Facts
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Leon Valley City Hall—a multi-use municipal building that contains a court—had signs at the building’s entrance informing guests that they could not bring weapons into the building and that carrying a firearm into the building would violate various sections of the Texas Penal Code. On May 31, 2018, Jack Miller visited City Hall to file a complaint regarding what he perceived as the unlawful enforcement by Leon Valley of sections of the Texas Penal Code that prohibited the carrying of weapons in the building, including by licensed handgun holders. Attached to his hip and holstered was an item that resembled a Glock firearm.
Miller later testified that the item was a blue rubber gun that he spray painted black so that the device would resemble a real Glock. Upon reaching the front of the metal-detector line, Miller asked Officer Erika Rivera who was operating the metal-detector wand— “what’s in [the building].” Officer Rivera informed him that the building housed City Hall, the police department, the city manager’s office, animal control, and (after further inquiry) a court. Officer Rivera saw Miller openly carrying what she recognized as a Glock firearm. When Miller asked to speak with someone to file a complaint about the Texas Penal Code signs, Officer Rivera signaled Officer Jim Wells to come over. Miller informed Officer Wells that he intended to file a complaint about the signs. Officer Wells responded that he would not take Miller’s complaint and ordered Miller to step outside because “no firearms were allowed” in the building. Officer Wells refused to take down the signs, instructed Miller to contact the Texas Office of the Attorney General (OAG), then walked away toward the parking lot.
After Wells departed, Miller noticed Lieutenant David Anderson standing in the door to the building and told Lieutenant Anderson that he came to City Hall to discuss the signs. Lieutenant Anderson responded that Leon Valley was compliant with the law, advised Miller that he should contact the OAG to lodge a complaint, and then left. Miller subsequently returned to his car in the nearby parking lot and deposited his device in the car’s glove compartment. Meanwhile, Lieutenant Anderson and Officer Rivera convened with Sergeant Eddie Gonzales (an officer who saw Miller in City Hall) and Officer Michael Tacquard (another officer who saw Miller with the gun holstered on his hip) to discuss the events that transpired with Miller.
Miller later returned to City Hall to file his complaint. After Miller entered the building (this time without the real or fake gun), Officer Rivera wanded him for the first time and then he proceeded to the receptionist’s desk to fill out a complaint form. While at the receptionist’s desk, Miller told his friend that if the police searched his car, they would discover the gun was rubber. The footage does not show whether any officer could have overheard Miller’s statement. Lieutenant Anderson joined Miller at the front counter and after a brief discussion, retrieved Miller’s completed form. When Miller insisted that Lieutenant Anderson return the form, he did, and Miller subsequently handed the form to Captain Ruben Saucedo after a brief conversation. Miller then left City Hall.
During both of Miller’s visits to City Hall, his friend and fellow activist filmed the events and Miller also recorded the events on a body-worn device.
Later that same day, Lieutenant Anderson informed the Leon Valley Police Chief Joseph Salvaggio about Miller’s visit to City Hall. Chief Salvaggio held a meeting with Captain Saucedo, Lieutenant Anderson, Officer Wells, and Sergeant Gonzales and directed his officers to charge Miller with the felony offense of having a firearm in a prohibited place (an office utilized by a court) under Section 46.03 of the Texas Penal Code. Chief Salvaggio also directed his officers to prepare affidavits in support of search and arrest warrants.
At around 5:00 p.m. that same day, Sergeant Gonzales assisted Detective Alex King in writing the probable cause affidavits for the search and arrest warrants. Both affidavits stated, that the officers stopped Miller in the City Hall lobby with a “clearly visible” and holstered firearm. Lieutenant Anderson, Captain Saucedo, and Chief Salvaggio approved the affidavits, and then Sergeant Gonzales met with a magistrate judge, who approved the warrants around 10:30 p.m. that evening. Police officers waited approximately one-and-a-half hours until Miller returned home and then executed the arrest and search warrants shortly after midnight on June 1, 2018. During the search, the officers handcuffed Miller, and Chief Salvaggio allegedly laughed at him and thanked him for visiting Leon Valley. The officers then arrested Miller and took him into custody, and he was released the following day.
He was indicted for intentionally possessing a firearm on the premises of a governmental court and office utilized by the court. The prosecution ultimately terminated in Miller’s favor for lack of evidence.
He then filed a § 1983, alleging that the officers violated Plaintiffs’ (1) Fourth Amendment rights by seeking warrants absent probable cause and (2) First Amendment rights by retaliating against Miller for his protest activity. The district court cited with the officers. The 5th affirmed.
Analysis
A. Warrants did not have probable cause
A warrant application objectively violates the Fourth Amendment if it contains (1) a false statement made knowingly and intentionally, or with reckless disregard for the truth, and (2) the allegedly false statement is necessary to the finding of probable cause.
