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there was probable cause to arrest second amendment protesters


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Christopher Grisham and James Everard are self-styled “Second Amendment protestors” who had been involved in several protests advocating for the repeal of a City ordinance that governs the unauthorized carrying of loaded firearms. This case arises out of their arrests on March 27, 2018. Prior to this date, the Olmos Park Police Department had received calls from dispatch on numerous occasions and was aware of several Second Amendment demonstrations happening throughout the City.

On March 27, 2018, 911 operators received several calls regarding a man “with an AK-47” around his neck, standing on a busy street corner in Olmos Park for about five minutes. Officers were dispatched to the scene to investigate, with the idea that they would encounter “those Second Amendment people again.” Officer James Lopez arrived on the scene and encountered Everard standing on a street corner with a large gun in a holster in front of his chest. Consistent with the 911 calls, the street corner that Everard occupied was a high traffic location, busy with both pedestrian and vehicle traffic, and Everard was a large man wearing dark clothing and displaying an assault-like rifle.

Moreover, Everard was openly and verbally uncooperative, challenging the officers’ commands and refusing to comply with their orders. Officer Lopez repeatedly told Everard to get on the ground, but Everard did not comply. Next, Officer Adrian Viera arrived on the scene and continued verbal negotiations with Everard. Grisham then approached Everard with a handgun in a holster on his hip and began filming the interaction with the officers. The officers instructed Grisham to get away from Everard, but he did not comply and continued to stand near him.

Chief Rene Valenciano arrived on the scene and approached Grisham and Everard, with one hand on his taser. Chief Valenciano told Everard to get on the ground; again, Everard refused to comply. Officer Viera once again instructed Grisham to get away from Everard, which Grisham refused to do. Officer Viera then approached Grisham with handcuffs and reached for his hands, but Grisham backed away several feet, pulled his hands away, and continued to retreat from the officer. As Grisham turned away—backing up in the direction of Everard and continuing to pull away from Officer Viera— Chief Valenciano approached Grisham from behind and tased him, causing Grisham to fall backwards and hit his head on the pavement.

Officer Hector Ruiz approached Everard, and Everard put his hands behind his back to be handcuffed. Officer Ruiz walked Everard a few steps away from the road and, with one hand on his arm and another on his upper back, directed him to kneel in a slow and controlled manner. Officer Ruiz and Chief Valenciano both grasped Everard’s arms and moved him from his knees to a prone (lying flat on his stomach) position. The officers turned Grisham over on his stomach, placed him in handcuffs, and searched him.

Everard was charged with disorderly conduct for displaying a firearm in a manner causing alarm, and Grisham was charged with interference with the duties of a public servant. All charges were dismissed for insufficient evidence.

Based on the above incident, Everard and Grisham filed suit under 42 U.S.C. § 1983. The district court granted Defendants’ motion for summary judgment on Plaintiffs’ Fourth Amendment claims for excessive force, unlawful arrest, and unlawful search and seizure. The 5th affirmed.


A. Unlawful, Retaliatory Arrests

Neither this court nor the Supreme Court has held that officers cannot execute their law enforcement duties while someone is engaging in speech, where probable cause exists. Rather, officers cannot execute their law enforcement duties to search and seize in retaliation of speech or as imposed censorship. See Keenan.

Plaintiffs argue that Defendants retaliated against them for peacefully exercising their First Amendment right to protest the Ordinance. A retaliatory arrest claim requires that (1) Plaintiffs were engaged in constitutionally protected activity, (2) Defendants caused them to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) Defendants’ adverse actions were substantially motivated by the Plaintiffs’ exercise of constitutionally protected conduct. See Keenan. The magistrate judge recognized that Plaintiffs met prong one by establishing a constitutionally protected activity: filming the Defendant officers and that filming police officers engaged in their professional duties has been a clearly established right in the Fifth Circuit since 2017.

Still, a retaliatory criminal prosecution in violation of the First Amendment is actionable only if a plaintiff can also prove absence of probable cause to prosecute. Additionally, in Nieves v. Bartlett, SCOTUS emphasized that a plaintiff pressing a retaliatory arrest claim based on speech protected by the First Amendment generally must plead and prove the absence of probable cause for the arrest. Moreover, the Nieves Court established that plaintiffs in retaliatory prosecution cases must show more than the subjective animus of an officer and a subsequent injury; plaintiffs must also prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause.

Here, as in Nieves, the officers had probable cause to make the arrests for disorderly conduct and resisting arrest, thus precluding the arrestees’ retaliatory arrest claims. Still, on appeal, Plaintiffs argue that probable cause does not foreclose this lawsuit since Grisham and Everard were treated differently from others because of their First Amendment activities. Notably, the Nieves Court did delineate a carveout to the probable cause prerequisite in holding that a plaintiff asserting a retaliatory arrest claim does not have to establish the absence of probable cause when the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Plaintiffs contend that other armed protestors were not arrested because the officers personally opposed the message that Everard and Grisham conveyed.

