Miller v. Salvaggio

Case: 23-50894 Document: 76-1 Page: 1 Date Filed: 12/16/2024

United States Court of Appeals

United States Court of Appeals

for the Fifth Circuit Fifth Circuit

FILED

____________

December 16, 2024

No. 23-50894 Lyle W. Cayce

____________ Clerk

Jack Miller; Annabel Campbell; Matthew Pesina; Lisa

Pesina; M. P., a Minor; J. G., a Minor,

Plaintiffs—Appellants,

versus

Chief Joseph Salvaggio, in his individual and official capacities;

Officer Jim Wells, Detective, in his individual and official capacities;

David Anderson, Lieutenant, in his individual capacity; Ruben

Saucedo, Former Leon Valley Captain, in his individual capacity;

Johnny Vasquez, Officer, in his individual capacity; Terry Brooks,

Detective, in his individual capacity; Alex King, Detective, in his individual

capacity; Rudolfo Munoz, Detective, in his individual capacity; Erika

Rivera, Officer, in her individual capacity,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:20-CV-642

______________________________

Before Smith, Clement, and Higginson, Circuit Judges.

Edith Brown Clement, Circuit Judge:*

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 23-50894

This appeal arises from Plaintiff-Appellant Jack Miller’s visit to City

Hall in Leon Valley, Texas. In May 2018, Miller, a Second Amendment

activist, entered City Hall—a multi-use municipal building that contains a

court—with a device that resembled a Glock handgun, openly visible and

holstered to his hip. Later that same day, after police officers executed a

search and arrest warrant at Miller’s residence, Miller was arrested for

bringing a prohibited weapon to a government court in violation of Texas

Penal Code Section 46.03, but the charges were later dropped for lack of

evidence. Miller, Annabel Campbell (Miller’s spouse), M.P. and J.G.

(Miller’s grandchildren), Matthew Pesina (Miller’s son), and Lisa Pesina

(Miller’s daughter-in-law) (collectively, Plaintiffs) brought 42 U.S.C. § 1983

claims against various officers, alleging that the officers violated their

(1) Fourth Amendment rights to be free from search or seizure absent

probable cause and (2) First Amendment rights to protest without retaliatory

arrest and prosecution. The district court granted summary judgment for the

officers on qualified-immunity grounds.

Plaintiffs raise two issues on appeal: (1) whether the district court

erred by granting the officers qualified immunity as to Plaintiffs’ Fourth

Amendment claims and (2) whether the district court erred by granting the

officers qualified immunity as to Plaintiffs’ First Amendment claims.

Because a reasonable officer could have believed that Miller had brought a

real firearm into a government court, the warrant application was reasonable

and the officers were entitled to qualified immunity. Accordingly, we

AFFIRM.

I.

A.

Leon Valley City Hall—a multi-use municipal building that contains

a court—had signs at the building’s entrance informing guests that they

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could not bring weapons into the building and that carrying a firearm into the

building would violate various sections of the Texas Penal Code.1

On May 31, 2018, Miller visited City Hall to file a complaint regarding

what he perceived as the unlawful enforcement by Leon Valley of sections of

the Texas Penal Code that prohibited the carrying of weapons in the building,

including by licensed handgun holders. Tex. Penal Code § 46.01(3) (West

2017). Attached to his hip and holstered was an item that resembled a Glock

firearm. Miller later testified that the item was a blue rubber gun that he

spraypainted black so that the device would resemble a real Glock.

Upon reaching the front of the metal-detector line, Miller asked

Officer Erika Rivera—who was operating the metal-detector wand—

“what’s in [the building].” Officer Rivera informed him that the building

housed City Hall, the police department, the city manager’s office, animal

control, and (after further inquiry) a court. Officer Rivera saw Miller openly

carrying what she recognized as a Glock firearm. When Miller asked to speak

with someone to file a complaint about the Texas Penal Code signs, Officer

Rivera signaled Officer Jim Wells to come over.

