     Case: 19-20167   Document: 00515356702     Page: 1   Date Filed: 03/24/2020




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

                                                                 FILED
                                                              March 24, 2020
                                 No. 19-20167                 Lyle W. Cayce
                                                                   Clerk

MONICA VOSS,

             Plaintiff - Appellant

v.

GREGORY G. GOODE; FORT BEND COUNTY, TEXAS,

             Defendants - Appellees




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


Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Appellant Monica Voss appeals the district court’s grant of summary
judgment on her claim of false arrest in violation of the Fourth Amendment
against Gregory Goode, a deputy of the Fort Bend County Sheriff’s Office. For
the following reasons, we AFFIRM.


                                      I.
      Slightly before midnight on June 20, 2016, Goode responded to a welfare
check from Texas Child Protective Services (CPS) at Voss’s house. Voss’s
fourteen-year-old daughter K.V. had allegedly reported suicidal thoughts to an
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adult friend. Deputy Philip McGuigan was also dispatched to Voss’s house as
backup.
      Goode approached Voss’s house, knocked on her front door, and
announced himself. Voss, a retired detective, answered the door and identified
herself as Monica. Goode explained that he was there at the request of CPS to
perform a welfare check on K.V. because of a report that K.V. was
contemplating suicide. Voss called K.V. downstairs to speak with Goode and
woke her husband, who also came down. K.V. denied being depressed or
suicidal. Voss’s husband went to bed. Goode then interviewed K.V. outside,
away from her parents, at Voss’s suggestion and with her consent. During this
interview, K.V. confirmed to Goode that she had reported suicidal ideation.
She also told Goode that she was in a mental health crisis, was depressed and
wanted to “end her misery,” and that her parents had acted abusively toward
her. She stated that Voss had previously thrown hard or sharp objects at her,
including a telephone and a pair of scissors. K.V. said that she was afraid of
Voss because Voss acted like she was going to throw something at her, and
because Voss had access to guns under her bed. K.V. did not have any visible
injuries, but she reported that her home environment led her to thoughts of
drowning herself in the family’s pool or hanging herself. Goode determined
that further investigation was warranted based on K.V.’s statements.
      Voss came outside after 20 to 30 minutes. Goode told Voss that he
needed to contact Texana Crisis Center to request an assessment by a mental
health professional and that K.V. would wait in his squad car until the
counselor arrived. Voss protested and demanded that she take K.V. to the
hospital herself instead. Voss told K.V. to get in her car rather than the patrol
car. She threatened to lock K.V. out of the house if Goode put her in the squad
car. At this point, Goode explained to Voss that he had placed K.V. under his
protective custody and that Voss could not leave the scene with K.V. in her car.
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                                  No. 19-20167
Goode also warned Voss that she was getting close to being arrested for
interfering with his investigation. Voss’s declaration states that she went
inside for a few minutes “to sort the confusing situation out.” When she came
out a few minutes later, Goode ordered Voss to provide identifying information.
Voss told Goode that she did not have an ID on her person and that it was in
the house. Voss refused to go in the house and retrieve it.
        Goode then arrested Voss. The reason Goode gave for the arrest at the
time was “failure to identify to a police officer.” McGuigan placed Voss in
Goode’s patrol car. After a short period of time in the parked car, Voss asked
to get out, which Goode permitted her to do. Goode then agreed to remove her
handcuffs. Voss asked Goode to call his supervisor. Sergeant Jerome Ellis
arrived and allegedly told Voss that the events leading to her arrest had been
“a big misunderstanding that had gotten out of hand.” Shortly thereafter, a
Texana counselor arrived and conducted an evaluation of K.V.           K.V. was
released into her mother’s custody. The state did not press charges against
Voss.
        Voss filed a complaint in the Southern District of Texas on May 6, 2017.
Voss asserted claims against Goode under the Fourth and Fourteenth
Amendments for allegedly detaining and arresting her without probable cause.
She also asserted a municipal-liability claim against Fort Bend County,
alleging that the County was the moving force behind Goode’s unconstitutional
actions. The district court dismissed all claims against the County and all of
Voss’s claims against Goode—except for the Fourth Amendment false arrest
claim—for failure to state a claim. On April 17, 2018, Goode filed a motion for
summary judgment on the basis of qualified immunity on the last remaining




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claim. On February 20, 2019, the district court granted the motion and entered
judgment against Voss. Voss timely appealed.


