     Case: 18-11103      Document: 00515126056         Page: 1    Date Filed: 09/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-11103
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
AVI S. ADELMAN,                                                         September 20, 2019
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

STEPHANIE BRANCH, Dallas Area Rapid Transit Police Officer,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-2579


Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Appellant Stephanie Branch appeals the district court’s denial of her
motion for summary judgment on qualified immunity grounds and on a claim
for punitive damages. For the reasons set forth below, we AFFIRM the district
court’s judgment as to the qualified immunity issue and REMAND for further
proceedings; we DISMISS the punitive damages portion of the appeal for want
of jurisdiction.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11103
                                I.     Background
      Branch began working for Dallas Area Rapid Transit (“DART”), the local
transportation entity providing bus and rail services, as a police officer in 2006.
Appellee Avi Adelman is a freelance journalist who publishes a neighborhood
blog and provides photographs to media outlets.
      In June 2007, DART issued a directive prohibiting non-DART personnel
from using DART facilities or property for unauthorized non-transportation
purposes. Then, in June 2014, DART issued a new policy (the “Photography
Policy”) allowing people to take photographs on DART property so long as they
did not interfere with transportation or public safety activity.                The
Photography Policy provided:
      Persons may take photographic or video images, including but not
      limited to film, digital or video recordings (Images) of DART
      Property, including but not limited to stations, buses, trains, or
      other vehicles for their personal use. Persons taking photographic
      or video images must not interfere with transportation or public
      safety activity while taking images. DART Police Officers may
      initiate an inquiry or investigation when photography or
      videotaping activity is suspicious in nature or inconsistent with
      this policy.
Branch was out on sick leave from May 2014 through January 2016. She
claims that she was thus unaware of DART’s Photography Policy during the
events leading to this suit.
      On the evening of February 9, 2016, Adelman was in downtown Dallas
listening to his police scanner when he heard a call for Dallas Fire-Rescue
(“DFR”) paramedics to respond to a K2 overdose victim at the Rosa Parks Plaza
DART station (the “Plaza”) and decided to go to the scene. When he arrived,
he noticed a man lying on the ground and being attended to by DFR
paramedics. He began to photograph the scene. Branch noticed Adelman
taking photographs shortly thereafter. She then positioned herself between


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                                       No. 18-11103
Adelman and the medical scene in an apparent attempt to block Adelman from
taking photographs.
      According to witnesses, Adelman was several feet away from the medical
scene and was not interfering with paramedics or police activity. Nevertheless,
Branch approached Adelman and demanded that he stop taking photographs.
Branch states that she approached Adelman because he appeared suspicious
to her. As captured on Branch’s audio recording device, the first statement
Branch made to Adelman was, “Sir leave.” When Adelman refused to leave,
Branch demanded his identification.               She again demanded that Adelman
“leave our property” and told Adelman that the Plaza was not public property. 1
      Branch then told Adelman multiple times that he could not take
photographs.         Branch first told Adelman he was prohibited from
photographing the medical scene; later she instructed Adelman that he could
“take pictures from the street but [could not] take pictures here” on DART
property. In all, Branch asked Adelman to leave the Plaza nine times and
asked for his identification four times. Adelman repeatedly refused.
      While Branch was speaking with Adelman, Branch’s colleague, DART
Police Officer Cannon, remained with DFR paramedics. As Cannon and the
DFR paramedics observed the confrontation, a DART recording device
captured the following exchange:
      DFR 1 – He was just taking pictures right?
      Officer Cannon – Yea[h] that’s why I don’t know why she’s giving
      him a hard time[.]
      DFR-1 – Why is she going crazy?
      Officer Cannon – I don’t know[,] that’s going to be on her[.] [H]e
      can take all the pictures he wants[,] that’s why I’m not getting
      involved in that. . . .
      DFR-1 – He knows he wasn’t doing nothing wrong so. . . .
      ...


