Logan v. Oklahoma City Police Department

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

EL CRUZ LOGAN, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-23-804-F

)

OKLAHOMA CITY POLICE, )

DEPARTMENT, ex rel. CITY OF )

OKLAHOMA CITY, JASON )

HODGES, DANIEL PONDER, )

AUTUMN SHEETS, )

)

Defendants. )

ORDER

This action arises out of the arrest of plaintiff El Cruz Logan (Logan) on

September 17, 2021. According to the complaint, Logan is a “YouTube Journalist”

who “regularly publishes stories about fraud, waste and abuse in government

agencies.” Doc. no. 1, ¶ 7. He is “what is commonly referred to as a Public Service

Auditor who makes it a regular practice to video and comment upon the state of

affairs and conditions of equipment related to governmental agencies.” Id. On

September 17th, Logan was “present upon a parking lot leased by the City of

Oklahoma City” for parking police vehicles. Id. He was on the property for the

purpose of conducting an “audit” of the condition of governmental vehicles. Id. at

¶ 23. There was no “posted signage that the property was closed to the public, only

a small sign indicating that police vehicles only were to be parked thereon.” Id.

Logan alleges that defendant Jason Hodges (Hodges), a law enforcement

officer for the City of Oklahoma City Police Department who was dressed in plain

clothes, claimed to be a contractor working in the police department. According to

Logan, Hodges asserted that his rights were being violated by Logan videotaping in

the parking lot. After Hodges temporarily left the parking lot, and “presumably

notified other [police] officers,” defendant Autumn Sheets (Sheets), a law

enforcement officer with the City of Oklahoma City Police Department, approached

Logan and advised him that he was trespassing and needed to leave the premises.

Doc. no. 1, ¶ 11. Logan advised Sheets that the parking lot was considered public

property and denied the request to leave the property. Logan also stated that he

would leave under threat of arrest. Despite repeated inquiries by Logan if

“Defendants” were stating they would arrest him if he did not leave, “Defendants”

refused to answer. Id. Logan alleges that, without further provocation, he was

placed under arrest by Hodges and Sheets. He also alleges that he was unlawfully

detained by Hodges, Sheets and Daniel Ponder (Ponder), another law enforcement

officer with the City of Oklahoma City Police Department, and they caused him to

be “falsely imprisoned for a period in excess of 10 hours.” Doc. no. 1, ¶ 8. His

camera was also confiscated. Id., ¶ 12. According to Logan, defendants made it

known to him, prior to his arrest, that they knew who he was. They were fully aware

that he recorded and published online reports regarding fraud, waste and abuse in

government agencies.

In his complaint, Logan alleges that he was arrested for trespassing on public

property in violation of Chapter 30, Section 33 of the Oklahoma City Municipal

Code. The charges against him were tried before the municipal court on January 10,

2022. Logan was acquitted of the charges.

Logan, appearing pro se, commenced an action, Case No. CIV-22-1083-F,

against the Oklahoma City Police Department and the individual defendants

pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. On

April 18, 2023, the court dismissed the action without prejudice due to service of

process issues. Logan obtained counsel and timely re-filed the action. In his

complaint in this action, Logan has named the City of Oklahoma City (City), rather

than the Oklahoma City Police Department, as a defendant. He alleges violations of

rights by the City and the individual defendants under the First Amendment rights

(freedom of speech and freedom of the press), Fourth Amendment (unlawful seizure

and detention), and Fourth Amendment (malicious prosecution). In addition to

actual damages, Logan also seeks punitive damages.

In response to Logan’s complaint, the individual defendants Hodges, Sheets

and Ponder have moved to dismiss the complaint based on qualified immunity. Doc.

no. 11. Logan has responded, opposing dismissal. Doc. no. 12. The individual

defendants have replied. Doc. no. 13. Upon due consideration of the parties’

submissions, the court makes its determination.

I.

