                      REVISED NOVEMBER 13, 2002

                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                              No. 01-10967




JEFFREY L. ESTEP,

                 Plaintiff - Appellant,


VERSUS


DALLAS COUNTY, TEXAS, ET. AL.,

                 Defendants

WILLIAM F. PEACE, CONLEY, OFFICER; J.C. QUILLEN,

                 Defendants - Appellees



             Appeal from the United States District Court
         For the Northern District of Texas, Dallas Division


                           October 18, 2002




Before KING, Chief Judge, PARKER, Circuit Judge, and Ellison*,


     *
      District Judge of the Southern District of Texas, sitting by
designation.

                                   1
District Judge.

PER CURIAM:

       For the second time, Jeffrey L. Estep (“Estep”) appeals from

the   district   court’s      grant   of       summary   judgment   in   favor   of

defendants William Peace, Officer Conley and J.C. Quillen.                 As was

the case during the initial appeal, the issue before us is whether

the   district   court   properly     granted       summary    judgment    to    the

defendants on qualified immunity grounds.                     For the following

reasons, we REVERSE IN PART and AFFIRM IN PART.

I.     PROCEDURAL HISTORY

       This case has an unusual procedural history to say the least.

In    1995,   Estep   filed    this   Section       1983   action   against      the

defendants-appellees for violating his right to be free from an

unreasonable search of his vehicle under the Fourth Amendment to

the United States Constitution. Estep alleged that the defendants-

appellees, three City of Garland, Texas police officers, conducted

an unlawful search of his vehicle after a routine traffic stop on

March 29, 1993.1       In October 1997, the district court granted


       1
        During the course of the search, the police discovered a
pistol. Estep was placed under arrest for wrongfully carrying a
weapon.   Prior to his trial in Dallas County, Estep moved to
suppress the pistol because the search had been conducted in
violation of the Constitution. On September 7, 1993, Judge Molly
Francis conducted a suppression hearing. After hearing testimony,
Judge Francis ruled that the search was unconstitutional and
suppressed all evidence obtained subsequent to the arrest. The

                                           2
summary judgment to Officer Peace, Officer Quillen, and Officer

Conley on qualified immunity grounds. Estep appealed to our court.

     On August 28, 1998, a separate panel issued an unpublished,

per curiam opinion which remanded the case back to the district

court to reconsider the defendants’ summary judgment motion in the

light of competent summary judgment evidence submitted by Estep.

The panel informed the district court that in making its second

ruling it should address whether the search was lawful and whether

such lawfulness is actionable under Section 1983 when all factual

inferences are made in favor of Estep.

     On remand, the district court granted summary judgment to

Officer Conley, but denied summary judgment in favor of Officer

Peace and Officer Quillen because the record was insufficient to

determine whether Peace and Quillen were entitled to qualified

immunity.   Not satisfied with this ruling, however, the officers

submitted new summary judgment motions without any additional

evidence.   Estep failed to respond to the officers’ new summary

judgment motions.

     In June 2001, the district court changed its mind and   granted

summary judgment in favor of Officer Peace and Officer Quillen.

Unfortunately, in making its ruling, the district court failed to



state of Texas thereafter dismissed its criminal case against
Estep.

                                3
address the    issues   that   the   previous   panel   instructed    it   to

resolve.     Specifically, the court failed to consider all the

competent summary judgment evidence and never determined whether

the search of Estep’s vehicle was lawful.        In July 2001, Estep once

again appealed to our court to contest the grant of summary

judgment.

      Estep’s current appeal is now properly before us.              At this

point (seven years after the complaint was filed and nine years

after the incident occurred ), it is time to conclusively resolve

whether Officer Peace and Officer Quillen are entitled to summary

judgment.    While it would have been preferable for the district

court to have initially determined the lawfulness of the search, it

did not.    Therefore, we will undertake this task.

II.   THE FACTS

      Viewing the competent summary judgment evidence in the light

most favorable to Estep, the following occurred on March 29, 1993.

Estep was traveling in a 1988 Ford pick-up truck on Highway 66 near

Rowlett, Texas when he was pulled over by Officer Peace for going

47 mph in a 35 mph speed zone.2          After stopping his truck on the


      2
      During the course of pre-trial proceedings, Estep submitted
a verified response to a magistrate judge’s interrogatory
contesting that he had been speeding. However, the previous panel
noted that Estep had abandoned that argument during his initial
appeal.    Thus, our analysis of this case proceeds on the
determination that Officer Peace properly stopped Estep for a

                                     4
side of the road, Estep exited his vehicle with driver’s license

and proof of insurance in hand to give to Officer Peace. As Estep

stood by his truck, Officer Peace approached and initiated the

first words.   Officer Peace asked “Do you have a gun in the car?”

