Moises A. Quinteros-Orellana v. Deon T. Clay

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

MOISES A. QUINTEROS-ORELLANA PLAINTIFF

v. CASE NO. 5:25-CV-05130-CDC

DEON T. CLAY DEFENDANT

MEMORANDUM OPINION

Plaintiff Moises A. Quinteros-Orellana brought suit under 42 U.S.C. § 1983 against

Defendant Deon T. Clay, a former Tontitown, Arkansas, law enforcement officer, in his

individual capacity, alleging that on June 13, 2024, Defendant arrested Plaintiff in violation

of rights protected by the First and Fourth Amendments to the U.S. Constitution. (ECF No.

2). Defendant denies these claims (ECF No. 7) and the parties have filed cross motions

for summary judgment. (ECF Nos. 28, 32).

The Court first turns its attention to Defendant’s Motion for Summary Judgment

which seeks the grant of qualified immunity to Defendant and dismissal of Plaintiff’s

Complaint. The Motion (ECF No. 32) will be granted in part, and denied in part as

explained below.

I. Standard of Review

“At summary judgment, qualified immunity shields a law enforcement officer from

liability in a § 1983 action unless: ‘(1) the facts, viewed in the light most favorable to the

plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right

was clearly established at the time of the deprivation.’” Stark v. Lee Cnty., 993 F.3d 622,

625 (8th Cir. 2021) (citations omitted). “When reviewing a law enforcement officer's

entitlement to qualified immunity at summary judgment, a district court ‘must take a careful

look at the record, determine which facts are genuinely disputed, and then view those facts

in a light most favorable to the non-moving party as long as those facts are not so “blatantly

contradicted by the record ... that no reasonable jury could believe [them].”’” Watson v

Boyd, 2 F.4th 1106, 1110 (8th Cir. 2021) (alterations in original) (citation omitted). “Then

the court should determine if those facts demonstrate a constitutional violation that is

clearly established.” Handt v. Lynch, 681 F.3d 939, 945 (8th Cir. 2012).

II. Factual Record

The Court has reviewed the parties’ statements of materials fact and responses

thereto (ECF Nos. 30, 34, 36, 38); Defendant’s body camera video (ECF No. 30-2);

Defendant’s deposition transcript (submitted as ECF Nos. 30-1, 34-2); Plaintiff’s video and

his passenger’s video (ECF Nos. 30-2, 30-4); the Tontitown Police Report (ECF No. 34-1);

and district court records. (ECF No. 30-4). The submitted videos are clear and the Court

has accepted those videos for the truth of what happened. Scott v. Harris, 550 U.S. 372,

380 (2007); Clarence Steelman v. City of Shannon Hills, Arkansas, et al., 2026 WL

1507816 (E.D. Ark. May 29, 2026). From the materials in the record, the following facts

appear straightforward and substantially undisputed:

On the date in question, Defendant Deon T. Clay was a certified law enforcement

officer with the City of Tontitown’s Police Department; he previously attended a training

academy Defendant referred to as CALETA. (ECF No. 30-1, pp. 4-5). Defendant had prior

law enforcement experience with three (3) departments in Arkansas – the Conway Police

Department, the Lowell Police Department and the Johnson Police Department. Id.

2

At approximately 11:30 p.m. on June 13, 2024, Defendant made a traffic stop of a

black Camaro at 5950 West Sunset Avenue in Tontitown, Arkansas. Defendant stopped

the Camaro after viewing it “accelerate[] the hardest” from a stoplight and believing it was

racing with other vehicles. (ECF No. 34-2, p. 9; No. 38, p. 2). The traffic stop occurred in

the private parking lot of Alliance RV, which was closed due to the hour. (ECF No. 34-1).

When he initiated the traffic stop, Defendant – who had been on the telephone “with his

partner” – told his partner, Officer Calico, to head Plaintiff’s way. (ECF No. 34-2, pp. 12-

13).

Plaintiff – who was driving a separate vehicle with a female passenger – pulled his

vehicle into the parking lot where the traffic stop was occurring and parked, leaving an

empty space between Plaintiff’s vehicle and the stopped Camaro. (ECF No. 38, p. 2). At

that time, Defendant was the only officer on the scene and had parked his patrol car

directly behind the Camaro with the lights activated. As reflected in the body camera video,

Defendant yelled several times in the direction of Plaintiff, advising “I don’t need you pulling

in here” and “I don’t need you pulling in here with me” as Defendant was initially walking

over to the Camaro. (ECF No. 30-2; No. 38, p.3) As Plaintiff pulled into the parking lot and

parked, Plaintiff’s driver window was down and Plaintiff held his cell phone up, apparently

to illustrate that he was recording Defendant. (ECF No. 38, p. 2). All three (3) videos reflect

that the scene of the traffic stop was well-lighted.

