     Case: 10-41138   Document: 00511714655    Page: 1   Date Filed: 01/04/2012




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

                                                                     FILED
                                                                 January 4, 2012

                                  No. 10-41138                   Lyle W. Cayce
                                                                      Clerk

MICHAEL CANTRELL, Individually and as Administrator of the Estate of
Matthew Cantrell; AVE MARIE CANTRELL; CREIGHTON CANTRELL,

                                            Plaintiffs - Appellees
v.

CITY OF MURPHY; OFFICER KEVIN MCGEE;
OFFICER CLAYTON DACEY,

                                            Defendants - Appellants



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


Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
        After the accidental death of her son, Matthew, Ave Marie Cantrell, along
with her husband, Michael, and son, Creighton, filed suit against the City of
Murphy and several of its officers. In their complaint, the Cantrells alleged
violations of the federal constitution and liability under state common law
arising out of the officers’ behavior on the day of Matthew’s accident. While the
district court subsequently dismissed parts of the Cantrells’ complaint, it denied
certain officers qualified immunity on two claims. This is an interlocutory
appeal from the denial of qualified immunity. For the reasons stated below, we
reverse the district court’s judgment.
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                                       I.
                                      A.
      During the early evening of October 2, 2007, Ave Marie Cantrell was in the
master bedroom of her Murphy, Texas home with her two young sons, Creighton
and Matthew.       While she and Creighton watched a movie on her bed,
twenty-one-month-old Matthew entertained himself by playing with a newly
purchased toy. Although she did not intend to fall asleep, Ave dozed off during
the movie. At the movie’s conclusion, Creighton, who was four years old at the
time, woke Ave up and asked her a question regarding Matthew’s whereabouts.
Ave then got off her bed, walked towards a nearby doorway, and, upon looking
in the direction of an open door leading to her backyard, saw Matthew entangled
in an outdoor soccer net. She then raced out to the backyard where she saw
Matthew lying on the ground twitching with his neck and arm caught in the net.
Upon making this discovery, Ave asked Creighton to retrieve a pair of scissors
from the kitchen. When Creighton returned with the scissors, Ave used them
to cut Matthew from the soccer net. She then carried Matthew back into the
house and laid him on a sofa.
      Before arriving to the sofa, Ave dialed 911. Ave’s call was received by
Stephen Williamson, a Communications Officer with the Murphy Police
Department, at 7:26 p.m. After receiving Ave’s address and attempting to obtain
other information, Williamson dispatched police officers and paramedics to her
home at 7:27 p.m. During her conversation with Williamson, Ave stated that
Matthew’s eyes were dilated and glazed, his skin was pale, and that he was not
breathing. She also told him that Matthew was strangled by a soccer net.
Williamson unsuccessfully tried to get Ave to calm down so that he could
transfer her call to East Texas Medical Center, which at the time provided the
City of Murphy with pre-arrival instructions for emergency calls.



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        After approximately two minutes on the phone with Ave, Williamson
transferred her call to East Texas Medical Center employee Michael Sexton.
Like Williamson, Sexton unsuccessfully attempted to calm Ave down. During
their conversation, Sexton asked Ave how long Matthew “was down for”; she told
him “probably for about ten, fifteen minutes.”           Once the Murphy Police
Department arrived at the Cantrell home, Ave was disconnected from the 911
line.
        Murphy police officers Clayton Dacey and Kevin McGee arrived at the
Cantrell home just before 7:30 p.m. Upon arriving at the scene, they entered the
house through the front door and could hear Ave screaming in the living room.
The two officers then proceeded to the living room where they saw Ave crouched
down near the sofa upon which she had previously placed Matthew. Dacey and
McGee then pulled Ave away from Matthew in order to check for vital signs and
had her wait in an adjacent bedroom.1
        Once near Matthew, Dacey saw the strangulation marks around
Matthew’s throat and chest; he also observed that Matthew was not breathing
and did not have a pulse. According to McGee, Matthew “appeared to be
deceased at the scene.” After concluding that “foul play” may have been the
source of Matthew’s injuries, McGee designated the home a crime scene.
        Upon making this designation, McGee, along with Dacey, initiated an
investigation. During their investigation, Ave exited the bedroom and began
screaming at them. McGee then instructed Dacey to take Ave back into the
master bedroom and to stay with her. He also asked Dacey to make sure that
Ave did not enter the living room and touch anything. Dacey and McGee also
placed Creighton in the bedroom.          While in the bedroom, Ave continued
screaming and started making suicidal statements. During their time in the

        1
        The parties dispute whether Ave was actually providing CPR when she was pulled
away from Matthew. This factual dispute is immaterial to our resolution of this appeal.

