                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                  _______________________________

                             No. 01-50486
                  _______________________________


ADRIAN KEITH GORDON, Individually and as next friend of KEITH
CHANCE GORDON, a minor,

                                                 Plaintiff-Appellee,


                               versus


RUDY ORTIZ, SHAWNENE SCHAWVER, DAVID DOUGLAS, RONALD SANCHEZ, JOE
PAEZ, ELISEO PEREZ, DARREN WESTFALL, and JOHN ERIC RUTHERFORD, in
their individual capacities.

                                               Defendants-Appellants.

          _________________________________________________

           Appeal from the United States District Court
     for the Western District of Texas, San Antonio Division
                          (00-CA-0049-EP)
        _________________________________________________
                            July 1, 2002


Before WIENER and DENNIS, Circuit Judges, and DUPLANTIER,* District
Judge.

PER CURIAM**:

     Defendants-Appellants,    several   law   enforcement   officers

involved in the allegedly unconstitutional restraint, search, and


     *
       The Honorable Adrian G. Duplantier, United States District
Court Judge for the Eastern District of Louisiana, sitting by
designation.
     **
        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this opinion should not be published and is not precedent except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.
arrest of Plaintiffs-Appellees Adrian and Keith Gordon, father and

son, appeal the district court’s order denying their motions for

summary judgment based on qualified immunity.        Agreeing with the

district court’s ruling in regard to all the appellants other than

Shawvene Schawver, we reverse as to her and affirm as to all the

rest.

                     I.   FACTS AND PROCEEDINGS

     This case involves 42 U.S.C. §§ 1983 and 1985-86 claims, as

well as several state law tort claims, grounded in the defendants’

allegedly   unconstitutional    stop,   restraint,   search,    seizure,

arrest, and malicious prosecution of the plaintiffs —— a father and

his teen-aged son —— triggered by the broadcast of a call by

Schawver, a police radio-dispatcher, in response to a cautionary

report that she received from a Texas state trooper.           Four days

prior to the dispatcher’s call and the ensuing incident involving

the Gordons, a black male named James Engleton had killed three

police officers in a gun battle in Atacosta County, Texas, in which

Engleton too was killed.       Apparently, a brother of Engleton had

attempted to get to the crime scene that day but was forced to

leave the area by law enforcement personnel after he created a

disturbance.1   The funeral for two of the slain officers took place

four days later in Atacosta County.


     1
       The record indicates that Engleton’s brother(s) (the record
is also unclear whether Engleton had one brother or more) may have
had a known prior criminal history.

                                   2
     On the day of the funerals, plaintiffs —— Adrian and Kieth

Gordon (father and minor son, respectively) —— both of whom are

black males, were traveling from their home in San Antonio to a

fishing and hunting destination in Port Mansfield, a distance of

more than 200 miles.    On the morning in question, the Gordons

happened to stop for breakfast at the Taco Palacios restaurant in

Pleasanton, a town in Atacosta County near the site where the

funerals for two slain officers were taking place.

     About mid-morning, defendant-appellant Schawver received a

call from a Texas state trooper, relaying information that he had

just received from an unidentified woman who purportedly had been

at the Taco Palacios:

     Trooper: Atacosta, I had a subject [the unidentified
     woman] come up to me just a little bit ago here at the
     Exxon station across from the funeral home. She advised
     that —— that Engleton subject’s brother was over there;
     stating he was bragging about what had happened and
     saying that the guy was talking about himself, saying he
     was on some kind of mind buzz or something over there.
     I don’t know if you might want to have somebody keep an
     eye on him or something.

In turn, Schawver broadcast information over the dispatch radio:

     Dispatcher [Schawver]: Okay. Attention all units: All
     officers, all units in the area of Pleasanton, I need you
     to be on the lookout for Engleton subject —— well, the
     brother —— has [sic] been advised that he is probably in
     the Pleasanton area at this time with another African-
     American man.    Possible description is a small gray
     Toyota station wagon. This is unconfirmed. But that a
     citizen is claiming that they were over at Taco Palacio
     in Pleasanton. All units, all officers, if you would, be
     alert and use extreme caution at this point in time.
     Time now 11:02.

     Two of the defendants, county deputies Rudy Ortiz and David

                                3
Douglas, immediately responded to the call and were the first

officers to reach the restaurant.        When they arrived, they saw two

black males driving away from the parking lot in a blue Ford pickup

truck.   Officer Ortiz activated his police lights, stepped out of

his vehicle, identified himself, and told the driver of the pickup

to stop the truck, step out, and walk toward the police car with

his hands on the truck.   Cooperating willingly and doing as he was

told, the driver left his door open and approached the police car

precisely as directed. Officer Ortiz then moved towards the driver

and handcuffed him. Meanwhile, Officer Douglas walked to the right

side of the vehicle, handcuffed the passenger, and placed him face-

down on the hood of the pickup, the engine of which was still

running.   At this point, between ten and fifteen law enforcement

personnel including the other defendants in this case (other than

Schawver) —— namely Deputies Ronald Sanchez, Joe Paez, and Eliseo

Perez, Lieutenant John Rutherford, as well as Darren Westfall, an

investigator for the Atascosta County District Attorney’s office ——

arrived at the parking lot.