      1   Branch now concedes that the Plaza is public property.
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                                 No. 18-11103
      Officer Cannon – I don’t know why she . . . . There was no need for
      that[.]
      DFR-2 – Yea[h] I don’t know where that idea came from but this
      is . . . because there is freedom of the press[.]
      Nevertheless, less than five minutes after first approaching him and
demanding that he stop taking photographs, Branch informed Adelman that
she was detaining him. Branch arrested Adelman for criminal trespass under
Texas Penal Code § 30.05 based on her assertion that the Plaza was “not public
property” and her belief that Adelman was not allowed to photograph the
scene. Branch also issued Adelman a criminal trespass warning, which banned
him from the Plaza and certain other DART transit locations.
      DART dropped the criminal trespass charge against Adelman shortly
after his arrest. In a letter explaining the decision, DART stated that Branch’s
actions were “not in line with department directives” and that DART would
undertake a formal review.      Nearly six months later, DART released its
investigation results, which indicated that Branch “did not establish Probable
Cause to effect the arrest” and that she improperly arrested Adelman while he
was “simply taking photographs of a person in a public place.” The report also
contained the following conclusions:
   • “Adelman was not breaking any laws and would not lead a reasonable
      person to believe that he was committing a crime or had committed a
      crime or [was] about to engage in committing a crime. . . . [T]herefore
      the arrest of Adelman for criminal trespass was not based on sufficient
      probable cause.”
   • “Adelman is viewed simply taking photographs of a person in a public
      place on DART property who appeared to have passed out. Adelman is
      never viewed less than approximately 10 feet from the actual medical
      scene.   Officers Cannon, Craig or DFR personnel did not witness
      Adelman ever interfere with medical treatment or medical personnel.”
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                                 No. 18-11103
   • “The evidence indicates that Officer Branch did violate the DART
      Administrative Employment Manual and did not refrain from activity
      which was illegal or could reflect negatively on DART when she made
      various inconsistent or mistaken statements on her DART Police
      [I]ncident Report . . . and made the arrest of Avi Adelman for criminal
      trespass.”
      The report also indicated that Branch made numerous false statements
in her incident report, including a statement that Adelman was within a few
feet of DFR paramedics and that DFR instructed her to keep Adelman back.
The report specified that Branch’s incident report contained twenty-three false
or inaccurate statements. Branch was suspended for three days as a result of
the investigation.
      In September 2016, Adelman filed suit against DART and Branch under
42 U.S.C. § 1983. Adelman asserted that Branch arrested him for taking
photographs and that she lacked probable cause for the arrest, violating the
First and Fourth Amendments.         He sought punitive damages based on
Branch’s alleged “evil motive or intent and/or reckless and callous indifference”
to his rights.
      Branch and DART both moved for summary judgment. The district court
granted in part and denied in part DART’s motion and granted in part and
denied in part Branch’s motion. It held in relevant part that Branch was
entitled to qualified immunity on Adelman’s First Amendment claim but that
“the evidence demonstrate[d] at least a fact issue regarding the element of
reasonableness of Branch’s arrest of Adelman.”            The court also denied
summary judgment on Adelman’s punitive damages claim.                This appeal
followed.