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bedroom, Dacey allowed Ave to call her husband, Michael Cantrell, who was on
his way home from work.
       According to computer records, paramedics arrived on the scene at 7:32
p.m.; firefighters arrived approximately two minutes later. When the ambulance
arrived at the scene, Dacey and McGee emerged from the Cantrell home; while
doing so, one of them was making a hand gesture indicating that the patient was
deceased. The two paramedics, Brentan Ulch and Randy Armstrong, then exited
the ambulance and moved towards the front door. As they were walking towards
the front door, the police officers advised them that the house was a crime scene
and that Matthew appeared to be deceased.2
       As the paramedics entered the house, Ulch asked one of the police officers
to hold the arriving fire engine to “preserve the scene if it was a crime scene.”
When the paramedics encountered Matthew on the couch, he did not have any
signs of life, nor did he have a pulse or any spontaneous respiration. While his
extremities were cold, his head and torso were very warm. After making these
observations and deciding that there were no signs incompatible with life,
Armstrong and Ulch concluded that Matthew was still a viable patient. They
then picked him up, carried him to the ambulance, and began life-saving
procedures. Once Matthew was stabilized, Armstrong and Ulch transported
Matthew to a hospital in Dallas. While transporting Matthew to the hospital,
the paramedics continued providing life-saving procedures.                  Despite these
efforts, Matthew remained pulseless when he arrived at the emergency room.
       Lieutenant Adana Barber arrived on the scene at 7:39 p.m. When she
arrived, the ambulance was still outside of the Cantrell home. After having a


       2
          According to Ulch, at no point were the paramedics delayed by the police officers.
From the time the ambulance pulled up to the Cantrell home, Ulch estimates that it took them
approximately eight to ten seconds to get their bags and walk through the front door. The
Cantrells, on the other hand, allege that the paramedics were delayed by the police officers.
This factual dispute is also immaterial to our disposition of this appeal.

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                                      No. 10-41138

conversation with McGee, Barber walked into the home and met Dacey inside
the master bedroom. While in the bedroom, both Barber and Dacey attempted
to comfort Ave. For example, they asked her to call “people that could come for
[her]” and allowed her to speak with her parents over the phone. During
Barber’s time in the Cantrell home, Ave continued making suicidal statements.3
After hearing these statements, Barber stated: “She apparently wants to kill
herself, so–yeah, why don’t we transport her down to the station.” Barber
ordered McGee to follow the ambulance before it left the Cantrell home.
      When Michael arrived on the scene, Barber took Creighton outside to him.
Barber then told Michael that they “would be taking [Ave] out of the residence
and to the station to try and interview her and because of all the suicidal
statements she was making.” According to Barber, Michael agreed to this course
of action.
      Because it was considered a crime scene, Michael was not allowed to enter
his home immediately, but he was subsequently allowed to go in to be with his
wife. When Michael entered his home, Ave was still making suicidal statements.
Dacey and Michael tried to take Ave out of the house through the front door but,
when they noticed neighbors and media out front, they decided to go back into
the house.
      Once back inside the house, Michael stated that he could take Ave to the
police station. Michael then walked his wife into their garage and placed her in
the front passenger seat of their minivan. After doing so, however, Michael told
his wife that he could not take her to the police station; instead, he decided to go
the hospital to check on Matthew’s condition. Before leaving for the hospital,
Michael helped Ave enter the front passenger seat of the police cruiser that was