Defendant immediately started walking toward Plaintiff’s vehicle, shouting for

Plaintiff to “go somewhere else,” “go somewhere now,” “you want to get arrested?” “you

need to get out of here or you’re going to get arrested,” and “go record somewhere else

now.” (ECF No. 30-2; No. 38, p. 2). Plaintiff did not leave and responded he was not

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impeding but was just videoing; Defendant again said “go record somewhere else.” (ECF

No. 30-2). After warning “last chance” and commanding Plaintiff to exit his vehicle,

Defendant reached through the open window, unlocked and opened the Plaintiff’s driver’s

door; unbuckled and removed Plaintiff from inside the vehicle; and removed Plaintiff’s

phone from his hand and tossed it inside Plaintiff’s vehicle. Defendant then took Plaintiff

to the ground where Plaintiff was face down on the pavement; Defendant handcuffed

Plaintiff and placed him in the back of Defendant’s patrol car. (ECF No. 38, pp. 3-4). The

video reflects Plaintiff saying he was not resisting while being pulled from his car. While

handcuffing Plaintiff, Defendant said “I told you to get away from the traffic stop.” (ECF No.

30-2).

Officer Calico responded to the scene within a couple of minutes. (ECF No. 30-2;

No. 34, p. 2). The video reflects that Defendant told Officer Calico that the two cars were

revving their engines, and one had accelerated quickly at a stoplight which was why

Defendant stopped the vehicle. (ECF No. 30-2). According to the incident report, Officer

Calico advised Plaintiff of his Miranda rights. (ECF No. 34-1).

Refocusing his attention to the traffic stop, Defendant issued a warning to the driver

of the Camaro. When that driver asked Defendant what would happen to Plaintiff,

Defendant responded “[h]e’s got to learn his lesson some day” and that Plaintiff had a

“right to record but not like this.” (ECF No. 30-2).

It appears undisputed that after speaking with his supervisor, Sgt. Hammons,

Defendant cited Plaintiff for obstruction of governmental operations, and released Plaintiff

from custody to appear the following month in District Court. (ECF No. 30-2; No. 38, p.4).

The video reveals that Defendant engaged in a brief conversation with Plaintiff and

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explained that due to officer safety, he had told Plaintiff to “go back there” (pointing his

hand) to record; the video reveals Plaintiff challenging/denying that these were Defendant’s

instructions prior to his arrest. (ECF No. 30-2).

Plaintiff sustained a small, bloody laceration to his forehead as a result. (ECF Nos.

34, 36). Officer Calico apparently pointed out that Plaintiff had an injury to his head (ECF

No. 34, p2; No 34-2, p. 18), but Plaintiff refused medical attention at the scene. (ECF No.

34, p. 2; No. 36, p. 3).

The matter was sent to the district prosecutor for review and was “considered

closed” as of July 8, 2024 “due to no prosecution.” (ECF No. 34-1, p. 4). The charge

against Plaintiff was later dismissed on January 23, 2025. (ECF No. 30-4).

Defendant testified during his deposition that he arrested Plaintiff “strictly” due to “an

officer safety issue.” (ECF No. 34-2, p. 14). Defendant testified he had concerns when

Plaintiff pulled into the parking lot and when Plaintiff did not leave as directed by

Defendant. (ECF No. 34-2, p. 8). Defendant denies that Plaintiff’s arrest had anything

whatsoever to do with the cell phone or Plaintiff’s recording, testifying he cared only about

his own safety. (ECF No. 34-2, p. 18).

III. Qualified Immunity

As noted by U.S. District Judge D. Price Marshall, Jr. in Steelman, supra, “[a] recent

word from the Supreme Court summarizes the applicable law:”

Government officials enjoy qualified immunity from suit under § 1983 unless

their conduct violates clearly established law. A right is clearly established

when it is sufficiently clear that every reasonable official would have

understood that what he is doing violates that right. A right is not clearly

established if existing precedent does not place the constitutional question

beyond debate. To find that a right is clearly established, courts generally

need to identify a case where an officer acting under similar circumstances

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was held to have violated the Constitution. The relevant precedent must

define the right with a high degree of specificity, so that every reasonable

official would interpret it to establish the particular rule the plaintiff seeks to

apply. Principles stated generally, such as that an officer may not use

unreasonable and excessive force, do not suffice. In short, officers receive

qualified immunity unless they could have read the relevant precedent

beforehand and known that it proscribed their specific conduct. [...] Whether

any particular use of force violates the Fourth Amendment depends on the

facts and circumstances of each particular case, including whether the officer

gave warnings before using force.

