Rusanowsky v. The City of Dallas

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHRISTOPHER RUSANOWSKY, §

§

Plaintiff, §

§

V. § No. 3:22-cv-1132-K

§

THE CITY OF DALLAS and SGT. §

ROGER A. RUDLOFF, individually and §

in his official capacity as a Dallas Police §

Department Police Officer, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff Christopher Rusanowsky has sued the City of Dallas and one of its

police officers (Sgt. Roger A. Rudloff) alleging that the defendants violated his

constitutional rights to record the police performing their duties in public, to not be

detained without reasonable suspicion, and to not be subjected to warrantless arrest

without probable cause. See Dkt. No. 1. Rudloff answered, asserting qualified

immunity. See Dkt. No. 14, ¶ 2.4.1.

The Court then entered an order setting out procedures to consider and resolve

Rudloff’s entitlement to qualified immunity. See Dkt. No. 23. Under this order,

Rusanowsky filed a reply under Federal Rule of Civil Procedure 7(a)(7), see Dkt. No.

26; Rudloff noticed his intent to move for summary judgment on qualified immunity,

see Dkt. No. 27; Rusanowsky moved for leave to conduct limited discovery, see Dkt.

No. 30; and Rudloff responded to the motion for leave, see Dkt. No. 31.

The Court then referred the motion for leave to conduct limited discovery to

the undersigned United States magistrate judge for disposition under 28 U.S.C. §

636(a). See Dkt. No. 32. And, consistent with the undersigned’s order, the parties met

and conferred regarding the proposed discovery requests and filed a joint status

report (the JSR). See Dkt. Nos. 35 & 36. By way of the JSR, Rusanowsky substantially

narrows his discovery requests, but Rudloff argues that they are still too broad to be

permitted under this circuit’s framework that allows for limited qualified immunity

discovery where certain requirements are met.

After carefully considering the pleadings, the parties’ briefing, and the JSR,

the Court, for the reasons and to the extent set out below, conditionally grants in part

and denies in part Rusanowsky’s motion for discovery as supplemented by the JSR,

on the condition that the parties meet and confer regarding specific discovery

requests consistent with this order and file a second joint status report by March 3,

2023.

Legal Standards

“Because qualified immunity is an immunity from suit, not merely a defense to

liability, ‘it is effectively lost if a case is erroneously permitted to go to trial.’” Ramirez

v. Guadarrama, 3 F.4th 129, 134 (5th Cir. 2021) (per curiam) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)). So “a defendant’s entitlement to qualified

immunity must be determined ‘at the earliest possible stage of the litigation.’”

Carswell v. Camp, 54 F.4th 307, 310 (5th Cir. 2022) (quoting Ramirez, 3 F.4th at 133);

see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e repeatedly have stressed

the importance of resolving immunity questions at the earliest possible stage in

litigation.”).

And the established procedure under which courts must address qualified

immunity, once asserted, therefore “prevents a defendant entitled to immunity from

being compelled to bear the costs of discovery and other pre-trial burdens.” Ramirez,

3 F.4th at 134 (citations omitted); see also Carswell, 54 F.4th at 310 (“[O]ne of the

most important benefits of the qualified immunity defense is ‘protection from pretrial

discovery, which is costly, time-consuming, and intrusive.’” (quoting Backe, 691 F.3d

at 648; citation omitted)).

Consequently, all discovery is typically stayed pending a ruling on a

defendant’s entitlement to qualified immunity. See Wicks v. Miss. State Employment

Servs., Inc., 41 F.3d 991, 994-95 (5th Cir. 1995); see also Zapata v. Melson, 750 F.3d

481 (5th Cir. 2014); Backe v. LeBlanc, 691 F.3d 645 (5th Cir. 2012); Lion Boulos v.

Wilson, 834 F.2d 504 (5th Cir. 1987); Webb v. Livingston, 618 F. App’x 201 (5th Cir.

2015) (per curiam).

But, where a defendant asserts qualified immunity – and the Court is not

currently considering a motion to dismiss the complaint (or or any portion of it) on

that basis, see Carswell, 54 F.4th at 311-12 – the Court may, under certain

circumstances, permit limited discovery that is narrowly tailored to uncover only

facts that the Court needs to rule on the defendant’s entitlement to qualified

immunity, see Wicks, 41 F.3d at 994.

