# Rahdar v. City of Friendswood

> District Court, S.D. Texas · March 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10844490

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** March 14, 2025
- **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/10844490

## Opinion text

UNITED STATES DISTRICT COURT March 14, 2025
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
GALVESTON DIVISION
FRED RAHDAR, et al., §
§
Plaintiffs. §
§
V. § CIVIL ACTION NO. 3:22-cv-00280
§
CITY OF FRIENDSWOOD, et al., §
§
Defendants. §

MEMORANDUM AND RECOMMENDATION
Plaintiffs Fred Rahdar and his wife, Kobra Ghorbani, are owners of Friends
Pub. On February 5, 2021, Rahdar saw Friendswood Police Department (“FPD”)
Sergeant Michael Cordero sitting inside his unmarked police vehicle in the parking
lot near Friends Pub. When Cordero exited his vehicle and entered a nearby
business, Rahdar and a co-worker positioned their automobiles to block Cordero
from leaving the premises. After 12 minutes inside, Cordero returned to his car. He
was boxed in and unable to move his vehicle. Police later arrived at the scene and
arrested Rahdar for obstructing a highway or other passageway in violation of
§ 42.03 of the Texas Penal Code.
Shocked that law enforcement would arrest Rahdar for deliberately blocking
Cordero’s police vehicle without justification, Plaintiffs filed this lawsuit.
Defendants have moved for summary judgment on Rahdar’s Fourth Amendment
false arrest claim and First Amendment retaliation claim based on qualified
immunity. See Dkt. 70. Having reviewed the briefing, the record, and the
applicable law, I recommend the motion for summary judgment be granted.
BACKGROUND
In the First Amended Complaint, Plaintiffs allege that Defendants—the City
of Friendswood and more than 20 FPD officers and Friendswood fire marshals—
violated their First, Fourth, Fifth, and Fourteenth Amendment rights. These claims
relate to four separate police interactions from July 2020 to February 2021.
Plaintiffs insist these incidents represent a “concerted campaign of official
harassment.” Dkt. 54 at 2. Defendants moved to dismiss the lawsuit on the
pleadings. See Dkt. 55. On January 22, 2024, Judge Jeffrey V. Brown partially
granted Defendants’ Motion to Dismiss, dismissing all claims brought against the
City of Friendswood. See Dkt. 62 at 28. Judge Brown also dismissed all of Plaintiffs’
claims against the individual defendants except for Rahdar’s Fourth Amendment
false arrest claim and First Amendment Retaliation claim, both arising out of the
February 5, 2021 arrest.1 See id. Defendants now move for summary judgment. See
Dkt. 70.
After Defendants filed their motion for summary judgment, Rahdar sought
to depose former FPD Officer Jesse Beckwith. See Dkt. 83. I granted the request,
see Dkt. 98, and the deposition took place in late 2024. After the deposition, the
parties submitted additional summary judgment briefing. See Dkts. 104, 111. The
summary judgment record is now complete.
The summary judgment record contains a video taken on February 5, 2021,
from a surveillance camera aimed at the shopping center parking lot. That video
perfectly captures what occurred on that date in the parking lot. Those events are
described below.
On the afternoon of February 5, 2021, Cordero drove an unmarked FPD blue
Ford Explorer Sports Utility Vehicle to get his haircut at Q-Cuts, which is located
a few doors down from Friends Pub. Cordero arrived in the parking lot at 1:17 p.m.,
and parked in front of Q-Cuts in a middle row of the half-empty parking lot. Dkt.
70-2 at 00:14:43. Cordero’s vehicle is circled in the photo below:

1 Because “Ghorbani was not arrested on February 5, 2021, nor was she subjected to any
other deprivation of her rights” that day, Ghorbani concedes the only claims arising out
of the February 5, 2021 arrest belong to Rahdar. Dkt. 85 at 2 n.3.
62-05-2021 Fri 13:17:24 cw