Zorn v. Linton, No. 25-297, slip op. at 3-4 (U.S. 23 March 2026) (per curiam) (quotations

and citations omitted).1

A. Plaintiff’s Fourth Amendment Claim

To establish a Fourth Amendment violation, “[Plaintiff] must demonstrate a seizure

occurred and the seizure was unreasonable.” McCoy v. City of Monticello, 342 F.3d 842,

846 (8th Cir. 2003); see also Quraishi v. St. Charles Cnty, Mo., 986 F.3d 831, 839 (8th Cir.

2021). “A Fourth Amendment seizure occurs when an officer restrains the liberty of an

individual through physical force or show of authority.” Id., citing Terry v. Ohio, 392 U.S.

1, 19 n.16 (1968). A seizure is an “application of physical force to restrain movement, even

when it is ultimately unsuccessful.” California v. Hodari D., 499 U.S. 621, 626 (1991). “Only

when the officer ... has in some way restrained the liberty of a citizen may we conclude that

a ‘seizure’ has occurred.” Terry, 392 U.S. at 19 n.16. Where a plaintiff has not been

seized, no Fourth Amendment violation has occurred. See Steed, by and through Steed

v. Mo. State Highway Patrol, 2 F.4th 767, 770 (8th Cir. 2021).

1 Noted by the undersigned, Plaintiff’s argument that qualified immunity is unconstitutional

presently lacks merit.

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Plaintiff’s complaint includes a claim for excessive force. Under applicable Eighth

Circuit precedent, it's been clearly established for some time that an officer cannot take a

compliant, non-threatening pretrial detainee to the ground. E.g., Montoya v. City of

Flandreau, 669 F.3d 867, 870-73 (8th Cir. 2012); Karels v. Storz, 906 F.3d 740, 744-47

(8th Cir. 2018); MacKintrush v. Pulaski County Sheriff's Department, 987 F.3d 767, 770-71

(8th Cir. 2021); Cartia v. Beeman, 122 F.4th 1036, 1042 (8th Cir. 2024). Nevertheless, in

his pleadings, Plaintiff has abandoned his Fourth Amendment excessive force claim so no

further analysis is necessary. (ECF No. 29, p. 12).

“The Fourth Amendment includes the right to be free from arrest without probable

cause.” Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999). In other words, “a

warrantless arrest, unsupported by probable cause, violates the Fourth Amendment.” See

Baribeau v. City of Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010) (per curiam). “Probable

cause exists when the totality of circumstances at the time of arrest would lead a

reasonable person to think the defendant committed or is committing a crime.” Webster v.

Westlake, 41 F.4th 1004, 1010 (8th Cir. 2022). Courts consider “the events leading up to

the arrest” and “‘whether these historical facts, viewed from the standpoint of an objectively

reasonable police officer, amount to’ probable cause.” District of Columbia v. Wesby, 583

U.S. 48, 56–57 (2018) (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)).

Eighth Circuit law is clear that Plaintiff’s Fourth Amendment claim is defeated where

the arresting officer had either probable cause or arguable probable cause. Thurairajah v.

City of Fort Smith, 925 F. 3d 979, 983 (8th Cir. 2019). “Arguable probable cause” exists

where the arrest was “based on objectively reasonable – even if mistaken – belief that the

arrest warrant was based in probable cause.” Ulrich v Pope Cnty, 715 F.3d 1054, 1059;

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see also Brown v. City of St. Louis, 40 F.4th 895, 901 (8th Cir. 2022). Said another way,

arguable probable cause “is a mistaken but objectively reasonable belief the suspect

committed a criminal offense.” Dowell v. Lincoln Cnty., 762 F.3d 770, 777 (8th Cir. 2014).