However, as the magistrate judge noted, other protestors were arrested, but they simply did not join in this lawsuit. Further, caselaw does not require that the officers seize all otherwise similarly situated individuals.  Rather, where officers have probable cause to make arrests they may not disproportionately or unfairly exercise their discretion not to do so. The “no-probable-cause requirement” applies in the instant case because Plaintiffs have not presented objective evidence, beyond conclusory statements, that they were arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Consequently, the officers are entitled to qualified immunity because there was probable cause to arrest Everard and Grisham pursuant to a presumptively constitutional and enforceable statute.

And, as the record reflects, the officers were objectively reasonable in believing that such probable cause existed. The offense of disorderly conduct under Texas Penal Code § 42.01(a) necessitates displaying a firearm (or other deadly weapon), intentionally or knowingly, and in a manner calculated to alarm. At the time of the incident, the text of the Texas statutes governing disorderly conduct and interference with public duties and Texas state caselaw interpreting the relevant statutes supported that there was probable cause to arrest Everard and Grisham.

Although Plaintiffs maintain that their objective on March 27, 2018 was to educate the public, not to alarm it, the magistrate judge held that, considering the totality of circumstances, the officers made an entirely reasonable inference that probable cause existed to effectuate their lawful arrests. Moreover, the Supreme Court has articulated that, to determine whether there was probable cause to arrest, the reviewing court should ask whether a reasonable officer could conclude—considering all of the surrounding circumstances, including the plausibility of the explanation itself—that there was a substantial chance of criminal activity. Here, Plaintiffs’ purported innocent explanations do not negate the officers’ probable cause for executing their arrests.

The relevant facts and circumstances here were sufficient for a reasonable officer to believe that Everard acted with the requisite specific intent to cause sustained fear or serious public disruption by displaying a firearm in a manner calculated to alarm and that Grisham’s continued approach towards Everard and officers, while being instructed to retreat, amounted to interference. Believing that immediate police action was necessary, several alarmed passersby used the 911 emergency system to contemporaneously report Everard’s suspicious behavior. The 911 emergency calls provided officers with the reasonable belief that either an emergency or immediate threat to safety was underway.

When officers arrived on the scene, Everard was standing in a crowded public area with his gun in a holster across his chest, which alarmed passersby enough to call 911. While displaying his assault-like rifle and standing prominently in the center of a very busy pedestrian and vehicle traffic area, Everard was also openly and verbally uncooperative with officers, challenging their commands and refusing to comply with their orders. Moreover, the officers were aware that the disorderly conduct statute was constitutional and that Texas courts have held that while there clearly are constitutional rights to bear arms and to express oneself freely, there is no constitutionally protected right to display a firearm in a public place in a manner that is calculated to alarm.

Accordingly, the officers are protected by qualified immunity since (1) Everard can point to no clearly established law that a reasonable officer would not have probable cause to arrest an armed, noncompliant protestor under Texas Penal Code § 42.01(a), and (2) Grisham can point to no clearly established law that a reasonable officer would not have probable cause to arrest an armed, noncompliant, interfering protestor under Texas Penal Code § 38.15(a). Summary judgment was properly granted on Plaintiffs’ Fourth Amendment unlawful arrest claims and First Amendment prevention of protected conduct and retaliation for protected conduct claims.

B. Excessive Force

Likewise, the video evidence does not support Everard’s claims of excessive force. Instead, a review of the video evidence reveals that he was not pushed or shoved forcefully but placed on the ground in a nonviolent manner. As discussed, Everard complied with the officers as they handcuffed him. Officers then walked Everard a few steps away, helped him onto his knees in a manner that was slow and controlled, and moved him from his knees to a prone position to effectuate a thorough search for additional weapons.

In contrast, the force at issue in Grisham’s excessive force claim is Chief Valenciano’s use of a taser. Grisham argues that the tasing constituted excessive force because the crimes he was arrested for were not severe, he was not an immediate safety threat, and he was not resisting arrest or attempting to flee. A review of the video evidence, however, shows that this recollection is inaccurate. Determining whether the force used to carry out an arrest is reasonable requires a fact intensive inquiry that turns on the totality of the circumstances including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

The magistrate judge determined that Grisham did not put his hands behind his back when ordered but instead kept them within reach of his handgun. Given these circumstances, it was not unreasonable for Chief Valenciano to believe—at the time he deployed the taser—that Grisham was both a safety threat and resisting arrest. The officers are entitled to qualified immunity because neither Everard nor Grisham can point to any clearly established law that such force was unreasonably excessive under the circumstances. Summary judgment was properly granted on Plaintiffs’ Fourth Amendment excessive force claims.