                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              June 28, 2007
                       FOR THE FIFTH CIRCUIT
                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-20259
                       _____________________

SEAN CARLOS IBARRA; ERIK ADAM IBARRA,

                                           Plaintiffs - Appellees,

                              versus

HARRIS COUNTY TEXAS; TOMMY THOMAS, Sheriff,
Individually and in his official capacity;
PRESTON FOOSE, Deputy, Individually and in
his official capacity; MANUEL MORENO, Deputy,
Individually and in his official capacity;
ALEXANDER ROCHA, Sergeant, Individually
and in his official capacity; JOHN PALERMO,
Deputy, Individually and in his official
capacity; DAN SHATTUCK, Deputy, Individually
and in his official capacity; ALBERT
RODRIGUEZ, Expert Witness,

                                         Defendants - Appellants.
_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Houston
                        USDC No. 4:04-CV-186
_________________________________________________________________

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     This case, before us on interlocutory appeal, arises out of an

incident in which the Harris County Sheriff’s deputies raided the

Ibarra home after observing Sean Ibarra taking photographs of

deputies executing a search warrant at a neighbor’s residence. The


     *
      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this opinion should not be published and is not precedent except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.
Defendants appeal the district court’s denial of their motion for

summary judgment on qualified immunity.

                                   I.

         At approximately 2:30 p.m. on January 4, 2002, members of the

Harris County Organized Crime Task Force arrived at 2911 Shady Park

Drive in Houston, Texas for the purpose of executing a search

warrant.1     Shortly before 3:00 p.m., Sean Ibarra returned to his

residence at 2907 Shady Park Drive.        He observed marked police

vehicles in the street and several officers in uniform or wearing

“Police” or “Sheriff” jackets walking around the premises at 2911

Shady Park Drive.      He saw children on the premises who were not

wearing coats and appeared to be cold.    At some point in time, Sean

was told that one of the children had been assaulted by one of the

officers and that at least one of the children had urinated on

himself and had not been permitted to change clothing.           Sean

continued to observe the children for almost an hour, during which

time none of the children were given additional clothing.

     Some time later, Madalyn Valdez appeared at the front door of

the Ibarra residence, complaining about how the officers were

treating the children, some of whom were her grandchildren.       She

asked to borrow a camera to document the manner in which the

children were being treated.       Sean Ibarra offered to take the

     1
       Because we are reviewing the district court’s denial of
motions for summary judgment on qualified immunity on interlocutory
appeal, we relate the facts as alleged by the Ibarras. See Meadows
v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007).

                                   2
photographs because he thought it would be safer for him to do so.

At this point, it was also decided that Erik Ibarra would park his

truck on the public street and videotape the scene, but Erik was

unable to because his truck was blocked in the driveway.                    Sean took

the camera    and     proceeded    outside       where    he     took    pictures   for

approximately    45    minutes.      He       remained    on     his    property,   the

sidewalk, or in the public street at all times, and did nothing to

interfere with the officers executing the search warrant.

     At some point, a uniformed officer, Deputy Foose, observed

Sean taking photographs of the scene at 2911 Shady Park Drive.

Foose ordered Sean to stop taking photographs and to “come here.”

Sean hesitated, then took another photograph. Sean saw the officer

become agitated and yell to someone.               He gave the camera to Ms.

Valdez and proceeded to follow her and his mother back toward his

house.   By     the    time   he   reached       his     front    door,    Foose    was

immediately behind him.       Sean grabbed the frame of the front door

with his back to the officers and told them they were not welcome

in his house.    At that point, Sean says that Foose struck him in

the back, kidneys, and on the side of his face.                        As he began to

fall, Foose hit him again in the head and he fell to the floor.

Foose then turned to Ms. Valdez who was holding the camera and

began to hit and assault her.         He was stopped by another officer,

believed to be Deputy Shattuck.

     Erik Ibarra was taping the scuffle on his video recorder.