The individual defendants seek dismissal of Logan’s claims under Rule

12(b)(6), Fed. R. Civ. P., arguing he has failed to state any claim upon which relief

can be granted. When reviewing a Rule 12(b)(6) motion, the court accepts “all well-

pleaded factual allegations in the complaint as true, and [] view[s] them in the light

most favorable to the nonmoving party.” Irizarry v. Yehia, 38 F.4th 1282, 1287 (10th

Cir. 2022) (quotations marks and citation omitted). “‘To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). A claim is plausible when the plaintiff pleads factual content

that allows the court to draw a reasonable inference that the defendant is liable for

the misconduct alleged. Iqbal, 556 U.S. at 678

A § 1983 individual defendant may assert an affirmative defense of qualified

immunity via a Rule 12(b)(6) motion. When a defendant invokes qualified

immunity, it creates a presumption that the defendant is immune from suit. Truman

v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021). To overcome that presumption,

the plaintiff must show “(1) the defendant’s actions violated a constitutional or

statutory right, and (2) that right was clearly established at the time of the defendant’s

complained-of conduct.” Id. “A clearly established right is one that is sufficiently

clear that every reasonable official would have understood that what he is doing

violates that right.” Irizarry, 38 F.4th at 1293 (quotation omitted). “The law is clearly

established when a Supreme Court or Tenth Circuit precedent is on point or the

alleged right is clearly established from case law in other circuits.” Id. (quotation

omitted).

“To determine whether the law is clearly established, the relevant precedent

is considered on point if it involves materially similar conduct or applies with

obvious clarity to the conduct at issue.” Irizarry, 38 F.4th at 1924 (emphasis in

original).

II.

Initially, defendants contend that they are entitled to qualified immunity on

Logan’s First Amendment claims because Logan cannot show a violation of clearly

established law. Defendants point out that Logan specifically relies upon the Tenth

Circuit’s decision in Irizarry v. Yehia, supra., to support his claims. While

defendants recognize that in Irizarry, the Tenth Circuit held that a First Amendment

right to film the police performing their duties in public was clearly established as

of 2019, defendants contend that a careful review of Irizarry and prior Tenth Circuit

cases demonstrates that a reasonable officer would not have understood in 2021 that

the actions taken by defendants with respect to Logan were prohibited. Specifically,

defendants point out that Irizarry was not decided until July 2022, almost a year after

Logan’s arrest, and in March 2021, shortly before Logan’s arrest, the Tenth Circuit

ruled in Frasier v. Evans, 992 F.3d 1003, 1020 (10th Cir. 2021), that the right to

record police officers performing their official duties was not clearly established as

of 2014. Defendants further point out that the Tenth Circuit, in the Frasier decision,

specifically stated it was not considering or opining on whether a First Amendment

right to record the police in performing their duties in public spaces existed.

But, even if the court were to conclude that Irizarry is controlling, defendants

assert that the right recognized by the Tenth Circuit is the right to record the police

performing their duties (specifically a traffic stop) in public spaces. They point out

that the right to film the police is subject to reasonable time, place, and manner

restrictions, and argue that nothing in Irizarry extends the scope of the protected

activity to the circumstances of this case.

Logan responds that his First Amendment right to film “matters of public

concern, and in particular [matters] occurring on public property, while explicitly

acknowledged in [Irizarry] as to filming police, has long been clearly established.”

Doc. no. 12, ECF p. 5. Logan specifically cites the Supreme Court’s decision in

Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940), wherein the Supreme Court

stated, “[t]he freedom of speech and of the press guaranteed by the Constitution

embraces at the least the liberty to discuss publicly and truthfully all matters of

public concern without previous restraint or fear of subsequent punishment.” Logan

asserts that he was present in the subject parking lot as a public service auditor. He

maintains that he “was in the process of filming the condition of police vehicles to

make a public report and record of how tax dollars are being spent by Oklahoma

City and how well they maintained city owned equipment.” Doc. no. 12, ECF p. 8.

Logan posits that the matters he was there to film were of public concern, and

defendants violated his First Amendment right to film matters of public concern by

arresting him.

Upon review, the court finds that Logan has failed to show that it was clearly

established that filming police vehicles in a parking lot was constitutionally

protected activity under the First Amendment. Like defendants, the court recognizes

that the Tenth Circuit determined that the right to film the police performing their

duties in public was clearly established in 2019. However, unlike defendants, the

court concludes that even though the Irizarry decision was issued after Logan’s

arrest, it is bound by the Tenth Circuit’s holding that as of 2019, the right to film the

police performing their duties in public and, in particular, the right to film the traffic

stop at issue in Irizarry, was clearly established. Nonetheless, even though the Tenth

Circuit determined that the right to film the police performing their duties in public

was clearly established at the time of the incident in this case, Logan does not allege

that he was filming police officers performing their duties in public, but rather he

was filming the condition of the police vehicles parked in the parking lot. And the

parking lot leased by the City was restricted to the parking of police vehicles only.1

The court concludes that Irizarry is not on point as it does not involve materially

similar conduct or apply with obvious clarity to the conduct at issue. Further, it does

not place the “constitutional question ‘beyond debate.’” Irizarry, 38 F.4th at 1294

(quoting Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019)).