     Brandishing   his    shotgun,       newly-arrived   Deputy   Sanchez

approached the handcuffed driver Adrian Gordon and frisked him for

weapons while Officer Ortiz, having obtained Gordon’s driver’s

license and identification, proceeded with a license check.          The

driver’s identification and Officer Ortiz’s license check confirmed

that the driver was Adrian Gordon from San Antonio, Texas, and not

an Engleton.   Meanwhile, Investigator Westfall had arrived on the

                                     4
scene    and   proceeded   to   question   the   pickup   truck’s    teenage

passenger,     Keith   Gordon.      The    minor   indicated    that     his

identification was in a bag inside the cab of the truck.            Westfall

entered the vehicle and located the teenager’s identification,

which confirmed that he was Keith Gordon.2

     After the Gordons’ identities were confirmed, the defendant

law enforcement personnel nevertheless continued to investigate,

while the Gordons remained handcuffed and restrained.          The record

confirms that the Gordons cooperated with the officers and answered

their questions promptly, courteously, and truthfully.

     As the questioning proceeded, defendant Joe Paez, a reserve

police officer from the Jourdanton Police Department, approached

Officer Ortiz holding an expandable baton (apparently one easily

identified as an “asp” or weapon-type baton) which he had taken

from the vehicle.      Officer Paez claims that he saw the baton in

“plain view” as it lay at the bottom of a pouch on the inside panel

of the driver’s-side door, which had remained open ever since the

pickup was stopped.3

     2
        The Gordons contend that, despite having been told of the
exact location of the bag, Westfall nevertheless conducted an
unconsented search of the entire portion of the vehicle he entered.
     3
        As will be discussed further below, the Gordons, in their
deposition testimony, vigorously dispute that the baton was in
“plain view,” arguing that —— as Paez stated —— the baton was at
the bottom of the door pouch, but that it was covered by many other
articles which precluded it from being observed by anyone without
a search, i.e., it was not in plain view. In addition, Officer
Perez’s version of the sighting of the baton differed with Officer
Paez’s version: Officer Perez described the baton as partially

                                     5
     At about the same time that the baton was discovered and

seized,4 the officers initiated a full search of the Gordons’

truck.   During this search, the officers found, inter alia, an

unloaded handgun inside a toolbox in the back seat of the truck.5

In the bed of the truck, the officers found an ice chest on which

the name “Cliff Tudyk” was written.   Coincidentally, the last name

of one of the slain officers was Tudyk, although his first name was

not Cliff.

     After the discovery of the baton and handgun, Officer Sanchez

asked the father, Adrian Gordon, if he had a permit to carry a

concealed weapon.    Adrian Gordon replied that he had no such

permit, adding that he was not “carrying” a concealed weapon;

rather, the pistol was inside the tool box which was on the rear

seat, neither on his person nor easily accessible.   Adrian Gordon

explained further that he was “traveling” and was therefore exempt

from the charge of carrying a concealed weapon without a permit, as

prohibited by Texas Penal Code § 46.02.6


protruding from the pouch, at an angle.
     4
        The record is vague and contains contradictory assertions
as to the exact sequence of events during the stop. It is unclear
whether the full search of the vehicle producing the handgun (see
infra   n.  5   and   accompanying   text)  occurred  after,   or
contemporaneously with, the discovery of the baton.
     5
       The magazine for the gun, containing live rounds, was found
in the tool box, next to the gun.
     6
        Texas Penal Code § 46.02 provides in relevant part:
     (a) A person commits an offense if he intentionally,
     knowingly, or recklessly carries on or about his person

                                6
       Officer Ortiz then asked Adrian Gordon the purpose of his

trip, to which he replied that he was on a hunting and fishing trip

with his son.       He then showed Officer Ortiz his valid fishing and

hunting licenses.7      When asked where he got the ice chest with the

name       “Cliff   Tudyk”   written   on   it,   Adrian   Gordon   replied

(truthfully) that it belonged to one of his employees.

       John Rutherford, the ranking officer on the scene, then

approved the reading of Miranda rights to Adrian Gordon.            He was

then taken into police custody and transported to the Atacosta

County Jail on charges of carrying a concealed weapon without a

permit.      The investigating officer at the jail interviewed Adrian

Gordon briefly and determined that the concealed weapon statute did

not apply to him because, inter alia, Adrian Gordon was a bona fide

traveler.      The investigator’s deposition testimony reveals that he

immediately relayed this recommendation to Rutherford and the



       a handgun, illegal knife, or club.
       (b) It is a defense to prosecution under this section
       that the actor was, at the time of the commission of the
       offense
       ...
            (3) traveling;
       ...      (emphasis added).
       7
        Apparently, one of the Gordons answered that they were
going hunting while the other answered that they were going
fishing. The appellants argue that this equivocation, coupled with
the lack of sporting equipment in the truck, indicated suspicious
behavior on the part of the Gordons.      The Gordons’ deposition
testimony indicates they embarked with the intention of going
fishing and, circumstances permitting, hunting as well, and that
their sporting equipment was stored at a hunting and fishing
location in Ports Mansfield.