Estep hesitated a second and said “No. Why do you ask?”   Estep then

asked Officer Peace why he had been stopped.    Officer Peace did not

answer Estep’s question, but asked again “Do you have a gun in this

vehicle?” Estep said “No” but then told Officer Peace that he had

mace on his key chain.   Estep then took his keys from the ignition,

showed Peace the mace, and asked Peace if he considered mace a

weapon.   Peace said no, but again told Estep that he better tell

him if he had a gun in the vehicle.     Estep then said he did not

have a gun and asked again why he had been stopped.

     At that point, Officer Peace asked for Estep’s license and

insurance registration and told Estep to stay in the vehicle.

Officer Peace then called for backup.3         Subsequently, Officer



speeding violation.
     3
       In Peace’s affidvait, he states that he called for backup
because he believed that Estep had a weapon and was worried that
Estep would use the weapon. Peace stated that he feared he was in
danger because (1) Estep’s vehicle contained an NRA sticker,
camoflauge material, and hunting equipment inside it; (2) Estep had
waved the mace at him; (3) Estep had not answered his questions;
and (4) Estep claimed his constitutional rights were being
violated.   However, Estep denies that he had hunting equipment
inside his car, claims that he merely showed Officer Peace the can
of mace, and asserts that he did not inform Peace that his

                                  5
Quillen and Conley arrived on the scene.       Officer Peace told

Quillen that he felt there was a weapon in the vehicle.     However,

Peace did not explain to Quillen why he felt there was a weapon in

the vehicle or why he felt the situation was dangerous.      He just

told Quillen that Estep had denied having a pistol, but that

something about the situation made him nervous.

     Thereafter, Officer Peace summoned Estep from his vehicle and

they proceeded to the back of Estep’s truck.           Officer Peace

informed Estep that he had been stopped for speeding. While Estep

signed the citation, Quillen began to search the inside of Estep’s

vehicle even though Estep protested that the search violated his

constitutional rights. During the search, Quillen looked under the

back seat of the truck and found a case.   He opened the case and

discovered the pistol.

     Officer Peace subsequently placed Estep under arrest and took

Estep to the police car.    While sitting in the police vehicle,

Peace admitted to Quillen (in Estep’s presence) that the NRA

sticker was what tipped him off to the weapon in the vehicle.

III. JURISDICTION AND STANDARD OF REVIEW

     We have jurisdiction under 28 U.S.C. § 1291 because Estep

appeals from a final decision of the district court.   We review the



constitutional rights were being violated until the search of his
vehicle commenced.

                                6
district court's grant of summary judgment de novo, applying the

same substantive standard set forth in Fed.R.Civ.P. 56(c).           See

Horton v. City of Houston, 179 F.3d 188, 191,(5th Cir. 1999), cert.

denied, 528 U.S. 1021 (1999).

IV.   ANALYSIS

A.    Fourth Amendment Violation

      The Supreme Court reiterated last term in Saucier v. Katz, 533

U.S. 194, 201 (2001) that the threshold question to be answered

when ruling upon the qualified immunity issue is: “[t]aken in the

light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitutional

right.”    Thus, as a threshold matter, we must decide whether the

alleged facts, viewed in the light most favorable to Estep, show

that Estep’s constitutional rights were violated.

      The constitutional right at stake in this case is Estep’s

right to be free from an unreasonable search of his vehicle. The

constitutional principle applicable to this case is found in

Michigan v. Long, 463 U.S. 1032 (1983).        In Long, the Supreme Court

held that a warrantless search of the passenger compartment of a

vehicle does not violate the Fourth Amendment if the search is

conducted to protect the officer’s safety.        Specifically, the Long

court stated that the:

            search   of   the   passenger   compartment   of   an


                                      7
          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 rationale
          inferences   from  those   facts,   reasonably
          warrant the officer in believing that the
          suspect is dangerous and the suspect may gain
          immediate control of the weapon. Id. at 1049.

     Thus, for purposes of determining whether the Fourth Amendment

was violated, the question is: was it reasonable for Officer Peace

to think Estep was dangerous and might gain immediate control of a

weapon based upon (1) Estep’s vehicle containing an NRA sticker;

(2) Estep’s vehicle containing camoflauge gear; (3) Estep showing

Peace that he had a key chain which contained mace; (4) Estep

getting out of the car to hand Peace his identification; and (5)

Estep’s manner in answering Peace’s questions?

     The answer to that question is no for several reasons. The

presence of the NRA sticker in the vehicle should not have raised

the inference that Estep was dangerous and that he might gain

immediate control of a weapon. Regardless of whether there is some

correlation   between   the   display   of   an   NRA   sticker   and   gun

possession, placing an NRA sticker in one’s vehicle is certainly

legal and constitutes expression which is protected by the First

Amendment.    A police officer’s inference that danger is afoot

because a citizen displays an NRA sticker in his vehicle presents

disturbing First and Fourth Amendment implications.           See United


                                   8
States v. Ramon, 86 F. Supp. 2d 665, 677 (W.D. Tex. 2000) (holding

that in the absence of other sufficiently strong factors supporting

a stop, reliance upon the vehicular display of religious decals and

symbols as indicative of criminal activity likely violates the

First and Fourth Amendments).    Although we do not definitively

decide today whether the presence of an NRA sticker could ever

contribute to a “reasonable suspicion” of danger calculus, we do

find that Peace’s utilization of the NRA sticker in his “reasonable

suspicion” of danger calculus was unwarranted when viewing the

facts in the light most favorable to Estep.