According to Logan, First Amendment protection extends to filming the

condition of police vehicles because Supreme Court precedent establishes a right to

film “matters of public concern.” However, “the Supreme Court has repeatedly

admonished courts ‘not to define clearly established law at a high level of

generality.’” Corona v. Aguilar, 959 F.3d 1278, 1286 (10th Cir. 2020) (quoting

Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018)). “‘[T]he clearly established law

1 In his papers, Logan suggests the parking lot is public property, citing Oklahoma City Municipal

Code § 30-31. Subsection 5 of that section defines public property as “property which is dedicated

to the public use and over which the Federal, State, or municipal government, or any political

subdivision thereof, exercises control and dominion, including school property.” Logan has not

alleged any facts to establish the parking lot was dedicated to the public use. And according to

Logan’s allegations, the parking lot had a small sign indicating the parking lot was for police

vehicles only. Further, “traditional public fora are places that ‘by long tradition or by government

fiat have been devoted to assembly and debate,’ such as streets, sidewalks, and parks.” Fenn v.

City of Truth or Consequences, 983 F.3d 1143, 1148 (10th Cir. 2020) (quoting Perry Ed. Ass’n v.

Perry Local Ed. Ass’n, 460 U.S. 37, 45 (1983)).

must be “particularized” to the facts of the case.’” Id. (quoting White v. Pauly, 137

S.Ct. 548, 552 (2017)). The Supreme Court authority relied upon by Logan to

support clearly established law, including specifically, Thornhill v. Alabama, does

not demonstrate that the specific right at issue in this case—right to film the

condition of police vehicles in a parking lot leased by a municipality—was clearly

established.

The court acknowledges that the Supreme Court has recognized that “‘general

statements of the law are not inherently incapable of giving fair and clear warning

to officers’ that their conduct violates a constitutional right, and that such statements

provide the required notice when ‘the unlawfulness’ of their conduct is ‘apparent’

from pre-existing law.” A.N. by and through Ponder v. Syling, 928 F.3d 1191, 1198

(10th Cir. 2019) (quoting Pauly, 137 S.Ct. at 552). “In other words, general

statements of the law can clearly establish a right for qualified immunity purposes if

they apply with obvious clarity to the specific conduct in question.” Id. (quotation

and alteration omitted); see also, Irizarry, 38 F.4th at 1294. However, the court

concludes that the Supreme Court authority cited by Logan does not provide “fair

and clear warning” to the defendants that their conduct violated Logan’s First

Amendment rights. The unlawfulness of the defendants’ conduct, in the court’s

view, is not apparent from the preexisting law.2

In his papers, Logan also cites two Eleventh Circuit cases, Williamson v.

Mills, 65 F.3d 155 (11th Cir. 1995), and Blackston v. State of Ala., 30 F.3d 117, 120

(11th Cir. 1994), one Ninth Circuit case, Fordyce v. City of Seattle, 55 F.3d 436, 439

(9th Cir. 1995), and various district court cases, e.g., Iacobucci v. Boutler, Case No.

2 The court notes that Tenth Circuit in Irizarry did not rely “on general First Amendment principles

to show that clearly established law protects the filming of police.” Irizarry, 38 F.4th at 1295 n.

14. Further, the Tenth Circuit in Frasier v. Evans, 992 F.3d at 1021, specifically concluded that

“general First Amendment principles protecting the creation of speech and the gathering of news”

did not establish a First Amendment right to record police officers performing their official duties

in public spaces.

