Facts
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On April 28, 2018, David Bailey and three friends went to downtown San Antonio to film the police. Angered by the recent arrest of a friend, they planned for one member of the group to “kind of, be the jerk to the police officer, and Bailey would film them and “go up and be the . . . nice citizen, and say, ‘Hey, just leave the – leave the cop alone. Let him do his job.’” But once the officer expressed thanks, Bailey would tell the officer, “I’m here because of what you-all did to Mike Thompson, and I’m, like Well—well, f*** you.”
San Antonio Police Officers Oscar Ramos and Christopher Dech were on bike patrol in downtown San Antonio. They responded to an assault at a bar, and while paramedics administered treatment to the victim inside an ambulance, the officers positioned themselves outside to keep people away. The officers didn’t know yet who assaulted the victim, so they were also using the area to interview witnesses.
Bailey and his group were filming and immediately hostile when they first approached Ramos and Dech. Bailey gave the officers the middle finger and said “f*** off” as he walked away. After this initial interaction, most of the group wandered away, and Dech went back to the bar, leaving Ramos alone. One of Bailey’s friends, Jack Miller, then walked up to Ramos while openly carrying a gun. Miller asked Ramos, “What are you shaking your f***ing head at?” Ramos asked him to watch his language and to back up. Miller repeatedly asked where he should stand. At first, Ramos told him to “back up” and “go over there, motioning with his hand to move backwards. At that point, Dech returned from the bar to stand beside Ramos in front of the ambulance. Body camera footage shows that Officer Dech instructed Bailey and Miller to “just listen and that the area was an active crime scene while Bailey and Miller continued to shout over him. Video footage clearly shows Bailey filming this interaction. Meanwhile, Miller continued to ask, “Where would you like us to stand?” Dech responded, “Stand back behind that line,” and pointed to a line in the sidewalk. Miller immediately turned away and walked back, motioning to the group to follow and saying, “Alright, let’s go, move.” Bailey, however, did not immediately comply. Video footage shows him come to a complete stop and turn to face Ramos, while still standing in front of the line.
The parties dispute what happened next. Ramos says that he lightly touched Bailey’s shoulder to guide him toward the line. When Bailey stopped moving, Ramos put his arm up again to Bailey’s chest, and Bailey responded by “swatting Officer Ramos’ arm away, striking him, and causing him to stagger.” Then Ramos says that he saw Bailey drop his left hand and clench it into a fist. Because of Bailey’s conduct and these “signs of aggression,” Ramos asserts he “was in fear of an impending assault.” In response, Ramos placed both hands on Bailey’s chest and pushed him. He then grabbed Bailey by his upper body and forced him to the ground. Bailey, however, denies swatting Ramos or clenching his fist and alleges that Ramos “pushed him back twice before tackling him to the ground, kneeling on him, and then handcuffing him.” The video evidence also shows that Bailey yelled “hands off!” in response to the contact with Ramos before he was tackled to the ground.
Dech handcuffed Bailey once Ramos had him on the ground. The officers lifted Bailey into a standing position and placed him up against a nearby wall. There, Bailey repeatedly yelled expletives at Ramos and Dech while they asked him to calm down and sit down. Bailey screamed at both officers that he would “dial up my wife to own your ass” and told Dech that he would “lock you up with this little piece of sh*t,” referring to Ramos.
Bailey was moving about and stepped toward the officers. The officers guided him back against the wall with their hands while telling him repeatedly to sit down. Bailey did not comply and responded, “What, are you going to go hands on again?” Ramos then used some type of leg maneuver to bring Bailey to a seat on the ground.
Bailey was charged with interfering with the duties of a public servant. The charge was later dismissed by the prosecutor’s office for lack of evidence.
Bailey sued Ramos and Dech under 42 U.S.C. § 1983. The district court denied qualified immunity and summary judgment for the unlawful arrest, unlawful seizure, First Amendment retaliation, and excessive force claims because genuine disputes of material fact existed. The 5th reversed (granting qualified immunity to officers on everything).
Analysis
A. Unlawful arrest
Ramos noted that he had probable cause to arrest Bailey for (1) assault by offensive conduct under Texas Penal Code § 22.01(a)(3) and (2) interference with public duties under Texas Penal Code § 38.15. If there was probable cause for any of the charges made then the arrest was supported by probable cause, and the claim for false arrest fails.
A1. Assault
We start with assault. Under the Texas Penal Code, a person commits assault if he or she “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Even though there were many recording devices at the scene, none of the video evidence clearly shows whether Bailey swatted Ramos or clenched his hand into a fist as though he was preparing to fight. Accordingly, because we cannot conclude as a matter of law that Ramos had probable cause to arrest Bailey for assault, we turn to the next charge: interference with public duties.
A2. Interference with public duties
Under the Texas Penal Code, a person commits the offense of interference with public duties “if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with . . . a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.” To constitute interference, the action must consist of more than just speech alone. But Texas courts have found that failure to comply with an officer’s instructions . . . violates Texas Penal Code § 38.15 and is not protected speech. Specifically, several courts have affirmed convictions of defendants who failed to comply with an officer’s instruction to move away from a crime scene.