That is, the United States Court of Appeals for the Fifth Circuit “has

established a careful procedure under which a district court may defer its qualified

immunity ruling if further factual development is necessary to ascertain the

availability of that defense.” Backe, 691 F.3d at 648.

Fundamental to this careful procedure is that, regardless how it is asserted,

once qualified immunity is asserted in good faith, “the burden is on the plaintiff to

demonstrate [its] inapplicability.” McClendon v. City of Columbia, 305 F.3d 314, 323

(5th Cir. 2002) (en banc); see also Joseph v. Bartlett, 981 F.3d 319, 329-30 (5th Cir.

2020) (“When a public official makes ‘a good-faith assertion of qualified immunity,’

that ‘alters the usual summary-judgment burden of proof, shifting it to the plaintiff

to show that the defense is not available.’” (quoting Orr v. Copeland, 844 F.3d 484,

490 (5th Cir. 2016))).

But this careful procedure is not triggered where the assertion of qualified

immunity turns “purely on a question of law” or where “the facts upon which” it turns

are “not disputed by the parties.” Wicks, 41 F.3d at 994 n.9 (citations omitted).

And, where appropriate,

Zapata articulates the steps a district court must take in an order

authorizing limited qualified immunity discovery – to avoid entering an

order that would deny the defendant the benefits of the defense. The

first step of this procedure requires the Court to find that the complaint

alleges facts sufficient to overcome qualified immunity. At the second

step, the Court must “identify any questions of fact it need[s] to resolve

before it would be able to determine whether the defendants [are]

entitled to qualified immunity.” And the third step requires an

examination of the specific discovery requests.

Roe v. Johnson Cnty., Tex., No. 3:18-cv-2497-B-BN, 2021 WL 321967, at *2 (N.D. Tex.

Feb. 1, 2021) (quoting Zapata, 750 F.3d at 485; citation omitted).

Put another way, at the first step, “a plaintiff seeking to overcome QI must

assert facts that, if true, would overcome that defense. It is not enough broadly to

seek information that might impeach the defendants’ version of events.” Hutcheson

v. Dall. Cnty., Tex., 994 F.3d 477, 481 (5th Cir. 2021) (citing Zapata, 750 F.3d at 481).

So, at step one, the Court must be convinced that the plaintiff’s pleadings, “taken as

true, overc[o]me the qualified immunity defense” because, before authorizing limited

discovery, “this holding must be made explicitly” by the district court. Zanitz v. Seal,

602 F. App’x 154, 163 (5th Cir. 2015) (per curiam) (citing Zapata, 750 F.3d at 485

n.2). Accordingly, the functional equivalent of carrying the step-one burden would be

for a plaintiff’s pleadings to demonstrate that a motion to dismiss based on qualified

immunity should be denied. See id. at 163 n.8.

But, even if the Court holds that sufficient facts have been alleged, a plaintiff

will still falter at step two by “fail[ing] to identify any question of fact that the court

must resolve before determining QI.” Hutcheson, 994 F.3d at 481 (citing Backe, 691

F.3d at 648); see also Zanitz, 602 F. App’x at 163 (“Even a ‘limited discovery’ order

does not satisfy the second step if ‘the district court [does] not identify any questions

of fact it need[s] to resolve before it would be able to determine whether the

defendants [are] entitled to immunity.’” (citing Zapata, 750 F.3d at 484-85)).

Only after a plaintiff passes through these two gates will the Court examine

the specific discovery requests proposed to determine if any are narrowly tailored.