                                             II.
       We review the district court’s summary judgment decision de novo,
applying the same legal standard used by the district court. Hyatt v. Thomas,
843 F.3d 172, 176–77 (5th Cir. 2016). Summary judgment is appropriate if
“the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“A genuine dispute of material fact exists ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Romero v.
City of Grapevine, 888 F.3d 170, 175 (5th Cir. 2018) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To decide if the non-movant has
raised a genuine dispute of material fact, we view all facts and evidence in the
light most favorable to her and draw all reasonable inferences in her favor.
Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017) (citing Griggs v. Brewer,
841 F.3d 308, 312 (5th Cir. 2016)). “Summary judgment must be affirmed if it
is sustainable on any legal ground in the record, and it may be affirmed on
grounds rejected or not stated by the district court.” S&W Enters., L.L.C. v.
SouthTrust Bank of Ala., NA, 315 F.3d 533, 537–38 (5th Cir. 2003) (citations
omitted).


                                             III.
       Voss makes two arguments on appeal as to why Goode is not entitled to
qualified immunity.1 First, she asserts that Goode cannot prevail on the theory


       1        Voss also asserts that the district court “drew every inference in favor of the
movant, resolved fact and credibility disputes inappropriate for summary judgment, and
failed to credit evidence that contradicted some of its key factual conclusions.” This argument
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                                       No. 19-20167
that he had probable cause to arrest her for interfering with his investigation
when he told her at the time that she was being arrested for failure to identify.
Second, she argues that, even if Goode can use a new crime to justify her arrest,
he did not have probable cause to arrest her for any crime.
       “The doctrine of qualified immunity shields officials from civil liability so
long as their conduct ‘does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555
U.S. 223, 231 (2009)). “A good-faith assertion of qualified immunity alters the
usual summary judgment burden of proof, shifting it to the plaintiff to show
that the defense is not available.” Melton v. Phillips, 875 F.3d 256, 261 (5th
Cir. 2017) (en banc) (quoting King v. Handorf, 821 F.3d 650, 653 (5th Cir.
2016)). A plaintiff must make a two-part showing to overcome a qualified
immunity defense. First, a plaintiff must show that the official violated a
statutory or constitutional right; second, she must show that the right was
clearly established at the time of the challenged conduct. Id. The order in
which to address the two prongs rests in the reviewing court’s discretion.
Pearson, 555 U.S. at 236.
       Voss argues that, because Goode originally told her that she was being
arrested for failure to identify, he is not entitled to qualified immunity if it was
clearly established at the time of her arrest that no probable cause existed for