Su) Wes SY Se ee
Id.
At 1:55 p.m., while Cordero sat in the unmarked SUV and waited for the
availability of the barber to cut his hair, Rahdar walked toward Cordero’s vehicle.
Id. at 00:53:34. For several minutes, Rahdar walked around Cordero’s vehicle,
filming the scene with his cell phone. Id. at 00:53:34-00:57:11. Rahdar yelled at
Cordero through the closed car window to leave the premises, claiming the parking
lot was private property. Dkt. 70-28 01:05—01:20. Seated in the driver’s seat with
the windows rolled up, Cordero did not interact with Rahdar. Cordero did,
however, use his cell phone to record what was happening. Dkt. 70-22. After
several minutes, Rahdar returned to Friends Pub and exited the view of the
surveillance video. Dkt. 70-2 at 00:55:19. At 2:01 p.m., Cordero stepped out of the
unmarked police vehicle and walked toward Q-Cuts for his haircut. Id. at 00:58:43.
Then, at 2:03 p.m., a white Ford Mustang drove up behind Cordero’s police vehicle.

02-05-2021 Fri 14:03:32 (W)

eee as SFA oad ei

| ————————— a ee Pm

SS ‘ : a
a
Id. at 01:00:52. Despite many vacant parking spaces located throughout the
parking lot, the Ford Mustang pulled into the parking space directly behind
Cordero’s police vehicle.
02-05-2021 Fri 14:03:57 (W)

ee MNS ha ie
H foes RY ae | i .
ik

= 6S er SSS rs

SS > bs as =

= y,
a
Id. at 01:01:16. A female stepped out of the Ford Mustang at 2:04 p.m. Id. at
01:01:36. At his deposition, Rahdar identified the female as Jazmine Lowery, one
of his employees at Friends Pub. See Dkt. 70-9 at 22-23.
Less than a minute after Lowery parked the Ford Mustang behind Cordero’s
police vehicle, and as Lowery was returning to Friends Pub, Rahdar drove his white
pickup truck into the parking lot.

02-05-2021 Fri 14:04:29 (W)

A sen / A | 2 TP
|
= —————— a A ee
% ~<a ——_—~ — amt wei |
<a + / wee ee

Cam len
So
_- F<. an
Dkt. 70-2 at 01:01:48. Rahdar parked perpendicular in front of Cordero’s police
vehicle, positioning his truck directly in front of traffic driving in the opposite
direction.
02-05-2021 Fri 14:04:38 (W)
ee ellie i oi
a RORY Pars sa A ie
LA TON 2288
a z H ie
A — = V7 = a YER ee
CCC —

C-_ es ne Ip i ae ne Li i <item =
7 — a ‘e . AN i ae Atk =
= z= ee ae
: Py
en, Oe
Id. at 01:01:57. Rahdar claims that he parked in this manner because he wanted to
film the situation “and see what[ was] going on.” Dkt. 85-12 at 28. Rahdar further
testified that he did not see Cordero exit the SUV before he parked in front of
Cordero’s vehicle. See id. at 27. Nonetheless, Rahdar readily admits that his
“vehicle [was] in a place where it was blocking Sergeant Cordero’s vehicle’s exit
from the parking space.” Id. at 26-27.