See, e.g., Webb, 618 F. App’x at 209-11; see also Carswell, 54 F.4th at 311 (explaining

that the purpose of the careful procedure “is only to allow the district court to rule on

the defendant’s assertion of QI; its purpose is not to provide a backdoor for plaintiffs

to circumvent the defendant’s immunity from suit” and that “where the QI-asserting

official determines that any pre-ruling discovery sought or ordered in the district

court crosses the line from permissible Lion Boulous discovery to impermissible

vitiation of the official’s immunity from suit, the collateral order doctrine authorizes

an immediate appeal” (citations omitted)). And, then – even where “the defendant’s

entitlement to immunity turns at least partially on a factual question” and the Court

“is unable to rule on the immunity defense without clarification of these facts” – any

limited discovery order must be “narrowly tailored to uncover only the facts necessary

to rule on the immunity defense.” Webb, 618 F. App’x at 210 (cleaned up).1

Analysis

Rusanowsky, a photojournalist, brings claims under 42 U.S.C. § 1983 alleging

that during a protest in downtown Dallas on May 30, 2020 – shortly after the death

of George Floyd in Minneapolis – Rudloff violated his rights under the First, Fourth,

and Fourteenth Amendments by arresting him without probable cause and while

Rusanowsky photographed Rudloff’s use of force against two protesters.

As further set out in the Rule 7(a)(7) reply, Rusanowsky alleges that on May

1 Cf. Webb, 618 F. App’x at 210 (Contrary to the general rule, “‘immediate

appeal is available for [qualified immunity] discovery orders which are either

avoidable or overly broad.’ [But a] district court’s discovery order is neither

avoidable nor overly broad, and therefore not immediately appealable, when: (1) the

defendant’s entitlement to immunity turns at least partially on a factual question;

(2) the district court is unable to rule on the immunity defense without clarification

of these facts; and (3) the discovery order is narrowly tailored to uncover only the

facts necessary to rule on the immunity defense.” (quoting Gaines v. Davis, 928 F.2d

705, 707 (5th Cir. 1991), then citing Lion Boulos, 834 F.2d at 507-08)).

30, he

was working as a photojournalist for ZUMA Press, Inc., assigned to

photograph the protests that arose in Dallas in response to Floyd’s

murder. Rusanowsky parked his car in downtown Dallas and joined two

other journalists to begin documenting the historic events. He carried

his professional photography gear, and wore a ZUMA Press baseball cap

as well as laminated press credentials from both ZUMA and the

National Press Photographers Association. Along with his fellow

journalists, Rusanowsky made his way to the Eye Sculpture at 1601

Main Street, where they found police engaging with a large group of

protesters.

Rusanowsky and his peers began to follow the group to Reunion

Tower, moving toward Interstate 35 on Reunion Boulevard. As

Rusanowsky continued his work, a group of protesters began to run up

the freeway overpass onto Interstate 35 East. Rusanowsky clearly and

visibly did not follow the protestors onto the freeway, but ever-conscious

of his responsibility as a journalist to document these historic events,

Rusanowsky continued photographing the protesters’ ingress. Shortly

thereafter, Rusanowsky heard gunfire, and the crowd of protesters

began to panic, running toward the freeway exit. Rusanowsky flattened

himself against a pillar to stay clear of the crowd. From this vantage

point, he saw DPD officers running across the freeway holding paintball

guns.

When he felt it was safe to do so, Rusanowsky moved from this

pillar to a grassy lot nearby the freeway entrance, where he witnessed a

number of individuals carrying someone he believed to be an injured

protestor. Rusanowsky moved within roughly ten feet of these

individuals to photograph them from a safe distance when [Dallas Police

Department (DPD)] officers, including Defendant Rudloff, made contact

with them. It was then that Rusanowsky saw Defendant Rudloff shoot

Jantzen Verastique point-blank in the chest with a pepper ball.

Rusanowsky captured Defendant’s use of force in a photograph that

would later run on the front page of the Dallas Morning News ….

Rusanowsky photographed other protesters in their encounters

with DPD officers, and continued to capture these interactions from his

vantage point on the grassy shoulder. As Verastique lay on the ground,

stunned by the impact of the pepper ball, another protester, Parker

Nevills, was likewise forcefully arrested by DPD officers. A photograph

taken by Rusanowsky shows Defendant Rudloff seizing the unarmed

Nevills by the hair. Body camera footage later released by DPD shows

Defendant Rudloff kneeing Nevills in the stomach after he had been

restrained by officers.