     The only remaining factors alleged to indicate that Estep

posed a danger to Officer Peace is that Estep had a camoflauge

jacket in his vehicle, Estep stepped out of his vehicle to greet

Peace, Estep possessed a key chain with mace, and Estep was not

cooperative in answering Peace’s questions.       We address each

alleged factor which remains in turn.

     First, as far as we know, there is no law which prevents a

citizen from carrying a camoflauge jacket, carrying a key chain

with mace, or displaying an NRA sticker in his vehicle.   Indeed, if

the presence of an NRA sticker and camoflauge gear in a vehicle

could be used by an officer to conclude he was in danger, half the

pickups in the state of Texas would be subject to a vehicle search.

Second, Estep’s decision to get out of his vehicle to greet Peace


                                 9
and hand Peace his identification does not create the type of

individualized suspicion needed for an officer to conclude he is in

danger.     See United States v. Hunt, 253 F.3d 227, 232 (5th Cir.

2001) (“[a]n individual’s decision to step out of his or her

vehicle     to   greet   a   detaining    officer      does   not   create    the

individualized     suspicion    required    for   an    automobile    search”).

Third, we cannot accept the notion that mere possession of a key

chain with mace indicated that Estep posed a danger to Peace.4

Finally, Estep’s alleged uncooperativeness could not justify the

vehicle search because, viewed in the light most favorable to

Estep, it appears as though Peace, not Estep, was the individual

being uncooperative in the situation.5            Under Estep’s version of

the   events,    he   cooperated   until    the     search    of    his   vehicle

commenced.

      We realize that officers are called upon to make split-second

judgments in oftentimes tense situations.              Moreover, we recognize

that the officer in the field is in a much better position than a

judge in his office to determine whether a situation truly places

the officer in danger.         See Graham v. Connor, 490 U.S. 386, 397



      4
       Although Peace avers that Estep “waved” the mace at him,
Esteps avers that he only “showed” Peace that he had a key chain
with mace.
      5
          Peace would not tell Estep why he was being stopped.

                                     10
(1989)(noting that because police officers are often forced to make

split-second judgments in tense situations the reasonableness of

the     officer’s   conduct    should        be   judged     from    an   on-scene

perspective). However, the contention that a search must be done to

protect a police officer must have some reasonable basis in fact.

We cannot rubber-stamp a search of a vehicle based on an officer’s

mere inchoate and unparticularized “hunch” that a citizen poses an

immediate threat of danger.6       See Maryland v. Buie, 494 U.S. 325,

332, 334 n.2 (1990).

      Here, viewing the facts in the light most favorable to Estep,

there were no specific articulable facts from which Officer Peace

could     have   lawfully   concluded    that     he   was    in    danger.    The

contention that a citizen poses an immediate danger because he

possesses a key chain containing mace, camoflauge gear, an NRA

sticker, and does not answer questions in exactly the manner the



      6
      In the past, we have upheld warrantless searches of people
and vehicles based upon the contention that the officer feared for
his safety. See United States v. Maestas, 941 F.2d 273, 275 & 277
(5th Cir. 1991); United States v. Colin, 928 F.2d 676, 677 (5th
Cir. 1991); United States v. Coleman, 969 F.2d 126, 131 (5th Cir.
1992); United States v. Baker, 47 F.3d 691, 693-95 (5th Cir. 1995);
United States v. Michelletti, 13 F.3d 838, 842 (5th Cir. 1994).
However, those cases involved a much greater degree of suspicious
behavior than the instant case.         In the cited cases, the
individuals in question aroused suspicion because they were either
intoxicated, already suspects of violent crimes, had made
threatening statements, or had in plain view some evidence of a
concealed weapon.

                                        11
officer desires is not suspicious enough behavior to justify a Long

“frisk” of a vehicle.          Thus, the search violated the Fourth

Amendment.7

B.   Was the constitutional right clearly established?

     Our determination that the Fourth Amendment has been violated

does not end our analysis, however.           In some circumstances, an

officer will be entitled to summary judgment on qualified immunity

grounds even though the officer violated the citizen’s Fourth

Amendment rights.    See Bigford v. Taylor, 896 F.2d 972, 975 (5th

Cir. 1990) (“the analysis of whether a warrantless search was

reasonable    is   not   the    equivalent     of   whether   an   officer

participating in an unreasonable search is entitled to qualified

immunity”).   Consequently, the next step in our analysis is to ask

whether the contours of the constitutional right in question were

sufficiently clear that a reasonable officer would understand that

what he is doing violates that right.        See Saucier, 533 U.S. at 202

(“[t]he relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to a



     7
       We also note that Officer Peace’s contention that he was
truly in fear for his safety is belied by the fact that he never
searched Estep’s person for weapons. Moreover, assuming arguendo
that Peace and Quillen did truly fear for their safety, the
extension of the search to include closed containers located
beneath the seat exceeded what would have been necessary to protect
them from danger upon Estep’s reentry into the vehicle.