At 2:13 p.m., Cordero exited Q-Cuts and entered into the surveillance
camera’s view. Dkt. 70-2 at 01:11:13. As Cordero approached his vehicle, he noticed
Rahdar’s white truck blocking his SUV and stopped. Id. at 01:11:13–01:11:19.
Cordero took a few steps back and started to record the situation with his cell
phone before continuing to walk toward his SUV. Id. at 01:11:20–01:11:43. Cordero
entered his vehicle at 2:14 p.m., and saw Rahdar sitting in the driver’s seat of the
white truck. Id. at 01:11:46. Because Rahdar’s truck blocked Cordero’s vehicle from
the front and the Ford Mustang blocked Cordero from the back, Cordero could not
drive his SUV out of the parking lot. After entering his vehicle, Cordero used his
police radio to request officer backup at his location.
Both Rahdar and Cordero remained in their parked vehicles for several
minutes. At 2:17 p.m., a brown pickup truck attempted to park in a front row
parking space, but was unable to do so because Rahdar’s vehicle blocked the pickup
truck’s ability to enter the parking space. Id. at 01:14:57–01:15:11. Rahdar then
moved his truck forward just enough to allow the brown truck to pull into a parking
space. Id. at 01:15:12–01:15:20. Rahdar drove his truck forward several feet, which
created enough space for Cordero to exit. Cordero, however, had already called for
police assistance and decided not to move his vehicle.
At about 2:18 p.m., Rahdar stepped out of his truck. Id. at 01:15:20–
01:15:27. He stood by the rear of his truck near Cordero’s vehicle, and then moved
to stand near the front of his truck. Id. at 01:15:27–01:17:16. Rahdar remained
outside his truck for roughly two minutes before a number of police vehicles
arrived on the scene. Id. at 01:17:16. Several officers approached Rahdar as
Cordero exited his unmarked SUV. Id. at 01:17:30. Cordero directed Lieutenant
James Price to arrest Rahdar. Id. at 01:17:32–01:18:05. Approximately two
minutes later, officers walked Rahdar out of the surveillance camera’s view and
placed him in Officer Barry Yodzis’s police car for transport to the Friendswood
City Jail. Id. at 01:19:30. Officials subsequently charged Rahdar with obstructing a
highway or other passageway in violation of Texas Penal Code § 42.03.
LEGAL STANDARDS
A. SUMMARY JUDGMENT
Summary judgment is appropriate when “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). A fact issue is material “if its resolution could
affect the outcome of the action.” Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409
(5th Cir. 2002). A dispute is genuine if “a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“To satisfy its burden, the party opposing summary judgment is required to
identify specific evidence in the record, and to articulate the precise manner in
which that evidence supports their claim.” Willis v. Cleco Corp., 749 F.3d 314, 317
(5th Cir. 2014) (cleaned up). At this stage, I “consider all of the evidence in the
record, but [I] do not make credibility determinations or weigh the evidence.”
Austin v. Will-Burt Co., 361 F.3d 862, 866 (5th Cir. 2004). I “view all facts and
inferences in the light most favorable to the nonmoving party.” Treme v. St. John
the Baptist Par. Council, 93 F.4th 792, 796 (5th Cir. 2024) (quotation omitted).
B. QUALIFIED IMMUNITY
“Qualified immunity shields a government official from liability based on his
performance of discretionary functions.” Mote v. Walthall, 902 F.3d 500, 505 (5th
Cir. 2018) (quotation omitted). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments about open legal
questions. When properly applied, it protects all but the plainly incompetent or
those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)
(quotation omitted).
“A good-faith assertion of qualified immunity alters the usual summary
judgment burden of proof, shifting it to the plaintiff to show that the defense is not
available.” King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016) (quotation omitted).
“To negate a defense of qualified immunity and avoid summary judgment, the
plaintiff need not present absolute proof, but must offer more than mere
allegations.” Id. at 654 (quotation omitted).
“There are two aspects to qualified immunity: whether the plaintiff has
alleged a violation of a constitutional right and whether the right at issue was
‘clearly established’ at the time of the alleged violation.” Cope v. Cogdill, 3 F.4th
198, 204 (5th Cir. 2021) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