Miller informed Officer Wells that he intended to file a complaint

about the signs. Officer Wells responded that he would not take Miller’s

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1

One sign, located on either side of the building entryway, simply stated “[n]o

weapons.” Another, affixed to the window at the building’s entrance, again stated “no

weapons” but also advised that, “pursuant to Texas Penal Code Section 46.03,” a person

commits a third-degree felony by “possess[ing] a firearm or prohibited weapon on the

premises of any government court or offices utilized by the court.” The Texas Penal Code

defines “firearm” as “any device designed, made, or adapted to expel a projectile through

a barrel by using the energy generated by an explosion or burning substance.” Tex. Penal

Code § 46.01(3) (West 2017). Other signs affixed to the entryway window apprised the

public that carrying a handgun on the premises would violate either Section 30.06 or

Section 30.07 of the Texas Penal Code, which define trespass by a licensed holder carrying

a concealed or open-carry gun, respectively.

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complaint and ordered Miller to step outside because “no firearms were

allowed” in the building. Officer Wells refused to take down the signs,

instructed Miller to contact the Texas Office of the Attorney General (OAG),

then walked away toward the parking lot.

After Wells departed, Miller noticed Lieutenant David Anderson

standing in the door to the building and told Lieutenant Anderson that he

came to City Hall to discuss the signs. Lieutenant Anderson responded that

Leon Valley was compliant with the law, advised Miller that he should

contact the OAG to lodge a complaint, and then left. Miller subsequently

returned to his car in the nearby parking lot and deposited his device in the

car’s glove compartment. Meanwhile, Lieutenant Anderson and Officer

Rivera convened with Sergeant Eddie Gonzales (an officer who saw Miller in

City Hall) and Officer Michael Tacquard (another officer who saw Miller

with the gun holstered on his hip) to discuss the events that transpired with

Miller.

Miller later returned to City Hall to file his complaint. After Miller

entered the building (this time without the real or fake gun), Officer Rivera

wanded him for the first time and then he proceeded to the receptionist’s

desk to fill out a complaint form. While at the receptionist’s desk, Miller told

his friend that if the police searched his car, they would discover the gun was

rubber. The footage does not show whether any officer could have overheard

Miller’s statement. Lieutenant Anderson joined Miller at the front counter

and after a brief discussion, retrieved Miller’s completed form. When Miller

insisted that Lieutenant Anderson return the form, he did, and Miller

subsequently handed the form to Captain Ruben Saucedo after a brief

conversation. Miller then left City Hall.

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During both of Miller’s visits to City Hall, his friend and fellow

activist filmed the events and Miller also recorded the events on a body-worn

device.

B.

Later that same day, Lieutenant Anderson informed the Leon Valley

Police Chief Joseph Salvaggio about Miller’s visit to City Hall. Chief

Salvaggio held a meeting with Captain Saucedo, Lieutenant Anderson,

Officer Wells, and Sergeant Gonzales and directed his officers to charge

Miller with the felony offense of having a firearm in a prohibited place (an

office utilized by a court) under Section 46.03 of the Texas Penal Code. Chief

Salvaggio also directed his officers to prepare affidavits in support of search

and arrest warrants.

At around 5:00 p.m. that same day, Sergeant Gonzales assisted

Detective Alex King in writing the probable-cause affidavits for the search

and arrest warrants. Both affidavits stated, inter alia, that the officers stopped

Miller in the City Hall lobby with a “clearly visible” and holstered firearm.

Lieutenant Anderson, Captain Saucedo, and Chief Salvaggio approved the

affidavits, and then Sergeant Gonzales met with a magistrate judge, who

approved the warrants around 10:30 p.m. that evening.

Police officers waited approximately one-and-a-half hours until Miller

returned home and then executed the arrest and search warrants shortly after

midnight on June 1, 2018. During the search, the officers handcuffed Miller,

and Chief Salvaggio allegedly laughed at him and thanked him for visiting

Leon Valley. The officers then arrested Miller and took him into custody, and

he was released the following day.

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C.