                                       7
county attorney.         Even though the charges against the elder Gordon

were eventually dismissed, he spent some four to six hours in jail,

and missed out on the pleasure trip with his son.                               Keith, the

younger       Gordon,    was   never     charged      with       any    crime,    but   was

nevertheless transported in handcuffs to the Pleasanton Police

Department      where     he   was   later       released    to    his    grandfather’s

custody.

       The Gordons filed suit in district court asserting both state

and federal claims against the defendants.                         These claims were

grounded      in   the    Gordons’     contention      that       they    were    stopped,

restrained, searched, and arrested without probable cause, solely

because they are African-American males. Specifically, against the

cities of Pleasanton and Jourdonton, the County of Atacosta,8

Officers       Ortiz,     Douglas,     Sanchez,       Rutherford,         Paez,     Perez,

Dispatcher Schawver, and Investigator Westfall, the Gordons alleged

causes of action under § 1983 for (1) violation of their right to

be   free      from     punishment     for       exercise    of    free    speech,      (2)

unreasonable       arrest,     search,       and   seizure,       (3)    arrest    without

probable cause, (4) search and arrest without warrant, (5) use of

excessive force, (5) malicious prosecution, (6) equal protection

violations, and (6) libel, slander, and defamation.                         The Gordons

also       asserted   causes    of   action        under    §§    1985    and    1986   for

       8
        The municipal defendants are not included in this appeal
because they are not eligible for qualified immunity. See Turner
v. Houma Mun. Fire and Police Service Bd., 229 F.3d 478, 483 (5th
Cir. 2000).

                                             8
conspiracy to deprive them of equal protection under color of law

and negligence in the prevention of wrongful conduct under color of

law.       Finally, the Gordons advanced supplementary state law claims

against       the   individual   defendants         for   false   arrest,   false

imprisonment, assault and battery, libel, slander, intentional

infliction of emotional distress, and malicious prosecution.

       Soon after receiving the complaint, and within the time period

specified by Western District of Texas Local Rule CV-12, Officer

Perez and Dispatcher Schawver filed —— and the district court

denied —— a joint Rule 12(b)(6) motion to dismiss the claims

against them based on their entitlement to qualified immunity.9

The other defendants did not, at that time, submit either Rule

12(b)(6) or summary judgment motions based on federal qualified

immunity.       In fact, it was not until more than a year after the

original       complaint   was   filed,       and   after   all   discovery   was

       9
          Local Rule CV-12 states:
       In any case filed pursuant to 42 U.S.C. § 1983, or
       involving causes of action in which the defense of
       qualified or Eleventh Amendment immunity may be asserted,
       the party of parties asserting the defense shall file a
       motion to dismiss or for summary judgment in their
       initial pleading or within thirty calendar days of their
       initial pleading, or, if asserted in response to
       allegations made by amended complaint, within twenty days
       of the date the amended complaint was filed.       When a
       party files a motion to dismiss or for summary judgment
       based on qualified or Eleventh Amendment immunity, the
       opposing party shall have eleven days from the date the
       motion is served on the opposing party to file a response
       to specify what, if any, discovery is necessary to
       determine the issue(s) of qualified or Eleventh amendment
       immunity and the time period necessary for the specific
       discovery. (emphasis added).

                                          9
completed, that the rest of the defendants (hereafer collectively,

the “waiver defendants”) filed motions for summary judgment based

on qualified immunity.

       The district court ruled that because all the defendants

(other than Schawver and Perez) had failed to comply with Local

Rule CV-12's timeliness requirement, they had waived their right to

move    for     summary      judgment      based     on    qualified      immunity.

Nevertheless, the district court proceeded in the alternative to

analyze the merits of the qualified immunity claims under the

relevant      legal   test   and    found,    for   the    most   part,    that   the

defendants’ actions were not objectively reasonable.                           As the

district      court   concluded     that     the    Gordons    could     not   allege

sufficient facts to state legally cognizable § 1983 or state law

claims for defamation, libel, and slander, however, it granted

summary judgment as to all defendants on these claims.                   Also, as to

defendants Schawver (the dispatcher), Perez, and Westfall, the

court    granted      summary      judgment    on    the      Gordons’    malicious

prosecution claims (both federal and state); and as to defendant

Schawver, the court granted summary judgment on the Gordons’

excessive force claim (both federal and state).                     In all other

respects and on all other claims, the court denied summary judgment

based on qualified immunity.

       The waiver defendants then moved for reconsideration, urging,

inter alia, that they had not waived their qualified immunity

defenses by failing to comply with Local Rule CV-12.                     Noting that

                                        10
it had also ruled that the defendants’ actions were objectively

unreasonable, the court denied the motions for reconsideration.