      3
          For example, Ave asked for Barber’s gun “so that she could kill herself.”

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                                     No. 10-41138

going to take her to the police station. At approximately 8:47 p.m., Dacey
transported Ave to the Murphy police station.
      Dacey arrived at the police station with Ave and two of her friends.
Detective James Hermes then escorted Ave and her friends to an interview
room. Once inside the room, Ave continued making suicidal statements while
Hermes and her two friends tried to comfort her. After asking Ave if she had “a
family minister or somebody that could come [to the station] and help comfort
[her] and [her] friends,” Hermes asked Ave if she felt like writing down
everything that happened. Ave stated that she did not.
      Hermes then asked Ave to tell him what happened at her home. She
agreed, and, while sobbing uncontrollably, recounted what took place earlier in
the day. After attempting to console Ave, Hermes told the group he was going
to leave the room. Before leaving the room, Hermes told them he had called a
chaplain to comfort Ave.
      Once the chaplain, Dan Rainey, arrived, Ave told him what happened to
Matthew. As she described what had taken place earlier in the day, Rainey
attempted to console Ave who, at that point, continued making statements
reflecting a lack of desire to live. Rainey then asked Ave to pray with him; she
agreed, and the two prayed together.
      Ave subsequently told Barber that she was ready to make a statement.
Hermes then reentered the room with the necessary paperwork, and Ave
proceeded to write out a statement.4
      Because of the repeated suicidal statements made by Ave, Barber had
decided that emergency mental commitment was appropriate. At around 11:35



      4
        Ave’s statement reads as follows: “I am a horrible mother. I should not be on this
earth. My children deserve better. I hate myself forever. I cannot bear this suffering
anymore. My precious baby. My neglect as a mother had brought this evil inside me. Jesus
have mercy on me. I love my boys.”

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                                      No. 10-41138

p.m., Hermes drove Ave, along with two of her friends, to a hospital in
McKinney. In his application for emergency detention, Hermes noted that he
was seeking emergency detention because he had reason to believe that Ave
posed “a substantial risk of serious harm.” The following day, Hermes was told
by Michael that Ave would be released that same day.
      Tragically, Matthew died a couple of days later. A report dated October
7, 2007 states that the cause of death was accidental hanging.
                                            B.
      In May 2009, Ave, Creighton, and Michael, in his individual capacity and
as administrator of Matthew’s estate, filed suit in federal court against Murphy
(the “City”), East Texas Medical Center, McGee, Dacey, Barber, Murphy Police
Chief William Myrick, and ten John Doe defendants (collectively, “Defendants”).
In their complaint, the Cantrells set forth three claims for relief under 42 U.S.C.
§ 1983 in which they generally allege that, as a result of their actions on October
2, 2007, Myrick, McGee, Dacey and Barber violated their Fourth, Fifth, and
Fourteenth Amendment rights. The Cantrells also presented three claims for
relief in which they broadly averred that the City “developed and maintained
customs, policies and practices exhibiting deliberate indifference to the
constitutional rights of its citizens.” Finally, they asserted four negligence
claims against Defendants.
      On November 25, 2009, the City, Myrick, McGee, Dacey and Barber
(collectively, “City Defendants”) filed a “motion to dismiss, or in the alternative,
motion for summary judgment.”5 In their motion, the City Defendants sought
dismissal of all claims against them and any John Does associated with the City.
In support of their request, they maintained that: (1) Myrick, McGee, Dacey and
Barber (collectively, “Officer Defendants”) were entitled to qualified immunity


      5
          East Texas Medical Center did not join this motion.

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                                      No. 10-41138

on the Cantrells’ constitutional claims against them; (2) the Cantrells failed to
state a viable Monell claim against the City; (3) Texas law barred the negligence
claims against the Officer Defendants; (4) the doctrine of sovereign immunity
barred the negligence claims against the City; and (5) the claims against any
John Does were barred by the statute of limitations.
       In October 2010, the district court granted the City Defendants’ motion by:
(1) concluding that the Officer Defendants were entitled to qualified immunity
on the Cantrells’ “state created danger” theory of relief; (2) determining that a
portion of the Cantrells’ Fourth Amendment claim failed as a matter of law
because the officers had probable cause to detain Ave at her home; and (3)
holding that the negligence claims were barred by state law. It also ruled in the
City Defendants’ favor by holding that the claims against any John Does were
barred by the statute of limitations, and concluding that the claims against
Barber and Myrick had been abandoned.
       The district court, however, denied the City Defendants’ motion in two
important respects. First, it rejected the Officer Defendants’ qualified immunity
defense on both the Cantrells’ “special relationship” theory of relief under the
Due Process Clause and their assertion that Ave’s detention at the police station
violated her Fourth Amendment rights. Second, the district court concluded that
the Cantrells had stated a viable Monell claim, and that it was premature to
grant the City summary judgment on this issue. The remaining defendants–the
City, Dacey, and McGee–subsequently filed a timely notice of interlocutory
appeal.6




       6
          The Cantrells filed a notice of cross-interlocutory appeal in November 2010. The
following month, the City, McGee, and Dacey filed a motion to dismiss the cross appeal based
on a lack of appellate jurisdiction. In January 2011, this motion was granted.