A. 94-10531-PBS, 1997 WL 258494 (D. Mass. Mar. 26, 1997), Thompson v. City

of Clio, 765 F.Supp. 1066, 1070-71 (M.D. Ala 1991), Lambert v. Polk County, 723

F. Supp. 128, 133 (S.D. Iowa 1989), and Turner v. Driver, Case No. 15-CV-824-A,

2016 WL 722154 (N.D. Tex. Feb. 19, 2016), to support that “[t]he First Amendment

protects the right to gather information about what public officials do on public

property, and specifically, a right to record matters of public interest.” Doc. no. 12,

ECF p. 6. But neither the circuit cases nor the district court cases cited constitute

clearly established law. See, Irizarry, 38 F.4th at 1294 (“[T]he weight of authority

from other circuits may clearly establish the law when at least six other circuits have

recognized the right at issue.”); Crane v. Utah Department of Corrections, 15 F.4th

1296, 1306 (10th Cir. 2021) (“District court cases lack the precedential weight

necessary to clearly establish the law for qualified immunity purposes.”).

III.

Defendants also contend that they are entitled to qualified immunity on

Logan’s Fourth Amendment claims for unlawful seizure and detention of his person

and unlawful seizure of his camera. Logan’s claims turn on whether defendants had

probable cause.

Initially, Logan suggests that defendants lacked probable cause to arrest and

detain him because he was found not guilty of trespassing on private property by the

City’s municipal court. He asserts that based on the Supreme Court’s decision in

Taylor v. Sturgell, 553 U.S. 880, 893-94 (2008), defendants are bound by the

municipal court’s ruling, even though they were not parties to the criminal action,

asserting they have substantive legal relationship to the City, who was a party to the

criminal action, and they were adequately represented by the City in that action.

However, the Taylor decision involved the preclusive effect of a federal-court

judgment. 553 U.S. at 891. Here, the issue is the preclusive effect of a municipal-

court determination. Oklahoma law applies to that determination. McFarland v.

Childers, 212 F.3d 1178, 1185 (10th Cir. 2000); Bell v. Dillard Department Stores,

Inc., 85 F.3d 1451, 1453 (10th Cir. 1996). Under that law, “once a court has decided

an issue of fact or law necessary to its judgment, the same parties or their privies

may not relitigate the issue in a suit brought upon a different claim.” McFarland,

212 F.3d at 1185; Bell, 85 F.3d at 1454 (emphasis added). However, none of the

moving defendants were parties to Logan’s municipal-court proceedings. And under

Tenth Circuit precedent, applying Oklahoma law, law enforcement officials sued in

their individual capacities are not considered to be in privity with the governmental

entity that was a party to the municipal-court proceeding. Id. Therefore, contrary

to Logan’s argument, defendants are not precluded under Oklahoma law from

relitigating the issue of probable cause with respect to Logan’s unlawful seizure and

detention claims.3

“Because probable cause is measured by an objective standard, an arrest is

lawful if the officer had probable cause to arrest for any offense, not just the offense

cited at the time of arrest or booking.” Mglej v. Gardner, 974 F.3d 1151, 1161 (10th

Cir. 2020). In their briefing, defendants recognize that Logan was arrested for

trespassing on public property, but they ask the court to take judicial notice that

Logan was charged with trespassing on private property. The court does take

judicial notice, pursuant to Fed. R. Evid. 201(b), of “Citation 18642093X-01”

indicating Logan’s offense as trespassing on private property. Doc. no. 11-1.

Further, in the context of a qualified immunity defense, the court must

“ascertain whether a defendant violated clearly established law by asking whether

there was arguable probable cause for the challenged conduct.” Stonecipher v.

Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (quotation marks and citation omitted).

3 Even if defendants were parties to the prior proceedings or in privity with the City, the doctrine

of issue preclusion would still not apply. Logan has not presented any order or judgment signed

by the municipal judge which addresses the issue of probable cause. See, Bell, 85 F.3d at 1454

(ruling not set forth in an order signed by the judge not given preclusive effect.

“Arguable probable cause is another way of saying that the officers’ conclusions rest

on an objectively reasonable, even if mistaken, belief that probable cause exists.”

Id. “Arguable probable cause exists where a reasonable police officer in the same

circumstances and with the same knowledge and possessing the same knowledge as

the officer in question could have reasonably believed that probable cause existed in

light of well-established law.” Cronick v. Pryer, 99 F.4th 1262, 1270 (10th Cir.

