Rusanowsky v. City of Dallas

Case: 24-10455 Document: 67-1 Page: 1 Date Filed: 03/19/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

March 19, 2025

No. 24-10455

____________ Lyle W. Cayce

Clerk

Christopher Rusanowsky,

Plaintiff—Appellant,

versus

The City of Dallas; Sergeant Roger A. Rudloff,

individually and in his official capacity as a Dallas Police Department Police

Officer,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:22-CV-1132

______________________________

Before Richman, Willett, and Douglas, Circuit Judges.

Per Curiam:*

Christopher Rusanowsky, a photojournalist, sued the City of Dallas

and Police Sergeant Roger Rudloff for violations of his constitutional rights

related to his arrest at a protest. The district court granted summary

judgment to Rudloff and the City on all claims. We AFFIRM.

_____________________

*

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

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No. 24-10455

I

Christopher Rusanowsky is a photojournalist. He publishes his work

through ZUMA Press, a professional photography service that pays him

royalties for his photographs. On May 30, 2020, Rusanowsky ventured into

downtown Dallas to photograph interactions between police officers and

those protesting the death of George Floyd. He brought his press badge with

him so he would not be mistaken for a protestor.

While following the protestors that evening, Rusanowsky noticed a

group peel off towards Interstate Highway 35. He followed. When the group

began climbing onto the interstate, Rusanowsky stood against the outside of

the barrier that separated the embankment from the shoulder of the highway.

Soon, protestors began crowding around Rusanowsky, and he became

uncomfortable. Fearing a potentially dangerous situation, Rusanowsky

stepped over the barrier onto the right shoulder of the highway. He walked

with the flow of traffic until he could safely exit the shoulder and get back

onto the grass. In total, Rusanowsky was on the shoulder for less than one

minute.

Rusanowsky states that he did not see any law enforcement while he

was on the highway. Only once he and the protestors reached a grassy area

near the road did police appear.

Rusanowsky watched a group of protestors help an injured woman.

Soon, Dallas Police Sergeant Roger Rudloff appeared and “laid his hands on

one of the men.” Rudloff then shot another protestor with a PepperBall gun

at point-blank range, ordered another woman to get on the ground, and

forced another protestor to the ground. The entire time, Rusanowsky stood

ten feet away and photographed Rudloff’s actions.

Eventually, Sergeant Rudloff noticed Rusanowsky, who showed

Rudloff his press badge and tried to explain he was a photojournalist, to which

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Rudloff said “yeah, yeah, press, press . . . you’re going to jail.”1 Rudloff

grabbed Rusanowsky by his shirt and threw him to the ground. Corporal

David Pillar then handcuffed him.2 Neither officer informed Rusanowsky of

the reason for his arrest. Sergeant Rudloff never interacted with Rusanowsky

again, nor did he fill out any arrest reports.

Sergeant Rudloff provides a slightly different account of events.

Rudloff claims that after he and his fellow officers observed a group of

protestors coming from the highway, Dallas Police Department (DPD)

instructed them to “round those folks up.” While Rudloff agrees that he shot

his PepperBall launcher at a female protestor and struck a protestor with his

knee, he asserts that he did not interact with Rusanowsky until after Pillar had

arrested him. This account is contradicted by photographs showing Rudloff

speaking with Rusanowsky and grabbing his shirt before the arrest. The

accounts of Pillar and Officer Russell Barrett—two other officers at the

scene—also differ from Rudloff’s description of events. Specifically, their

accounts diverge as to when PepperBall blasters were used, when protestors

reached certain locations, and when each protestor was arrested.

After spending 26 hours in a jail cell, Rusanowsky was informed he

was arrested for obstructing a highway under Texas Penal Code §42.03.3 The

charges were later dropped.

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1

Rudloff states that after Rusanowsky was arrested by Corporal David Pillar,

Rusanowsky said he was a member of the press, at which point Rudloff told him he “still

had no right to be on the freeway.”

2

Pillar’s statement confirms that he formally arrested Rusanowsky.

3

The officer who provided the information for the warrant affidavit was not at the

scene of Rusanowsky’s arrest; he was over a mile away and described events that happened

one hour after Rusanowsky’s detainment.

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Rusanowsky sued the City of Dallas and Sergeant Rudloff in his

individual and official capacity for deprivation of his civil rights. Specifically,

Rusanowsky claimed that Rudloff arrested him without probable cause and

in retaliation of his First Amendment “right to record the police in the

exercise of their official duties.” His municipal liability claims against the

City of Dallas alleged a failure to train and supervise Rudloff.