                                    12
reasonable officer that his conduct was unlawful in the situation

he confronted”); Pierce v. Smith, 117 F.3d 866, 882 (5th Cir.

1997)(“For qualified immunity to be surrendered, pre-existing law

must dictate, that is, truly compel (not just suggest or allow a

question about), the conclusion for every like-situated, reasonable

government agent that what the defendant is doing violates federal

law in the circumstances”)(quoting from Lassiter v. Alabama A & M

University, 28 F.3d 1146, 1150 (11th Cir. 1994).

       Although we have stated that the constitutional right at stake

is Estep’s right to be free from a vehicle search unless an officer

has a reasonable belief that he is in danger, we must further

evaluate       whether   the   contours        of   that   right    were    “clearly

established” in a more particularized way.                  Saucier, 533 U.S. at

202.    As applied to this case, we must consider whether it is

clearly    established       law   that   a    reasonable    officer       could   not

conclude that he was in danger when faced with a citizen who exited

the car prior to the approach of the officer, continuously asked

why he had been stopped, showed the officer a key chain with mace,

possessed camoflauge gear, and possessed an NRA sticker?

        There is no Fifth Circuit case which directly addresses

whether    a    reasonable     officer    could     conclude,      based    on   these

specific facts, that a citizen posed a danger and could gain




                                          13
immediate control of a weapon.8        However, there does not have to be

a case directly on point for the law to be “clearly established.”

See Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998)(noting that

it is not necessary that prior cases have held the particular

action in question unlawful so long as the unlawfulness of the

action is apparent under pre-existing law).            Our cases make clear

that a Long “frisk” of a vehicle is only constitutional if there

are specific, articulable facts from which a reasonable police

officer   could   believe   he   was    in   danger.    In   our   view,   the

constitutional violation in this case is clear-cut and obvious. No

reasonable police officer could have really believed that a search

was constitutional under the circumstances presented.

C.   Entitlement to Qualified Immunity on Other Grounds

1.   Officer Peace

     The defendants argue that even if (1) the search was unlawful

and (2) no reasonable police officer could have believed a search

to be lawful, Officer Peace is entitled to qualified immunity

because he was not personally involved in the search. The district

court accepted this argument.          We reject it.



     8
      Although no Fifth Circuit case addresses these exact facts,
we reiterate that our Hunt decision clearly states that “[a]n
individual’s decision to step out of his or her vehicle to greet a
detaining officer does not create the individualized suspicion
required for an automobile search.” Hunt, 253 F.3d at 232.

                                       14
     The district court’s determination that Officer Peace was not

involved in the search relied upon Creamer v. Porter, 754 F.2d 1311

(5th Cir. 1985)(affirming dismissal from suit of a deputy who was

only a bystander to a search and seizure) and Watson v. Interstate

Fire and Casualty Co., 611 F.2d 120 (5th Cir. 1980)(holding that a

sheriff without any personal involvement was properly dismissed

from a § 1983 suit arising from an arrest and incarceration).

However, those cases are inapposite.   At the time of the incident,

Officer Peace had 25 years of police experience. More importantly,

he was the officer on the scene who had the information from which

to determine whether Estep truly posed a danger.    As such, he was

responsible for deciding whether the search could be conducted

lawfully or not.   While the record does not show that Officer Peace

directly ordered Quillen to search the vehicle, it is clear that

Peace knew the search was transpiring (indeed, assuming arguendo

that Peace did not know Quillen was going to search the vehicle

prior to Quillen commencing the search, Estep informed him of that

fact the moment the search began). As we see it, Peace decided to

allow the search to go forward.    Therefore, he is not entitled to

summary judgment on qualified immunity grounds.

2.   Officer Quillen

     With respect to Officer Quillen, the defendants contend that

even if (1) the search was unlawful and (2) no reasonable police


                                  15
officer could have believed a search to be lawful, Officer Quillen

is entitled to qualified immunity because he reasonably relied upon

Officer Peace’s conclusion that the officers were in danger.              We

also reject this argument.

     An officer can conduct a Long “frisk” of a vehicle based on

information possessed by another officer.          However, it is not

reasonable for an officer to conclude that it is lawful to make

such a search when his fellow officer does not provide him with any

specific articulable facts from which a reasonable officer could

think he was in danger.    In the instant case, Peace told Quillen

that he thought they were in danger, but he did not tell Quillen of

any specific facts which would support that opinion.            From the

record evidence, the most we can say is that Peace told Quillen

that (1) Estep had denied having a pistol; and (2) Estep had some

mace.   Based upon such flimsy evidence, it was unreasonable for

Quillen to also conclude that they were in danger and that a search

could be lawfully conducted.       Thus, Quillen is not entitled to

qualified immunity.