is contradicted by the district court’s opinion, which mainly relies on Voss’s account in
reciting the facts of the case. The only time that the report and recommendation explicitly
deviates from Voss’s account is to discredit Voss’s alleged characterization that she “was
cooperative at all times, that she was calm, posed no threat, and was not argumentative.”
Voss’s demeanor has no bearing on whether Goode had probable cause to arrest her for
interference because interference requires physical action. See Freeman v. Gore, 483 F.3d
404, 414 (5th Cir. 2007) (holding that “‘yelling’ and ‘screaming’ . . . alone does not take [a
plaintiff’s] conduct out of the realm of speech”). Therefore, we find no material error in the
district court’s account of the facts.
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that particular offense.   A person commits failure to identify if he or she
“intentionally refuses to give his [or her] name, residence address, or date of
birth to a peace officer who has lawfully arrested the person and requested the
information.” Tex. Penal Code Ann. § 38.02(a). Goode concedes that he did not
have probable cause to arrest Voss for failure to identify, because the offense
applies only to someone who has already been “lawfully arrested” for another
crime. Id. Goode instead seeks to show that he had probable cause to arrest
Voss for a different crime: interference with public duties. See id. § 38.15(a)(1).
      Despite Voss’s assertions to the contrary, Goode may justify the arrest
by showing probable cause for any crime. See Devenpeck v. Alford, 543 U.S.
146, 153 (2004) (holding that because “an arresting officer’s state of mind . . .
is irrelevant to the existence of probable cause,” there is “no basis in precedent
or reason” to require an officer to justify an arrest with reasons given at the
scene); see also Sam v. Richard, 887 F.3d 710, 715–16 (5th Cir. 2018) (holding
that justifying an arrest by pointing to probable cause for the misdemeanor of
crossing an interstate highway was permissible even if it was “only an after-
the-fact justification for the arrest”). Goode is therefore entitled to qualified
immunity unless it was clearly established that no probable cause existed to
arrest Voss for interference with public duties or any other crime at the time
of arrest.   Probable cause exists when an officer is aware of “reasonably
trustworthy facts which, given the totality of the circumstances, are sufficient
to lead a prudent person to believe” that a crime has been or will be committed.
Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir. 2006).
      Voss’s second argument is that Goode is not entitled to qualified
immunity because a reasonable officer would not have thought that he had
probable cause to arrest her for interference with public duties.
      We need not determine whether Goode had probable cause under the
first part of the qualified immunity test, because Goode’s behavior was
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reasonable in light of the clearly established law at the time of the incident.
An officer is entitled to qualified immunity even if he did not have probable
cause to arrest a suspect, “if a reasonable person in [his] position ‘would have
believed that [his] conduct conformed to the constitutional standard in light of
the information available to [him] and the clearly established law.’” Freeman
v. Gore, 483 F.3d 404, 415 (5th Cir. 2007) (quoting Goodson v. City of Corpus
Christi, 202 F.3d 730, 736 (5th Cir. 2000)). To determine whether a reasonable
officer would have believed that his or her conduct conformed to the
constitutional standard, courts look at the state of the law at the time of the
incident. See Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). The Supreme
Court has not required a case “directly on point for a right to be clearly
established,” but “existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (quoting White v. Pauly, 137 S. Ct.
548, 551 (2017)). In other words, “[a] clearly established right is one that is
‘sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.’” Mullenix, 136 S. Ct. at 308 (quoting
Reichle v. Howards, 556 U.S. 658, 664 (2012)).
      Texas Penal Code § 38.15 provides, “[a] person commits an offense if the
person with criminal negligence interrupts, disrupts, impedes, or otherwise
interferes with . . . a peace officer while the peace officer is performing a duty
or exercising authority imposed or granted by law.” Id. § 38.15(a)(1). In order
to violate the statute, a person’s interference must consist of more than speech
alone. Id. § 38.15(d) (“It is a defense to prosecution under this section that the
interruption, disruption, impediment, or interference alleged consisted of
speech only.”). Accordingly, we have held that “merely arguing with police
officers about the propriety of their conduct . . . falls within the speech
exception to section 38.15” and thus does not constitute probable cause to
arrest someone for interference. Freeman, 483 F.3d at 414; see also Westfall v.
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Luna, 903 F.3d 534, 544 (5th Cir. 2018). By contrast, actions such as “ma[king]
physical contact with any of the officers or physically obstruct[ing]” them from
performing their legally authorized duties could constitute interference.
Freeman, 483 F.3d at 414. And “fail[ing] to comply with an officer’s instruction,
made within the scope of the officer’s official duty and pertaining to physical
conduct rather than speech” can also constitute interference.         Childers v.
Iglesias, 848 F.3d 412, 415 (5th Cir. 2017) (describing the state of the law as of
September 2013).
      Here, a reasonable officer could believe that Voss’s conduct did not fall
within the speech-only exception. While Voss maintains that she did not
physically put K.V. in her car, she does not deny that she told K.V. to get in
her car, contravening Goode’s order that K.V. get in his patrol car.
Importantly, her counsel acknowledged at oral argument that K.V. obeyed
Voss and got in Voss’s car after Voss ordered her to do so. A reasonable officer
could think that this behavior gave rise to probable cause for interference. In
Barnes v. State, 206 S.W.3d 601 (Tex. Crim. App. 2006), the Texas Court of
Criminal Appeals held that a woman’s shout to her son to “run” as police
attempted to restrain them did not fall within the speech-only exception
because it was a “command to act.” Id. at 605–06. The court found that in the
First Amendment context, words specifically designed to prompt action are not
given full protection, and similarly, a command of this kind should be treated
as conduct that can form the basis for probable cause. Id. at 606 (citing
Schenck v. United States, 249 U.S. 47, 52 (1919)). The facts of Barnes, in which
a mother told her minor child to physically disobey police orders and the child
did so, are analogous to this case. Barnes therefore gave Goode reason to
believe that probable cause existed to arrest Voss after Voss instructed her
child to physically disobey an officer and the child complied.


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                                  No. 19-20167
      Voss’s conduct also went beyond the types of speech we have recognized
as protected. While courts have sometimes held that similar behavior fell
within the speech exception, those cases involved unlawful orders by police.
See, e.g., Freeman, 483 F.3d at 413 (holding that plaintiff’s yelling and refusing
to obey an unlawful order fell within speech exception); Carney v. State, 31
S.W.3d 392, 398 (Tex. App. 2000) (holding that defendant arguing with police
officers about an unconstitutional search fell within the speech exception).
Here, Goode had legal authority to place K.V. in protective custody, and Voss
told her child to disobey a physical order. These circumstances are more
similar to the facts of our cases upholding qualified immunity. See Haggerty
v. Tex. S. Univ., 391 F.3d 653, 657 (5th Cir. 2004) (holding that arresting
someone for stepping within 10 to 15 feet of an officer after being ordered to
move away did not violate clearly established law).        Accordingly, Goode’s
conduct was not unreasonable in light of the prevailing law.


                                       IV.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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