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                                       No. 10-41138

                                              II.
       On appeal, Dacey and McGee (the “Officers”) contend that the district
court erred in not granting them qualified immunity on the Cantrells’ due
process and Fourth Amendment claims. We review each contention separately.7
                                              A.
       Because the district court denied qualified immunity on the Cantrells’ due
process claim based on the pleadings, we will apply the standard of review that
governs such a denial.
       “We have appellate jurisdiction to review a district court’s order denying
a motion to dismiss on the basis of qualified immunity to the extent that it turns
on an issue of law.” Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008) (citing
Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251 (5th Cir. 2005)). “We review
the district court’s denial of the qualified immunity defense de novo, accepting
all well-pleaded facts as true and viewing them in the light most favorable to the
plaintiff.” Id. (citation omitted). When a defendant invokes qualified immunity,
the burden is on the plaintiff to demonstrate the inapplicability of the defense.
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)
(citation omitted).
       Before the district court, the Cantrells argued that the Officers deprived
Matthew of his due process rights “by interfering with attempts to perform life
saving measures and by failing to perform such measures themselves.” They
contended that the Officers “created a special relationship with Matthew when

       7
          The City also attempts to appeal the district court’s judgment insofar as it preserved
the Cantrells’ Monell claim. In its brief, however, the City does not point to any part of the
record establishing that the district court designated this issue as appealable under 28 U.S.C.
§ 1292(b). Nor does it suggest that some other statutory exception to the final judgment rule
applies. Since this issue does not involve the denial of qualified immunity on an issue of law,
it also does not fall under the Mitchell exception to the final judgment rule. We therefore lack
jurisdiction to decide this issue. The appeal of the district court’s order as it relates to the
Monell claim is dismissed. See Kinney v. Weaver, 367 F.3d 337, 347 n.10 (5th Cir. 2004).


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                                 No. 10-41138

they separated him from his mother,” and that “this relationship imposed a duty
upon them to care for and protect Matthew from his death.” The Officers
breached this duty, the Cantrells maintained, “by failing to administer aid and
by delaying treatment from paramedics.”
      Relying upon case law involving children in foster care, the district court
agreed with the Cantrells and implicitly concluded that a “special relationship”
existed between the Officers and Matthew. It then went on to hold that the
Cantrells had “stated claims based on a special relationship between Matthew
and the City Defendants.” After noting that a successful substantive due process
claim requires, at minimum, deliberate indifference towards a plaintiff, the
district court also determined that the Cantrells had “established a genuine
issue of material fact as to whether the City Defendants acted with deliberate
indifference.”
      On appeal, the Officers argue that the district court erred in concluding
that the “special relationship” exception to the rule set forth in DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189 (1989) applies
in this case. The Officers contend that this exception does not apply, and
therefore could not clearly establish that they had a duty towards Matthew. As
a result, the Officers urge us to conclude that they are entitled to qualified
immunity. Prior to considering DeShaney and its application in this context, we
set forth the legal background that governs our review of this issue.
      In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court articulated a
mandatory two-step sequence for resolving government officials’ qualified
immunity claims. “Saucier required that lower courts consider first, whether the
challenged conduct, viewed in the light most favorable to the plaintiff, would
actually amount to a violation of [constitutional or] federal law, and second, if
a violation has been alleged, whether the right was clearly established at the
time of the alleged government misconduct.” Wernecke v. Garcia, 591 F.3d 386,

