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Houston District Attorney Caught in E-mail Scandal, Resigns, Held in Contempt

Houston District Attorney Caught in E-mail Scandal, Resigns, Held in Contempt

by Gary Hunter

Racist jokes, sexually explicit photos, love notes to his mistress and evidence of improper political campaigning were found in the e-mail account of former Harris County (Houston, Texas) District Attorney Charles “Chuck” Rosenthal, Jr. Nevertheless, even that was not enough to convince him that he should step down. It was only after it was disclosed that he had deleted over 2,500 e-mails in defiance of a federal court subpoena, was accused of incompetency, and claimed he was under the influence of medication that Rosenthal called it quits. He resigned in February 2008, citing medical and personal reasons. He was then held in contempt of court and fined $18,900.

The implosion of Rosenthal’s career began six years ago, in a Houston barrio. On January 4, 2002, narcotics officers Preston Foose, Dan Shattuck, John Palermo and Sgt. Alex Rocha besieged the residents of a house on Shady Park Drive while serving a search warrant. The officers placed several children who were living at the house on the porch in the cold, with no coats or shoes.

As neighbors watched the bust, Madalyn Valdez, whose grandchildren were among the group on the porch, asked Sean Ibarra, who lived next door, to photograph the officers’ actions. When one of the deputies noticed Ibarra taking pictures, he first ordered him to stop and then attempted to confiscate the camera. Ibarra gave the camera to Valdez and sent her inside his house. Ibarra claimed the officer nearly knocked him unconscious in an effort to get inside and take the camera.

At this point Erik Ibarra, Sean’s brother, began to videotape the confrontation. Before it was over the task force had invaded the Ibarras’ home and confiscated both cameras; during the incident the deputies drew their guns and threatened to shoot one of the brothers. Both Erik and Sean were arrested on charges of resisting arrest and evading detention, but were acquitted at trial by separate juries. The cameras that had been seized by the deputies were eventually returned, but one was damaged with the film destroyed while the other was missing its memory stick.

The Ibarras filed a lawsuit against the deputies, the sheriff’s department and Sheriff Tommy Thomas for civil rights violations. The suit, which was removed to federal court, claimed that the sheriff’s department had an “established custom” of seizing film and photos that could incriminate its employees. “When a police officer walks into court wearing that uniform, people tend to believe them,” said the Ibarras’ attorney, Lloyd Kelley. “When you bring in a photograph or a videotape, it’s not just their word against a regular citizen’s – suddenly, we have unimpeachable evidence. That’s what they don’t want.”

The county raised a defense of qualified immunity on behalf of the officers, which was denied by the court. “The act of taking photographs in and of itself is an innocent act protected by the First Amendment of the Constitution,” said U.S. District Court Judge Kenneth M. Hoyt, who presided over the case. The court also concluded that the sheriff’s deputies may have violated the Ibarras’ Fourth Amendment rights.

On appeal, the Fifth Circuit Court of Appeals granted qualified immunity to several of the officers but determined that Foose was not protected from the Ibarras’ claims of constitutional violations. The case was affirmed in part, reversed in part and remanded for further proceedings. See: Ibarra v. Harris County, 243 Fed.Appx. 830 (5th Cir. 2007) (unpublished).

When one of the deputies in the case asserted that the Ibarras had been arrested based on instructions from the District Attorney, Kelley subpoenaed documents and e-mails from the DA’s office. Rosenthal and Harris County prosecutor Sally Ring were deposed as witnesses, and Ring denied that any action against the Ibarras had been ordered by the DA. Despite the subpoena and a federal court order, Rosenthal began deleting thousands of e-mails from his office account.

Regardless, other e-mails were produced during discovery, and due to an error were unsealed by the court. Some which were initially made public included romantic messages that Rosenthal had sent to his executive secretary, Kerry Stevens. Rosenthal, who is married, was quoted as saying, “The very next time I see you, I want to kiss you behind your right ear.” In another message he tells her, “Bet I could make you sleep.”