On August 20, 2018, a Bexar County grand jury indicted Miller for

violating Section 46.03 of the Texas Penal Code by intentionally possessing

a firearm on the premises of a governmental court and office utilized by the

court. The prosecution ultimately terminated in Miller’s favor for lack of

evidence.

On May 28, 2020, Plaintiffs filed a lawsuit in the United States

District Court for the Western District of Texas, San Antonio Division,

against various police officers, police departments, and a magistrate judge. In

the third amended complaint, Plaintiffs brought claims against Defendants2

and other officers who are no longer parties to the case, under 42 U.S.C.

§ 1983, alleging that the officers violated Plaintiffs’ (1) Fourth Amendment

rights by seeking warrants absent probable cause and (2) First Amendment

rights by retaliating against Miller for his protest activity. Both sides moved

for summary judgment. Defendants, in support of their motion, cited

qualified immunity.

On August 23, 2023, the district court denied Plaintiffs’ motion for

summary judgment and granted Defendants’ motion on the basis of qualified

immunity, thereby dismissing the suit. The district court held that

Defendants were entitled to qualified immunity “[b]ecause Plaintiffs fail[ed]

to create a genuine dispute of material fact as to the Defendant officers’ good

faith showing of probable cause” and there was “insufficient summary

judgment evidence to support Plaintiffs’ suggestion, under the first prong of

the qualified immunity analysis, that Defendant officers violated a statutory

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2

Defendants are defined herein as Chief Salvaggio, Officer Wells, Lieutenant

Anderson, Captain Saucedo, Officer Johnny Vasquez, Detective Terry Brooks, Detective

King, Detective Rudolfo Munoz, and Officer Rivera.

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or constitutional right.” Plaintiffs filed a motion to alter or amend the district

court’s judgment, which the district court denied on November 13, 2023.

Plaintiffs then timely appealed.

II.

This court reviews de novo a district court’s grant of summary

judgment. Batyukova v. Doege, 994 F.3d 717, 724 (5th Cir. 2021). We view all

facts in the light most favorable to the nonmoving party and draw all

reasonable inferences in that party’s favor. Joseph ex rel. Joseph v. Bartlett, 981

F.3d 319, 325 (5th Cir. 2020). Nonetheless, “[a] court of appeals need not

rely on the plaintiff’s description of the facts where the record discredits that

description but should instead consider ‘the facts in the light depicted by the

videotape.’” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)

(quoting Scott v. Harris, 550 U.S. 372, 381 (2007)).

When the movant asserts a qualified-immunity defense, the “defense

alters the usual summary judgment burden of proof.” Brown v. Callahan, 623

F.3d 249, 253 (5th Cir. 2010). “Once an official pleads the defense, the

burden then shifts to the plaintiff, who must rebut the defense by establishing

a genuine fact issue as to whether the official’s allegedly wrongful conduct

violated clearly established law.” Id. Nevertheless, although the burden

shifts to the plaintiff, “all inferences are drawn in his favor.” Id.

III.

Plaintiffs raise two issues on appeal: (1) whether the district court

erred by granting the officers qualified immunity as to Plaintiffs’ Fourth

Amendment claims and (2) whether the district court erred by granting the

officers qualified immunity as to Plaintiffs’ First Amendment claims. We

address Plaintiffs’ argument as to the Fourth Amendment claims first.

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A.

“Qualified immunity protects ‘government officials performing

discretionary functions . . . from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Vincent v. City of Sulphur,

805 F.3d 543, 547 (5th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). “This demands a two-step analysis: whether a constitutional

right was violated and whether the allegedly violated right was ‘clearly

established.’” Id. (quoting McClendon v. City of Columbia, 305 F.3d 314, 322–

23 (5th Cir. 2002) (en banc) (per curiam)). The doctrine encompasses “all

but the plainly incompetent or those who knowingly violate the law.” Morgan

v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (internal quotations

omitted) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To overcome

qualified immunity, the plaintiff must show that the law “so clearly and

unambiguously prohibited [the violative] conduct that ‘every reasonable

official would understand that what he is doing violates the law.’” Id.