The law requires analysis of “the totality of the circumstances to determine if arguable

probable cause existed,” asking whether “a reasonable officer” could reasonably but

mistakenly “conclude ... that there was a ‘substantial chance of criminal activity.’” Wesby,

583 U.S. at 61, 65 (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). The

undersigned is thus tasked with looking at “the whole picture” when making this

determination. Wesby, 583 U.S. at 60 (quoting United States v. Cortez, 449 U.S. 411, 417

(1981)); see also Nieters v. Holtan, 83 F.4th 1099, 1107 (8th Cir. 2023) (“[W]e may not

disregard exculpatory evidence when considering the totality of the circumstances to

determine if arguable probable cause existed.”) This is consistent with the Supreme Court’s

admonition in Barnes v. Felix, 605 U.S. 73 (2025) that “inquiry into the reasonableness of

the police force requires analyzing the ‘totality of the circumstances.’” Id. at 80. Probable

cause is a legal question for the Court. See Lockhart v. Siloam Springs, et al., 2026 WL

1676240 (W.D. Ark. June 10, 2026) (citation omitted).

Defendant arrested Plaintiff for obstruction of governmental operations in violation

of Ark. Code Ann. § 5-54-102. So the first question before the Court is whether it was

objectively reasonable for Defendant to mistakenly believe, under the totality of the

circumstances, that Plaintiff was obstructing Defendant in the performance of his official

duties.

Under Arkansas law, a person commits the offense of obstructing government

operations if he “knowingly obstructs, impairs or hinders the performance of any

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governmental function.” Ark. Code Ann. § 5-54-102. Governmental function is defined as

“any activity that a public servant is legally authorized to undertake on behalf of any

governmental unit he or she serves.” Ark. Code Ann. § 5-54-101(6). Interruption of officers

engaged in an investigation can provide probable cause for obstruction. See Nelson v.

State, 2013 Ark. App. 421 (disruption of witness interviews). Arkansas law, however,

requires actual interference with law enforcement officers or government activities in order

to sustain a conviction for obstruction of governmental operations. See e.g., Keeton v.

State, 2026 Ark. App. 53 (Jan. 28, 2026) (reversing obstruction conviction on insufficient

evidence because Keeton “did nothing to personally interfere with the officers’ activities”

and contrasting Kelley v. State, 75 Ark. App. 144 (2001) (shouting and fleeing); RB v.

State, 2013 Ark. App. 377 (refusing to return to cell), and Gordon v. State, 2021 Ark. App.

96 (blocking a driveway and honking so her brother could escape)).

The Court does not disregard Defendant’s statements – both on the night of

Plaintiff’s arrest and later during his deposition – that Defendant’s primary concern was

officer safety.2 Nevertheless, and despite his concerns, the Court is not persuaded it was

reasonable for Defendant to mistakenly believe Plaintiff was engaged in activity which was

obstructing the traffic stop. The time elapsing between Plaintiff pulling his vehicle into the

parking lot, and being pulled from his vehicle, placed under arrest, handcuffed and

detained in Defendant’s patrol car was less than two (2) minutes. (ECF No. 30-2). And the

record is undisputed: While Plaintiff did not follow Defendant’s commands to leave and/or

2 Under the Fourth Amendment, “an arresting officer's state of mind (except for the facts

that he knows) is irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543

U.S. 146, 153 (2004). And officer safety – while mission critical – cannot trump the

requirement for probable cause to support a warrantless arrest.

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was approached and removed by Defendant. Plaintiff was a passive onlooker and did not

approach or otherwise interfere. Plaintiff stayed inside his vehicle and was using his cell

phone to make a recording; he did nothing more which could be viewed as obstruction. The

undisputed facts here are distinguishable from those in Sullivan v. Richardson, 2026 Ark.

App. 145, where the Arkansas Court of Appeals found arguable probable cause of

obstruction where the onlooker – instead of leaving as commanded – exited his vehicle,

approached the officer’s police vehicle during an active investigation of a violent crime

suspect, engaged the officer in conversation, and then refused to withdraw. Id. Viewed in

the light most favorable to Plaintiff, there is no basis for reasonably but mistakenly

concluding Plaintiff was actually obstructing governmental operations under Arkansas law.

While Plaintiff’s action of parking nearby and using his cell phone to record Defendant was

subjectively annoying and/or concerning, there is not arguable probable cause to believe

Plaintiff was obstructing governmental operations.