The police officers, dispatcher Schawver, and investigator Westfall

timely filed     interlocutory    appeals.    To   the   extent   that   the

district court ruled in the defendants’ favor by dismissing some of

the claims, the Gordons have not cross-appealed.

                            II.    ANALYSIS

A.   Standard of Review

      We review the district court’s denial of summary judgment de

novo, applying the same standard as the district court.10                 To

determine whether a defendant is shielded by qualified immunity, we

engage a two-part inquiry: (1) whether the plaintiff alleged a

violation of a clearly established constitutional right; and if so,

(2) whether the defendants’ conduct was ctively reasonable.11

      We have no jurisdiction to review interlocutory appeals from

the denial of summary judgment based on qualified immunity when the

appeal challenges the district court’s ruling that genuine issues

exist concerning material facts.12       We retain jurisdiction over

appeals that challenge questions of law, such as the materiality of




      10
        Fed. R. Civ. P. 56(c); Morris v. Covan World Wide Moving,
Inc., 144 F.3d 377, 380 (5th Cir. 1998).
      11
           Siegert v. Gilley, 500 U.S. 226, 231-32 (1991).
      12
           See Jones v. Collins, 132 F.3d 1048, 1051-52 (5th Cir.
1998)

                                    11
the factual issues.13          The determination whether a defendant’s

conduct was objectively reasonable is a question of law,14 but that

question of law can only be reviewed when there are no underlying

genuine disputes of fact.

B.   Waiver of Qualified Immunity

      The Gordons urge affirmance of the district court’s ruling

that the waiver defendants waived their right to seek summary

judgment on the basis of qualified immunity.           Echoing the district

court’s     reasoning,   the    Gordons’   assertion    cited   the   waiver

defendants’ failure to comply with iling requirements of Local Rule

CV-12 of the Western District of Texas.15

      The Gordons filed their original complaint in this matter on

January 14, 2000, and summons were issued forthwith to Dispatcher

Schawver, and Officers Ortiz, Douglas, Sanchez, Perez, and Paez.

Initially, Perez and Schawver submitted a joint answer asserting a

defense of qualified immunity; but, within the thirty-day period

      13
         Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001):
      The   controlling    jurisdictional    rule   for    this
      interlocutory appeal comports with this: ‘A denial of [a
      motion for summary judgment based on] qualified immunity
      is immediately appealable under the collateral order
      doctrine, when based on an issue of law.’....
      Accordingly, we have jurisdiction for this interlocutory
      appeal if it challenges the materiality of factual
      issues, but lack jurisdiction if it challenges the
      district court’s    genuineness ruling —— that genuine
      issues exist concerning material facts.     (emphasis in
      original) (citations omitted).
      14
           Id.
      15
           See supra note 9 for text of rule.

                                      12
prescribed by Rule CV-12, those two filed a joint motion to dismiss

the claims against them based on qualified immunity, which motion

was denied by the court.          Their denied dismissal motion, which was

noticed to and served on the lawyers for the four waiver defendants

(co-defendants Ortiz, Douglas, Sanchez, and Paez16) expressly stated

that    this    motion    was    submitted      to    comply    with   the   temporal

requirements of Local Rule CV-12.

       Puzzlingly,       defendants   Ortiz,         Douglas,    and   Sanchez   also

submitted      an    Original    Answer,    asserting      a    qualified    immunity

defense, and on the same day, filed a Rule 12(b)(6) motion for

dismissal.          Significantly, however, their dismissal motion was

based not on a federal qualified immunity defense, but on the

assertion that Texas Torts Claims Act and “derivative immunity”

under Texas state law barred plaintiffs’ claims. Correctly finding

those arguments legally irrelevant and inapplicable, the district

court denied the motion.

       Waiver       defendants   Westfall       and    Rutherford      (like   Ortiz,

Douglas, Paez, and Sanchez) failed to file motions for dismissal or

summary judgment on qualified immunity grounds within the time

prescribed by CV-12, although it appears that eventually they too

“asserted” qualified immunity or some form of official immunity in


       16
        The other individual defendants in this appeal, Officers
Rutherford and Investigator Westfall, were added as defendants in
the Gordons’ subsequent amended complaints, so they were not
subject to the same time line for filing as Ortiz, Douglas, Paez,
and Sanchez.

                                           13
their answers to the Gordons’ amended complaints.                    Still, their

pleadings     alone    are    not   sufficient      to   comply   with    the   plain

language of CV-12, which unequivocally requires (1) the filing of

a   motion    (2)    for    qualified    immunity    dismissal,     (3)    within a

specified time.17          On appeal, the six waiver defendants argue that

(1) their “assertions” of qualified immunity in their answers gave

notice to the Gordons that they would be defending on qualified

immunity grounds, (2) the Gordons were not prejudiced by their non-

compliance with CV-12, and (3) moving for dismissal or summary

judgment would have been a meaningless gesture because the court

had already denied Perez and Schawver’s motion for dismissal.