The district court found factual disputes regarding whether Bailey complied with police orders before Officer Ramos arrested him, questioning whether probable cause existed. Despite these disputes, the court did not address whether Ramos could have reasonably believed he had probable cause. The appeals court concluded that, even if Ramos was mistaken, he could have reasonably believed Bailey was interfering with police duties by not immediately following orders, especially given Bailey’s defiance and hostile behavior.
B. Unlawful seizure
We next address whether Ramos is entitled to qualified immunity as to the unlawful seizure claim. Ramos seized Bailey’s cell phone and belongings incident to his arrest. Bailey asserts that these items were seized without a warrant or probable cause in violation of the Fourth Amendment. Because Ramos is entitled to qualified immunity for Bailey’s unlawful arrest claim, he is entitled to qualified immunity for Bailey’s unlawful seizure claim.
C. Excessive force
C1. Force during takedown procedure
Bailey has met the injury requirement for an excessive force claim. He provided evidence of abrasion to his wrist and knee, acute neck pain, and a concussion. He also testified that he still experiences pain in his neck, shoulder, and spine and needs occasional cortisone shots. Thus, we need only consider whether Ramos’s use of force was objectively reasonable under the Graham factors.
Even if there were disputes about the force used, Ramos was entitled to qualified immunity, as the unlawfulness of his conduct was not clearly established at the time. Bailey referenced Newman, but the court distinguished it, as the force used in Newman was much more severe. Previous cases like Sam and Bush also did not clearly establish that Ramos’s actions were unlawful, as they involved different circumstances or more severe force.
The court further noted that in cases like Darden and Joseph, officers used excessive force after the suspect was already subdued, which wasn’t the case here. Therefore, Ramos’s takedown, which involved moderate force to subdue an uncompliant suspect, did not violate clearly established law, and he was entitled to qualified immunity.
C2. Leg sweep
We turn now to whether Ramos used excessive force when he swept Bailey’s legs out from under him. The district court denied summary judgment for this use of force, holding that Ramos used a leg sweep on a subdued suspect who had not resisted arrest, violating Bailey’s clearly established rights. Our caselaw has clearly established that, once a suspect has been handcuffed and subdued, and is no longer resisting, an officer’s use of force is excessive. But use of force against a handcuffed suspect is not excessive if the suspect is resisting by ignoring lawful commands. See Pratt (finding use of force is not excessive against handcuffed suspect who is verbally and physically resisting).
Video evidence clearly shows that, after Bailey was handcuffed, he was placed standing up against a wall. There, he repeatedly yelled expletives at Dech and Ramos. Both officers told Bailey to “sit down” and “kneel down,” to which Bailey defiantly responded, “What, are you going to go hands on again?” The officers responded by maneuvering Bailey so that his back was against the wall. Ramos then used some type of leg maneuver to seat him on the ground. Bailey slid with his back along the wall to the ground, with Dech’s hand on his chest guiding him down. Because the video evidence shows that Bailey was not complying with the officers’ lawful orders to sit down, Ramos’s responsive use of force was not objectively unreasonable under the Fourth Amendment.
Because the video evidence is clear that bringing Bailey to a seat with a leg sweep was not an objectively unreasonable use of force, Ramos is entitled to qualified immunity.
D. First Amendment retaliation
Finally, we turn to Bailey’s First Amendment retaliation claim. To survive summary judgment, Bailey must show there is at least a genuine dispute of material fact that (1) he was engaged in constitutionally protected activity, (2) the defendant’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) the defendant’s adverse actions were substantially motivated against the plaintiff’s exercise of constitutionally protected conduct.
The parties do not dispute that Bailey satisfies the first prong. And for good reason: In Turner, we held that the right to film police under the First Amendment is clearly established, subject only to time, place, and manner restrictions.
The second prong requires an injury that would chill a person of ordinary firmness from continuing to engage in that activity. 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. Bailey contends that “arresting and injuring him, while seizing his belongings, would chill a person of ordinary firmness. We agree that the injuries Bailey suffered as a result of the use of force during his arrest meet this standard.
As to the third prong, Bailey points out that Ramos did not pay attention to or arrest any of the people walking through the area who were not recording. True, the fact that he was arrested when otherwise similarly situated individuals not engaged in the same sort of speech had not been would be good evidence in his favor. But the video evidence blatantly contradicts Bailey’s characterization of events. None of the passersby walking through the crime scene were “similarly situated” to Bailey. Apart from those whom the officers were interviewing as witnesses, no one stopped and lingered in close proximity to the ambulance. Bailey was the only person who appeared to disregard police orders to stay back from the crime scene. Indeed, video shows other individuals recording the interaction, and those individuals were not arrested.
Bailey hasn’t pointed to any other evidence that would show that Ramos had a subjective retaliatory motive, much less that any such motive was the but-for cause of Ramos’s decision to arrest him. Video evidence blatantly disputes his only argument. As a result, no dispute of material fact exists, and Ramos is entitled to judgment as a matter of law on Bailey’s First Amendment retaliatory arrest claim.
https://www.ca5.uscourts.gov/opinions/pub/23/23-50185-CV0.pdf