IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40997 Summary Calendar

DEBRA DILLARD; ALFREDA BLAKE,

Plaintiffs-Appellees,

versus

CITY OF SULPHUR SPRINGS; ET AL.,

Defendants,

JOHNNY P. MOSELEY, Sulphur Springs Police Officer; DAVID GILMORE, Sulphur Springs Police Officer; LEONARD STOUT, Sulphur Springs Police Officer,

Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:98-CV-364

March 29, 2000

Before GARWOOD, HIGGINBOTHAM and WIENER, Circuit Judges.

PER CURIAM*:

Defendants police officers Johnny P. Moseley, David Gilmore,

and Leonard Stout appeal the district court’s denial of their

motion for summary judgment based on qualified immunity. They

argue that they reasonably believed the five-dollar bill used by

plaintiffs Debra Dillard and Alfreda Blake–which was in fact a

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. genuine and valid five dollar Federal Reserve Note issued in

1953–was counterfeit because it was unusual in appearance, the

serial number was written in red ink, the paper was not

consistent with other currency, and the store clerk’s counterfeit

detector pen (no evidence was presented as to the nature or

reliability of such a pen) made a mark on the bill indicating

that it was counterfeit. In their appeal, appellants do not

challenge the district court’s determination that the evidence

created a genuine issue of fact as to whether (or established

that) plaintiffs were arrested by appellants without either a

warrant or probable cause.

Dillard and Blake submitted an affidavit of a criminal

justice expert, John W. Watson, stating that “no properly trained

officer could have believed that the $5 bill was counterfeit.”

Appellants presented no contrary evidence, expert or otherwise,

in this respect (and it is not common knowledge or judicially

known that the matters referenced by appellants are indicia of

likely counterfitting). On the basis of the present scanty

record we cannot say that the district court erred in holding

that the summary judgment record reflects a genuinely disputed

issue of fact concerning whether a reasonable police officer

could have reasonably concluded that there was probable cause to

arrest.1 Therefore, the district court’s denial of the motion

for summary judgment based on qualified immunity filed by

1 We express no opinion as to whether or not, on a more fully developed record, appellants or any of them would be entitled to judgment as a matter of law on the issue of qualified immunity.

2 Moseley, Gilmore, and Stout is

AFFIRMED.

3