(cleaned up) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 739–41 (2011)); accord

Bonilla v. Orange County, 982 F.3d 298 (5th Cir. 2020). To make such a

showing, the plaintiff need not locate a case “directly on point” but must

demonstrate that “existing precedent . . . placed the statutory or

constitutional question beyond debate.” White v. Pauly, 580 U.S. 73, 77–79

(2017) (internal quotations omitted) (quoting Mullenix v. Luna, 577 U.S. 7,

12 (2015)). Whether an officer is entitled to qualified immunity turns on the

“objective legal reasonableness” of the action, Harlow, 457 U.S. at 819, not

subjective motivations.

When a plaintiff alleges that an officer made misstatements in a

warrant application, the officer is entitled to qualified immunity unless the

plaintiff can show that the affiant’s misstatements or omissions were material

and “of ‘such character that no reasonable official would have submitted

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[them] to a magistrate.’” Morin v. Caire, 77 F.3d 116, 122 (5th Cir. 1996)

(quoting Hale v. Fish, 899 F.2d 390, 402 (5th Cir. 1990)); accord Briggs, 475

U.S. at 344–45; United States v. Leon, 468 U.S. 897, 923 (1984). A warrant

application objectively violates the Fourth Amendment if it contains (1) “a

false statement [made] knowingly and intentionally, or with reckless

disregard for the truth,” and (2) “the allegedly false statement is necessary

to the finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 155–56

(1978); accord Garcia v. Orta, 47 F.4th 343, 352 (5th Cir. 2022).

B.

Plaintiffs argue that the statements in the warrant application lacked

probable cause because (1) the officers did not offer “material evidence that

the device holstered on Miller’s hip was a firearm, or that it was in plain

view”; (2) the officers’ failure to take steps during Miller’s visit to either

confirm or dispel their supposed reasonable suspicion that the gun was real

renders the warrant application unreasonable; (3) the author of the

investigatory report and the affiant of the warrant application lacked personal

knowledge of the facts underpinning the affidavit and instead relied on

“hearsay within hearsay” to support the application; (4) the officers omitted

allegedly exculpatory facts (namely, that Miller re-entered City Hall, passed

security, and was not detained or searched) and made “bare bones”

assertions in the warrant; (5) any information obtained during Miller’s visit

to City Hall would be stale by the time the judge approved the warrant

application; and (6) the officers clearly had it out for Miller, so that impure

motivation taints the warrant application and ensuing prosecution of Miller.3

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3

Miller appears to reassert in his reply brief an argument that he raised at the

district court—that the City Hall lobby is not “the premises of any government court”

within the meaning of Texas Penal Code Section 46.03. But Miller abandoned that

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We decline to overturn the district court’s granting of summary

judgment to Defendants on these grounds. Based on the video evidence, a

reasonable officer could have concluded that Miller was carrying a real

handgun in a prohibited place.

1.

Clear video evidence—which this court is empowered to privilege

over Miller’s allegations that the gun was fake, see Scott, 550 U.S. at 380–

814—shows that an object resembling a gun was visible to the officers. The

district court was right: “The video evidence is not sufficient to determine

whether the gun is real; however, it is sufficient to establish the Defendant

officers were objectively reasonable in so believing.” Miller v. Salvaggio, No.

SA-20-CV-00642, 2023 WL 5435619, at *6 (W.D. Tex. Aug. 23, 2023).

Contrary to Miller’s allegations, the video evidence also reflects that

at no point during the visit did he notify the officers that the gun was fake.

Quite the opposite. Miller declined to correct Officer Wells when Officer

Wells directed Miller to step outside with his gun and informed him that he

cannot go back inside with his gun. Miller also referred to the device as a

“gun”—not a fake gun, a device, or otherwise—when he informed his friend

that he was going to “go put [his] gun up and try again.” After he re-entered

the building, Miller told his friend that “[he] d[idn’t] have [his] gun on [him]

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argument by not raising it in his initial appellate brief. See Cinel v. Connick, 15 F.3d 1338,

1345 (5th Cir. 1994) (collecting cases).