Shattuck threatened to shoot him.              Erik placed the video camera on

                                          3
the bed and was told by Shattuck that they were all under arrest.

The camera and the video recorder were confiscated and everyone was

taken outside the residence.     Erik and Sean report that they were

tripped, and then tightly handcuffed after they fell to the ground.

They both claim to have complained to the officers about their

treatment and were told to shut up.

     Sean and Erik were transported to Harris County Jail where

they were charged with Evading Detention and Resisting Arrest. The

criminal charges against the Ibarras were subsequently dismissed.

The camera was returned broken and the film was destroyed.      The

video recorder was returned without the memory stick.

     Sean and his brother Erik Ibarra brought this lawsuit against

Harris County, Sheriff Thomas, and the deputies in December 2003 in

state court, alleging violation of 42 U.S.C. § 1983 and numerous

state law claims. The Ibarras later amended their complaint to add

law enforcement expert witness, Albert Rodriguez, and Assistant

District Attorney, Sally Ring.    The defendants removed the case to

federal court and filed separate motions for summary judgment. In

March 2005, the district court denied the summary judgment motions

of Harris County, Sheriff Thomas, Foose, Shattuck, Moreno, Rocha,

and Palermo.   In April 2005, the district court denied the summary

judgment motions of Ring and Rodriguez.       The defendants timely

appealed.2

     2
       We lack jurisdiction over Harris County’s appeal because
municipal governments do not enjoy the same right to interlocutory

                                   4
                                 II.

                                 A.

      In reviewing an interlocutory appeal from the denial of

qualified immunity, this court does not apply the typical summary

judgment standard.   See Kinney v. Weaver, 367 F.3d 337, 348 (5th

Cir. 2004) (en banc).    Rather, we consider de novo “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. at 349.   Our jurisdiction is

limited to issues of law.   See Flores v. City of Palacios, 381 F.3d

391, 393 (5th Cir. 2004) (citation omitted).     The presence of a

genuine issue of material fact regarding qualified immunity will

preclude us from exercising jurisdiction.    Glenn v. City of Tyler,

242 F.3d 307, 312 (5th Cir. 2001).

     The district court found that the facts of this case, taken in

the light most favorable to the plaintiffs, do not demonstrate that

the defendant officers had probable cause to arrest the Ibarras.

The district court also found that the defendant officers acted in

accordance with an unconstitutional policy set by County Sheriff

Thomas.   The district court therefore denied qualified immunity as

to all of the defendants.    On appeal, the defendants assert that


appeal as their officials. See Gentry v. Lowndes County, 337 F.3d
481, 484 (5th Cir. 2003) (citing McKee v. Rockwall, 877 F.2d 409,
412 (5th Cir. 1989)). The County’s appeal is therefore dismissed.

     On October 12, 2006, this court granted the Ibarras’ unopposed
motion to dismiss Defendant Ring from this appeal.

                                  5
the Ibarras failed to allege that the officers’ actions violated

their constitutional rights. They further argue that they are

entitled to statutory immunity under Texas law.

                                     1.

     “Government officials performing discretionary functions are

entitled to qualified immunity from civil liability to the extent

that ‘their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.’”    Longoria   v.   Texas,    473   F.3d   586,   592   (5th   Cir.

2006)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The

qualified immunity analysis is a two-step process.              First, we

determine whether the plaintiff properly alleged the violation of

a clearly established right.         Michalik v. Hermann, 422 F.3d 252,

257 (5th Cir. 2005).        “A right is clearly established if its

contours are ‘sufficiently clear that a reasonable officer would

understand that what he is doing violates that right.’”         Id. at 238

(quoting Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir.