The first prong requires Plaintiffs to demonstrate there is a genuine dispute of
material fact that Defendants violated a constitutional right. See Freeman v. Gore,
483 F.3d 404, 410 (5th Cir. 2007). Defendants are entitled to summary judgment
upon qualified immunity if Plaintiffs fail to create a genuine dispute whether the
alleged conduct violated a constitutional right. See Buehler v. Dear, 27 F.4th 969,
981–82 (5th Cir. 2022).
OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE
As an initial matter, I must address Defendants’ objections to a number of
exhibits submitted by Plaintiffs in opposition to the Motion for Summary
Judgment. See Dkt. 113.
First, Defendants object to the submission of entire deposition transcripts
when only selected portions of those depositions are referenced in Plaintiffs’
summary judgment response. Plaintiffs clarify that they have submitted the entire
deposition transcripts simply as a courtesy and are not asking the court to look at
anything other than specific portions of the depositions cited in their summary
judgment response. See Dkt. 118 at 2–3 (“The testimony which Plaintiffs have cited
[in their summary judgment response] is the only testimony which is included in
the record from each of these exhibits.”). Given that the parties agree, I confirm
that I will only consider as part of the summary judgment record the portions of
deposition testimony cited by Plaintiffs in their summary judgment response.
Second, Defendants object to Exhibits C, P, and EE. Plaintiffs do not even
bother to respond to these objections. After review, I determine that the objections
lodged to these exhibits are meritorious, and I will strike Exhibits C (Dkt. 104-3),
P (Dkt. 104-16), and EE (Dkt. 104-31) from the summary judgment record.
Third, Defendants raise a litany of objections to selected deposition
testimony and other exhibits offered by Plaintiffs. “Because this evidence does not
affect the disposition of the summary judgment motion, I deny the objection[s] as
moot.” Lilly v. SSC Houston Sw. Operating Co., No. 4:20-cv-03478, 2022 WL
35809, at *3 n.2 (S.D. Tex. Jan. 4, 2022); see also Banks v. Bell Helicopter Textron,
Inc., No. 4:10-cv-653, 2011 WL 13291576, at *4 (N.D. Tex. Nov. 4, 2011)
(“[B]ecause Bell is entitled to judgment as a matter of law even considering the
objected-to evidence, the Court overrules Bell’s objections as moot.”); Jones v.
United Parcel Serv., Inc., No. 3:06-cv-1535, 2008 WL 2627675, at *6 (N.D. Tex.
June 30, 2008) (denying objections to summary judgment evidence as moot
because the evidence was “not central to the court’s conclusions, and sustaining
the parties’ objections would not change the result”).
Having addressed Defendants’ objections to Plaintiffs’ summary judgment
evidence, I now turn to the merits of the summary judgment motion.
ANALYSIS
A. RAHDAR’S FOURTH AMENDMENT FALSE ARREST CLAIM
Rahdar claims that his February 5, 2021 arrest violated his Fourth
Amendment rights. The Fourth Amendment protects the “right of people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. CONST. amend. IV. To establish a Fourth Amendment false
arrest claim, Rahdar must demonstrate “that the arresting officers did not have
probable cause to arrest him.” Anokwuru v. City of Houston, 990 F.3d 956, 963
(5th Cir. 2021) (cleaned up); see also Westfall v. Luna, 903 F.3d 534, 542 (5th Cir.
2018) (“A false-arrest claim requires a showing of no probable cause.”); Ramirez
v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (“In order to make a lawful arrest,
an officer must have probable cause to believe the suspect committed a crime.”);
Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007) (“[T]o prevail in a § 1983 claim
for false arrest, a plaintiff must show that he was arrested without probable cause
in violation of the Fourth Amendment.”). “Probable cause exists when the totality
of facts and circumstances within a police officer’s knowledge at the moment of
arrest are sufficient for a reasonable person to conclude that the suspect had
committed or was committing an offense.” Resendiz v. Miller, 203 F.3d 902, 903
(5th Cir. 2000). “Probable cause is not a high bar. A fair probability that the suspect
has committed a crime is enough to establish probable cause. The likelihood that
he has done so need not reach even the fifty percent mark.” Espinal v. City of
Houston, 96 F.4th 741, 745 (5th Cir. 2024) (cleaned up).
When an individual asserts a Fourth Amendment false arrest claim,