4

See also Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (“Further, although

courts view evidence in the light most favorable to the nonmoving party, they give greater

weight, even at the summary judgment stage, to the facts evident from video recordings

taken at the scene.”); Carnaby, 636 F.3d at 187 (“A court of appeals need not rely on the

plaintiff’s description of the facts where the record discredits that description but should

instead consider ‘the facts in the light depicted by the videotape.’” (quoting Scott, 550 U.S.

at 381)).

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no more.” Moreover, when Miller returned to City Hall and walked up to

Officer Rivera at the security table, he told her “[he] took it off” but did not

clarify that “it” was a fake gun. And although Miller mentioned to his friend

that the gun was rubber when they both stood at the receptionist’s desk, he

spoke in a hushed tone, and it is not clear that Officer Rivera—or any other

officers—heard him.

2.

Miller failed to provide the panel with any authority showing that an

otherwise proper warrant application is objectively unreasonable if officers

could have taken additional, pre-warrant steps to confirm or dispel the facts

underlying the application. Indeed, an officer can generally take additional

steps to confirm or deny facts underlying a warrant application, but, as the

Supreme Court has recognized, time can pass between the facts described in

an affidavit supporting probable cause and the issuance of a warrant. See

United States v. Grubbs, 547 U.S. 90, 95 n.2 (2006) (citing United States v.

Wagner, 989 F.2d 69, 75 (2d Cir. 1993)). This bolsters the proposition that

police officers do not need to exhaust all possible fact-finding to confirm or

dispel their suspicions before seeking a warrant.

3.

This court has long recognized that an officer submitting a warrant

application need not have firsthand knowledge of all the facts underlying the

application. United States v. Holmes, 537 F.2d 227, 235–36 (5th Cir. 1976)

(collecting cases showing there is “ample” support for the proposition that

“personal firsthand observations of an affiant government agent are not

required for the supporting affidavit” and, in fact, such affidavits may be

based on hearsay, among other things). Therefore, the fact that the officer

who drafted the investigative report (Vasquez) and the officer who signed the

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affidavits based on that report (King) relied on secondhand information does

not mean that the warrant itself lacked probable cause.

The affidavit also provides enough information to connect the

evidence the police officers sought to Miller’s house. The affidavit recounted

four eyewitness officer accounts plus available video evidence that reasonably

appeared to show that Miller entered City Hall with a firearm. It also stated

that “[i]t is the belief of Affiant that [Miller’s] listed house and vehicle

contain[] items,” including “[a] black semi-auto hand gun,” “constituting

evidence that the offense of Place weapons prohibited, in violation of section

46.03 of the Penal Code of the State of Texas, has been committed.” This is

more than what is found in the “bare bones” affidavits that this court

routinely rejects. Compare United States v. Morton, 46 F.4th 331, 337 (5th Cir.

2022) (providing examples of bare bones affidavits, including an affidavit that

“said nothing more than that the agent ‘has cause to suspect and does believe

that certain merchandise . . . has otherwise been brought into the United

States contrary to law, and that said merchandise is now deposited and

contained within’ the defendant’s home”), cert. denied, 143 S. Ct. 2467

(2023), with id. (describing the affidavit in Morton as “hav[ing] some meat on

the bones” because “[e]ach is over three pages and fully details the facts

surrounding Morton’s arrest and the discovery of drugs and his phones”).

4.

At the time of writing the warrant application, the officers did not have

access to any exculpatory evidence, i.e., evidence that itself would obviate any

criminal liability, and therefore, the officers could not have omitted any such

evidence from the application.5 Miller complains about the affidavit’s

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5

Miller notes that the officers searched his car—where he alleged that he put the

fake rubber gun—during the raid but did not recover the gun. Whether the officers located

the gun during their search is immaterial to the determination of whether the officers

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omission of the facts that Miller re-entered City Hall, passed security, and

was not detained or searched. But these facts do not exculpate Miller; they

do nothing to undermine the decisive fact in the affidavit—video evidence

that Miller openly carried what appeared to be a Glock handgun into a

government building that included a court. No alleged representation or

omission can change the fact that the application contains a clear,

independently sufficient basis to support a warrant.