2000)).    If the plaintiff can meet that burden, we then consider

whether the official’s conduct was objectively reasonable under the

law at the time of the incident.          Id. (citing Sanchez v. Swyden,

139 F.3d 464, 467 (5th Cir. 1998)).

     Sean Ibarra claims that his First and Fourth Amendment rights

were violated when Deputy Foose attempted to detain him for taking

photographs of the scene at 2911 Shady Park Drive, and then

arrested him for failing to comply with Foose’s order to stop.         The

                                      6
law   is    clearly   established   that   a   detention   is    objectively

unreasonable if the police officers lacks reasonable suspicion to

believe that the person is engaged in criminal activity, Brown v.

Texas, 443 U.S. 47, 51 (1979), and that a warrantless arrest is

objectively unreasonable if the officer lacks probable cause.

United States v. Watson, 423 U.S. 411, 417-424 (1976).             Here Sean

has alleged that Foose attempted to detain him without reasonable

suspicion and arrested him without probable cause.                 Sean has

therefore satisfied the first prong of the qualified immunity

analysis by alleging a violation of his clearly established Fourth

Amendment rights.

      We therefore consider whether Foose’s actions were objectively

reasonable.     Both parties agree that taking photographs of police

activity is not, in and of itself, a criminal act.              Deputy Foose

argues that he had reasonable suspicion to detain Sean Ibarra

because he feared that Sean planned to use the photos to retaliate

against the officers.3        At summary judgment, Foose offered no

evidence to support his belief that Sean planned to use these

photographs to engage in this criminal activity in the future,

other than the bare fact that Sean was taking photographs of the

scene.4      Foose has pointed to no other facts in the summary

      3
       Under § 36.06 of the Texas Penal Code, a person commits the
offense of retaliation if he intentionally or knowingly harms or
threatens to harm another on account of that person’s status as a
public servant.
      4
          The one case Foose cites in support is distinguishable.         In

                                     7
judgment record that would support a reasonable officer’s belief

that Sean Ibarra was engaged in criminal activity.5   Viewed in the

light most favorable to the Ibarras, Deputy Foose unreasonably

violated Sean Ibarra’s clearly established Fourth Amendment rights

by attempting to detain him without reasonable suspicion.6 The


United States v. Raibley, 243 F.3d 1069 (7th Cir. 2001), the
suspect was observed surreptitiously videotaping a young woman who
worked at Walmart as she walked across the parking lot. Id. at
1071. When the man realized he had been observed, he drove away
from the scene “in a hurry.” Id. The man later returned to the
Walmart and then sped away again, apparently after seeing a marked
patrol vehicle parked in front of the store. Id. The Seventh
Circuit found that the police officer who stopped Raibley had
reasonable suspicion to believe that he was engaged in the criminal
offense of stalking, id. at 1074-75, which under Illinois law
requires a showing that the defendant placed another person under
surveillance on at least two separate occasions and placed that
person in reasonable apprehension of bodily harm, sexual assault,
confinement, or restraint. Id. at 1074.

     In contrast to Raibley, Sean Ibarra was openly taking pictures
from his front lawn -- and attempted to retreat to his house only
after   Foose started toward him.      Furthermore, there was no
evidence other than the fact that Sean was taking photographs that
would have indicated that Sean planned to use them to engage in
retaliation.
     5
        Foose further argues that he had probable cause to arrest
Sean because Sean failed to obey the order to stop and fled. The
law is clearly established that disregarding an unlawful police
order does not create reasonable suspicion or probable cause.
Brown, 443 U.S. at 51-52; Goodson v. City of Corpus Christi, 202
F.3d 730, 740 (5th Cir. 2000).      Because Foose is unable to
demonstrate based on the summary judgment record that his attempt
to detain Sean was lawful, he cannot show that Sean’s subsequent
arrest was supported by probable cause.
     6
        Because the record before us indicates a violation of Sean
Ibarra’s Fourth Amendment rights, we need not reach the question of
whether his First Amendment rights were violated to resolve this
interlocutory appeal. If necessary, this question may be addressed
in a subsequent appeal after the evidence as to both claims is
developed at trial.