2024). “A defendant is entitled to qualified immunity if a reasonable officer could

have believed that probable cause existed to arrest or detain the plaintiff.”

Stonecipher, 759 F.3d at 1141 (quotation marks omitted).

The court concludes that probable cause and, certainly, arguable probable

cause existed to arrest and detain Logan for trespassing on private property. A

reasonable officer could and would have believed that probable cause existed to

arrest and detain Logan for trespassing on private property. As previously discussed,

Logan has failed to show he had a clearly established right to film the condition of

police vehicles parked in a parking lot leased by a municipality. In addition, the

City’s Municipal Code, Section 30-32, provides that “[n]o person shall trespass on

private property.” Subsection 3 of Section 30-31 defines private property as “any

property other than public property.” As previously noted, subsection 5 of Section

30-31 defines public property as “property which is dedicated to the public use and

over which the Federal, State, or municipal government, or any political subdivision

thereof, exercises control and dominion, including school property.” Logan does

not allege any facts to establish or support a reasonable inference that the parking lot

was dedicated to the public use. Instead, he alleges that a small sign indicated the

lot was for police vehicles only. Further, subsection 7 of Section 30-31 defined

trespass as “[e]ach and every actual entry upon the public or private property without

the express or the implied consent of the owner or other person responsible for the

property . . . [.]” Logan does not allege any facts to establish or support a reasonable

inference that he was on the parking lot with the consent, express or implied, of the

City. The complaint allegations reveal that Logan denied the request by Sheets to

leave the property. The court thus concludes that based on the factual allegations

in the complaint, there was probable cause and, certainly, arguable probable cause

for the arrest and detention of Logan pursuant to Section 30-32 for trespassing on

private property, and consequently, defendants are entitled to qualified immunity as

to Logan’s arrest and detention.

Further, the court concludes that individual defendants are entitled to qualified

immunity as to the unlawful seizure of Logan’s camera. Logan has not carried his

burden to show defendants violated clearly establish law when they seized the

camera during his arrest and detention. See, Gutierrez v. Cobos, 841 F.3d 895, 903

(10th Cir. 2016) (“Plaintiffs failed to carry their burden of showing that [the

defendants] violated clearly established federal law because their counsel did not

make any legal argument in the district court to rebut qualified immunity.”).

IV.

Logan has also alleged a malicious prosecution claim against the individual

defendants. Again, defendants have raised the qualified immunity defense with

respect to the malicious prosecution claim. To state a malicious prosecution claim

brought under the Fourth Amendment, a plaintiff must show “(1) the defendant

caused the plaintiff’s continued confinement or prosecution; (2) the original action

terminated in favor of the plaintiff; (3) no probable cause supported the original

arrest, continued confinement, or prosecution; (4) the defendant acted with malice;

and (5) the plaintiff sustained damages.” Stonecipher, 759 F.3d at 1146. Because,

as previously discussed, probable cause as well as arguable probable cause existed

for the original arrest, continued confinement, and prosecution of Logan for

trespassing on private property, the court concludes that defendants are entitled to

qualified immunity on the malicious prosecution claim.

V.

In his response, Logan requests the court to hold its ruling in abeyance to

allow him to “conduct discovery of the officers in relation to the issues asserted

herein” and to submit a supplemental brief to the court.

The protection of qualified immunity gives officials “a right, not merely to

avoid standing trial, but also to avoid the burdens of such pretrial matters as

discovery.” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10" Cir.

2001) (quotations marks and citations omitted). An initial determination must be

made that qualified immunity will not apply before discovery is permitted. □□□

Because the court concludes that defendants are entitled to qualified immunity on

all of Logan’s claims against the individual defendants, the court finds that Logan’s

request for discovery should be denied.

VI.

Based on the foregoing, the Motion to Dismiss of Defendants Hodges, Ponder,

and Sheets (doc. no. 11) is GRANTED. All claims against defendants Jason

Hodges, Daniel Ponder, and Autumn Sheets are dismissed with prejudice pursuant

to Rule 12(b)(6), Fed. R. Civ. P., based on the doctrine of qualified immunity.

Plaintiff's request to hold the court’s ruling in abeyance to allow him to

conduct discovery is DENIED.

DATED this 12" day of June, 2024.

Ab Diet

UNITED STATES DISTRICT JUDGE

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