qualified immunity will shield officers from suit “if a reasonable officer could have
believed [the arrest at issue] to be lawful, in light of clearly established law and the
information the arresting officers possessed.” Hunter v. Bryant, 502 U.S. 224, 227
(1991) (cleaned up). “[T]he plaintiff must show that the officers could not have
reasonably believed that they had probable cause to arrest the plaintiff for any
crime.” Good v. Curtis, 601 F.3d 393, 401 (5th Cir. 2010) (quotation omitted).
“Even law enforcement officials who reasonably but mistakenly conclude that
probable cause is present are entitled to immunity.” Hunter, 502 U.S. at 227
(quotation omitted).
Although I must “construe all facts in favor of [Plaintiffs] as the nonmoving
parties, [I] assign greater weight, even at the summary judgment stage, to the facts
evident from video recordings taken at the scene.” Ramirez v. Killian, 113 F.4th
415, 421 (5th Cir. 2024) (quotation omitted). I must “view[] the facts in the light
depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007). A video
“recording [may] corroborate a probable cause finding.” Turner v. Lieutenant
Driver, 848 F.3d 678, 689 (5th Cir. 2017).
Cordero directed Rahdar’s arrest for the offense of obstructing a highway or
passageway. The Texas Penal Code provides that:
(a) A person commits an offense if . . . he intentionally, knowingly, or
recklessly:
(1) obstructs a highway, street, sidewalk, railway, waterway,
elevator, aisle, hallway, entrance, or exit to which the public or
a substantial group of the public has access, or any other place
used for the passage of persons, vehicles, or conveyances,
regardless of the means of creating the obstruction . . . .
. . . .
(b) For purposes of this section, “obstruct” means to render
impassable or to render passage unreasonably inconvenient or
hazardous.
TEX. PENAL CODE § 42.03(a)(1), (b).
The surveillance video establishes that a reasonable police officer could view
Rahdar’s conduct as obstructing a “place used for the passage of persons, vehicles,
or conveyances” in violation of Texas Penal Code § 42.03(a)(1). This is not a
difficult call. The key facts evident from the video are not in dispute: Rahdar
intentionally parked in front of Cordero’s police vehicle, preventing Cordero from
leaving the parking lot. The fact that Rahdar admits that his “vehicle [was] in a
place where it was blocking Sergeant Cordero’s vehicle’s exit from the parking
space” seals the deal. Dkt. 85-12 at 26–27.
“The act of remaining stationary—i.e., continuing to obstruct—is the critical
fact” for determining whether an officer has probable cause to arrest someone for
violating § 42.03. Zinter v. Salvaggio, 610 F. Supp. 3d 919, 937 (W.D. Tex. 2022);
cf. Sherman v. State, 626 S.W.2d 520, 528 (Tex. Crim. App. 1981) (holding no
obstruction occurred when a suspect only “caused a momentary hesitation of a
vehicle”). Here, Rahdar caused more than a momentary hesitation because he
remained parked in front of Cordero’s unmarked police vehicle for a lengthy period
of time—more than 13 minutes, almost four of which elapsed while Cordero sat in
his vehicle unable to drive away. “[A] qualified immunity defense cannot succeed
where it is obvious that a reasonably competent officer would find no probable
cause.” Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000) (quotation
omitted).2
In sum, the totality of the circumstances establishes that the FPD officers
had probable cause to arrest Rahdar on February 5, 2021, for violating Texas Penal
Code § 42.03. Because the officers had probable cause to arrest Rahdar, they did
not violate Rahdar’s Fourth Amendment rights, and are thus entitled to qualified
immunity. Accordingly, I recommend summary judgment be granted on Plaintiffs’
Fourth Amendment false arrest claim in favor of Defendants.
B. RAHDAR’S FIRST AMENDMENT RETALIATION CLAIM
Plaintiffs also assert a First Amendment retaliation claim. Plaintiffs allege
the FPD officers arrested Rahdar on February 5, 2021, in retaliation for his public
criticism of the FPD and the former FPD police chief.3
“[T]he law is settled 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). “To prevail on a First Amendment retaliation claim, a plaintiff must show
that he was engaged in constitutionally protected activity, the officer’s actions
injured him, and ‘the officers’ adverse actions were substantially motivated against
Plaintiff’s exercise of constitutionally protected conduct.’” Degenhardt v. Bintliff,