3.   Officer Conley

     The   evidence   indicates   that   Officer   Conley   truly   was   a

bystander in this matter.     Thus, we affirm the grant of summary

judgment to Officer Conley.

V.   CONCLUSION


                                   16
      Viewing the evidence in the light most favorable to Estep,

this is not a case where a reasonable officer could conclude he was

in danger.      It is a case where an officer targeted a citizen and

allowed a vehicle search because the citizen had an NRA sticker in

his vehicle. For the aforementioned reasons, we reverse the grants

of   summary    judgment    to   Officer    Peace   and   Officer   Quillen   on

qualified      immunity    grounds.    We    affirm   the   grant   of   summary

judgment to Officer Conley.           This case is remanded back to the

district court for a trial.9




      9
       The motion filed by Estep requesting the appointment of
counsel is hereby denied for lack of exceptional circumstances.
See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).

                                       17
KING, Chief Judge, concurring in part and dissenting in part:

     In my view, the police officers in this case reasonably

suspected that Jeffrey Estep's vehicle contained a weapon.         They

therefore did not violate Estep's Fourth Amendment rights in

searching his vehicle.     Further, even if there were a Fourth

Amendment violation, these officers are entitled to qualified

immunity because reasonable officers in their positions would not

have thought the search was clearly illegal.     I therefore dissent

from the panel's decision reversing summary judgment in favor of

Officers Peace and Quillen.     I concur in the decision affirming

summary judgment in favor of Officer Conley.

I.   FACTS

     Because this case comes to our court on the defendants'

motion for summary judgment, we review the record in the light

most favorable to Estep.       Taking the undisputed facts and the

disputed facts as Estep has alleged them, on March 29, 1993,

Officer William Peace was monitoring traffic from his squad car

using a radar unit when he noticed Estep was speeding.          Officer

Peace stopped Estep and got out of his squad car to request

identification   and   proof   of   insurance.   As   Officer     Peace

approached Estep's truck, he noticed camouflage material and what

                                    18
he believed was hunting gear in the back of the truck.                               Peace

also noticed a National Rifle Association ("NRA") sticker on the

truck's back window.

       Before Officer Peace reached the driver's side of the truck,

Estep exited the truck.              Estep asserts that he "greeted [Officer

Peace] with respect" and was totally cooperative.                         Officer Peace

asked Estep if he had a weapon in the vehicle; Estep responded

that he did not and asked why he had been stopped.                        Officer Peace

again asked if there was a weapon in the truck; Estep dangled his

key    chain    in     front    of   Officer     Peace    and   asked     if   the   mace

attached to his key chain was a weapon.                    At that point, Officer

Peace became concerned for his own safety, so he returned to his

patrol car and called for backup while Estep sat in his truck.

       Officers J.C. Quillen and G.A. Conley arrived on the scene.

Officer Peace told them that he was nervous because he thought

Estep had a weapon in his truck.                  Officer Peace then had Estep

exit    the    truck.          Officer   Peace    wrote    Estep      a   citation     for

speeding       while    Officer      Quillen    searched     Estep's      truck   for    a

weapon.        While     Officer      Quillen     searched      the   vehicle,       Estep

complained that the officers were violating his constitutional

rights, particularly his constitutional right to carry a firearm.

Officer Quillen found a pistol in a case under the driver's side

seat, and Estep was arrested for unlawfully carrying a weapon.

                                           19
II.    DISCUSSION

       We utilize a familiar two-part test for determining whether

a public official is entitled to qualified immunity.                 First, we

determine if the plaintiff's constitutional rights were violated.

Saucier v. Katz, 533 U.S. 194, 201 (2001).              If the facts viewed

in the light most favorable to the plaintiff do not show a

constitutional violation, the officer is entitled to qualified

immunity.        Id.   Second, if a violation occurred, we consider

whether the rights violated were clearly established at the time

of    the   violation.    Id.     If   the    officer   violated     a   clearly

established right, he is stripped of qualified immunity.                 Id. at

201-02.

A.     Crediting Estep's Version of the Events, Was the Fourth

Amendment Violated?

       The threshold question, then, is whether the facts viewed in

the light most favorable to Estep show that the officers violated

Estep's constitutional rights.

       It   is   well-settled   that   a    police   officer   may   conduct a

protective search of a vehicle based on a reasonable suspicion

that there is a weapon in the vehicle.           See Michigan v. Long, 463

U.S. 1032, 1049 (1983).         Reasonable suspicion is a belief "based

on 'specific and articulable facts which, taken together with the

rational inferences from those facts'" indicate that "the suspect

                                       20
is   dangerous        and    the    suspect      may     gain    immediate        control      of

weapons."           Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).