The district court adopted an expedited schedule to determine

Rudloff’s qualified immunity. After limited discovery, the parties filed cross-

motions for summary judgment. The district court found that probable cause

existed for Rusanowsky’s arrest and that the arrest was not retaliatory.

Accordingly, Rudloff was entitled to qualified immunity. The court granted

his motion for summary judgment and denied Rusanowsky’s cross-motion.4

Rusanowsky timely appealed.

II

We typically review summary judgment de novo, “viewing the

evidence in the light most favorable to the non-moving party.”5 Summary

judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

But our approach changes in qualified-immunity cases.6 A public

official’s “good-faith assertion of qualified immunity,” “alters the usual

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4

In a later motion for summary judgment, the City of Dallas moved to have the

municipal liability claims against it dismissed. Rusanowsky did not contest that the court’s

prior ruling compelled summary judgment in favor of the City. Therefore, the court granted

the City’s motion and dismissed Rusanowsky’s claims.

5

Ramirez v. Killian, 113 F.4th 415, 421 (5th Cir. 2024) (citing Deville v. Marcantel,

567 F.3d 156, 163–64 (5th Cir. 2009)).

6

Bailey v. Ramos, 125 F.4th 667, 674 (5th Cir. 2025).

4

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summary-judgment burden of proof, shifting it to the plaintiff to show that

the defense is not available.”7 Thus, we employ a two-step inquiry: “First,

we ask whether the facts alleged, viewed ‘in the light most favorable to the

party asserting the injury,’ establish that ‘the officer’s conduct violated a

constitutional right’”; and second, the we ask “whether the right was clearly

established.”8 In analyzing the plaintiff’s claims, we draw all inferences in

the plaintiff’s favor.9

III

The Fourth Amendment governs Rusanowsky’s claim for unlawful

arrest. “A warrantless arrest must be based on ‘probable cause.’”10 “The

question of probable cause is a mixed question of law and of fact. Whether

the circumstances alleged to show it probable are true, and existed, is a matter

of fact; but whether, supposing them to be true, they amount to a probable

cause, is a question of law.”11

The test for probable cause is an objective one: We “must look to the

totality of the circumstances and decide whether these historical facts,

viewed from the standpoint of an objectively reasonable police officer

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7

Joseph on behalf of Est. of Joseph v. Bartlett, 981 F.3d 319, 329–30 (5th Cir. 2020)

(quoting Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016)) (cleaned up).

8

Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 2020) (quoting Valderas v. City of

Lubbock, 937 F.3d 384, 389 (5th Cir. 2019) (internal citations omitted)).

9

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

10

Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000) (per curiam). See also Brown

v. Lyford, 243 F.3d 185, 191 (5th Cir. 2001) (“[I]f a reasonable officer could have concluded

that there was probable cause upon the facts then available to him, qualified immunity will

apply.”).

11

Reitz v. Woods, 85 F.4th 780, 788 (5th Cir. 2023) (quoting Stewart v. Sonneborn,

98 U.S. 187, 194 (1878)).

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demonstrate a probability or substantial chance of criminal activity.”12 If we

find probable cause, then the false arrest claim fails.13

Rusanowsky contends that Sergeant Rudloff lacked probable cause to

arrest him. Rudloff counters that he had probable cause to arrest Rusanowsky

for walking on the right shoulder of the highway when Texas Transportation

Code § 552.006(b) directs pedestrians to walk along the left shoulder.

At the time of Rusanowsky’s arrest, the Code stated that “[i]f a

sidewalk is not provided, a pedestrian walking along and on a highway shall if

possible walk on: (1) the left side of the roadway; or (2) the shoulder of the

highway facing oncoming traffic.”14 To do otherwise is a misdemeanor.15

Rusanowsky claims there is a dispute of fact as to whether it was

“possible” to walk on the left shoulder of the highway, which means there is

a dispute of fact about the lawfulness of his arrest—that is, if Rusanowsky

could not reach the left shoulder safely, then he was not committing a

misdemeanor by walking on the right shoulder. Rudloff argues that because

the facts indisputably show “Rusanowsky on and near a freeway while violent

protestors were obstructing the freeway,” he had probable cause to arrest

Rusanowsky.

But this disagreement misses the point; it is unnecessary to analyze

whether Rusanowsky could have crossed the highway to determine whether

probable cause existed at the time of his arrest.

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12

Id. at 790–91 (quotation marks and citation omitted).

13

See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).

14

Texas Transportation Code § 552.006(b).

15

Texas Transportation Code § 542.301(b).