2 Although Defendants’ expert witness, police training expert Captain Albert Rodriguez,
opined that “any prudent law enforcement officer could have believed grounds existed to
arrest Rahdar for Obstructing a Highway or Other Passageway . . . in violation of Texas
Pena Code Section[] 42.03,” Dkt. 70-8 at 28, I give that evidence no weight.
Reasonableness and probable cause are questions of law for which expert testimony is not
required and should not be permitted. See Fetty v. City of Baton Rouge, 518 F. Supp. 3d
923, 930–34 (M.D. La. 2021).
3 Rahdar claims he openly criticized the FPD and the former FPD police chief on
numerous occasions. To voice his opinions, Rahdar utilized a billboard, a website, social
media, and numerous interviews with local media outlets. He believes the February 5,
2021 arrest was simply part of an orchestrated effort “to silence Plaintiffs through
harassment and acts of intimidation.” Dkt. 104 at 30–31.
117 F.4th 747, 758 (5th Cir. 2024) (quoting Alexander v. City of Round Rock, 854
F.3d 298, 308 (5th Cir. 2017)).
A retaliation claim is available only “when non-retaliatory grounds are in
fact insufficient to provoke the adverse consequences.” Allen v. Cisneros, 815 F.3d
239, 244 (5th Cir. 2016) (quotation omitted). “It is not enough to show that an
official acted with a retaliatory motive and that the plaintiff was injured—the
motive must cause the injury.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019). “[I]t
must be a ‘but-for’ cause, meaning that the adverse action against the plaintiff
would not have been taken absent the retaliatory motive.” Id. at 399. “Thus, in the
context of retaliatory arrest . . . , to prove causation, a plaintiff generally must show
that the officers lacked probable cause to make the arrest.” Degenhardt, 117 F.4th
at 758; see also Spiller v. Harris County, 113 F.4th 573, 579 (5th Cir. 2024)
(“Generally, if probable cause exists, any argument that the arrestee’s speech as
opposed to her criminal conduct was the motivation for her arrest must fail, no
matter how clearly that speech may be protected by the First Amendment.”
(cleaned up)).
“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.” Nieves,
587 U.S. at 406. In order to qualify for the so-called “Nieves exception,” “a plaintiff
[must] present[] 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. Just last year, the Supreme Court clarified that evidence of
“virtually identical and identifiable comparators” is not required. Gonzalez v.
Trevino, 602 U.S. 653, 658 (2024). “The 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). It is important to keep in mind that the Nieves exception
is extremely narrow and should not be used “as a crowbar for overturning the core
of [the Nieves decision]—namely, that the existence of probable cause either
always or nearly always precludes a suit [for retaliatory arrest].” Gonzalez, 602
U.S. at 667 (Alito, J., concurring).
As I have already discussed, FPD officers had probable cause to arrest
Rahdar for obstructing a highway or other passageway in violation of Texas Penal
Code § 42.03 when Rahdar used his vehicle to block Cordero’s SUV, preventing
Cordero from driving away. As a result, Rahdar may prevail on his First
Amendment retaliatory arrest claim only if he presents objective evidence to show
that his arrest falls within the Nieves exception.
In Gonzalez, the Supreme Court held that a survey showing that, in the last
decade, no one had been charged with the crime for which plaintiff was arrested,
was sufficient to qualify for the Nieves exception. See Gonzalez, 602 U.S. at 657–
58. The Supreme Court observed that:
Gonzalez’s survey is a permissible type of evidence because the fact
that no one has ever been arrested [in the past decade] for engaging
in a certain kind of conduct—especially when the criminal prohibition
is longstanding and the conduct at issue is not novel—makes it more
likely that an officer has declined to arrest someone for engaging in
such conduct in the past.
Id. at 658.
In an effort to show that the Nieves exception applies in light of Gonzalez,
Plaintiffs offer the following evidence: (1) between February 5, 2011, and February