                                8
district court’s denial of qualified immunity with respect to

Deputy Foose is therefore affirmed.7

                                      2.

     We   find,   however,   that    the   district   court   erred    in   not

considering each deputy’s individual role in the arrest when

determining whether he was eligible for qualified immunity.                 See

Longoria v. Texas, 473 F.3d at 593 (holding that the “court erred

in using these factual disputes as a blanket justification for

denial of summary judgment to the defendants as a class, without

further    considering   their      individual   roles   in   the     disputed

incidents.”); Collins v. Ainsworth, 382 F.3d 529, 540-41 (5th Cir.

2004).    We therefore address each officer’s argument in turn.

     Deputy Shattuck claims that he is entitled to qualified

immunity because he acted reasonably in assisting Foose with the

Ibarras’ arrest.    There is a disputed question of fact as to how

much Shattuck saw of the interaction between Foose and the Ibarras.

In his incident report, Shattuck claimed to have witnessed the

entire sequence of events.       He has since claimed that he never saw

Sean Ibarra taking photographs, and only came out of 2911 Shady

Park Drive in time to see Foose pursuing a fleeing suspect.                 The

Ibarras maintain that Shattuck was present for the entire incident.


     7
      Our determination here is based solely on our reading of the
record under the summary judgment standard for purposes of
determining qualified immunity, and is in no way preclusive of a
contrary finding by the jury with respect to the ultimate merits of
the constitutional claim.

                                       9
This       factual    dispute   precludes     summary    judgment   on   qualified

immunity, because the extent of Shattuck’s knowledge as to events

leading up to the arrest will affect the determination whether his

actions with respect to the Ibarras were objectively reasonable.

We therefore dismiss Shattuck’s interlocutory appeal for lack

jurisdiction.

       None of the remaining officer defendants were aware of the

events leading up to the arrest, and on the record before us they

are    entitled       to   qualified   immunity    for    their   participation.8

Moreno responded to a request from other deputies for assistance

and watched Sean and Erik Ibarra outside after they had been

arrested.       Palermo also responded to the other deputies’ call for

assistance.          He entered the Ibarra residence, saw Sean struggling

with Deputy Foose, escorted Sean out of the house, and forced Sean

to the ground to handcuff him because he was noncompliant.                   Like

Moreno, Palermo did not know why the Ibarras had been arrested and

his response upon arriving on the scene was not unreasonable.                   He

is therefore entitled to immunity. Deputy Palermo is also entitled

to qualified immunity as to the excessive force claim because the

       8
        Because none of the remaining officers were aware of the
events leading up to the arrest, they cannot be held liable as
bystanders. A bystander liability claim requires the plaintiffs to
show that the officer was present at the scene and did not take
reasonable measures to protect a suspect from excessive force.
Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). None of the
remaining defendants knew why the Ibarras were being arrested or
had a reasonable opportunity to intervene. Moreno, Palermo, and
Rocha are entitled to qualified immunity on the Ibarras’ bystander
liability claims.

                                         10
Ibarras offer no argument or evidence to support their claim that

Palermo’s use of force against Sean was unreasonable under the

circumstances.

     Sergeant Rocha was inside the residence at 2911 Shady Park

when he heard a deputy outside shouting that an officer needed

assistance.    He ran over to 2907 Shady Park, where he saw Madalyn

Valdez attacking Foose.      Rocha grabbed Valdez by the arm and

handcuffed her.   Rocha did not help with the apprehension or arrest

of Sean Ibarra or Erik Ibarra, and did not touch them, speak to

them, or transport them to the Harris County Jail.        He had no

knowledge of the events giving rise to the arrests.   He did not act

unreasonably, given the circumstances, and therefore is entitled to

qualified immunity based on his personal participation in the

arrest.

     The Ibarras also argue that Sergeant Rocha is liable as a

policymaker and because he ratified the actions of the deputies

involved.    Rocha cannot be liable as a supervisor because the acts

of his subordinates do not trigger § 1983 liability.       Alton v.