These facts are reminiscent of those in Walker v. City of Pine Bluff, 414 F.3d 989

(8th Cir. 2005) where a bystander black lawyer was arrested for obstruction under this

same obstruction statute, and the Eighth Circuit found qualified immunity was properly

denied. In Walker, the bystander parked his van directly behind one police car and then

walked across the street to observe a traffic stop of young black men being conducted by

white police officers; the bystander spoke only when questioned by officers – saying he

was there to observe “Pine Bluff’s finest in action,” pointed out he was doing nothing

wrong, and was providing his identification when arrested. Id. at 992. The appellate court

found that “[n]o reasonable police officer could believe that he had arguable probable

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operations or any other purported crime.” Id. at 993. Chief Judge Loken wrote the decision,

noting that while the “issue is often more complex when police officers are engaged in

public law enforcement activities,” “[i]n a democracy, public officials have no general

privilege to avoid publicity and embarrassment by preventing public scrutiny of their

actions.” Walker, 414 F.3d at pp. 992-93; see also Chestnut v. Wallace, 947 F.3d 1085,

1090 (8th Cir. 2020) (an investigatory stop and 20 minute seizure was not supported by

reasonable suspicion because the bystander observing traffic stops was not doing anything

illegal).

The totality of the undisputed facts defeat arguable probable cause to arrest Plaintiff

on June 13, 2024, for obstruction under Ark. Code Ann. § 5-54-102. And without arguable

probable cause, Defendant’s warrantless arrest violated Plaintiff’s clearly established rights

under the Fourth Amendment. For these reasons, Defendant is not entitled to qualified

immunity, Thurairajah, supra, and Plaintiff’s Fourth Amendment claim will proceed.

B. Plaintiff’s First Amendment Claim

Plaintiff further alleges his arrest by Defendant violated Plaintiff’s clearly established

right to free speech guaranteed under the First Amendment to the United States

Constitution. See U.S. CONST. amend. I. “The First Amendment is applicable to the States

through the Due Process Clause of the Fourteenth Amendment.” Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976); see

Bigelow v. Virginia, 421 U.S. 809, 811 (1975); Cath. Leadership Coal. of Tex. v. Reisman,

764 F.3d 409, 414 n.1 (5th Cir. 2014). The First Amendment protects “the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to petition

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“prohibit[ ] government officials from subjecting an individual to retaliatory actions for

engaging in protected speech.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019) (quoting

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.” Id. (quotation omitted).

Thus, to prevail on a First Amendment retaliation claim, Plaintiff must show: (1) he

engaged in protected activity; (2) Defendant caused an injury to Plaintiff that would chill a

person of ordinary firmness from continuing the activity; (3) and a causal connection

between the retaliatory animus and injury. See Baribeau v. City of Minneapolis, 596 F.3d

465, 481 (8th Cir. 2010) (per curiam); Molina v. City of St. Louis, Missouri, 59 F.4th 334,

338 (2023). To establish the causal connection, Plaintiff must show he was “singled out”

because of the exercise of his constitutional rights. See id.

Once again, however, establishing the violation itself is only half the battle. Getting

past qualified immunity requires Plaintiff to show that it would have been “sufficiently clear

[to] every reasonable official ... that what [they were] doing violate[d]” the First Amendment.

Reichle v. Howards, 566 U.S. 658, 664 (2012) (quotation marks omitted); Wilson v. Lamp,

901 F.3d 981, 986 (8th Cir. 2018) (explaining the burden remains with Plaintiff, even at this

step); Thompson v. Cockrell, 2025 WL 2657074 (8th Cir. Sept. 17 2025). “Existing

precedent,” in other words, must have put the issue “beyond debate” as of the date of

Plaintiff’s arrest on June 12, 2024. Molina, 59 F.4th at 338 (citing Reichle, 566 U.S. at

664)(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

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decision among them which is on all fours with the present facts – i.e., where an otherwise

peaceful citizen is arrested while filming a law enforcement stop occurring in a private

parking lot. An exact match, however, is not required if the constitutional issue is “beyond

debate.” Id.; see Quraishi v. St. Charles County, Missouri, 986 F.3d 831, 838 (8th Cir.

2021) (quoting Ashcroft v. al-Kidd, supra).

It has been observed that the First Amendment protects the right to peacefully

observe government officials, including law enforcement officers, who are engaged in their

official duties in public. See Tincher v Noem, 816 F. Supp. 3d 931, 967 (D. Minn. 2026).

As pointed out in Judge Menedez’ recent decision, several Eighth Circuit decisions (all prior

to the date of Plaintiff’s 2024 arrest) generally support the existence of such a right. For

example, see Ness v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021) (“The acts of

taking photographs and recording videos are entitled to First Amendment protection

because they are an important stage of the speech process that ends with the

dissemination of information about a public controversy.”). The Eighth Circuit’s decision

of Robbins v. City of Des Moines, 984 F.3d 673, 678 (th Cir. 2021) implicitly recognized the

right when ruling that “[a]ssuming Robbins had a constitutionally protected right to [record

illegally parked cars outside the police department] as he was doing in this case, that right

is not absolute.” The undersigned’s research reveals dicta in multiple opinions supportive

of this general First Amendment right to peacefully observe law enforcement officers

performing law enforcement activities.

