     Case: 10-11263 Document: 00511485875 Page: 1 Date Filed: 05/23/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 23, 2011

                                     No. 10-11263                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



GEORGE VERNON CHILES,

                                                   Plaintiff - Appellant
v.

G. G. HEMPSTEAD,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:10-CV-136


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       George Vernon Chiles brought a Section 1983 suit against the police officer
who arrested him for a minor crime. The district court determined that the
officer was entitled to qualified immunity. We AFFIRM.
       In February 2008, Officer G.G. Hempstead of the Fort Worth Police
Department was driving her police car in a residential neighborhood. She heard
what she believed to be a burglar alarm and saw Chiles walking rapidly away


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                   No. 10-11263

from a residence. Chiles was walking in the roadway instead of on the adjacent
sidewalk. Officer Hempstead stopped Chiles, ostensibly as a result of probable
cause to believe he was committing the offense of “Walking in the Roadway
When a Sidewalk was Provided.” See Tex. Transp. Code § 552.006(a).
      The officer made various demands on Chiles, including that he remove a
plastic bag from under his arm and put it on the ground, that he place his hands
on her police car so she could perform a pat-down, and that he provide
identification. Chiles complied with the first demand but not with the second
and third. Chiles insisted he had no obligation to provide identification unless
arrested. His Complaint asserted that he handed Officer Hempstead a copy of
the statute concerning the offense of failure to identify oneself to a peace officer.
See Tex. Penal Code § 38.02. Attached to the Code section was the business card
of an attorney whom he allegedly consulted in 2003. The importance of the Code
section was that it described the refusal by someone under arrest to comply with
a law enforcement officer’s request for identification. Next, Officer Hempstead
demanded that Chiles put his hands behind his back so she could place
handcuffs on his wrists. Chiles refused, but the officer was able to handcuff him.
      The officer asked for a back-up unit to assist her. Prior to the arrival of
any assistance, the officer called a superior and requested that she be allowed
to arrest Chiles and take him to jail for the misdemeanor of walking in the street
despite the availability of a sidewalk. She received permission, arrested Chiles,
and took him to jail. A September 2010 affidavit filed in the case stated that the
misdemeanor charge against Chiles was still pending.
      Two years after the 2008 incident, Chiles filed a Section 1983 suit against
Officer Hempstead.      See 42 U.S.C. § 1983. Chiles alleged that his Fourth
Amendment rights were violated by an improper seizure and arrest. He also
claimed violations of various state statutes. Officer Hempstead filed for



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                                  No. 10-11263

summary judgment, asserting the defense of qualified immunity. The district
court granted the motion in October 2010. This appeal followed.
      We will not belabor the elements of this sort of suit. As the district court
noted, Chiles had by that time brought seven civil actions against various
officials under Section 1983. Five were dismissed as being without merit. Thus,
the basics for claims such as this have been explained many times to Chiles.
      Once Officer Hempstead pled the defense of qualified immunity, the
burden was on Chiles to rebut the defense. See Michalik v. Hermann, 422 F.3d
252, 262 (5th Cir. 2005). Chiles must show both that Hempstead violated a
clearly established constitutional right, and that she was not objectively
reasonable in such a violation. Id. at 257. An officer has the right to arrest even
for a very minor offense if the offense is committed in her presence. Lockett v.
New Orleans City, 607 F.3d 992, 998 (5th Cir. 2010). On appeal, we review a
grant of summary judgment de novo, but we will affirm if nothing in the record
creates material factual disputes and if the defendant is legally entitled to
judgment. Id. at 997.
      Chiles’s summary judgment filings set out details about the streets and
sidewalks in the location of the arrest, seeking to create a dispute as to what
actually happened. None of those factual contentions draw into question that
Officer Hempstead was investigating the sound of an alarm and saw Chiles
walking rapidly away in the street despite the presence of an adjacent sidewalk.
Chiles has not undermined the officer’s reasonable belief that there was probable
cause to support that the cited misdemeanor offense was occurring. Further,
even if Officer Hempstead’s arrest of Chiles was mistaken, a “police officer who
reasonably but mistakenly concludes that he has probable cause to arrest a
suspect is entitled to qualified immunity.” Tarver v. City of Edna, 410 F.3d 745,
750 (5th Cir. 2005) (citation omitted).     Chiles has not shown that Officer
Hempstead’s purported mistake was unreasonable.

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                                 No. 10-11263

      Chiles also complains that some of the records of his arrest referred to the
offense as being one under a city ordinance.      Apparently there is no such
ordinance, but there is an offense under state law of walking on a roadway
despite an available sidewalk. See Tex. Transp. Code § 552.006. Even if Officer
Hempstead was mistaken about which government entity created the offense,
there would still have been probable cause to arrest for a violation.
      Chiles also argued that the offense was incompletely described at least in
Officer Hempstead’s summary judgment brief.        As we understand the point,
Chiles argued that the brief referred to the offense as walking along a roadway,
when the offense actually required walking along and on the roadway. Chiles
is correct about the language of Transportation Code Section 552.006, but he is
incorrect that the evidence creates any factual dispute concerning whether he
was actually on the roadway. Officer Hempstead’s affidavit stated that Chiles
was walking “in the roadway,” an acceptable phrase that makes it clear he was
in the street and not walking on a lawn or sidewalk.
      This was a simple arrest for a simple crime. Chiles may be correct that
certain aspects of the citation he was issued and the factual statements made by
Officer Hempstead have some inaccuracies. We are convinced, though, that the
defense of qualified immunity was validly raised and was not rebutted.
      We AFFIRM.




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