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Our precedent confirms as much. In Martinez v. City of Rosenberg, we

found probable cause when a police officer arrested a man walking on the

righthand side of the road in violation of the Texas Transportation Code.16

Notably absent from that opinion—and the district court opinion below—

was any discussion of whether the arrestee could have crossed to the other

side.17 Whether the pedestrian could have crossed the road was not a

prerequisite for probable cause; while it may determine the arrestee’s guilt,

it did not affect the probable-cause analysis. After all, a police officer has

probable cause to arrest a man who shoots another man in an alley, even if it

later turns out the shooting was in self-defense.18

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16

Martinez v. City of Rosenberg, 123 F.4th 285, 290 (5th Cir. 2024) (“Officer Cantu

had probable cause to arrest Martinez because the dash camera footage indisputably

captured Martinez walking on the righthand side of the road for several seconds, in

violation of the Texas Transportation Code.”).

17

See id. at 290; see also Martinez v. City of Rosenberg, No. 4:21-CV-00432, 2023 WL

7290471, at *3 (S.D. Tex. Sept. 27, 2023), aff’d, 123 F.4th 285 (5th Cir. 2024). There are

also multiple Texas state court cases that find probable cause without considering whether

it was possible for the pedestrian to cross to the other side of the road; if the pedestrian was

arrested while walking on the left shoulder with the flow of traffic, the arrest was lawful.

See Briseno v. State, No. 04-19-00042-CR, 2020 WL 1866276, at *4 (Tex. App.—San

Antonio Apr. 15, 2020, no pet.) (mem. op.) (“Officer Bortel saw Briseno commit the traffic

offense of walking on the wrong side of the road in violation of section 552.006 of the

Transportation Code. Thus, at the onset of the encounter, Officer Bortel not only had

reasonable suspicion to detain Briseno, but he also had a basis on which to arrest her.”);

Martinez-Cornelio v. State, No. 06-19-00061-CR, 2019 WL 4891710, at *4 (Tex. App.—

Texarkana Oct. 4, 2019, pet. ref’d) (mem. op.); Agnew v. State, No. 06-17-00160-CR, 2018

WL 636195, at *2–3 (Tex. App.—Texarkana Jan. 31, 2018, no pet.) (mem. op.); McBride v.

State, 359 S.W.3d 683, 693 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); State v.

Patterson, 291 S.W.3d 121, 122–23 (Tex. App.—Amarillo 2009, no pet.).

18

Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1994) (“Police officers who

‘reasonably but mistakenly conclude that probable cause is present’ are entitled to qualified

immunity. ‘The qualified immunity standard gives ample room for mistaken judgments’

by protecting all but the plainly incompetent or those who knowingly violate the law.’”

(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (cleaned up)).

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Like in Martinez, there is indisputable proof that Rusanowsky walked

along the right shoulder of the highway—he admits doing so. All Rudloff

needed to see was Rusanowsky walking on the right side of the road with the

flow of traffic. After such observations, a reasonable officer in Rudloff’s

position could decide the facts demonstrated a probability that Rusanowsky

was committing a misdemeanor. The fact that Rudloff may have ultimately

been mistaken about Rusanowsky’s ability to cross to the lefthand side does

not indicate a lack of probable cause at the time of his arrest.19

Rusanowsky next argues that Rudloff did not see him commit the

misdemeanor, as he “did not observe any law enforcement nearby.” But just

because Rusanowsky did not see the officers does not mean they were unable

to see him. And the record contains multiple statements by the officers

explaining that they observed Rusanowsky on the highway. Rusanowsky

asserts that there are “significant material factual disputes between

Rusanowsky, Rudloff, and Rudloff’s fellow officers,” which undermines

their credibility. This concern is valid—the officers provide different

descriptions of the events surrounding the protest. But, the officers agree that

they saw Rusanowsky walking down the highway with the protestors as they

blocked traffic and harassed drivers.20 While Rusanowsky’s mere presence at

the scene is insufficient to provide probable cause,21 the statements from the

officers bolsters the reasonableness of Rudloff’s perception: That, under the

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19

Carthon v. Prator, 408 F. App’x 779, 782 (5th Cir. 2010) (“An arresting officer

who ‘reasonably but mistakenly concludes’ that probable cause exists is entitled to qualified

immunity for the arrest.” (citation omitted)).

20

Rusanowsky’s photographs confirm that the protestors around him were

obstructing traffic by walking in front of cars on the highway.

21

Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

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“totality of circumstances,” it was probable that Rusanowsky was walking on

the wrong side of the highway, with the flow of traffic, against Texas law.22

For these reasons, we conclude the district court did not err in finding

Rusanowsky failed to show a genuine dispute of fact as to whether probable

cause existed at the time of his arrest.