An officer's suspicion is judged using an objective standard:

"the        issue     is    whether      a    reasonably         prudent       man     in     the

circumstances would be warranted in the belief that his safety or

that of others was in danger."                  Terry, 392 U.S. at 27.

       Reasonable          suspicion      requires       only     a    minimum       level     of

objective justification, just "more than a hunch."                            United States

v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994) (en banc).                                    As

we have noted, reasonable suspicion "is considerably easier for

the government to establish than probable cause."                             United States

v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993).                             Finally, whether

reasonable suspicion existed is judged on the totality of the

circumstances.             See United States v. Ibarra-Sanchez, 199 F.3d

753, 759 n.5 (5th Cir. 1999).

       Even viewing the facts in the light most favorable to Estep,

Officers Peace, Quillen, and Conley have articulated sufficient

facts to support their suspicion that Estep's truck contained a

weapon.       As Officer Peace approached the truck, he saw indicia of

gun ownership.10           See, e.g., United States v. Baker, 47 F.3d 691,

       10
                Without deciding the issue, the majority finds "disturbing First and Fourth
Amendment implications" in the officer's reliance on, inter alia, an NRA sticker as a basis for his
decision to search the vehicle. The question that the officer was faced with was whether Estep
presented a danger because he possessed a weapon and, with respect, throwing an NRA sticker into
the calculus (along with other factors) does not seem to me to affront the First Amendment.
                                               21
694-95 (5th Cir. 1995) (finding that an officer's viewing .9

millimeter bullets on the floor of a suspect's vehicle supported

reasonable suspicion); see also United States v. Richards, 967

F.2d 1189, 1193 (8th Cir. 1992) (noting that presence of .22

caliber shells inside a suspect's vehicle supported an officer's

reasonable suspicion that the vehicle contained a weapon).                                     Estep

exited his vehicle and starting moving towards Officer Peace,

which Peace interpreted as Estep trying to assert control over

the situation.             See Michelletti, 13 F.3d at 842 (finding that

suspect's        "purposeful          strides"         were      a    fact      supporting         an

officer's reasonable suspicion); United States v. Coleman, 969

F.2d 126, 131-32 (5th Cir. 1992) (finding that the fact that a

suspect       "exited       quickly"        after      a    traffic       stop     supports        an

officer's        reasonable        suspicion).11             When     Officer       Peace      asked

Estep about weapons in the truck, Estep distracted Officer Peace

by waving his key chain at Officer Peace and asking if mace was a

weapon.       Based on Estep's answers to his questions, Officer Peace

became concerned about the presence of weapons and requested

backup.       In light of the totality of the circumstances, Officer

Peace was reasonable in concluding from Estep's behavior and the

       11
                The majority cites United States v. Hunt, 253 F.3d 227 (5th Cir. 2001), for the
proposition that a person's decision to exit his vehicle does not create reasonable suspicion. In Hunt,
we held that the mere fact that a person exits his vehicle is not alone enough to constitute reasonable
suspicion. See id. at 232-34. In this case, Officer Peace articulated other suspicious behavior aside
from the fact that Estep exited his truck.
                                                 22
items spotted in Estep's truck that Estep may have a firearm.

Further,      Officers       Quillen       and    Conley      appropriately         relied      on

Officer Peace's assessment of the situation.                          See Ibarra-Sanchez,

199 F.3d at 759-60 (finding that police officers need not have

personal knowledge of facts giving rise to reasonable suspicion;

one officer may rely on another officer's observations).

       The finding that there was reasonable suspicion in this case

is in line with our precedents.                         Initially, it has long been

recognized that "investigative detentions involving suspects in

vehicles are especially fraught with danger to police officers."

Long, 463 U.S. at 1052; see also Adams v. Williams, 407 U.S. 143,

146 (1972) ("[T]he policeman making a reasonable investigatory

stop should not be denied the opportunity to protect himself from

attack by a hostile suspect.").                       Further, we have upheld vehicle

searches on similar facts in several cases.12                            See, e.g., Baker,

47    F.3d     at    694-95       (finding        reasonable        suspicion        based      on

suspect's nervousness, evasiveness, and the sight of bullets in

the vehicle); Coleman, 969 F.2d at 131-32 (finding reasonable

suspicion based on a suspect's quick exit from his vehicle, his

nervousness,         and    money      found     during      a    protective        pat-down);

       12
               The majority attempts to distinguish these cases by saying that each involved "a much
greater degree of suspicious behavior" than in the present case. The cited cases provide a level of
suspicious activity analogous to Estep's behavior here. Particularly on point is Baker, where we
found reasonable suspicion based solely on an officer's assessment of the suspect's suspicious
manner and evidence of gun ownership. See 47 F.3d at 694-95.
                                                 23
United States v. Maestas, 941 F.2d 273, 277-78 (5th Cir. 1991)