5.

Miller argues that because the officers failed to take steps to confirm

or dispel their alleged reasonable suspicion, any suspicion is vitiated the

moment the suspect leaves the premises and cannot ripen into probable

cause. We find this argument unavailing. Miller’s position, if adopted, would

mean that information of a suspected crime, once the crime is effectuated,

becomes stale the moment the suspect leaves the premises of the crime and

cannot support probable cause necessary to justify a warrant. But that view

has no basis in law.

Although the Supreme Court has held that “the facts in an affidavit

supporting a search warrant must be sufficiently close in time to the issuance

of the warrant and the subsequent search conducted so that probable cause

can be said to exist as of the time of the search and not simply as of some time

in the past,” Grubbs, 547 U.S. at 95 n.2 (cleaned up) (quoting Wagner, 989

F.2d at 75), only a few hours passed between Miller’s visit to City Hall, the

issuance of the warrants, and the execution of the warrants. The information

underlying the warrant applications did not go stale within a few hours. See,

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omitted exculpatory evidence in their application for a warrant. Setting aside the question

of whether the allegedly fake gun is in fact exculpatory, the officers only potentially had

access to this evidence after securing the warrant.

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e.g., United States v. Lewis, 332 F. App’x 951, 954 (5th Cir. 2009) (information

obtained within seventy-two hours of affidavit execution was sufficiently

close to reflect probable cause for a warrant); see also 2 Wayne R. LaFave,

Search And Seizure: A Treatise On The Fourth

Amendment § 3.7(a) n.15 (6th ed. 2024) (collecting cases from across

jurisdictions where ranges from three to six days were temporally close

enough to make the information underlying the warrant application not

stale); Adam Treiger, The Warrant Requirement, 82 Geo. L.J. 607, 610 n.70

(1994) (collecting cases).

The information obtained during Miller’s first City Hall visit was

sufficient to establish probable cause—not just reasonable suspicion—

because multiple police officers saw, and video evidence corroborates, a

clearly visible object that appeared to be a gun in a government court.

6.

Miller argues that certain indicia, which seemingly reflect animus

against Miller, taint the ensuing search and prosecution. But any impure

motivation that the officers allegedly had is immaterial for purposes of the

qualified-immunity analysis: What matters is not subjective intent but rather

the “objective legal reasonableness” of the action. Harlow, 457 U.S. at 819.

Further, “‘a warrant issued by a magistrate normally suffices to establish’

that a law enforcement officer has ‘acted in good faith in conducting the

search’” unless (1) “the magistrate or judge in issuing a warrant was misled

by information in an affidavit that the affiant knew was false or would have

known was false except for his reckless disregard of the truth,” (2) “the

issuing magistrate wholly abandoned his judicial role,” (3) “an affidavit [is]

‘so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable,’” or (4) “a warrant may be so facially

deficient—i.e., in failing to particularize the place to be searched or the things

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to be seized—that the executing officers cannot reasonably presume it to be

valid.” Leon, 468 U.S. at 922–23 (citations omitted). For the reasons stated

above, the first, third, and fourth exceptions are not applicable here, and

Miller did not argue that the second exception applies.

III.

Next, Plaintiffs argue that Defendants are not entitled to qualified

immunity on Plaintiffs’ First Amendment claims because the officers

retaliated against Miller for being “a [c]itizen journalist and [a]ctivist, and

[b]ecause of [h]is [a]ctivity in [f]iling a [c]omplaint with the City of Leon

Valley.” We disagree.

A.

It is clearly established, settled law “that as a general matter the First

Amendment prohibits government officials from subjecting an individual to

retaliatory actions, including criminal prosecutions, for speaking out.”