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                                  No. 18-11103
                   II.   Jurisdiction and Standard of Review
      The denial of a motion for summary judgment is ordinarily not an
immediately appealable final decision. Kinney v. Weaver, 367 F.3d 337, 346
(5th Cir. 2004) (en banc). But when a party moves for summary judgment on
qualified immunity grounds, that party may immediately appeal the district
court’s denial of summary judgment under the collateral order doctrine.
Mitchell v. Forsyth, 472 U.S. 511, 524–27, 530 (1985).
      In the context of such an interlocutory appeal, we lack jurisdiction to
evaluate the district court’s finding that genuine factual disputes exist. See
Kinney, 367 F.3d at 348. Rather, we “consider only whether the district court
erred in assessing the legal significance of the conduct that the district court
deemed sufficiently supported.” Id. (citing Behrens v. Pelletier, 516 U.S. 299,
313 (1996); Johnson v. Jones, 515 U.S. 304, 313 (1995)). We review this legal
question de novo. Lytle v. Bexar County, 560 F.3d 404, 409 (5th Cir. 2009).
      Where, however, the district court fails to identify the particular factual
disputes that preclude summary judgment, “this Court has two choices. We
can either scour the record and determine what facts the plaintiff may be able
to prove at trial and proceed to resolve the legal issues, or remand so that the
trial court can clarify the order.” Thompson v. Upshur County, 245 F.3d 447,
456 (5th Cir. 2001). In reviewing the record, we are “required to view the facts
and draw reasonable inferences in the light most favorable to the party
opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378
(2007) (internal quotation marks and alteration omitted).             Thus, “on
interlocutory appeal the public official must be prepared to concede the best
view of the facts to the plaintiff.” Gonzales v. Dallas County, 249 F.3d 406, 411
(5th Cir. 2001).




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                                     No. 18-11103
      Although it is typically the better course for the district court to
articulate the disputed facts in the first instance, we conclude that it is
unnecessary for us to remand for that purpose in this case.
                               III.     Discussion
   A. Branch’s Qualified Immunity Appeal
      “The doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed
to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
Adelman bears the burden of negating Branch’s qualified immunity defense by
showing “(1) that [Branch] violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Turner v. Lt. Driver, 848 F.3d 678, 685 (5th Cir. 2017) (quoting
Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)).
      Adelman asserts that Branch violated his constitutional rights by
arresting him without probable cause. The Supreme Court has interpreted the
Fourth Amendment to mean that persons have a right to be free from arrest
absent a warrant or probable cause. See, e.g., Gerstein v. Pugh, 420 U.S. 103,
112 (1975). This right has long been clearly established. See id.; see also Club
Retro, LLC v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009) (“The Fourth
Amendment right to be free from false arrest—arrest without probable cause—
was clearly established at the time of [the] arrests.”).
      “Officers are . . . entitled to qualified immunity unless there was no
actual probable cause for the arrest and the officers were objectively
unreasonable in believing there was probable cause for the arrest.” Davidson
v. City of Stafford, 848 F.3d 384, 391 (5th Cir. 2017). Thus, we must determine
whether    there     were   “facts     and    circumstances    within    [Branch’s]
knowledge . . . sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that [Adelman] ha[d]
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                                      No. 18-11103
committed, [was] committing, or [was] about to commit an offense.”                       Id.
(quoting Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013)). “The right
to be free from arrest without probable cause is a clearly established
constitutional right” for qualified immunity purposes. Westfall v. Luna, 903
F.3d 534, 542 (5th Cir. 2018) (quoting Mangieri v. Clifton, 29 F.3d 1012, 1016
(5th Cir. 1994)). The focus is on what a “reasonable officer” would conclude,
not Branch’s subjective beliefs. See Westfall, 903 F.3d at 544–45.
       Branch asserts that she arrested Adelman because she believed he had
violated Texas Penal Code § 30.05. Section 30.05 provides: “A person commits
an offense if the person enters or remains on or in property of
another . . . without effective consent and the person: (1) had notice that the
entry was forbidden; or (2) received notice to depart but failed to do so.” TEX.
PENAL CODE § 30.05. “Notice” means “oral or written communication by the
owner or someone with apparent authority to act for the owner.”                          Id.
§ 30.05(b)(2).     Therefore, criminal trespass occurs where “(1) a person
(2) without effective consent (3) enters or remains on the property or in a
building of another (4) knowingly or intentionally or recklessly (5) when he had
notice that entry was forbidden or received notice to depart but failed to do so.”
Pena v. Bexar County, 726 F. Supp. 2d 675, 692 (W.D. Tex. 2010) (quoting Tex.
Dep’t of Pub. Safety v. Axt, 292 S.W.3d 736, 740 (Tex. App.—Forth Worth 2009,
no pet.)).
       Branch had probable cause for most of these elements: Adelman was a
person who intentionally remained on the property of another. 2                        But,


