Jeffrey L. ESTEP, Plaintiff-Appellant, v. DALLAS COUNTY, TEXAS, et. al., Defendants, William F. Peace, Conley, Officer; J.C. Quillen, Defendants-Appellees, 310 F.3d 353

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. In October 1997, the district court granted

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 On August 28, 1998, a separate panel issued an unpublished, per curiam opinion which remanded the case back to the district court to reconsider the defendants’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 Quil-len. Unfortunately, in making its ruling, the district court failed to 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. After stopping his truck on the 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. Subsequently, Officer 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 Es-tep protested that the search violated his constitutional rights. During the search, Quillen looked under the back seat of the truck and found a ease. 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 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, 120 S.Ct. 530, 145 L.Ed.2d 411 (1999). IV. ANALYSIS A. Fourth Amendment Violation The Supreme Court reiterated last term in Saucier v.

Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) that the threshold question to be answered when ruling upon the qualified immunity issue is: “[tjaken 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, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (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 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 1049,103 S.Ct. 3469.

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 camouflage 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 conti-ol 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 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 camouflage 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 camouflage jacket, carrying a key chain with mace, or displaying an NRA sticker in his vehicle.

Indeed, if the presence of an NRA sticker and camouflage 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 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. 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.

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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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. See Mary land v.

Buie, 494 U.S. 325, 332, 334 n. 2, 110 S.Ct. 1093, 108 L.Ed.2d 276 (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, camouflage gear, an NRA sticker, and does not answer questions in exactly the manner the officer desires is not suspicious enough behavior to justify a Long “frisk” of a vehicle. Thus, the search violated the Fourth Amendment. B.

Was the constitutional right dearly 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, 121 S.Ct. 2151 (“[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a 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, 121 S.Ct. 2151.

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 camouflage 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 immediate control of a weapon.

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. 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 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 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. . During the course of the search, the police discovered a pistol. Estep was placed under arrest for wrongfully carrying a weapon. Pri- or 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 state of Texas thereafter dismissed its criminal case against Estep. . 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 speeding violation. . In Peace's affidavit, 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, camouflage 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 constitutional rights were being violated until the search of his vehicle commenced. . 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. . Peace would not tell Estep why he was being stopped. .

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. . 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 ar-guendo 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 neces-saiy to protect them from danger upon Es-tep's reentry into the vehicle. . 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. .

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).