      We     are    unpersuaded     by   the   waiver    defendants’      arguments.

First, although it is true that their qualified immunity assertions

in their respective answers probably amounted to actual notice that

eventually they would move for judgment on those grounds, the plain

language of CV-12 required them to submit a motion rather than

informally provide actual notice.              Their co-defendants, Perez and

Schawver, complied with the rule by asserting qualified immunity in


      17
         Officers Ortiz, Douglas, and Sanchez filed their original
answer on February 28, 2000; Officer Paez filed his amended answer
on June 20, 2000; Officer Rutherford filed his original answer on
June 22, 2000; Investigator Westfall filed his answer ro the
Gordons’ second amended complaint on November 13, 2000. The first
motion for dismissal based on qualified immunity submitted by all
six of these defendants (Ortiz, Douglas, Sanchez, Rutherford, Paez,
and Westfall) was filed on February 16, 2001, well in excess of the
period mandated by Local Rule CV-12, which specifies that the
motion must be filed in the defendant’s initial pleading or within
thirty days of that initial pleading.

                                          14
their answer and then timely filing a motion for dismissal on those

grounds.     If nothing else, this conduct, of which the waiver

defendants    received   notice,   should   have   prompted   them   to   do

likewise.

     We are aware that at least one district court case supports

the proposition that failure to comply with Local Rule CV-12 will

not, in every case, automatically constitute waiver of the right to

assert the qualified immunity defense at the summary judgment

stage.    In an unpublished opinion for Chacon v. Housing Authority

of El Paso,18 the Western District of Texas rejected the plaintiff’s

claim that the defendant had procedurally waived his qualified

immunity defense by failing to comply timely with CV-12.19                In

addition to noting the lack of precedential support for that

plaintiff’s waiver argument, the Western District also noted that

(1) “various procedural hurdles not entirely outside of Plaintiff’s

control weigh against any waiver” and (2) the plaintiff had not

contended or demonstrated any prejudice from the delay.         Here, the



     18
           2000 WL 33348200 (W.D. Tex. 2000) (unpublished).
     19
        Id.:
     Although the immunity determination should be made “at
     the earliest possible state of a litigation,” Martin
     simply does not support Plaintiff’s contention that
     Alvarado’s noncompliance with Local Rule CV-12 should
     constitute waiver, abrogating the important policy
     underlying the immunity, namely protecting the public by
     permitting its decision-makers to act without fear of
     unanticipated personal liability. (quoting Anderson v.
     Creighton, 483 U.S. 635, 646 n.6 (1987) and citing Martin
     v. Thomas, 973 F.2d 449, 458-59 (5th Cir. 1992).

                                    15
Gordons did nothing to prevent, hamper, or otherwise complicate the

defendants’      ability   to   comply    with   CV-12.    Furthermore,    as

discussed more fully below, the Gordons can demonstrate that they

would suffer prejudice from the defendants’ non-compliance if it

were disregarded.

     Contrary to Chacon, a recently published case from the Eastern

District    of   Texas,    Hucker   v.    Beaumont,   supports   the   general

proposition that a defendant may be procedurally barred from

asserting a qualified immunity defense as a basis for dismissal

before trial.20     In Hucker, the defendant police officer failed to

file a timely responsive pleading to the plaintiff’s complaint as

required by Fed. R. Civ. P. 12(b).            Instead, after the responsive

pleading deadline had passed, the defendant submitted a motion for

summary judgment based on qualified immunity.             As the defendant

completely missed the Rule 12(b) deadline, the court ruled that he

had waived the right to assert a qualified immunity defense at that

stage of the litigation.21

     To repeat, the Gordons present a viable argument that they

would be prejudiced if CV-12 were disregarded for purposes of

waiver.     Some of the waiver defendants submitted their summary

judgment motions more than a year after they were required to by


     20
           Hucker v. Beaumont, 144 F.Supp. 2d 696 (2001).
     21
         Id. at 702        (“Although the City of Beaumont defendants
subsequently entered       an Amended Motion for Summary Judgment ...
this Court holds that      Officer Jagneaux is barred from asserting the
defense of qualified       immunity under 12(b).”)

                                         16
Rule    CV-12.         In    the   interim,    the    Gordons   had    completed     all

discovery ——          which in this case involved numerous interrogatories

and depositions regarding a multitude of claims —— and were ready

for trial.        Rule CV-12 contemplates a timely qualified immunity

motion      as   an    aid    in   determining       the   necessity   and   scope    of

discovery, not as a post-discovery tool.22                  The Gordons insist that

if the waiver defendants had timely filed motions for dismissal

based on qualified immunity, then they (the Gordons) either (1)

would not have had to conduct extensive discovery, or (2) would

have narrowly focused their discovery on overcoming that defense.