5, 2023, the FPD arrested only three individuals other than Rahdar for allegedly
violating Texas Penal Code § 42.03; and (2) various FPD officers deposed in this
litigation cannot recall ever arresting anyone for violating Texas Penal Code
§ 42.03. This evidence does not suffice.
Rahdar comes nowhere close to presenting “objective evidence” that FPD
officers who have probable cause to make arrests for violations of Texas Penal Code
§ 42.03 typically exercise their discretion not to do so. Nieves, 587 U.S. at 407.
Unlike Gonzalez, where the evidence showed that Texas’s anti-tampering statute
had not been used a single time in 10 years in Bexar County to criminally charge
someone for trying to steal a nonbinding or expressive document, the evidence
here demonstrates that violations of Texas Penal Code § 42.03 have been enforced
by the FPD. In the 12-year period identified by Plaintiffs, FPD made four arrests
(including Rahdar’s arrest) for violations of Texas Penal Code § 42.03. To counter
these statistics, Plaintiffs argue that none “of these [other] arrests include facts
which are remotely similar to what occurred to Mr. Rahdar.” Dkt. 104 at 32. But
that argument cuts against Rahdar. “When a plaintiff’s alleged criminal conduct is
egregious or novel, . . . the lack of similar arrests might warrant little weight.”
Gonzalez, 602 U.S. at 668 (Alito, J., concurring). As Justice Alito noted:
If a plaintiff could evade the no-probable-cause requirement simply
by submitting evidence that no one who engaged in an exact duplicate
of his behavior had been arrested, courts will be flooded with dubious
retaliatory arrest suits, and the Nieves’s exception would drain the no-
probable-cause requirement of all force.
Id. (cleaned up).
Rahdar’s argument that he has satisfied the Nieves exception by presenting
testimony from several FPD officers who report that they have never arrested
anyone for violating Texas Penal Code § 42.03 fares no better. The Fifth Circuit
recently addressed this exact argument and cursorily dismissed it. Just because
select FPD officers have “never made any arrest for violations of Texas Penal Code
Section [42.03] . . . does not mean that [FPD] officers . . . did not typically exercise
their discretion to make those arrests or that no other person was ever arrested for
violating Texas Penal Code Section [42.03].” Miller v. Salvaggio, No. 23-50894,
2024 WL 5116799, at *8 (5th Cir. Dec. 16, 2024). Because “[t]he Nieves exception
is most easily satisfied by strong affirmative evidence that the defendant let other
individuals off the hook for comparable behavior” and Rahdar has failed to provide
any such evidence, his arrest does not fall within the Nieves exception. Gonzalez,
602 U.S. at 668 (Alito, J., concurring).4
The Supreme Court has explained that the Nieves exception applies when an
individual is arrested for minor criminal conduct where police officers “typically
exercise their discretion not to [arrest].” Nieves, 587 U.S. at 406. The prime
example is jaywalking—a rather harmless offense for which most people are rarely
arrested. See id. at 407. By contrast, the conduct present here—blocking in a police
car and preventing an officer from performing his duties— places a police officer,
not to mention the public, in a potentially dangerous situation. This is not a case
that calls for the application of the Nieves exception. In a nutshell, Rahdar has
failed to “surmount a very high bar” to overcome the no-probable-cause
requirement. Gonzalez, 602 U.S. at 666 (Alito, J., concurring). I thus recommend
that summary judgment be granted in favor of Defendants on Plaintiffs’ First
Amendment retaliation claim.
PLAINTIFFS’ MOTION TO REOPEN DISCOVERY FOR LIMITED
PURPOSES
Before concluding this Memorandum and Recommendation, I must briefly
address Plaintiffs’ Motion to Reopen Discovery for Limited Purposes. See Dkt.
107. Plaintiffs ask this court to reopen discovery—which ended on August 1, 2024—
to allow them to take three depositions relating to an incident that took place at a
Starbucks on December 18, 2024. On that afternoon, Rahdar claims he received a
phone call from FPD Officer Austin Caballero, who told Rahdar that he could not