With Nevills and Verastique both in DPD custody, Defendant

Rudloff then shifted his focus to the journalist visibly documenting his

and other DPD officers’ use of force against unarmed protesters –

Rusanowsky. Defendant Rudloff turned to Rusanowsky, pointed, and

shouted, “You’re next!”

Rusanowsky was sure he had committed no wrongdoing, and

responded to Defendant Rudloff by displaying his laminated press

credentials and informing Rudloff that he was a member of the press.

“Yeah, yeah,” Defendant Rudloff responded in a mocking tone while

advancing on Rusanowsky with his hand on his weapon. “Press, press.

You’re going to jail,” he said. Having closed the physical distance

between him and Rusanowsky, Defendant Rudloff then physically

restrained Rusanowsky, forced him onto the ground, and aided another

officer in placing restraints on Rusonowsky. The assisting officer

informed Rusanowsky that his cameras and photography equipment,

which he uses to earn his living, would be destroyed if the officers felt

that the camera and photographic equipment somehow posed a threat.

At this time, the cameras and photography equipment contained the

photographic evidence of Defendant Rudloff’s use of force against

Verastique and Nevills.

Neither Defendant Rudloff nor the other officer on scene

described the charges for which Rusanowsky was being arrested,

ignoring Rusanowsky’s multiple requests for an explanation of his

arrest. Along with several other protestors, Rusanowsky was removed

by officers from the grassy shoulder to a holding area under an overpass,

and put into a crowded transport van where he would remain for several

hours.

Throughout Rusanowsky’s detention, Defendant Rudloff and the

DPD officers Rusanowsky spoke with provided no answer to the

question of which offenses Rusanowsky was being arrested and charged,

despite Rusanowsky’s repeated requests. The officers detaining

Rusanowsky under the overpass admitted as much, even asking

Rusanowsky himself for that information. After spending hours in the

back of the crowded transport van, Rusanowsky was ultimately moved

to the Lew Sterrett Justice Center, where he was jailed for

approximately twenty-six hours.

At his arraignment, Rusanowsky was finally informed that he

was being charged with obstruction of a roadway. But multiple

photographs of DPD interactions with protesters on the evening of May

30 all show that Rusanowsky was well clear of any roadway both before

and at the time of his arrest.

Dkt. No. 26, ¶¶ 3-11 (citations omitted).

Asserting his entitlement to qualified immunity, Rudloff answers that “there

was probable cause to believe that [Rusanowsky] had committed a criminal offense,

justifying seizure”; that is, “based on all information reasonably available to [him],

[Rusanowsky] had been on a nearby highway obstructing traffic.” Dkt. No. 14 at 13

(¶ 2.4.2) (further asserting that he “did not intentionally seek out [Rusanowsky] due

to his status as a member of the press, threaten him, or otherwise attempt to impede

[Rusanowsky’s] First or Fourth Amendment rights”); see also id. at 14 (¶ 20)

(“admit[ting] that protesters marched onto Interstate 35, and, upon information and

belief, [Rusanowsky] photographed police-citizen encounters in the grassy roadside

shoulder adjacent to a highway off-ramp, an area that the City of Dallas had not

approved for marches, demonstrations, or protests”); id. at 10 (¶ 88) (“admit[ting] …

that on May 20, 2020, [he] was the a [sic] supervising officer on the scene and made

the general order that all individuals who had been seen on the highway were to be

arrested”); id. at 11 (¶ 98) (“admit[ting] that based on the facts and circumstances

known to him at the time and his personal observations, and believing that he had

probable cause that a criminal offense had occurred, [he] ordered the arrest without

a warrant of all persons on the scene who were unlawfully on the highway”); TEX.

PENAL CODE § 42.03 (obstruction of a highway or other passageway).

Against this backdrop, the Court first finds that, taken as true, Rusanowsky’s

pleadings, which here include the reply to the answer ordered by the Court, see Dkt.

No. 23, ¶ 3; Dkt. No. 26; FED. R. CIV. P. 7(a)(7),2 overcome the qualified immunity

defense by plausibly alleging that Rudloff acted objectively unreasonably to seize

Rusanowsky in violation of the Constitution.