Also, a timely consideration of the qualified immunity question

might have eliminated some of the Gordons’ constitutional claims,

thereby minimizing the scope and cost of their discovery and trial

preparation.          Now, after having incurred significant expenditures

of time and money in preparing for trial, the Gordons would suffer

prejudice if the district court were to disregard Rule CV-12 and

consider the waiver defendants’ qualified immunity defenses.

       The waiver defendants’ third and final argument —— that the

district court’s ruling on Perez’s and Schawver’s motion rendered

any motions by other the defendants meaningless —— is nothing more

than a transparent, post-hoc rationalization for having missed the


       22
        Local Rule CV-12 (in relevant part, “[w]hen a party files
a motion to dismiss or for summary judgment based on [qualified
immunity], the opposing party shall have eleven days ... to file a
response and to specify what, if any, discovery is necessary to
determine the issue(s) of [qualified immunity] and the time period
necessary for the specific discovery.”).

                                              17
CV-12 deadline. Defendants Ortiz, Douglas, and Sanchez filed their

joint Original Answer on February 28, 2000; Perez and Schawver did

not submit their Rule CV-12 motion to dismiss based on qualified

immunity until March 9, 2000; and the court ruled on it on March

30.    Pursuant to CV-12, the deadline for Ortiz, Douglas, and

Sanchez to have filed a qualified immunity dismissal motion had

already passed by the time the court ruled on Perez and Schawver’s

motion.   Therefore, these waiver defendants cannot now assert that

their failure to file a motion in compliance with Local Rule CV-12

was premised on their reliance on the district court’s adverse

ruling on their co-defendants’ motion.

      In sum, the waiver defendants’ failure to comply with the

plain language and time requirements of Local Rule CV-12, combined

with the facts that (1) the Gordons did not facilitate or otherwise

cause the non-compliance, (2) the waiver defendants were alerted to

the   requirements    of    CV-12    by    receiving   copies     of   their   co-

defendants’ motion, and (3) the Gordons could suffer prejudice,

justifies the district court’s ruling that those defendants waived

their right   to     move   for     summary    judgment   based   on   qualified

immunity at this stage of the litigation.                   In affirming the

district court’s ruling that defendants Ortiz, Douglas, Paez,

Sanchez, Rutherford, and Westfall waived their right to move for

qualified immunity, we do not completely bar them from asserting

the defense; they may still assert it as an affirmative defense at

trial.

                                          18
C.   Merits of Qualified Immunity Defense

     As only Schawver and Perez properly and timely moved for

summary judgment based on qualified immunity in compliance with

Local Rule CV-12, we now address the merits of their defenses.

     1.   Dispatcher Schawver

     The district court, concluding that Schawver’s actions were

objectively unreasonable under clearly established law, denied

qualified immunity against the Gordons’ claims for violation of

their rights to free speech and to be free from unreasonable

searches,   seizures,   and   arrests.     Our   review   of   the   record

convinces us that Schawver is entitled to qualified immunity.

     As detailed above in the Facts and Proceedings section of this

opinion, Schawver’s involvement in this case is limited to the

dispatch call that she broadcasted to all officers (and which was

received by those who eventually stopped, searched, and arrested

the Gordons) but to none specifically.           In making the dispatch

call, Schawver did nothing more than rephrase and repeat the

information that she had received from the Texas state trooper who

had called her regarding the possibility of trouble involving

Engleton’s surviving brother(s).         Schawver’s admonition to use

caution was reasonable in light of the reported appearance by the

brother(s) near the crime scene and funerals, and of his (their)

possible past criminal history.     Schawver did not relate any facts

that she knew or should have known were untrue, did not exacerbate

the situations by using inflammatory rhetoric, and did not state or

                                   19
suggest that the suspects had committed or were in the process of

committing a crime.          Rather, consistent with the essentially non-

discretionary duties of such dispatchers, she merely relayed the

trooper’s information.          Under these circumstances, her dispatch

call    was    objectively     reasonable,     entitling    her      to    qualified

immunity.

       2.      Officer Perez

       On an interlocutory appeal of an order that denied a motion

for summary judgment grounded in qualified immunity, we may not

review rulings based on the district court’s determination that

genuine disputes exist concerning material facts.23 In other words,

we    retain    jurisdiction     only   over   those   issues     that      rest   on

undisputed fact situations, or on which the defendants are willing

to    accept    the   plaintiffs’    allegations    as     true.24         Here,   the

defendants’ contentions regarding the location and visibility of

the    baton    found   by    Officer   Paez   conflict    with      the    Gordons’

allegations.      As a result, this case presents at least one genuine

factual dispute that we now analyze to ascertain its materiality

vel non to the qualified immunity determination.

       As the Gordons argued in their Response to Defendants’ Motions



       23
            Bazan, 246 F.3d at 490 (see supra n.13).
       24
       Officer Perez in his appellate brief, maintains that Officer
Paez saw the baton in “plain view.” Cf. Jones, 132 F.3d at 1052
(finding jurisdiction proper because the defendant asserting
qualified immunity accepted the plaintiff’s version of the facts
for purposes of summary judgment)

                                        20
for Summary Judgment, there is a considerable dispute whether the

baton was     visible   at     all,   absent        a   directed,        intrusive,   and

impermissible      search of the car.            Officer Paez stated that when he

walked near the open driver’s-side door, he peered into the pouch

located on the inside of the door and saw the baton lying at the

bottom of the pouch.           According to the recollection of Officer

Perez who was standing near the open passenger’s-side door, he

could see a few inches of one end of the baton protruding from the

pouch at an angle.

