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On May 5, 2020, Teliah Perkins observed St. Tammany Parish Sheriff’s Deputies, Kyle Hart and Ryan Moring, riding down the street on police motorcycles. The Deputies turned their motorcycles around, drove to her driveway, and shouted for her to come to them. The Deputies asked for her driver’s license, registration, and proof of insurance, as they were investigating a complaint about a female recklessly riding a dirt bike without a helmet. Perkins mostly complied with those requests but was unable to produce proof of insurance. After asking if the inquiry was racially motivated, Perkins became frustrated and non-compliant. She called 911 to request a supervising officer and asked her son and nephew to record the encounter with their cell phones.
The Deputies instructed the boys to return to the porch. D.J. and the nephew both filmed the ensuing altercation. When Perkins continued to act belligerently and refused to comply with their requests, the Deputies attempted to place her under arrest. They seized her arms, forced her to the ground, muttered that she was “f—ing slippery,” and then, according to Perkins, leaned on her back and neck with their knees and elbows, pulled her hair, and forced her face against the driveway pavement while wrenching her arms behind her back. Perkins does not deny that she tried to pull her arms away. The Deputies repeatedly told her to stop resisting but she continued to flail her arms and legs and deny that she was resisting. She also repeatedly yelled at and taunted the Deputies— telling one, “I’m on the ground, you’re so weak, boy.”Eventually, she was successfully handcuffed by Deputy Hart.
At that point, Deputy Moring stood up and turned his attention to the boys, while Hart continued to struggle with Perkins on the ground. Moring moved directly in front of D.J., blocking his camera’s view of Perkins and Hart. He told D.J. to get back and might have pushed him. D.J. and Moring continued to quip at each other—“you can’t touch me,” “get back,” and so on. Moring eventually held a taser out toward D.J. to keep him at bay, and they then sniped about whether Moring could properly do so. Meanwhile, on the ground, Hart kept pressure on Perkins’s back for about a minute to keep her subdued. As soon as Hart released the pressure, however, Perkins flipped onto her back and began kicking and struggling with Hart again. At that point, Hart placed his hand on Perkins’s shoulder to control her, or to try to get up. His hand then slipped onto Perkins’s neck for less than two seconds, and Perkins yelled “you’re choking me!” Her nephew then yelled “y’all are choking a lady.”
All this time, Moring’s back was turned, as he and D.J. interacted. Moments later, Hart and Perkins stood and walked toward the street. A neighbor told the boys to “go inside, go inside, please go inside.” Perkins agreed, telling them to “go inside.” Their videos then end.
The Deputies arrested Perkins for resisting a police officer with force or violence, battery of a police officer, no proof of insurance, and no safety helmet. She was detained overnight. The District Attorney’s Office amended her bill of information to “R.S. 14:108 Resisting an Officer,” for which she was tried and convicted.
Perkins sued the Deputies under 42 U.S.C. § 1983. The district court concluded that a disputed issue of material fact exists regarding the amount of force used by Defendants while attempting to arrest Plaintiff and after she was handcuffed and subdued. Turning to D.J.’s excessive force claim, the district court again concluded that Deputy Moring violated clearly established law and used excessive force. Further, the court determined that D.J.’s filming of the incident was a lawful activity, so no non-retaliatory grounds justified Moring’s interference with D.J.’s First Amendment rights. The 5th reversed on all excessive force claims against officers but affirmed on First Amendment violation.
A. Excessive force on Perkins by Deputy Moring
The district court determined there were genuine issues of fact as to whether Perkins suffered an injury during the altercation, whether her purported crime was severe, and whether she posed a threat to the safety of the officers or others. We cannot, and do not, question those factual conclusions. But the court also found that Perkins actively resisted the Deputies when they tried to arrest her—a fact the videos conclusively prove, and which proves conclusive in assessing whether the Deputies, particularly Deputy Moring, are entitled to immunity.
A suspect’s refusal to comply with instructions’ may indicate that physical force is justified. See Joseph and Hutcheson (Resisting while being handcuffed constitutes active resistance and justifies the use of at least some force). However, the timing, amount, and form of a suspect’s resistance are key to determining whether the force used by an officer was appropriate or excessive. To stay within constitutional bounds, an officer must use force with measured and ascending actions that correspond to a suspect’s escalating verbal and physical resistance. Notably, force must be reduced once a suspect has been subdued. See Poole.
The videos demonstrate that Deputy Moring stayed within constitutional bounds. Deputy Hart first approached Perkins and attempted to place her hands behind her back. When she pulled away, Moring approached to assist, and both Deputies repeatedly warned Perkins not to resist. Perkins then sat on the ground and refused to place her hands behind her back. As both Deputies attempted to cuff Perkins, she continued to pull away and verbally antagonize them. The Deputies eventually forced Perkins onto her stomach, after which Moring placed his elbow on her back while Hart attempted to place handcuffs on her. Critically, as soon as Hart put the handcuffs on Perkins, Moring stood up and walked towards D.J.