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392 (5th Cir. 2009) (internal citations and quotation marks omitted). In Pearson
v. Callahan, the Court reconsidered the Saucier procedure, determined that
“while the [two-step] sequence . . . is often appropriate, it should no longer be
regarded as mandatory,” and gave lower courts “permi[ssion] to exercise their
sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular
case at hand.” 555 U.S. 223, 236 (2009).
      “To be ‘clearly established’ for purposes of qualified immunity, ‘[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Kinney, 367 F.3d at 349-
50 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The clearly
established standard does not mean that officials’ conduct is protected by
qualified immunity unless the very action in question has previously been held
unlawful.” Wernecke, 591 F.3d at 393 (internal quotation marks and citation
omitted). Indeed, “[t]here need not be commanding precedent that holds that the
very action in question is unlawful; the unlawfulness need only be readily
apparent from relevant precedent in sufficiently similar situations.” Brown, 519
F.3d at 236-37 (internal quotation marks and citations omitted).
      What clearly established means depends largely upon the level of
generality at which the relevant legal rule is to be identified. Wernecke, 591 F.3d
at 393 (citing Wilson v. Layne, 526 U.S. 603, 614 (1999)). “[A]n official does not
lose qualified immunity merely because a certain right is clearly established in
the abstract.” Kinney, 367 F.3d at 350. “Officials should receive the protection
of qualified immunity unless the law is clear in the more particularized sense
that reasonable officials should be on notice that their conduct is unlawful.”
Wernecke, 591 F.3d at 393 (internal quotation marks and citations omitted).
With this background in mind, we now turn to considering the specific legal
right the Cantrells allege was violated by the Officers.

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      In DeShaney, the Supreme Court stated that its cases “have recognized
that the Due Process Clauses generally confer no affirmative right to
governmental aid, even where such aid may be necessary to secure life, liberty,
or property interests of which the government itself may not deprive the
individual.” 489 U.S. at 196. The Court then went on to hold that, as a general
matter, “a State’s failure to protect an individual against private violence simply
does not constitute a violation of the Due Process Clause.” Id. at 197.
      The Court did, however, recognize an exception where in “certain limited
circumstances the Constitution imposes upon the State affirmative duties of care
and protection with respect to particular individuals.” Id. at 198. In attempting
to define those limited circumstances, the Court briefly discussed its decisions
in Estelle v. Gamble, 429 U.S. 97 (1976) and Youngberg v. Romeo, 457 U.S. 307
(1982). After doing so, it noted that these two cases, when read together, “stand
only for the proposition that when the State takes a person into its custody and
holds him there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his safety and general
well-being.” Id. at 198-99. The Court provided the following rationale for this
principle:
      [W]hen the State by the affirmative exercise of its power so
      restrains an individual’s liberty that it renders him unable to care
      for himself, and at the same time fails to provide for his basic
      human needs–e.g., food, clothing, shelter, medical care, and
      reasonable safety—it transgresses the substantive limits on state
      action set by the Eighth Amendment and the Due Process Clause.

DeShaney, 489 U.S. at 200.
      In concluding its discussion of what has since been recognized as the
“special relationship” exception to DeShaney’s general holding, the Court stated
that, “[i]n the substantive due process analysis, it is the State’s affirmative act
of restraining the individual’s freedom to act on his own behalf–through


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incarceration, institutionalization, or other similar restraint of personal
liberty–which is the ‘deprivation of liberty’ triggering the protections of the Due
Process Clause, not its failure to act to protect his liberty interests against
harms inflicted by other means.” Id. Since DeShaney, we have recognized the
validity of the special relationship exception to the general DeShaney rule. See,
e.g., McClendon, 305 F.3d at 325 (noting that while we have recognized the
special relationship exception, we have not recognized the “state-created danger”
exception to the general DeShaney rule).
      Seeking to avail themselves of the DeShaney special relationship
exception, the Cantrells argue that, like individuals who are in foster care or
who are otherwise in the custody of the state, Matthew had a special
relationship with the Officers.      According to the Cantrells, this special
relationship, along with a corresponding duty of care and protection, was created
when the Officers took “custody” of Matthew by physically separating him from
his mother. The Officers breached this duty, the Cantrells contend, when the
Officers failed to administer aid and delayed treatment from paramedics. In
rejecting the Officers’ request for qualified immunity, the district court agreed
with the Cantrells’ analogy to cases involving foster care.
      Taking the allegations in the Cantrells’ complaint as true, we conclude
that they have failed to satisfy their burden of demonstrating the inapplicability
of the Officers’ qualified immunity defense. In their brief, they fail to cite any
cases involving sufficiently similar situations that would have provided
reasonable officers with notice that they had an affirmative constitutional duty
to provide medical care and protection to a young child when they temporarily
physically separate the child from his mother. While the Cantrells analogize to
cases involving foster care in arguing that Matthew’s putative right was clearly
established, this line of cases is materially distinguishable, and therefore could
not have provided reasonable officials in the Officers’ position with notice that

