Facts
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Ismael Rincon owns an empty, unimproved plot of land along the northern shoreline of the Rio Grande River in Laredo, Texas. Rincon regularly parked his Ford truck at this plot, and in March 2019, the truck was vandalized. To prevent any further vandalism or trespass, Rincon began patrolling his property at night, armed with a long rifle. Shortly after midnight on April 27, 2019, Rincon, with his rifle slung over his shoulder, made his usual patrol.
Unbeknownst to Rincon, a gun battle between the Mexican military and a drug cartel had erupted the day before on the Mexican side of the border near the Rio Grande. A stray bullet from this firefight struck a U.S. citizen living in Laredo, prompting Border Patrol and the Laredo Police Department to initiate Operation Stonegarden to search for criminal suspects fleeing from Mexico. As part of this operation, Officer Ernesto Elizondo III was stationed near a public park located next to the empty lot that Rincon was patrolling.
On April 27, Elizondo observed Rincon, his rifle in hand, walking the empty lot, which Elizondo believed to be part of the public park. Elizondo approached Rincon and asked him if he was with Border Patrol; Rincon replied that he was not. Elizondo asked for identification, which Rincon refused to provide. Elizondo then called for backup on his radio and aimed his sidearm at Rincon’s chest. Elizondo took possession of Rincon’s rifle and holstered his sidearm.
Additional officers arrived at the scene, including Officer Arturo Benavides, whose dashcam and bodycam footage Rincon attached to his complaint. Elizondo stepped away to inspect Rincon’s rifle as additional officers approached Rincon, who began recording the encounter with his cell phone. After Rincon repeatedly asked Elizondo for his name, Elizondo walked back over and tried to grab the cell phone out of Rincon’s hand. According to Rincon, Elizondo immediately began to push the phone into Rincon’s chest and throat, forcing Rincon back several feet, while attempting to remove the phone out of Rincon’s hand. Once Elizondo secured the phone, he ordered Officer Robert Fernandez, Jr. to handcuff Rincon.
In order to handcuff him, Fernandez twisted Rincon’s wrist and arm, and Rincon responded that this was hurting him. With Fernandez holding the handcuffs, he and Elizondo searched Rincon’s pockets, and Rincon continued to protest that he was in pain. Elizondo responded that this was because Rincon was resisting. Rincon contends that Fernandez continued to twist the handcuffs until Rincon heard his shoulder pop, causing him to exclaim in pain. Rincon remained in handcuffs for approximately fifteen minutes while the officers reviewed Rincon’s identification from his wallet and ran his name for outstanding warrants. While Rincon was handcuffed, Benavides told him that “there was a shooting just a little bit ago in this area.” After about fifteen minutes, the officers removed the handcuffs and returned the cell phone to Rincon, at which point he began to record the encounter again. Elizondo held Rincon’s rifle and spoke to him, while Benavides shined his flashlight at Rincon. As Rincon filmed, Elizondo explained that there was recently a shooting nearby in Mexico that injured someone on the U.S. side of the border. Elizondo then grabbed Rincon’s phone from his hand for the second time and returned it to him seconds later. Once Elizondo returned the rifle, the officers continued conversing with Rincon, and the encounter ended shortly thereafter.
Rincon sued the officers and the City of Laredo, Texas, asserting violations of his rights under the First and Fourth Amendments. The district court dismissed all claims. The 5th affirmed.
Analysis
A. Detention of Rincoin and search of wallet
The district court determined that this detention was a valid Terry stop. The district court found that Elizondo and Fernandez had reasonable suspicion to stop and briefly detain Rincon, and we agree. The officers were actively investigating a recent shooting near the Rio Grande, and Rincon was seen late at night walking an empty lot near the river, openly carrying a rifle in his hands. Rincon refused to identify himself, and the officers informed him multiple times during the detention that they were concerned about a recent, nearby shooting.
The district court also held that Elizondo and Fernandez were entitled to qualified immunity as to Rincon’s claim that they unreasonably searched his wallet for identification. More specifically, the district court found that at the time of Elizondo’s and Fernandez’s search, no controlling caselaw established that a Terry pat down cannot include a search of the suspect’s wallet for identification. Indeed, in Emesowum, officers stopped the plaintiff and searched his wallet during a Terry stop. This court determined that that search did not violate the plaintiff’s clearly established rights, citing the proposition that an officer may check an individual’s identification in his wallet during a Terry stop. We therefore agree that Elizondo and Fernandez are entitled to qualified immunity for searching Rincon’s wallet. We affirm the district court’s dismissal of Rincon’s unreasonable-search-and-seizure claim.
B. Retaliation
B1. First confiscation of phone
As a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech. We have held that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017).
For a First Amendment retaliation claim, a plaintiff must demonstrate: (1) she was engaged in constitutionally protected activity; (2) the officer’s action caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the officer’s adverse actions were substantially motivated against her exercise of constitutionally protected activity.
Rincon alleged that once he began recording and asking Elizondo for his name, the officer walked over and tried to grab the phone, shoving Rincon and his phone in the process. We find Rincon has plausibly alleged a claim for First Amendment retaliation.
However, Elizondo asserted the defense of qualified immunity. Rincon has not presented, and we are unaware of, either controlling authority or a robust consensus of persuasive authority clearly establishing, at the time of Elizondo’s actions, that an officer violates the First Amendment by confiscating the phone of an armed, unidentified, and uncooperative criminal suspect for fifteen minutes while he is handcuffed during a Terry stop. Therefore, Elizondo is entitled to qualified immunity as to Rincon’s First Amendment claim based on the initial confiscation.
B2. Second confiscation of phone
As to Elizondo’s second confiscation of Rincon’s cell phone, lasting a matter of seconds and followed by no adverse consequences, the district court held that Rincon failed to allege that this act would have chilled the recording activity of an individual of ordinary firmness. We have stated that some retaliatory actions—even if they actually have the effect of chilling the plaintiff’s speech—are too trivial or minor to be actionable as a violation of the First Amendment. In fact, Benavides’s bodycam footage shows that Rincon continued filming the police after Elizondo returned the cell phone to him, suggesting that the brief, six-second confiscation had no chilling effect.
B3. Flashlight
Lastly, Rincon brought a First Amendment claim against Benavides for shining his flashlight at the cell phone camera. The district again determined that Rincon had failed to allege an action that would chill a person of ordinary firmness. We affirm.
C. Excessive force
The district court concluded that Rincon’s allegations failed to show that Fernandez’s actions were clearly excessive or objectively unreasonable. First, the court observed that Rincon admitted to resisting arrest by conceding that he suffered injury to his wrists and shoulder when he attempted to turn away and prevent the search and seizure. Second, the court referenced Benavides’s bodycam footage, which depicts Rincon jerking his hands away from Fernandez, followed by officers telling Rincon he was resisting and should settle down.
The court also noted that Rincon was under suspicion for possible involvement in a cross-border shooting, which implicates serious criminal activity. Based on these considerations, the district court dismissed Rincon’s excessive-force claim against Fernandez.
We have held that resisting while being handcuffed constitutes active resistance and justifies the use of at least some force. See Hutcheson. As the district court found here, Rincon conceded to resisting, and the video evidence confirms as much. We affirm the district court’s dismissal of Rincon’s excessive-force claim against Fernandez.
https://www.ca5.uscourts.gov/opinions/unpub/24/24-40168.0.pdf