(finding reasonable suspicion when a suspect appeared aggressive

and    intoxicated         and,      after     returning       to   his     vehicle,        leaned

forward,       possibly       to     grasp     a    weapon     under      his    seat).        Our

precedents indicate that officers need only articulate a minimum

amount of facts to support reasonable suspicion.                                     See, e.g.,

United      States      v.    Colin,      928      F.2d    676,     678   (5th       Cir.    1991)

(upholding weapons frisk of a passenger who "stoop[ed] down and

mov[ed] from side to side" in front seat of automobile).                                 We have

held that even a suspect's innocent behavior may provide facts

sufficient        to   make     an    experienced          police    officer         justifiably

suspicious.         See United States v. Jacquinot, 258 F.3d 423, 427-28

(5th Cir. 2001), cert. denied, 122 S. Ct. 925-26 (2002).

       The majority in this case concludes that "there were no

specific articulable facts from which Officer Peace could have

lawfully       concluded        that      he       was    in   danger."          I    disagree.

Particularly in light of our repeated acknowledgments of the

dangers police officers face during traffic stops, I refuse to

second-guess Officer Quillen's search of Estep's truck, even on

the facts as Estep has alleged them.13                         Thus, I would affirm the


       13
                I certainly do not suggest that any time a person’s vehicle contains camouflage
clothing, hunt ing gear, and an NRA sticker, a police officer may search the vehicle. Every traffic
stop is different. Rather, I would uphold the search in this particular case because the officers are
able to articulate a reasonable basis for their suspicion that Estep's truck contained a weapon.
                                                   24
district court's grant of summary judgment in favor of Officers

Peace, Quillen, and Conley.

B.   Is There a Fact Question as to Whether the Fourth Amendment

Was Violated?

     Alternatively,        if    the    undisputed   facts   and     the   disputed

facts as Estep has alleged them do not establish clearly enough

that there was no Fourth Amendment violation, there is a serious

factual dispute that should be resolved before that question is

decided.

     While Estep claims he was polite and cooperative during the

traffic stop, the police officers tell quite a different story.

According to Officer Peace, as he approached the truck, Estep

quickly exited the truck and came toward him.                      Officer Peace

noticed camouflage material, what he thought was hunting gear,

and an NRA sticker and was concerned that Estep might have a

firearm.      Officer Peace then asked Estep several times whether

Estep   had   a   weapon    in    the    vehicle;    Estep   never    gave   him   a

straight answer.      The first time Officer Peace asked whether he

had a weapon, Estep asked why he had been stopped.                   After Officer

Peace again asked Estep if he had a weapon, Estep "made a quick

move with his hand" to reach inside his truck.                Estep retrieved a

key chain containing mace and waved the mace in Officer Peace's

face, asking if mace was a weapon.              According to Officer Peace,

                                          25
Estep then began explaining his view of his constitutional right

to carry a firearm.              Officer Peace became so concerned for his

own safety that he called for backup.                      Clearly, a factfinder

crediting Officer Peace's version of events would find that there

was   no   Fourth       Amendment      violation.          Estep's        evasive     yet

confrontational          behavior,         combined      with     Officer      Peace's

observations of camouflage material, hunting gear, and an NRA

decal, is more than enough to show reasonable suspicion.                             See,

e.g., Baker, 47 F.3d at 694-95; Coleman, 969 F.2d at 131-32;

Maestas, 941 F.2d at 277-78.               Since the majority does not find it

clear, as I do, that there was no Fourth Amendment violation on

Estep's    version      of   the    events,      it   should     have   reversed      and

remanded    for    a    resolution     of    the      disputed    facts    bearing     on

whether    there       was   a    Fourth    Amendment     violation       rather     than

holding    that    qualified       immunity      is    unavailable.        See,     e.g.,

Goodson v. City of Corpus Christi, 202 F.3d 730, 736-40 (5th Cir.

2000).

C.    Did Officers Peace, Quillen, and Conley Act Unreasonably in

Light of Clearly Established Law?

      Returning to the undisputed facts and Estep's version of the

disputed facts, even if the police officers’ suspicion that Estep

carried a weapon was not reasonable under the Fourth Amendment, I




                                            26
do not believe the officers acted so outrageously that they are

undeserving of qualified immunity.14

       A    public      official       performing        discretionary          functions       is

entitled to qualified immunity from lawsuits arising out of those

activities.         See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th

Cir. 2001).          Routine traffic stops are considered discretionary

functions.          See Trejo v. Perez, 693 F.2d 482, 487 n.9 (5th Cir.

1982).      An officer retains qualified immunity so long as he acts

reasonably in light of the law clearly established at the time of

the violation.           See Salas v. Carpenter, 980 F.2d 299, 310 (5th

Cir.    1992).         For    a   right     to    be    clearly      established,          "[t]he

contours       of    the     right      must      be     sufficiently         clear      that     a

reasonable        official        would    understand         that     what     he    is    doing

violates that right."               Anderson v. Creighton, 483 U.S. 635, 640

(1987); see also Pierce v. Smith, 117 F.3d 866, 882 (5th Cir.