The Court further finds that the pleadings neither reflect that Rudloff’s

assertion of qualified immunity turns purely on a question of law nor show that the

parties agree on the facts on which it turns. And the pleadings identify a question of

fact that must be resolved before the Court may rule on Rudloff’s assertion of qualified

immunity – whether Rusanowsky’s warrantless arrest was, at least arguably,

supported by probable cause.

That is, if the Court accepts Rusanowsky’s well-pled version of events, he never

obstructed the highway, yet he was arrested for doing just that, while Rudloff asserts

that he is entitled to qualified immunity on the Section 1983 claims because there

was probable cause to arrest Rusanowsky for obstructing the highway. See, e.g., Dkt.

No. 26 at 11 (¶ 31) (“Rusanowsky denies that he committed a criminal offense

justifying seizure. At no time did Rusanowsky obstruct traffic on any roadway on May

2 See also Fisher v. Dall. Cnty., 299 F.R.D. 527, 532 (N.D. Tex. 2014) (“When

a plaintiff sues a public official under § 1983, the district court must insist on

heightened pleading by the plaintiff. Although a plaintiff may comply with ordinary

pleading standards in his initial complaint, and need not anticipate a qualified

immunity defense, when a public official pleads the affirmative defense of qualified

immunity in his answer, the district court may, on the official’s motion or on its

own, require the plaintiff to reply to that defense in detail pursuant to Rule 7(a).

The reply must be tailored to the assertion of qualified immunity and fairly engage

its allegations. Heightened pleading requires allegations of fact focusing specifically

on the conduct of the individual who caused the plaintiffs’ injury. The case should

not be allowed to proceed unless plaintiffs can assert specific facts that, if true,

would overcome the defense.” (cleaned up)).

30, 2020. Numerous photos taken of Rusanowsky show that at the relevant times, he

was in positions clear of the roadways and away from the officers on the scene.

Furthermore, at no time did Defendant or any other officer request that Rusanowsky

move from his location on the grassy shoulder.” (citations omitted)).

“Probable cause is a ‘practical, nontechnical conception that deals with the

factual and practical considerations of everyday life on which reasonable and prudent

men, not legal technicians, act.’” Terwilliger v. Reyna, 4 F.4th 270, 282 (5th Cir. 2021)

(quoting Maryland v. Pringle, 540 U.S. 366, 370 (2003); internal quotation marks

omitted). “[C]ourts must look to the ‘totality of the circumstances’ and decide ‘whether

these historical facts, viewed from the standpoint of an objectively reasonable police

officer’ demonstrate ‘a probability or substantial chance of criminal activity.’” Id.

(quoting D.C. v. Wesby, 138 S. Ct. 577, 586, 588 (2018)).

And, “while ‘probable cause is not a high bar,’” id. (quoting Wesby, 138 S. Ct.

at 586), “[t]he facts must be known to the officer at the time of the arrest” and “must

be particularized to the arrestee,” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th

Cir. 2009) (citations omitted); see also Pringle, 540 U.S. at 371 (“‘The substance of all

the definitions of probable cause is a reasonable ground for belief of guilt,’ and that

the belief of guilt must be particularized with respect to the person to be searched or

seized.” (cleaned up; citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979))); Ybarra, 444

U.S. at 91 (“[A] person’s mere propinquity to others independently suspected of

criminal activity does not, without more, give rise to probable cause.” (citation

omitted)).

In the specific context of qualified immunity, “‘[t]here must not even “arguably”

be probable cause for the ... arrest for immunity to be lost.’ In other words, ‘if a

reasonable officer could have concluded that there was probable cause upon the facts

then available to him, qualified immunity will apply.’” McCoy v. Hous. Auth. of New

Orleans, 714 F. App’x 322, 326 (5th Cir. 2017) (per curiam) (quoting Brown v. Lyford,

243 F.3d 185, 190 (5th Cir. 2001)). Cf. Hart v. O’Brien, 127 F.3d 424, 444 (5th Cir.

1997) (“The objective standard of Harlow[ v. Fitzgerald, 457 U.S. 800 (1982),] applies

to claims of unlawful search and arrest such as this, in which the plaintiff alleges

that the officer who requested the warrant intentionally or recklessly sought an

affidavit without probable cause. ‘Only where the warrant application is so lacking

in indicia of probable cause as to render official belief in its existence unreasonable,

will the shield of immunity be lost.’ The crucial issue ‘is whether a reasonably well-

trained officer in [the defendant’s] position would have known that the affidavit failed

to establish probable cause and that he should not have applied for the warrant.’ The

officer ‘will not be immune if, on an objective basis, it is obvious that no reasonably

competent officer would have concluded that a warrant should issue; but if officers of

reasonable competence could disagree on this issue, immunity should be recognized.’