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they had an affirmative constitutional duty to provide medical care and
protection to Matthew. Stated differently, Matthew’s asserted right was not
clearly established on October 2, 2007. Because this putative right was not
clearly established, the Officers are entitled to qualified immunity. The district
court therefore erred in holding to the contrary.
                                       B.
      In denying qualified immunity on a portion of the Cantrells’ Fourth
Amendment claim, the district court applied Federal Rule of Civil Procedure 56.
We will therefore apply the standard of review that governs denials of motions
for summary judgment based upon qualified immunity.
      While ordinarily courts of appeals may not review interlocutory decisions
of lower courts, “the Supreme Court has held that the denial of a motion for
summary judgment based upon qualified immunity is a collateral order capable
of immediate review.” Kinney, 367 F.3d at 346 (citing Mitchell v. Forsyth, 472
U.S. 511, 530 (1985)). “Our jurisdiction is significantly limited, however, for it
extends to such appeals only ‘to the extent that [the denial of summary
judgment] turns on an issue of law.’” Id. (quoting Mitchell, 472 U.S. at 530).
      “In denying a motion for summary judgment on qualified immunity
grounds, the district court makes two determinations: first, whether ‘a certain
course of conduct would, as a matter of law, be objectively unreasonable in light
of clearly established law,’ and second, whether ‘a genuine issue of fact exists
regarding whether the defendant(s) did, in fact, engage in such conduct.’”
Wernecke, 591 F.3d at 391 (quoting Kinney, 367 F.3d at 346).           “We have
jurisdiction to review the first type of determination–‘the purely legal question
whether a given course of conduct would be objectively unreasonable in light of
clearly established law’–but we may not review the second type of
determination–‘the district court’s assessments regarding the sufficiency of the
evidence.’” Id. (quoting Kinney, 367 F.3d at 346-47). Stated differently, “we

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                                  No. 10-41138

have jurisdiction only to decide whether the district court erred in concluding as
a matter of law that officials are not entitled to qualified immunity on a given
set of facts.” Id.
      When considering an appeal from the denial of qualified immunity, our
inquiry does not seek to determine disputed issues of fact. Id. Rather, our
inquiry concerns the purely legal question of whether the defendants are entitled
to qualified immunity on the facts that the district court found sufficiently
supported in the summary judgment record. Id. In ruling on this question, we
must assume that the plaintiffs’ version of the facts is true. Id. at 392 (citing
Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir. 2000)). “While ordinarily
our standard of review on a denial of summary judgment would be de novo,
applying the same standard as the district court, the standard changes because
we lack jurisdiction, in the qualified immunity context, to review the decision
that a factual dispute exists.” Id. (citation omitted). “Instead, we consider
‘whether the district court erred in assessing the legal significance of the conduct
that the district court deemed sufficiently supported for purposes of summary
judgment.’” Id. (quoting Kinney, 367 F.3d at 348). Our review of the legal
significance of the facts is de novo. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir.
2007).
      Before considering the Officers’ argument on appeal, we must first ensure
that our jurisdiction is secure. After reviewing the district court’s order, we
conclude that it is. Because the district court’s denial of summary judgment was
based on a determination regarding the legal significance of facts the district
court found to be supported by the summary judgment record, we have
jurisdiction to consider this issue. Freeman, 483 F.3d at 410.
      In what remains of their Fourth Amendment claim, the Cantrells
challenge the legality of Ave’s detention at the police station. On appeal, the
Officers contend that the district court erred in not granting them summary