       In direct contradiction to both officers’ accounts —— which

themselves are inconsistent and thus raise a credibility question

—— Adrian Gordon avers that not only was the baton at the bottom of

the pouch, it was covered completely by numerous articles, such as

napkins, a tape measure, and bottles of various kinds, which

together totally obstructed it from view.                     He added that the baton

had been at the bottom of the ten-inch deep pouch for so long that

he    had   forgotten   that    it    was    even       in    there.      Keith   Gordon

corroborated his father’s story, stating that he had never seen the

baton before and was not even aware of its presence in the pouch

until it was removed by Officer Paez.

       In addition to these genuinely disputed material facts, the

district court noted Paez’s admission that, at the time he looked

inside the truck, he did not know (1) who the truck belonged to,

(2)    if   the   plaintiffs    were    lawfully             detained,    (3)   why   the

plaintiffs were detained, (4) whether the owner of the baton had a

                                            21
permit to carry it, and (5) whether the detained persons had

engaged in, or had been alleged to have engaged in, criminal

activity.     The court also took note of the fact that deposition

testimony indicated that Officer Paez, now a reserve officer for

the Jourdanton police department, had been fired from the Atacosta

County’s    Sheriff’s   Department     for   sleeping   while   guarding   a

prisoner.

       In Terry v. Ohio, the Supreme Court held that, under limited

circumstances, police officers may perform a “stop and frisk” in

the absence of a warrant and probable cause.25           Subsequently, in

Mitchell v. Long, the Supreme Court upheld the search of the

passenger compartment of an automobile during a traffic stop.26

The   facts    and   reasoning   of    Mitchell,   however,     are   easily

distinguishable from the facts presented in this case, making that

case inapposite.        In Mitchell, two police deputies, while on



      25
         Terry v. Ohio, 392 U.S. 1, 30 (1968):
      We merely hold today that where a police officer observes
      unusual conduct which leads him reasonably to conclude in
      light of his experience that criminal activity may be
      afoot and the persons with whom he is dealing may be
      armed and presently dangerous, where in the course of
      investigating this behavior he identifies himself as a
      policeman and makes reasonable inquiries, and where
      nothing in the initial stages of the encounter serves to
      dispel his reasonable fear of his own or others’ safety,
      he is entitled for the protection of himself and others
      in the area to conduct a carefully limited search of the
      outer clothing of such persons in an attempt to discover
      weapons which might be used to assault him (emphasis
      added).
      26
           Mitchell v. Long, 463 U.S. 1032 (1983).

                                      22
patrol, observed a car that was moving erratically and at excessive

speed swerve into a shallow ditch on the side of the road.                       When

the officers approached the driver, he was unresponsive to their

questions and requests, and he appeared to be under the influence

of drugs or alcohol. Simply looking into the vehicle, the officers

saw a hunting knife on the floorboard of the driver’s side of the

car.        Based on these undisputed facts, the officers performed a

Terry frisk of the driver’s person, and then, to make sure that the

driver       possessed    no   other     weapons,     one     officer   shined    his

flashlight       into    the   vehicle     and,     without     entering   it,    saw

something protruding from underneath the armrest on the passenger

side.       Still searching for other weapons, the officers discovered

that the protruding pouch contained marijuana, after which an

extended search revealed a large quantity of marijuana in the trunk

of the vehicle, for which the driver was tried and convicted.

       The Supreme Court in Mitchell rejected the driver’s contention

that the search exceeded the bounds of a legitimate Terry search,

stating that:

       [T]he search of the passenger compartment of an
       automobile, limited to those areas in which a weapon may
       be placed or hidden, is permissible if the police officer
       possesses a reasonable belief based on specific and
       articulable facts which, taken together with the rational
       inferences from those facts, reasonably warrant the
       officers in believing that the suspect is dangerous and
       the suspect may gain immediate control of weapons.27

Further, the Court clarified, “[w]e stress that our decision does


       27
             Id. at 1049-50 (citations and internal quotations omitted).

                                          23
not mean that the police may conduct automobile searches whenever

they conduct an investigative stop ....”28

      Given the distinguishable facts and circumstances of the

instant case, the exigency and justification for the searches in

Terry and Mitchell simply do not appertain here.            By the time Paez

found the baton, other officers had already handcuffed the Gordons

and had checked and verified their identifications.              The Gordons

had cooperated with all of the officers’ instructions, had not

resisted their restraint, and had truthfully answered all the

officers’ questions.       In short, the summary judgment evidence

indicates that the officers had confirmed their misidentification

of the Gordons as somehow related to Engleton and had come up with

no   tangible   evidence   or    indication   on   which   to   base   further

detention of the Gordons.