In other words, there must not even ‘arguably’ be probable cause for the search and

arrest for immunity to be lost.” (citations omitted)), abrogated on other grounds by

Kalina v. Fletcher, 522 U.S. 118 (1997).

In Brown, for example, the Fifth Circuit agreed with the district court that the

defendants were entitled to qualified immunity, refusing to conclude that “the

testimony of several eyewitnesses, corroborated in some aspects by physical evidence,

did not even arguably create probable cause,” because

[q]ualified immunity “gives ample room for mistaken judgements,” by

protecting “all but the plainly incompetent or those who knowingly

violate the law.” That is the balance that courts have struck between

compensating wronged individuals for deprivation of constitutional

rights and frustrating officials in discharging their duties for fear of

personal liability.

Brown, 243 F.3d at 190 (footnotes omitted); accord Joseph, 981 F.3d at 328.

So Rudloff may still be entitled to qualified immunity even if the Court were

to find, looking back at the events of May 30, 2020, that there was not probable cause

for Rusanowsky’s arrest, if Rudloff’s conduct did “not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 577

U.S. 7, 11 (2015) (per curiam)); see, e.g., Anderson v. Creighton, 483 U.S. 635, 641

(1987) (“[I]t is inevitable that law enforcement officials will in some cases reasonably

but mistakenly conclude that probable cause is present, and we have indicated that

in such cases those officials – like other officials who act in ways they reasonably

believe to be lawful – should not be held personally liable.” (citation omitted)).

But, as the excerpts from the pleadings reflect, Rudloff has, so far, offered

mainly conclusions to support his assertion that there was probable cause (and

therefore that he is entitled to qualified immunity). And, because Rusanowsky’s well-

pled allegations reflect the opposite, this question of fact – that there arguably was

probable cause – that the Court must resolve before determining qualified immunity

allows limited discovery as to the facts then available to Rudloff, to determine if a

reasonable officer could have concluded that, at that time, there was probable cause

based on those facts.

And those facts – what Rudloff relied on to make the probable cause

determination – are “peculiarly within [his] knowledge.” Schultea v. Wood, 47 F.3d

1427, 1432 (5th Cir. 1995) (en banc) (explaining that, in Anderson v. Creighton, the

United States Supreme Court “explained that objective legal reasonableness would

be empty of meaning if the level of generality with which the law was described were

not particularized to the question of whether it was clear ‘that a reasonable official

would understand that what he is doing violates that right.’ Justice Scalia stressed

that the inquiry was fact-specific. The Court ‘emphasized that qualified immunity

questions should be resolved at the earliest possible stage of a litigation,’ but

acknowledged that discovery may be necessary. He conceded that in some cases, such

as in search cases, probable cause and exigent circumstances will often turn on facts

peculiarly within the knowledge of the defendants. And if there are conflicts in the

allegations regarding the actions taken by the police officers, discovery may be

necessary. Even then, the discovery ‘should be tailored specifically to the question of

[defendants’] qualified immunity.’” (quoting Anderson, 483 U.S. at 640, 646 n.6)).3

3 Cf. Hinojosa v. Livingston, 807 F.3d 657, 671-72 (5th Cir. 2015) (observing

that, in the context of claims of deliberate indifference, the defendants’ “knowledge

is [ ] highly relevant to qualified immunity, because it bears heavily on the

reasonableness of their actions” but that “[t]he reasonableness analysis must be

different from the deliberate-indifference analysis, because ‘[o]therwise, a successful

claim of qualified immunity in this context would require defendants to

demonstrate that they prevail on the merits, thus rendering qualified immunity an

empty doctrine’”; thus, “‘[a]dditional facts ... are particularly important when

The Court finds this fact issue must be resolved before the Court may rule on

Rudloff’s assertion of qualified immunity even taking account of Rudloff’s argument

that “[n]othing in Plaintiff’s Complaint disputes that he had been on the highway.”