IV

To survive summary judgment on his retaliation claim, Rusanowsky

must show there is a genuine dispute of material fact that “(1) [he was]

engaged in constitutionally protected activity, (2) the defendant[’s] actions

caused [him] to suffer an injury that would chill a person of ordinary firmness

from continuing to engage in that activity, and (3) the defendant[’s] adverse

actions were substantially motivated against the plaintiff[’s] exercise of

constitutionally protected conduct.”23 “A retaliation claim is only available

‘when non-retaliatory grounds are in fact insufficient to provoke’ the arrest,

meaning that the officer’s subjective motivation must be the but-for cause of

the adverse action against the plaintiff.”24 At the summary judgment stage,

the non-moving party doesn’t have to provide direct evidence;

circumstantial evidence is equally probative.25

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22

Grisham v. Valenciano, 93 F.4th 903, 910 (5th Cir. 2024).

23

Bailey, 125 F.4th at 684–85 (5th Cir. 2025) (quoting Keenan v. Tejeda, 290 F.3d

252, 258 (5th Cir. 2002)) (cleaned up).

24

Id. at 685 (citing Degenhardt v. Bintliff, 117 F.4th 747, 758 (5th Cir. 2024)).

25

Id.

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It is undisputed that Rusanowsky’s photography of police qualifies as

constitutionally protected activity.26 And Rusanowsky’s arrest would clearly

chill his desire to take photographs of police interactions.27

Our inquiry thus focuses on the third prong—whether Sergeant

Rudloff’s adverse actions were substantially motivated against

28

Rusanowsky’s constitutionally protected conduct.

Relying on circumstantial evidence, Rusanowsky asserts that Rudloff

arrested him only after he photographed Rudloff arresting protestors. He also

points out that even after he identified himself as a member of the press,

Rudloff forced him onto the ground. While true, neither of these assertions

meet the burden for unconstitutional motive. Yes, Rudloff arrested

Rusanowsky after he took pictures, but by Rusanowsky’s own declaration,

Rudloff did not arrest the other photographers at the scene. And identifying

himself as “press” does nothing to erase the fact that Rudloff had probable

cause to arrest Rusanowsky for a misdemeanor—being a member of the press

does not provide a “get out of jail free” card.

Further undermining Rusanowsky’s claim is his statement that he

witnessed Rudloff arresting other protestors in the area. In fact, Rusanowsky

seems to describe Rudloff’s indiscriminate force in arresting nearby

individuals: “Everything I observed unfolded in lightning-fast pace . . . I

watched on with my camera as Sgt. Rudloff initiated the arrests of five people,

shot one with his pepperball gun, and kneed and roughly handled another.”

These statements from Rusanowsky’s declaration show that Rudloff focused

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26

Turner v. Lieutenant Driver, 848 F.3d 678, 687 (5th Cir. 2017).

27

See Bailey, 125 F.4th at 685.

28

Id. at 684–85 (quoting Keenan, 290 F.3d at 258).

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on arresting people that came from the highway, not just those that

photographed the police.

Rusanowsky has not provided evidence that indicates he was singled

out and arrested for taking photographs of the police. Accordingly, we agree

with the district court that Rusanowsky failed to show a material dispute of

fact as to Rudloff’s allegedly retaliatory motive.

V

It is well established that to recover against a municipality under

§ 1983, a plaintiff must “allege and establish that he sustained a deprivation

of a constitutional or other federally protected right because of some official

policy, practice, or custom of that governmental entity.”29 “[W]ithout a

predicate constitutional violation, there can be no Monell liability.”30

Because Sergeant Rudloff is entitled to qualified immunity,

Rusanowsky cannot show he suffered constitutional violations from his

arrest. Therefore, the municipal liability claims against the City of Dallas

cannot proceed.

VI

Rusanowsky failed to raise genuine disputes of fact as to whether

Sergeant Rudloff was entitled to qualified immunity. Because Rudloff had

probable cause to arrest Rusanowsky, and because the arrest was not

retaliatory, the district court correctly granted summary judgment for

Rudloff. For these reasons, we AFFIRM.

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29

Grisham v. Valenciano, 93 F.4th 903, 912 (5th Cir. 2024) (citing Monell v. Dep’t

of Soc. Servs. of City of New York, 436 U.S. 658, 691–94, 98 (1978)).

30

Loftin v. City of Prentiss, 33 F.4th 774, 783 (5th Cir. 2022).

11