The e-mails also included pornography and several racist jokes, including one with a picture of a black man sprawled on a sidewalk unconscious, next to watermelon peels and an empty fried chicken bucket. The picture was captioned “Fatal Overdose.” Another joke compared former president Bill Clinton to a black man, saying he smoked marijuana, played a saxophone and drew a government check. Other e-mails indicated that Rosenthal may have used county facilities for political campaigning.

“I deeply regret having said those things,” Rosenthal backpeddled in a public statement. “This event has served as a wake-up call to me to get my house in order both literally and figuratively.”

It wasn’t long before Harris County Judge Ed Emmett was calling for Rosenthal’s resignation. “I would hate for one person’s actions and lack of judgment to take down the entire office,” Emmett said.

District Clerk Charles Bacarisse also demanded Rosenthal’s immediate removal, stating, “He has lost both the public trust and the moral authority required to serve effectively as district attorney of Harris County.” This was an extremely damaging statement, given that Rosenthal had always claimed the moral high ground. He was known to refer to the death penalty as a “biblical proposition,” and sported a bracelet that read “What Would Jesus Do?”

Rosenthal’s tenure was hardly free from controversy. Shortly after the Oklahoma City bombing he set off firecrackers in an office stairwell. He had accepted a $2,500 campaign contribution from a company he was prosecuting. In 1986, he allowed a police officer to impersonate a defense attorney in order to obtain information from a suspect about a kidnapping.

His most famous blunder almost resulted in jail time for contempt of court, when he violated a gag order in the Andrea Yates trial. Yates was being prosecuted for drowning her five children. After the judge ordered attorneys not to discuss the case, Rosenthal appeared on the nationally-syndicated T.V. show 60 Minutes and did just that.

Rosenthal came under recent fire in January 2008, when he declined to prosecute indictments handed down against Texas Supreme Court Justice David Medina and his wife. The Medinas were indicted in connection with a questionable fire that destroyed their home and a neighbor’s house the previous year. Rosenthal dismissed the charges, citing insufficient evidence, which raised a furor among the grand jurors.

Rosenthal was also known for his reticence in releasing Josiah Sutton, a black man wrongfully imprisoned by the DA’s office. Even after DNA evidence had cleared Sutton, Rosenthal continued to defend the white victim’s erroneous identification.

Once the news about Rosenthal’s inappropriate e-mails broke, there was no shortage of critics among Houston’s legal professionals. “Chuck Rosenthal is an arrogant individual who believes that he’s doing God’s work so he can do anything and get away with it,” stated Houston attorney Katherine Scardino. Prominent defense attorney Dick DeGuerin said Rosenthal’s office lacked oversight, leadership and discipline. The state Attorney General’s office began removal proceedings. Rosenthal, like his predecessor, John Holmes, share the distinction of making Houston the death penalty capital of America by seeking, obtaining and carrying out the death penalty more than any other jurisdiction in the United States.

Despite such criticisms Rosenthal refused to step down, claiming “stupidity is not grounds” to remove him from office. However, when he faced the possibility of perjury charges for statements he made in a deposition in the Ibarras case, Rosenthal blamed medication he was taking for his lapse in judgment. Yet at a high-level staff meeting on February 5, 2008, he had denied any use of painkillers or other intoxicating drugs. This was the opening that Kelley, the Ibarras’ attorney, needed.

“If Mr. Rosenthal is alleging as a defense for his acts of perjury that he was intoxicated, then he should be removed from office,” Kelly said in a state court lawsuit that sought to remove Rosenthal from office due to “intoxication, incompetence or official misconduct.”
Ironically, Kelly had opposed Rosenthal in an election for district attorney, and lost. On February 19, 2008, the same day that Kelly’s removal suit was filed, Rosenthal abruptly resigned.

Rosenthal had been on the board of directors for the National District Attorneys Association. He was a fixture in the Harris County DA’s office for over thirty years, and was elected to the top prosecutor’s position in November 2000. Since that time he has earned the distinction of having sent more men to death row than anyone in the country, and more men to prison than any other district attorney in Texas.

