# Rusanowsky v. The City of Dallas

> District Court, N.D. Texas · February 9, 2023

URL: https://www.frixlaw.com/law-library/cases/10452362

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** February 9, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10452362

## Opinion text

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-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10452362. Public record. Not legal advice.