Moring did not touch Perkins again. In other words, as soon as Perkins was subdued, Moring reduced the force he applied, to none at all. The district court erred by finding a genuine dispute of material fact regarding both Deputies’ conduct based on Deputy Hart’s actions after Perkins was cuffed—and after Deputy Moring stood up and engaged D.J. In other words, the district court impermissibly treated the Deputies in tandem, denying both of them qualified immunity because of Hart’s alleged choking of Perkins, which the videos demonstrate Moring could not even see as it occurred. Assessing Deputy Moring’s conduct individually, there is no dispute that his use of force was proportional to Perkins’s resistance, and there is no dispute he stopped using force once Perkins was subdued. Deputy Moring is therefore entitled to qualified immunity as a matter of law.
B. Excessive force on Perkins by Deputy Hart
Perkins’s nephew’s video shows that once Hart put the handcuffs on Perkins, Deputy Moring stood up and walked towards D.J. Meanwhile, Hart continued to struggle with Perkins on the ground. Because Moring was blocking D.J.’s and the nephew’s camera angles, much of that struggle is obscured. But Hart kept pressure on Perkins’s back for about a minute to subdue her. When Hart released the pressure, Perkins flipped onto her back and began kicking and struggling with Hart again. At that point, Hart placed his hand on Perkins’s shoulder to bring her under control, or to try to get up. For two seconds, the nephew’s video shows Hart’s hand on Perkins’s neck, and Perkins can be heard screaming, “why you choking me?” Moments later, Hart and Perkins stood up and walked toward the street. The video then ends.
Viewed in the light depicted by the videotape, Hart’s use of force was proportional to Perkins’s resistance. He kept pressure on her back for less than a minute and then reduced his force. At that point, Perkins flipped onto her back and began kicking, i.e., resumed resisting Hart. As they struggled, Hart placed his hand on Perkins’s shoulder, and it slipped for a couple seconds onto her neck. Perkins’s exclamation about choking notwithstanding, the video shows no choke. And Hart’s actions corresponded to Perkins’s physical resistance. And the fact that Hart’s hand was briefly at Perkins’s neck does not constitute excessive force. See Williams (finding that an officer’s force was not excessive with respect to an alleged choking that occurred while the officer attempted to search the plaintiff’s mouth). The district court erred in basing its denial of summary judgment on Perkins’s version of the facts, despite what the video footage shows. Deputy Hart is entitled to qualified immunity as a matter of law.
C. Excessive force on D.J.
Here, our task is straightforward because there was simply no seizure from which an excessive force claim can stem. At no point was D.J. prevented from leaving the scene—rather, he was repeatedly asked to do so, to get back and move away while Deputy Moring was securing the perimeter. True, he was prevented from further approaching Perkins and Deputy Hart, but that was the officers’ prerogative to secure the scene and did not infringe on D.J.’s Fourth Amendment rights. Thus, even accepting D.J.’s version of the facts as true, he cannot prevail on a claim of excessive force because there was no violation of his Fourth Amendment rights. The district court erred in holding otherwise, and the Deputies are entitled to summary judgment as to this claim.
D. First Amendment retaliation claim against Deputy Moring
To establish such a claim, D.J. must show (1) he was engaged in constitutionally protected activity, (2) Moring’s actions caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) Moring’s adverse actions were substantially motivated against D.J.’s exercise of constitutionally protected conduct. See Keenan.
The district court determined D.J. satisfied all three prongs, as he was engaged in lawful activity—the filming of the arrest—and there were no non-retaliatory grounds to justify Moring’s interference with D.J.’s First Amendment rights, particularly because D.J. was not engaged in any illegal activity. The district court relied on Moring’s deposition testimony, in which he admitted he intentionally stood in front of D.J. and blocked him from recording Perkins’s arrest.
As to the first element, in 2017, we clearly established that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. See Turner. While Moring acknowledges there is a constitutional right to film the police, he insists this case is different because D.J. exceeded that right to the point of interference.
Moring relies on Buehler. Buehler is easily distinguishable. There, the plaintiff was a police-accountability activist who was arrested on notoriously crowded Sixth Street in downtown Austin, Texas, while recording police activity. He engaged in repeated verbal confrontations with police officers, pushing the boundaries of how close to them he was permitted to stand while recording. Buehler was arrested for misdemeanor interference with performance of official duties after the bickering escalated between him and the police.
The situation here is fundamentally different. While D.J. was clearly close to the arrest scene— the perimeter of which was being secured by Moring—D.J. was not a hazard, was not too close, and did not impede the Deputies’ ability to perform their duties. Indeed, the Deputies successfully handcuffed Perkins despite D.J.’s presence and active recording.
As we explained in Turner, filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Such was the case here. D.J., therefore, did not cross the line between filming the police and hindering the police, and was engaged in a clearly established, constitutionally protected activity on his family’s private property.
We also agree that D.J. has substantiated a requisite injury. That element requires some showing that the plaintiff’s exercise of free speech has been curtailed. See McLin. The effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable. The district court found that D.J. suffered an injury when Moring pointed his taser at D.J. and verbally threatened him. To be clear, Moring was justified in securing the perimeter. However, Moring also verbally taunted and shoved D.J. And Moring admitted in his deposition that he intentionally moved from side to side to block D.J. from recording the arrest, not to control the perimeter or respond to D.J.’s interference. Moring’s actions, coupled with the threat of the taser and Moring’s admission, could lead a reasonable jury to find that D.J’s speech was chilled and that Moring’s actions were substantially motivated against D.J.’s exercise of his First Amendment right. The district court therefore did not err by denying Deputy Moring summary judgment as to D.J.’s First Amendment claim.