Yet it was the civil lawsuit filed by the Ibarras that proved to be his undoing. Harris County settled the Ibarras’ suit on March 3, 2008, ten days into a jury trial, for $1.7 million plus attorney’s fees and costs, which were hotly disputed. The District Court chastised the county for having a “mindset that has proven impervious to the truth,” and awarded attorney’s fees of $1,328,470 plus $51,684 in costs. See: Ibarra v. Harris County, U.S.D.C. (D. Tex.), Case No. 4:04-cv-00186.

After Rosenthal resigned he was held in contempt of court by Judge Hoyt as a result of his conduct in the Ibarras case. On March 28, 2008, the court issued a finding of contempt against Rosenthal based on his deletion of thousands of e-mails that had been requested in discovery. “In deleting more than 2,500 e-mails, Rosenthal made it impossible for the Court to conclusively determine whether any additional relevant documents existed,” Judge Hoyt stated.

The court found “several areas of contradictions and misrepresentations” in Rosenthal’s testimony, and termed his conduct “venomous and hostile to the judicial process.”
Attorney fees of $18,900 were awarded against Rosenthal for his contemptuous conduct.
Rosenthal’s lawyer, Scott A. Durfee, general counsel for Harris County, was also found in contempt for his actions related to discovery violations – actions that were “unprincipled and dilatory, at best, constituting a deliberate indifference to the Court’s Orders and subpoena.” Durfee was ordered to pay $5,000 of the sanction imposed on Rosenthal.

Hopefully Harris County’s new district attorney, Ken Magidson, will be less hypocritical and more ethical than Rosenthal. Or at least more discreet.

Sources: Associated Press, Houston Chronicle, New York Times, Texas Lawyer,

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Related legal cases

Ibarra v. Harris County

[U] Ibarra v. Harris County Texas, No. 05-20259 (5th Cir. 06/28/2007)


[2] No. 05-20259


[4] June 28, 2007


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

[7] Per curiam.

[8] Unpublished Opinion

[9] Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

[10] 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 Defendants appeal the district court's denial of their motion for summary judgment on qualified immunity.

[11] I.

[12] 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.*fn2 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.

[13] 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 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.

[14] 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.

[15] Erik Ibarra was taping the scuffle on his video recorder. Shattuck threatened to shoot him. Erik placed the video camera on 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.

[16] 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.

[17] 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.*fn3

[18] II.

[19] A.

[20] 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).

[21] 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 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.

[22] 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)).

[23] 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 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.

[24] 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.*fn4 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.*fn5 Foose has pointed to no other facts in the summary judgment record that would support a reasonable officer's belief that Sean Ibarra was engaged in criminal activity.*fn6 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.*fn7 The district court's denial of qualified immunity with respect to Deputy Foose is therefore affirmed.*fn8

[25] 2.

[26] 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.

[27] 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.

[28] 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.

[29] 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.*fn9 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 Ibarras offer no argument or evidence to support their claim that Palermo's use of force against Sean was unreasonable under the circumstances.

[30] 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.

[31] 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.

[32] 3.

[33] 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 force of the constitutional violation," Cozzo, 279 F.3d at 289.*fn10

[34] 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 Foose acted in accordance with procedures deemed appropriate.*fn11 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.

[35] 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)).

[36] B.

[37] 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.

[38] 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."

[39] 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 (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.*fn12 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.*fn13

[40] C.

[41] 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 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.

[42] III.

[43] 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.

[44] AFFIRMED in part; REVERSED in part; and DISMISSED in part.


Opinion Footnotes


[45] *fn1 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.

[46] *fn2 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).

[47] *fn3 We lack jurisdiction over Harris County's appeal because municipal governments do not enjoy the same right to interlocutory 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.

[48] *fn4 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.

[49] *fn5 The one case Foose cites in support is distinguishable. In 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.

[50] *fn6 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.

[51] *fn7 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.

[52] *fn8 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.

[53] *fn9 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.

[54] *fn10 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).

[55] *fn11 He explained: "We took the film. Took the camera, took the film, gave them their camera back."

[56] *fn12 Appellants Thomas, Shattuck, Rocha, Moreno, and Palermo incorporate this argument in their briefs.

[57] *fn13 The appellants offer no other arguments in support of their claim for qualified immunity as to the Ibarras' state law claims.

Ibarra v. Harris County