Plaintiffs argue that the statements in the warrant application lacked probable cause because (1) the officers did not offer “material evidence that the device holstered on Miller’s hip was a firearm, or that it was in plain view”; (2) the officers’ failure to take steps during Miller’s visit to either confirm or dispel their supposed reasonable suspicion that the gun was real renders the warrant application unreasonable; (3) the author of the investigatory report and the affiant of the warrant application lacked personal knowledge of the facts underpinning the affidavit and instead relied on “hearsay within hearsay” to support the application; (4) the officers omitted allegedly exculpatory facts (namely, that Miller re-entered City Hall, passed security, and was not detained or searched) and made “bare bones” assertions in the warrant; (5) any information obtained during Miller’s visit to City Hall would be stale by the time the judge approved the warrant application; and (6) the officers clearly had it out for Miller, so that impure motivation taints the warrant application and ensuing prosecution of Miller.
A1. Evidence that device was firearm
Clear video evidence shows that an object resembling a gun was visible to the officers. The video evidence is not sufficient to determine whether the gun is real; however, it is sufficient to establish the Defendant officers were objectively reasonable in so believing. Contrary to Miller’s allegations, the video evidence also reflects that at no point during the visit did he notify the officers that the gun was fake. Quite the opposite. Miller declined to correct Officer Wells when Officer Wells directed Miller to step outside with his gun and informed him that he cannot go back inside with his gun. Miller also referred to the device as a “gun”—not a fake gun, a device, or otherwise—when he informed his friend that he was going to go put his gun up and try again. After he re-entered the building, Miller told his friend that he didn’t have his gun on him any more.
Moreover, when Miller returned to City Hall and walked up to Officer Rivera at the security table, he told her “[he] took it off” but did not clarify that “it” was a fake gun. And although Miller mentioned to his friend that the gun was rubber when they both stood at the receptionist’s desk, he spoke in a hushed tone, and it is not clear that Officer Rivera—or any other officers—heard him.
A2. Steps to confirm or dispel reasonable suspicion
Police officers do not need to exhaust all possible fact-finding to confirm or dispel their suspicions before seeking a warrant.
A3. Personal knowledge lacking for report and affidavit
This court has long recognized that an officer submitting a warrant application need not have firsthand knowledge of all the facts underlying the application.
The affidavit also provides enough information to connect the evidence the police officers sought to Miller’s house. The affidavit recounted four eyewitness officer accounts plus available video evidence that reasonably appeared to show that Miller entered City Hall with a firearm. It also stated that “[i]t is the belief of Affiant that [Miller’s] listed house and vehicle contain items,” including “[a] black semi-auto hand gun, “constituting evidence that the offense of Place weapons prohibited, in violation of section 46.03 of the Penal Code of the State of Texas, has been committed.” This is more than what is found in the “bare bones” affidavits that this court routinely rejects.
A4. Exclupatory facts
Miller complains about the affidavit’s omission of the facts that Miller re-entered City Hall, passed security, and was not detained or searched. But these facts do not exculpate Miller; they do nothing to undermine the decisive fact in the affidavit—video evidence that Miller openly carried what appeared to be a Glock handgun into a government building that included a court. No alleged representation or omission can change the fact that the application contains a clear, independently sufficient basis to support a warrant.
A5. Staleness
Miller argues that because the officers failed to take steps to confirm or dispel their alleged reasonable suspicion, any suspicion is vitiated the moment the suspect leaves the premises and cannot ripen into probable cause. We find this argument unavailing. Miller’s position, if adopted, would mean that information of a suspected crime, once the crime is effectuated, becomes stale the moment the suspect leaves the premises of the crime and cannot support probable cause necessary to justify a warrant. But that view has no basis in law.
Only a few hours passed between Miller’s visit to City Hall, the issuance of the warrants, and the execution of the warrants. The information underlying the warrant applications did not go stale within a few hours.
A6. Officer’s motivations
What matters is not subjective intent but rather the “objective legal reasonableness” of the action.
B. First Amendment retaliation
Miller alleged the officers retaliated against him for being a citizen journalist and activist, and because of his activity in filing a complaint with the City of Leon Valley. We disagree.
In general, a plaintiff pursuing a claim of retaliatory arrest or prosecution must plead and prove the absence of probable cause for the arrest. Although probable cause should generally defeat a retaliatory arrest claim, a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.
The officers established probable cause for the underlying criminal charge based on their objectively reasonable belief that the gun was real.
(As to the narrow exception, the court pointed to a case wherein they had 10 years of data to show a statute had never been used. This case did not have the extensive data to show that officers typically exercise their discretion not to charge someone for this crime).
https://www.ca5.uscourts.gov/opinions/unpub/23/23-50894.0.pdf