo review of the record, we affirm.

     Spruill’s complaint revolves around a federal arrest warrant

obtained by Watson.2   Watson had participated3 in a state arrest

of Spruill for carrying a handgun in violation of section 46.024

of the Texas Penal Code.   Watson then filed a federal criminal

complaint alleging that Spruill’s possession of a handgun while

subject to a restraining order constituted a violation of 18

U.S.C. § 922(g)(8).5   After obtaining the federal warrant, Watson

     1
     Spruill also brought state law claims of gross negligence
and false imprisonment, which the district court dismissed based
on official immunity under Texas law. Because Spruill's appeal
only claims error in the district court's finding of qualified
immunity, we do not address the state law claims or the finding
of official immunity.
     2
     On appeal, Spruill provides the following description of
his original complaint: “The gravaman [sic] of Appellant’s case
against Watson was that Spruill was falsely charged with a
weapons offense. Said [charge] resulted in a criminal conviction
that was ultimately overturned by the United States Court of
Appeals for the Fifth Circuit.”
     3
     Watson,   in an undercover role, attended an orchestrated
handgun swap   between Spruill and a government informant. Watson
observed the   swap and signaled to other state law enforcement
officers who   then arrested Spruill.
     4
     See Tex. Penal Code Ann. § 46.02(a) (Vernon 1994) ("A
person commits an offense if he intentionally, knowingly, or
recklessly carries on or about his person a handgun ...."); Tex.
Penal Code Ann. § 46.02(e) (Vernon 1994) (offense is class A
misdemeanor).
     5
      Section 922(g)(8) provides:

     “(g) It shall be unlawful for any person . . . (8) who is
     subject to a court order that--


                                 2
served it on Spruill while he was in state custody pursuant to

the state arrest.   Spruill ultimately pleaded guilty to violating



          (A) was issued after a hearing of which such person
          received actual notice, and at which such person had an
          opportunity to participate;

          (B) restrains such person from harassing, stalking, or
          threatening an intimate partner of such person or child
          of such intimate partner or person, or engaging in
          other conduct that would place an intimate partner in
          reasonable fear of bodily injury to the partner or
          child; and

          (C)(i) includes a finding that such person represents a
          credible threat to the physical safety of such intimate
          partner or child; or

          (ii) by its terms explicitly prohibits the use,
          attempted use, or threatened use of physical force
          against such intimate partner or child that would
          reasonably be expected to cause bodily injury ...

     to ship or transport in interstate or foreign commerce, or
     possess in or affecting commerce, any firearm or ammunition;
     or to receive any firearm or ammunition which has been
     shipped or transported in interstate or foreign commerce.”
     18 U.S.C.A. § 922.

Watson’s federal criminal complaint provided:

     “I, the undersigned complainant being duly sworn state the
     following is true and correct to the best of my knowledge
     and belief. On or about July 20, 1998, in Midland County,
     in the Western District of Texas, defendant(s) did, possess
     a firearm in and affecting interstate commerce, . . . even
     though Defendant was a person subject to a court order
     issued after a hearing of which he had notice and
     opportunity to participate, and which (1) restrains him from
     harassing, stalking and threatening an intimate partner and
     a child of such intimate partner, and (2) by its terms
     explicitly prohibits the use, attempted use, and threatened
     use of physical force against such intimate partner and
     child, in violation of Title 18, United States Code,
     Section(s) 922(g)(8).”


                                 3
section 922(g)(8) and was convicted.      On appeal, this court found

that the restraining order in question had not been issued “after

a hearing of which Spruill received actual notice and accordingly

was not within the scope of section 922(g)(8).”       United States v.

Spruill, 292 F.3d 207, 221 (5th Cir. 2002) (internal quotations

omitted).    Based on this finding, Spruill’s conviction was

vacated.    On remand, the district court entered a judgment of

acquittal.    Following the acquittal, Spruill brought this suit

against Watson.

     The first step in the analysis of a qualified immunity claim

is to “consider whether the facts alleged, taken in the light

most favorable to the party asserting the injury, show that the

officer’s conduct violated a constitutional right.”       Price v.

Roark, 256 F.3d 364, 369 (5th Cir. 2001) (citing Saucier v. Katz,

121 S.Ct. 2151, 2156 (2001)).    To make out a constitutional

violation based on false arrest, Spruill must show that Watson

did not act with probable cause.       Brown v. Lyford, 243 F.3d 185,

189 (5th Cir. 2001).    Spruill failed to allege facts showing that

Watson acted without probable cause.      It is uncontested that

Watson knew that Spruill had been in possession of a firearm

while Spruill was subject to a valid restraining order.      The

restraining order itself recited facts indicating that it was

within the scope of section 922(g)(8), e.g., that the applicant

and Spruill each “appeared in person and announced ready,” and


                                   4
that the court entered the order after “having . . . heard the

evidence and argument of counsel.”    See Spruill, 292 F.3d at 209

n.1.    While at Spruill’s subsequent trial it developed that these

recitals were incorrect, that does not mean that the recitals did

not give rise to probable cause to issue the earlier criminal

complaint.    Spruill does not allege, nor has he offered any

evidence, that Watson knew that the restraining order in question

did not meet all of the requirements of section 922(g)(8).      At

best, Spruill alleges, but fails to present any evidence, that

Watson was negligent in not discovering this flaw in the

underlying restraining order.    Even if this allegation were

established, it does not rise to a constitutional violation.

Franks v. Delaware, 98 S.Ct. 2674, 2684 (1978) (“Allegations of

negligence or innocent mistake are insufficient.”)    Because

Spruill’s allegations and summary judgment evidence do not

suffice to establish the violation of a constitutional right,

Watson is entitled to qualified immunity.

       The second step of the qualified-immunity analysis is to ask

“whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.”    Saucier,

121 S.Ct. at 2156.    In this case, the only arguably questionable

conduct by Watson is his filing of a sworn criminal complaint

stating that Spruill was “subject to a court order issued after a

hearing of which he had notice and opportunity to participate.”


                                  5
Although this court ultimately determined that the restraining

order had not been issued after a hearing that met the

requirements of section 922(g)(8), such a legal determination

would not then have been clear to all reasonable officers in the

situation confronting Watson.6    Therefore, even if Spruill had

made out a constitutional violation on Watson’s part, Watson is

entitled to qualified immunity.

     For the foregoing reasons, Watson is entitled to qualified

immunity, and the district court’s summary judgment order

dismissing Spruill’s claims is

                            AFFIRMED.




     6
     Not only was it not clear to Watson, it was not clear
either to Spruill or to the district court hearing the criminal
cases against Spruill. Indeed, Spruill, with the assistance of
counsel, pleaded guilty to violating section 922(g)(8) and the
district court accepted Spruill’s guilty plea even after noting
that a hearing had not been conducted in this case. United
States v. Spruill, 61 F.Supp.2d 587, 588 (W.D.Tex. 1999)
(“Although . . . the Defendant never appeared before a judge, nor
was a hearing (at least as this Court would define one)
apparently ever held[,] . . . the Defendant did have the
opportunity to participate in a hearing, thus satisfying any
procedural due process concerns.”)

                                  6