       2 Texas Courts of Appeals have held that individuals can trespass on public property
by failing to leave when asked. See, e.g., Spingola v. State, 135 S.W.3d 330, 335 (Tex. App.—
Houston [14th Dist.] 2004, no pet.); Allen v. State, No. 12-01-00079-CR, 2003 WL 1090366, at
*3 (Tex. App.—Tyler Mar. 12, 2003, no pet.) (unpublished) (“Whether the property upon
which the alleged trespass was committed is a public place is not a relevant consideration

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                                        No. 18-11103
importantly, Branch did not have authority to order Adelman to depart.
Adelman was taking photos in accordance with DART’s Photography Policy,
which permits people to take photographs on DART property as long as they
do not interfere with transportation or public safety activity in doing so. The
DART investigation determined that Branch’s claims that Adelman was
within a few feet of DFR paramedics and that DFR instructed her to keep
Adelman back were false. Indeed, the exchange between Cannon and two DFR
paramedics during the confrontation shows that even Branch’s colleagues
knew Branch was acting outside of her authority when she told Adelman to
leave. Thus, at a minimum, fact issues exist as to whether Adelman complied
with the Photography Policy. 3


under section 30.05. The germane consideration for purposes of section 30.05 is whether the
property is ‘property of another.’” (citing TEX. PENAL CODE § 30.05)); Bader v. State, 15
S.W.3d 599, 607–08 (Tex. App.—Austin 2000, pet. ref’d) (“We hold that in cases involving
public property, the State satisfies the ‘of another’ element of the criminal-trespass statute
by proving beyond a reasonable doubt that the complainant has a greater right of possession
of the property than does the accused.”).
3 Branch asserts that she was reasonable in believing she had authority to order Adelman to
leave because she was on sick leave when DART implemented the new Photography Policy
that permits the public to take photos on DART property. The old policy apparently would
have prohibited Adelman from being on DART property if he wasn’t using it for
“transportation purposes.” If Branch’s mistaken understanding of DART policy was
reasonable, then her belief that she had authority to order Adelman to leave was also
reasonable, and she had probable cause to arrest him for trespassing when he stayed. See
Heien v. North Carolina, 135 S. Ct. 530, 537 (2014) (“‘[P]robable cause’ . . . encompasse[s]
suspicion based on reasonable mistakes of both fact and law.”). See also Wilson v. Layne, 526
U.S. 603, 615 (1999) (holding that the officers were entitled to qualified immunity because,
although a violation of the Fourth Amendment occurred, “it was not unreasonable for a police
officer in April 1992 to have believed that bringing media observers along during the
execution of an arrest warrant (even in a home) was lawful”); Anderson v. Creighton, 483 U.S.
635, 641 (1987) (“[I]t is inevitable that law enforcement officials will in some cases reasonably
but mistakenly conclude that probable cause is present, and we have indicated that in such
cases those officials—like other officials who act in ways they reasonably believe to be
lawful—should not be held personally liable.”); Stacey v. Emery, 97 U.S. 642, 646 (1878)
(holding that a certificate of probable cause (which, per Heien, 135 S. Ct. at 537, “function[s]
much like a modern-day finding of qualified immunity”) barred a suit where a government
official improperly seized property, but had “reasonable cause”—also known as “probable