Dkt. No. 36 at 10. Rusanowsky’s Rule 7(a)(7) reply alleges that he “clearly and visibly

did not follow the protestors onto the freeway, but ever-conscious of his responsibility

as a journalist to document these historic events, Rusanowsky continued

photographing the protesters’ ingress”; that thereafter “Rusanowsky flattened

himself against a pillar to stay clear of the crowd”; that, “[w]hen he felt it was safe to

do so, Rusanowsky moved from this pillar to a grassy lot nearby the freeway entrance,

where he witnessed a number of individuals carrying someone he believed to be an

injured protestor,” and then “moved within roughly ten feet of these individuals to

photograph them from a safe distance.” Dkt. No. 26, ¶¶ 3-6. Assuming (as Rudloff

seems to) that any entrance onto the freeway might support a belief in probable cause

to arrest Rusanowsky for obstruction of a highway, the fact issue of whether

Rusanowsky’s warrantless arrest was, at least arguably, supported by probable cause

remains.

Rusanowsky appears to also raise a second question of fact that implicates the

exception to the requirement that, “[t]o prevail on a First Amendment retaliation

claim, [ ] plaintiffs must plead and prove the absence of probable cause.” Roy v. City

of Monroe, 950 F.3d 245, 255 (5th Cir. 2020) (citing Nieves v. Bartlett, 139 S. Ct. 1715,

evaluating the [reasonableness] prong of the qualified immunity test’” (quoting

Webb, 618 F. App’x at 210)).

1725 (2019)). In the Rule 7(a)(7) reply, he alleges that he “is not aware of any other

journalist from the grassy shoulder who was also arrested, despite those other

journalists working in proximity to [him] while he was on the grassy shoulder and

photographing the protest.” Dkt. No. 26, ¶ 25. But Rusanowsky’s alleged scenario –

the nonarrest of others who, like him, were exercising rights protected by the First

Amendment – does not seem to fit (at least for the limited purpose of this order) into

the “‘narrow’ exception to this rule where the ‘plaintiff presents objective evidence

that he was arrested [and that] otherwise similarly situated individuals not engaged

in the same sort of protected speech had not been.’” Roy, 950 F.3d at 255 n.4 (quoting

Nieves, 139 S. Ct. at 1727).

So the Court turns to the narrowed discovery requests currently proposed. See

Dkt. No. 36 at 4-5. At least some of Rudloff’s body camera footage from May 30 could

be relevant based on the scope set out above. And, in the event there was coordination

between Rudloff and other officers on May 30, the facts known by other officers in

support of probable cause could also be relevant. See United States v. Ibarra, 493 F.3d

526, 530 (5th Cir. 2007) (“Under the collective knowledge doctrine, it is not necessary

for the arresting officer to know all of the facts amounting to probable cause, as long

as there is some degree of communication between the arresting officer and an officer

who has knowledge of all the necessary facts.” (citing United States v. Kye Soo Lee,

962 F.2d 430, 435 (5th Cir. 1992))).

But all requests as currently drafted are too broad to uncover only facts that

the district court needs to rule on Rudloff’s entitlement to qualified immunity. So,

because the record reflects that the parties have worked cooperatively before, the

Court orders them to again meet and confer after considering this order, to discuss

requests that fit into the narrow parameters outlined above, and file a second joint

status report by March 3, 2023.

Conclusion

The Court CONDITIONALLY GRANTS IN PART AND DENIES IN PART

Plaintiff Christopher Rusanowsky’s motion for discovery as supplemented [Dkt. Nos.

30 & 35]. Consistent with this order as to the scope of limited discovery that is

narrowly tailored to uncover only facts that the district court needs to rule on

Defendant Roger A. Rudloff’s entitlement to qualified immunity, the parties are

ORDERED to meet and confer regarding specific discovery requests and file a second

joint status report by March 3, 2023.

SO ORDERED.

DATED: February 9, 2023

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

-17-