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judgment on this portion of the Cantrells’ Fourth Amendment claim.
Specifically, they argue that Murphy officials had probable cause to take Ave to
the police station because: (1) her suicidal statements indicated that she posed
a direct threat to her personal safety; and (2) other statements made by Ave,
along with the circumstances and information possessed by Murphy officials,
established probable cause to believe that Ave may have committed a crime.
      We apply a two-step analysis to determine whether a defendant is entitled
to summary judgment on the basis of qualified immunity. “First, we determine
whether, viewing the summary judgment evidence in the light most favorable
to the plaintiff, the defendant violated the plaintiff’s constitutional rights.”
Freeman, 483 F.3d at 410. “If so, we next consider whether the defendant’s
actions were objectively unreasonable in light of clearly established law at the
time of the conduct in question.” Id. at 411. “To make this determination, the
court applies an objective standard based on the viewpoint of a reasonable
official in light of the information then available to the defendant and the law
that was clearly established at the time of the defendant’s actions.” Id. Judges
are permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand. Pearson, 555 U.S. at 236.
      For purposes of our qualified immunity analysis, we will assume that the
Officers were involved with Ave’s detention. We make this assumption because,
under the current state of the record, there is nothing establishing that they
were involved with her detention.      Even with this favorable assumption,
however, the Cantrells are unable to show that the Officers are not entitled to
qualified immunity on what remains of their Fourth Amendment claim.
      Put simply, the Officers are entitled to qualified immunity because they
had probable cause to detain Ave. In Texas, a peace officer may, without a
warrant, take a person into custody if (1) the officer has reason to believe and

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                                       No. 10-41138

does believe that a person is mentally ill and because of that illness there is a
substantial risk of serious harm to the person or to others unless the person is
immediately restrained; and (2) believes that there is not sufficient time to
obtain a warrant before taking the person into custody. Tex. Health & Safety
Code § 573.001. The Texas Code defines mental illness as an illness, disease, or
condition, other than epilepsy, senility, alcoholism, or mental deficiency, that (1)
substantially impairs a person’s thought, perception of reality, emotional
process, or judgment; or (2) grossly impairs behavior as demonstrated by recent
disturbed behavior. Id. § 571.003.
       Based on the suicidal statements made by Ave at her home, a reasonable
officer would have had probable cause to take Ave into protective custody under
Texas law.8 As applied in this context, probable cause exists where the facts and
circumstances within the officer’s knowledge at the time of the seizure are
sufficient for a reasonable person to conclude that an individual is mentally ill
and poses a substantial risk of serious harm. Cf. Freeman, 483 F.3d at 413
(defining probable cause in the criminal context).
       Here, Ave’s statements and general demeanor at her home could have
provided a reasonable officer with a sufficient basis to conclude that she was in
a condition that substantially impaired her “emotional process” or judgment, and
thus was mentally ill under Texas law. See Tex. Health & Safety Code §
573.001(c) (stating that a peace officer may form the belief that a person meets
the criteria for apprehension “on the basis of the conduct of the apprehended
person or the circumstances under which the apprehended person is found”).


       8
           The probable cause standard applies in the context of a seizure of the mentally ill.
See, e.g., Maag v. Wessler, 960 F.2d 773, 776 (9th Cir. 1991) (citing cases). The application of
the probable cause standard in this context is further supported by the Supreme Court’s
decision in Dunaway v. New York 442 U.S. 200, 214 (1979), which stands for the general
proposition that a Fourth Amendment seizure is reasonable only if supported by probable
cause.

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                                      No. 10-41138

Moreover, her suicidal comments could have also given a reasonable officer a
sufficient basis to believe that she was a danger to herself. As such, a reasonable
officer could have concluded that Ave was eligible for emergency detention under
Texas law. Accordingly, the Officers had probable cause to detain Ave and take
her into protective custody. In two unpublished cases, we have reached a similar
conclusion in factually analogous situations. See Sullivan v. Cnty. of Hunt, Tex.,
106 F. App’x 215 (5th Cir. 2004) (holding that officers were entitled to qualified
immunity because they had probable cause to detain an individual who was a
suicide risk); Martinez v. Smith, 200 F.3d 816 (5th Cir. 1999) (concluding that
officers had probable cause to take plaintiff into protective custody based on
their belief that she posed a danger to herself, and affirming the dismissal of
claims against them).9
       Because the Officers had probable cause, Ave’s detention did not violate
the Fourth Amendment. The district court therefore erred in not granting the
Officers summary judgment on this portion of the Cantrells’ Fourth Amendment
claim.
                                            III.
       For these reasons, we REVERSE the district court’s judgment denying
qualified immunity.        This case is REMANDED to the district court for
proceedings consistent with this opinion.




       9
          Given this conclusion, we will not consider whether the Officers had probable cause
to seize Ave based on the belief that she had committed a criminal act.

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