Hartman v. Moore, 547 U.S. 250, 256 (2006). “If an official takes adverse

action against someone based on that forbidden motive, and ‘non-retaliatory

grounds are in fact insufficient to provoke the adverse consequences,’ the

injured person may generally seek relief by bringing a First Amendment

claim.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019) (quoting Hartman, 547

U.S. at 256).

In general, a plaintiff pursuing a claim of retaliatory arrest or

prosecution “must plead and prove the absence of probable cause for the

arrest.” Id. at 402, 400–01. If the plaintiff can demonstrate the absence of

probable cause, “then the Mt. Healthy test governs: The plaintiff must show

that the retaliation was a substantial or motivating factor behind the [arrest],

and, if that showing is made, the defendant can prevail only by showing that

the [arrest] would have been initiated without respect to retaliation.” Id. at

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404 (alterations in original) (internal quotations omitted) (quoting Lozman v.

Riviera Beach, 585 U.S. 87, 97 (2018)).

Alternatively, even if the plaintiff cannot demonstrate the absence of

probable cause to arrest, the Nieves exception may apply and allow a

retaliatory-arrest or -prosecution claim to proceed. “Although probable

cause should generally defeat a retaliatory arrest claim, a narrow qualification

is warranted for circumstances where officers have probable cause to make

arrests, but typically exercise their discretion not to do so.” Id. at 406. The

exception can apply under certain circumstances, such as “when a 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,” id. at 407, but evidence of “virtually identical and identifiable

comparators” is not required. Gonzalez v. Trevino, 602 U.S. 653, 658 (2024)

(per curiam). The Supreme Court clarified in Gonzalez that “[t]he only

express limit we placed on the sort of evidence a plaintiff may present for

th[e] purpose [of the Nieves exception] is that it must be objective in order to

avoid ‘the significant problems that would arise from reviewing police

conduct under a purely subjective standard.’” Id. (quoting Nieves, 587 U.S.

at 407). The Nieves exception “account[s] for ‘circumstances where officers

have probable cause to make arrests, but typically exercise their discretion

not to do so.’” Id. (quoting Nieves, 587 U.S. at 406).

B.

For the reasons explained above, the officers established probable

cause for the underlying criminal charge based on their objectively reasonable

belief that the gun was real. Plaintiffs’ First Amendment claims therefore

only survive summary judgment if they can show that the Nieves exception,

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as interpreted in light of Gonzalez, applies.6 Plaintiffs cannot make that

showing.

Plaintiffs offered the following evidence to show that the Nieves

exception applies: (1) deposition testimony from Officer Rivera that she

“want[ed] to say that” she had never arrested or detained anyone for

violating Texas Penal Code Section 46.03; (2) “the officers’ decision to seek

an arrest warrant and conduct a midnight raid rather than detain, cite, or

arrest Miller on the scene was highly irregular for a non-violent misdemeanor

offense,” as Officer Wells testified that he would not have arrested Miller;

(3) “[t]he timing of Miller’s arrest—shortly after he filed a complaint against

the city—and the surrounding events, including Chief Salvaggio’s

statements about sending Miller a message, participating in the midnight

raid, and laughing at the handcuffed Miller in his living room”; (4) the

warrant affidavit’s “focus[] on Miller’s status as an ‘auditor’ rather than the

elements of the alleged offense or how any evidence would be found in his

home”; and (5) Chief Salvaggio’s post-arrest statements indicating

differential treatment. This evidence is insufficient to demonstrate that the

First Amendment claims fall within the Nieves exception in light of Gonzalez.

In Gonzalez, the Supreme Court concluded that the evidence provided

by the plaintiff in that case—a survey of “the past decade’s misdemeanor

and felony data for Bexar County” showing “that the Texas anti-tampering

statute had never been used in the county ‘to criminally charge someone for

_____________________

6

Recently, the Supreme Court vacated this court’s judgment in Villarreal v. City

of Laredo, 94 F.4th 374 (5th Cir. 2024) (en banc), cert. granted, judgment vacated sub nom.