1997) ("For qualified immunity to be surrendered, pre-existing

law must dictate, that is, truly compel (not just suggest or

allow or raise a question about), the conclusion for every like-

situated, reasonable government agent that what [the] defendant

is doing violates federal law in the circumstances.") (quotations

omitted) (emphasis in original).                       Put another way, if reasonable



       14
             Even if an officer violates the Fourth Amendment, he may still be entitled to qualified
immunity. See Bigford v. Taylor, 896 F.2d 972, 974-75 (5th Cir. 1990).
                                                 27
police officers     would   disagree    as    to    whether   the    search   was

lawful, the right to be free from the search was not clearly

established and the officer retains qualified immunity.                       See

Anderson, 483 U.S. at 638-40.

     Once an officer pleads the qualified immunity defense, the

burden shifts to the plaintiff to show that the officer violated

clearly established law.      See Pierce, 117 F.3d at 871-72; Salas,

980 F.2d at 306.      It is thus Estep’s burden to show that under

the facts of this case, it was clearly established that the

officers could not reasonably believe their safety was in danger.

Estep’s burden is a significant one; qualified immunity gives

ample room   for   mistaken    judgments      and    protects   "all    but   the

plainly incompetent or those who knowingly violate the law."

Malley v. Briggs, 475 U.S. 335, 341 (1986).

     Officers     Peace,    Quillen,    and    Conley     are   entitled      to

qualified immunity in this case.        At the time of the traffic stop

at issue here, it was clearly established that a police officer

may conduct a weapons "frisk" of a vehicle based on reasonable

suspicion.      See, e.g., Long, 463 U.S. at 1049.                  There is no

Supreme Court or Fifth Circuit precedent that is factually on all

fours with this case, but we would not expect that because, as

the Supreme Court has recognized, the Fourth Amendment inquiry is

so fact-specific.     See Anderson, 483 U.S. at 639-40.              The law at

                                   28
the    time    of    the    alleged   violation   indicated   that   reasonable

suspicion           was    a   forgiving,     totality-of-the-circumstances

standard.        See, e.g., Graham v. Connor, 490 U.S. 386, 396-97

(1989).       And by 1993, we had routinely upheld weapons frisks on

similar facts, requiring officers to articulate only a minimum

level of suspicion.             See, e.g., Coleman, 969 F.2d at 131-32;

Maestas, 941 F.2d at 277-78; Colin, 928 F.2d at 678.

       In this case, the police officers were called upon to make a

split-second determination as to Estep's dangerousness.                 Officer

Peace relied on his experience and judgment in determining that

Estep's behavior was suspicious.              Officer Peace also observed

items in Estep's truck that indicated Estep might have a weapon.

When Officers Quillen and Conley arrived on the scene, Officer

Peace told them he was concerned about the presence of a weapon

in the vehicle.            A reasonable officer could have been concerned

for his safety under the circumstances presented here.                 Even if

Officer Peace was mistaken in his belief that the search was

lawful,       our     qualified   immunity    jurisprudence    forgives    such

mistakes.       See, e.g., Saucier, 533 U.S. at 205 (noting officers

must be protected from liability for reasonable mistakes because

they      must        make     split-second       judgments    in     uncertain

circumstances).            Officer Peace did not engage in the kind of




                                         29
egregious behavior we require before stripping an officer of his

qualified immunity.

       Whether      the    officers       had    reasonable       suspicion       under     the

Fourth Amendment is a close call.                        We expect police officers

routinely to make close calls during traffic stops.                                When they

guess wrong, we protect their reasonable decisions with qualified

immunity.        Estep did not point to clearly established law that

would make Officer Quillen's search unjustifiable.                                 Thus, the

district court properly granted summary judgment in favor of

Officers Peace, Quillen, and Conley.15

III. CONCLUSION

       It is clear to me that, even on the undisputed facts and

Estep's version of the disputed facts, the police officers in

this case reasonably suspected that Estep might have a weapon in

his vehicle.         It is also clear to me that the police officers in

this case did not act with the kind of careless indifference to

civil rights that this circuit requires before stripping them of

qualified immunity.            I therefore dissent from the portion of the

judgment reversing the district court's summary judgment in favor

of Officers Peace and Quillen.                       Alternatively, I would reverse

and remand for resolution of the disputed facts in order to

       15
              Because I believe that the search was lawful and that the officers deserve qualified
immunity, I do not consider the issue of whether Officers Peace and Conley retain qualified
immunity because they did not actively participate in the search.
                                                30
determine whether there was a Fourth Amendment violation before

addressing the issue of qualified immunity.

     I am dismayed by the probability that Estep has received a

free pass in this case because his pick-up truck sports an NRA

sticker.




                               31