      Furthermore, by the time their investigation had reached this

point, the officers no longer had any facts on which to form a

reasonable suspicion that the Gordons were a danger to anyone or

would pose a danger once they were released from the handcuffs and

allowed    to   proceed.    In    fact,   given    the   Gordons’   confirmed

identifications and the other information the officers possessed,

there was no basis for a belief that the Gordons would do anything

other than peaceably return to their truck and continue their




      28
           Id. at 1049, n.14.

                                     24
father-and-son pleasure trip to Ports Mansfield.29          Under the

totality of these circumstances, the search of the compartments of

the   vehicle   exceeded   the   legitimate   bounds,   purposes,   and

justifications for a Terry/Mitchell search.

      Our analysis confirms that the visibility and obviousness of

the baton is a fact that is material to the legal analysis of this

case. The only version of the facts that could justify Paez’s

procurement of the baton would be its visibility in plain view, but

as we already noted, there exists a genuine factual dispute between

the parties as to whether the baton was in plain view.      On summary

judgment, we must view the facts in the light most favorable to the

non-movant —— here, the Gordons.       Given this genuine dispute of

material fact, and our requirement of viewing the facts in the

light most favorable to the non-movant, we are constrained by our

jurisdictional limits to refrain from reviewing the issues related

to this genuine and material factual dispute. The discovery of the

baton is used by the defendants in an effort to justify the

continued restraint of the Gordons, prompting the full search of

the vehicle that in turn uncovered the gun for which Adrian Gordon


      29
        In response to a question from a member of this panel at
oral argument, counsel for some of the defendants attempted to
justify the vehicle search under Mitchell’s extension of the Terry
doctrine on the rationale that the detainees would return to the
truck after being released and could then constitute a threat.
Under other circumstances that contention might wash, but not here:
The officers’ error in stopping the Gordons as a result of mistaken
identity had already been determined and any Terry or Mitchell
justifications debunked before the unconsented to, warrantless
search of the vehicle was ever commenced.

                                  25
was mistakenly arrested, detained, and charged.                     Under these

circumstances, we must dismiss for lack of appellate jurisdiction,

Perez’s interlocutory appeal of the district court’s denial of

summary     judgment   on   the    Gordons’    claims   for     unconstitutional

arrest, search, seizure, malicious prosecution, excessive force,

and violation of equal protection and free speech rights.

D.   The 42 U.S.C. §§ 1985 and 1986 Claims

      In addition to the § 1983 claims, the Gordons assert claims

grounded in §§ 1985 and 1986, for conspiracy to deprive them of

their      constitutional   rights    and     negligence   in    preventing   the

violation of their constitutional rights.            The defendants in their

briefs argue that, because the Gordons cannot state a viable § 1983

claim, §§ 1985 and 1986 are inapplicable.30                The district court

ruled that because the defendants are not entitled to qualified

immunity from the Gordons’ § 1983 claims, summary dismissal of the

§§ 1985 and 1986 claims would not be proper at this stage.                 As we

agree that at least some of the Gordons’ § 1983 claims survive

summary judgment, we also agree that their §§ 1985 and 1986 claims

remain viable as well.            We therefore affirm this aspect of the

district court’s decision.

E.   State Law Tort Claims and State Law Immunity

      Finally, the district court granted in part and denied in part


      30
         42 U.S.C. §§ 1985, 1986 (violation of § 1985 premised on
the deprivation of a federally-protected right; violation of § 1986
premised on liability for a § 1985 claim).

                                       26
summary judgment on the Gordons’ parallel state law tort claims.

Under     Texas   law,   a   police   officer    is   entitled   to   “official

immunity” from suit when the claims arise from the performance of

(1) discretionary duties, (2) performed in good faith, as long as

the officer is (3) acting within the scope of his authority.31

Although the Texas immunity test is articulated differently than

the federal test, the Supreme Court of Texas has stated that the

Texas test is derived “substantially” from the federal qualified

immunity standard.32         Moreover, under the Texas test, immunity

issues are less likely to be resolved at summary judgment than they

would be under the federal test.33              Therefore, to the extent we

affirm the district court’s order with respect to the federal

immunity claims, we also affirm the court’s rulings on the parallel

state law issues.




     31
           Cantu v. Rocha, 77 F.3d 795, 808 (5th Cir. 1996).
     32
         City of Lancaster v. Chambers, 883 S.W. 2d 650, 656-57
(Tex. 1994).
     33
           Id.

                                       27
                              III.   CONCLUSION

     We affirm the district court’s rulings as to Officers Ortiz,

Douglas,    Sanchez,   Rutherford,       Paez,   Perez,   and   Investigator

Westfall, but we reverse the court’s ruling as to Dispatcher

Schawver,   who   we   hold   to   be   entitled   to   dismissal   based   on

qualified immunity.

AFFIRMED in part; REVERSED in part.




                                        28