Villarreal v. Alaniz, et al., No. 23-1155, 2024 WL 4486343 (U.S. Oct. 15, 2024) and advised

the court to reconsider the case “in light of Gonzalez.” Villarreal, 2024 WL 4486343, at *1.

In Villarreal, this court applied the narrow version of the Nieves test, not the post-Gonzalez

version. 94 F.4th at 398. We do not take that approach here.

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No. 23-50894

trying to steal a nonbinding or expressive document’”—was sufficient to

qualify for the Nieves exception. Id. at 657–58.

Plaintiffs argue that “no other person was ever arrested for this

crime,” but the evidence does not support that assertion.7 The evidence

Plaintiffs provide is that one police officer had not made any arrests in

connection with violations of Texas Penal Code Section 46.03 and that

another officer would not have arrested Miller. However, that evidence is not

the same as the survey data in Gonzalez, which catalogued a decade of

misdemeanor and felony data. Just because Officer Rivera had never made

any arrests for violations of Texas Penal Code Section 46.03 and Officer

Wells would not have arrested Miller does not mean that officers at Leon

Valley City Hall did not typically exercise their discretion to make those

arrests or that no other person was ever arrested for violating Texas Penal Code

Section 46.03.

Evidence that Miller’s arrest occurred shortly after he filed a

complaint also does not indicate that officers have probable cause to make

arrests for violations of Texas Penal Code Section 46.03, but typically do not

exercise their discretion to do so. Rather, that kind of timing evidence is

relevant to the Mt. Healthy analysis that occurs only if Plaintiffs can prove the

absence of probable cause to arrest. Nieves, 587 U.S. at 404 (under the Mt.

Healthy test “[t]he plaintiff must show that the retaliation was a substantial

_____________________

7

Plaintiffs’ citation to Murphy v. Schmitt, No. 22-1726, 2023 WL 5748752 (8th Cir.

Sept. 6, 2023), cert. granted, judgment vacated, No. 23-1228, 2024 WL 4426466 (U.S. Oct.

7, 2024), does not aid their argument. In Murphy, the plaintiff asserted at the motion-to-

dismiss stage that a reasonable investigation would show that police officers did not arrest

people, other than the plaintiff, for the crime he had committed. Id. at *2. Not only is

Murphy not binding on this court, but the procedural posture in this case is also different—

summary judgment versus motion to dismiss—and Plaintiffs do not make the same

argument as the plaintiffs did in Murphy.

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No. 23-50894

or motivating factor behind the [arrest]” (alterations in original) (internal

quotations omitted) (quoting Lozman, 585 U.S. at 97)); see also Gonzalez, 602

U.S. at 667 (Alito, J., concurring) (timing “evidence can be considered only

after [the plaintiff’s] claim advances to the Mt. Healthy framework. Any other

approach would render the Mt. Healthy framework redundant in most, if not

all, cases”). Because Plaintiffs did not prove the absence of probable cause,

their First Amendment claims cannot advance to the Mt. Healthy framework,

and timing evidence is irrelevant.

Chief Salvaggio’s statements and laughter during the midnight raid,

his post-arrest statements, and statements made by other officers in the

warrant affidavit also do not support the application of the post-Gonzalez

Nieves exception because they are subjective. The Supreme Court

specifically noted that “[b]ecause [the Nieves exception] inquiry is objective,

the statements and motivations of the particular arresting officer are

‘irrelevant’ at this stage.” Nieves, 587 U.S. at 407 (quoting Devenpeck v.

Alford, 543 U.S. 146, 153 (2004)). Gonzalez reiterated that a plaintiff must

provide objective evidence. 602 U.S. at 658. The objective evidence shows

that Miller openly carried what appeared to be a Glock handgun into a

government building that included a court.

Accordingly, we decline to overturn the district court’s grant of

summary judgment to Defendants as to Plaintiffs’ First Amendment claims

on the basis of qualified immunity.

IV.

For the foregoing reasons, we AFFIRM the district court in all

respects.

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