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                                     No. 18-11103
      Because, taking the facts in the light most favorable to Adelman, he
complied with the Photography Policy, Branch lacked authority to order him
to depart. As a result, she also lacked probable cause to believe that Adelman
was violating section 30.05. See Anthony v. State, 209 S.W.3d 296, 301, 310–
11 (Tex. App.—Texarkana 2006, no pet.) (reversing the appellant’s conviction
for criminal trespass in a city park under section 30.05 because the arresting
officer lacked authority to exclude him from the park).                Anthony clearly
establishes that the absence of exclusion authority negates a criminal trespass
claim. Id. Thus, no reasonable officer would conclude that she has probable
cause to arrest someone for criminal trespass after that person refuses to follow
her instructions to leave when she lacks the authority to exclude the person
from the property. Accordingly, Branch’s assumption of probable cause was
objectively unreasonable.       Taking the facts in the light most favorable to
Adelman, no reasonable officer under these circumstances would conclude that
she had authority to eject a person complying with DART policies from public
property—and then arrest that person for criminal trespass when he failed to
depart. We affirm the district court’s denial of summary judgment on qualified
immunity grounds.
   B. Branch’s Punitive Damages Appeal
      Branch also appeals the district court’s denial of summary judgment on
Adelman’s punitive damages claim.            We lack jurisdiction to consider this
portion of Branch’s appeal.
      The Supreme Court has enumerated three requirements for appeal
under the collateral order doctrine: the order must “[1] conclusively determine


cause”—for the seizure). But Branch’s mistake was not reasonable. She didn’t misinterpret
an unclear policy or law; she simply failed to learn about DART’s updated policy. And “an
officer can gain no Fourth Amendment advantage through a sloppy study of the laws [s]he is
duty-bound to enforce.” Heien, 135 S. Ct. at 539–40.

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                                       No. 18-11103
the disputed question, [2] resolve an important issue completely separate from
the merits of the action, and [3] be effectively unreviewable on appeal from a
final judgment.”       Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).
The Court has specified that “the ‘narrow’ [collateral order] exception should
stay that way and never be allowed to swallow the general rule that a party is
entitled to a single appeal, to be deferred until final judgment has been
entered.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)
(citation omitted).
       A district court’s order denying summary judgment on a claim for
punitive damages does not fall within the “narrow and selective” class of
collaterally appealable orders. Hallock, 546 U.S. at 350. Such a denial does
not “conclusively determine the disputed question” or “resolve an important
issue completely separate from the merits of the action”; rather, the issue of
damages is enmeshed with the merits—specifically, whether Branch violated
Adelman’s Fourth Amendment rights. Id. at 349. Nor is the denial
“effectively unreviewable on appeal from a final judgment.” See id. If the
district court issues a final judgment assessing punitive damages against
Branch, we may review an appeal of that judgment, meaning that the
opportunity for review is not “irretrievably lost if it is not reviewed in this
collateral appeal.” Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541,
546–47 (7th Cir. 2001); see also Hallock, 546 U.S. at 349. We conclude that
Branch’s punitive damages appeal does not fall within the collateral order
doctrine. 4 We thus lack jurisdiction over that portion of the appeal.


       4Several of our sister circuits have held in related contexts that punitive damages
appeals are not within the collateral order doctrine. See, e.g., Farhat v. Bruner, 384 F. App’x
783, 786 (10th Cir. 2010) (“[Defendant] contends that the district court erred in denying
summary judgment regarding punitive damages. The court’s denial of summary judgment

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                                         No. 18-11103
                                     IV.     Conclusion
       For the foregoing reasons, we AFFIRM the district court’s order denying
summary judgment on qualified immunity grounds and REMAND for further
proceedings consistent with this opinion. We DISMISS for want of jurisdiction
Branch’s appeal of the district court’s order denying summary judgment on
Adelman’s punitive damages claim.




on this issue does not fall within the collateral order doctrine, so we lack jurisdiction to review
it.”); Cherry, 265 F.3d at 547 (“We also decline to address the Board’s claim that it is immune
from a punitive damages award . . . . A claim of immunity to a certain class of damages is
‘far removed’ from a claim of immunity from litigation.” (quoting Burns-Vidlak v. Chandler,
165 F.3d 1257, 1260 (9th Cir. 1999))); Rein v. Socialist People’s Libyan Arab Jamahiriya, 162
F.3d 748, 756 (2d Cir. 1998) (holding on appeal of a motion to dismiss that punitive damages
are not within the collateral order exception).
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