4 In a separate concurrence in Gonzalez, Justice Jackson, joined by Justice Sotomayor,
provided examples of the types of objective evidence they believed could be used to prove
that an individual was arrested when similarly situated individuals who engaged in the
same conduct would not have been arrested. See Gonzalez, 602 U.S. at 675–76 (Jackson,
J., concurring). Justice Jackson suggested that such evidence could include (1) “officers’
employment of an unusual, irregular, or unnecessarily onerous arrest procedure”;
(2) “the timing of and events leading up to a plaintiff’s arrest”: and (3) “if officers falsely
document the arrest or include other indicia of retaliatory motive in arrest-related
documents, that too might suggest meaningfully differential treatment.” Id. at 676
(cleaned up). The summary judgment record is devoid of any such evidence.
visit a Starbucks located in Friendswood, Texas, because a criminal trespass
complaint had been filed against him. Rahdar asserts that this “criminal trespass
charge is another example of the continual targeting of [him] by Defendants as a
result of [his] criticism of Defendants and FPD.” Dkt. 104-34 at 2. To be clear,
Caballero was not involved in Rahdar’s February 2021 arrest.
As an initial matter, Plaintiffs’ request to reopen discovery does not preclude
the court from ruling on the pending Motion for Summary Judgment. To obtain a
continuance of a summary judgment ruling to conduct additional discovery, the
non-movant must “show[ ] by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.” FED. R. CIV. P. 56(d).
Plaintiffs have not filed a formal motion for continuance under Rule 56(d) to seek
information related to the December 2024 incident at Starbucks, and they have
submitted no affidavits or declarations in support of their Motion to Reopen
Discovery for Limited Purposes. Failure to file a Rule 56(d) motion for continuance
precludes a plaintiff from arguing on appeal that he did not have adequate time to
conduct discovery. See Potter v. Delta Air Lines, Inc., 98 F.3d 881, 887 (5th Cir.
1996) (“If [plaintiff] needed more discovery in order to defeat summary judgment,
it was up to her to move for a continuance pursuant to rule 56([d]). Because she
did not, she is foreclosed from arguing that she did not have adequate time for
discovery.”).
Putting aside Plaintiffs’ failure to file a Rule 56(d) motion for continuance, ,
Plaintiffs have failed to demonstrate good cause to reopen discovery to obtain
evidence relating to the December 2024 incident at Starbucks. A scheduling order
“may be modified only for good cause and with the judge’s consent.” FED. R. CIV.
P. 16(b)(4). In determining whether Plaintiffs have shown good cause under Rule
16(b)(4), I must consider, among other factors, the importance of the requested
relief. See S&W Enters., L.L.C. v. SouthTrust Bank of Ala., 315 F.3d 533, 535 (5th
Cir. 2003). Here, the requested discovery would not shed light on any of the issues
involved in this lawsuit. As Defendants note: “Whatever happened at Starbucks on
December 18, 2024, has no bearing on the propriety of any Defendant officer’s
actions on February 5, 2021, after Fred Rahdar positioned his vehicle in front of
Sergeant Cordero’s police vehicle.” Dkt. 114 at 2.5
For these reasons, Plaintiffs’ Motion to Reopen Discovery for Limited
Purposes is denied.
CONCLUSION
For the reasons explained above, I recommend Defendants’ Motion for
Summary Judgment (Dkt. 70) be granted.
The parties have 14 days from service of this Memorandum and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); FED. R.
CIV. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 13th day of March 2025.

______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

5 As an aside, Rahdar recently filed a lawsuit—in the United States District Court for the
Southern District of Texas, Galveston Division, against the City of Friendswood, various
FPD officers, and two Starbucks employees—alleging various claims related to the
December 18, 2024 incident at Starbucks. See Complaint, Rahdar v. Caballero, No. 3:25-
cv-00051 (S.D. Tex. Feb. 24, 2025), ECF No. 1.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10844490. Public record. Not legal advice.