Texas A & M Univ., 168 F.3d 196, 200 (5th Cir. 1999).     Moreover,

Rocha is not an “authorized policymaker in whom final authority

rested regarding the action ordered.”    Cozzo v. Tangipahoa Parish

Council, 279 F.3d 273, 289 (5th Cir. 2002).        The Ibarras make

several conclusory allegations that Rocha ratified Foose’s actions,

but offer no evidence in support.       This argument is therefore

abandoned.    Rocha is entitled to qualified immunity.

                                 11
                                     3.

       As a supervisory official, Sheriff Thomas may not be held

liable under § 1983 for the acts of his subordinates based on a

theory of respondeat superior.             See Alton, 168 F.3d at 200.

Sheriff Thomas may, however, be held personally liable if either

(1) he was personally involved in the constitutional deprivation;

or (2) a sufficient causal connection exists between his wrongful

conduct and the constitutional violation.         Thompkins v. Belt, 828

F.2d   298,   304   (5th   Cir.   1987).     As   chief   law   enforcement

policymaker in Harris County, Sheriff Thomas may be held personally

liable if he implemented “a policy so deficient that the policy

itself is a repudiation of constitutional rights and is the moving




                                     12
force of the constitutional violation,” Cozzo, 279 F.3d at 289.9



       The district court determined that Sheriff Thomas maintained

and acquiesced in an unconstitutional policy permitting officers to

effectuate the warrantless seizure of cameras and video recorders

and to destroy the film therein.                 The court noted that Thomas

stated in his deposition that he approved of Foose’s actions in

this       case    and   that   Foose   had    acted   in   accordance   with   the

department’s word of mouth or standard operating procedures.                    The

court further noted that Sergeant Petruska testified about a

previous incident that the deputies had handled the same way, and

that the testimony of Petruska, Shattuck, and Rocha indicates that




       9
                  An official policy is defined as:

                  1. A policy statement, ordinance, regulation,
                  or decision that is officially adopted and
                  promulgated by the municipality’s lawmaking
                  officers or by an official to whom the
                  lawmakers   have    delegated   policy-making
                  authority; or

                  2. A persistent, widespread practice of city
                  officials or employees, which, although not
                  authorized   by   officially    adopted   and
                  promulgated policy, is so common and well-
                  settled as to constitute a custom that fairly
                  represents municipal policy.       Actual or
                  constructive knowledge of such custom must be
                  attributable to the governing body of that
                  municipality or to an official to whom that
                  body had delegated policy-making authority.

Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992).

                                          13
Foose acted in accordance with procedures deemed appropriate.10 The

court concluded      that   there    was      no   factual   dispute    about    the

existence or character of the procedures under which the plaintiffs

were incarcerated -- and that Sheriff Thomas’s acquiescence in this

practice    showed    deliberate     indifference        to    the     plaintiffs’

constitutional rights.

     Although we agree with the district court that viewed in the

light most favorable to the Ibarras the evidence indicates that

Sheriff    Thomas    acquiesced     in   an    unconstitutional        policy,   we

disagree with the district court’s conclusion that no factual

disputes exist as to existence and scope of a custom or policy, and

as to Thomas’s knowledge of this policy.             On appeal, Sheriff Thomas

specifically challenges the district court’s finding that any such

unofficial custom or policy exists and argues that the Ibarras have

produced insufficient evidence showing a pattern of constitutional

violation under official County regulations.                   Because Sheriff

Thomas primarily argues that evidence in the record is insufficient

to support the Ibarras’ version of the facts, the resolution of his

qualified immunity claim turns on a contested question of fact. We

therefore dismiss Sheriff Thomas’s appeal for lack of jurisdiction.

See Connelly v. Texas Dept. of Criminal Justice, 484 F.3d 343, 345-

46 (5th Cir. 2007) (citing Kinney v. Weaver, 367 F.3d 337, 347 (5th

Cir. 2004) (en banc)).

     10
       He explained: “We took the film.              Took the camera, took the
film, gave them their camera back.”

                                         14
                                          B.

       Each of the officers also claims immunity from suit for the

state-law claims under the Texas Tort Claims Act because the

Ibarras made an irrevocable election to sue only the County.                       They

rely upon § 101.106(a) of the Texas Civil Practice and Remedies

Code, which states that “[t]he filing of a suit under this chapter

against a governmental unit constitutes an irrevocable election by

the plaintiff and immediately and forever bars any suit or recovery

by    the     plaintiff     against      any    individual      employee      of   the

governmental unit regarding the same subject matter.”                   Because the

Ibarras sued the County, the Defendants argue, their lawsuits

against the individual officers are barred.

       The defendants misread the statute.                Subsection (b) of §

101.106 states the converse of subsection (a):                  suing an employee

constitutes an irrevocable election and bars suit against the

governmental       unit.      Subsection       (e)   states    that    if   both   the

employees and the governmental unit are sued “the employees shall

immediately        be   dismissed   on    the   filing    of    a    motion   by   the

governmental unit.”

       In this case, both Harris County and its employees were sued;

therefore, subsection (e) controls.              Harris County has never filed

a    motion   to    dismiss   its   employees;       therefore,       the   defendant

officers have no automatic right to dismissal. Subsection (e) does

not    explicitly        prohibit     suits     against       both    employee     and

governmental unit.         See Newman v. Obersteller, 960 S.W.2d 621, 622

                                          15
(Tex. 1997) (judgment for school district rendered employee immune

under § 101.106).      Harris County’s presence in this case does not

entitle the individual officers to immunity from the state-law

claims.11    Because Harris County failed to file the appropriate

motion, the district court did not err in denying summary judgment

on basis of statutory immunity under the Texas Tort Claims Act.12



                                     C.

     In its one-page order of April 27, 2005, the district court

summarily     denied   Rodriguez’s    motion      for   summary     judgment.

Rodriguez appealed, arguing that the district court erred in

denying him absolute immunity as an expert witness.         We agree.     See

Mowbray v. Cameron County, 274 F.3d 269, 277 (5th Cir. 2001)

(citing Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108 (1983)).

See also Kinney v. Weaver, 367 F.3d 337, 352 (5th Cir. 2004) (en

banc)     (“[N]o   distinction   between   fact    witnesses      and   expert

witnesses ... [is] drawn in cases involving the absolute immunity

that protects witnesses from civil liability arising from their

testimony.”).       The Ibarras argue that Rodriguez was not sued

because he was an expert witness, but because he conspired with

others to commit perjury. This argument fails, however, because as

     11
        Appellants Thomas, Shattuck, Rocha, Moreno, and Palermo
incorporate this argument in their briefs.
     12
       The appellants offer no other arguments in support of their
claim for qualified immunity as to the Ibarras’ state law claims.


                                     16
Rodriguez correctly notes, immunity also covers allegations of

conspiracy   to   commit   perjury.        Mowbray,   274   F.3d   at   277-78

(“absolute witness immunity bars § 1983 suits for conspiracy to

commit perjury”).    Rodriguez is entitled to absolute immunity.

                                  III.

     For the foregoing reasons, we AFFIRM the judgment of the

district court denying qualified immunity on the federal claims

with respect to Foose.       The appeals of Shattuck and Thomas are

DISMISSED for lack of jurisdiction.         We AFFIRM the judgment of the

district court denying immunity under the Texas Torts Claims Act to

Foose, Shattuck, Thomas, Moreno, Palermo, and Rocha and we REVERSE

the district court’s judgment denying qualified immunity on the

federal claims to Moreno, Palermo, Rocha, and Rodriguez.

       AFFIRMED in part; REVERSED in part; and DISMISSED in part.




                                      17