Leaving aside for the moment that Plaintiff was videoing law enforcement on private

property, and despite any general understanding that individuals have the right to

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officers in public areas does not appear to have been clearly established in 2024. In so

concluding, the undersigned is persuaded by the non-binding decision of Aunhkhotep v.

Eberhart, 2025 WL 3012995 (E.D. Mo. Oct. 28, 2025) wherein the district court analyzed

whether Aunhkhotep’s First Amendment right to video within the lobby of the St. Louis Tax

Assessor’s Office was clearly established, explaining:

Even the right to record police officers on public streets is not clearly

established. The Eighth Circuit said so just two years ago. Molina, 59 F.4th

at 338–40. Molina acknowledged that some previous Eighth Circuit

precedent had included imprecise language suggesting otherwise. The

Eighth Circuit in 2020 had stated that there is a “clearly established right to

watch police-citizen interactions at a distance and without interfering.” Id. at

339 (quoting Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020)). But

Molina made clear that Wallace and other similar cases are limited to their

Fourth Amendment contexts, and Molina squarely held that “recording

police-citizen interactions was not a clearly established First Amendment

right in 2015,” when the alleged facts at issue in Molina occurred. Id. at 338

(emphasis in original).

So if the right was not clearly established in 2015, when the events in Molina

occurred, what about in 2024? Again, the Court has not located case law

establishing that right beyond debate. In assessing this question, the Court

looks not only to the Eighth Circuit but also to other courts because, “in the

absence of binding precedent, a court should look to all available decisional

law, including decisions of state courts, other circuits and district courts.”

K.W.P. v. Kansas City Pub. Schools, 931 F.3d 813, 828 (8th Cir. 2019)

(citation omitted). Several circuits do recognize a right to record police in

certain public places. E.g., Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir.

1995); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Fields v. City of

Philadelphia, 862 F.3d 353 (3d Cir. 2017); Turner v. Lieutenant Driver, 848

F.3d 678 (5th Cir. 2017); Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022). But

much of this precedent predates 2015 and was not sufficient for the Eighth

Circuit in Molina to hold that the right to record police in public was clearly

established. Later cases postdating 2015 similarly relied on pre-2015

precedent. Most of those cases predate Molina, but Molina never suggested

that the right to record police became clearly established after 2015.

Just the opposite. Because a right is not clearly established unless it is

“beyond debate,” a decision “shedding doubt on” a right is often enough to

grant qualified immunity. See Irizarry, 38 F.4th at 1294 (citation omitted).

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Sobusperervmee t hCeo iusrstu haansc eh eolfd a t htraatf fiincd tiivcikdeuta.”l sM hoalivnea ,“ n5o9 Fco.4ntsht itautt i3o3n9a l (qriugohtti ntog

Colten v. Kentucky, 407 U.S. 104, 109 (1972)).

As can be seen, Judge Divine’s analysis in Aunhkhotep heavily relied upon Molina v. City

of St. Louis, 59 F.4th 334, 339 (8th Cir. 2023). And while even the Molina court recognized

that “[i]t is not beyond the realm of possibility that a First Amendment right to observe

police exists,” Molina, at 59 F.4th at 340 n.2, the undersigned – despite ardent search –

finds no binding precedent following Molina convincing her that the right to observe and/or

peacefully video a law enforcement officer conducting a traffic stop was clearly established

as of June 2024. Perhaps clarity of this important First Amendment right will be established

by the Eighth Circuit in the not too distant future, joining multiple circuits in recognizing the

right to peacefully observe and/or record law enforcement officers who are engaged in their

official duties in public. See TIncher, 816 F. Supp. 3d at 968 (citing Fields v. City of

Philadelphia, 862 F.3d 352 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 689

(5th Cir. 2017); Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014); ACLU of Ill. v. Alvarez,

679 F.3d 583, 595–96 (7th Cir. 2012); Smith v. City of Cumming, 212 F.3d 1332, 1333

(11th Cir. 2000); Askins v. U.S. Dep't of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir.

2018); Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022)).

Nevertheless, because the undersigned cannot say the right was clearly established

(i.e., beyond debate) in June 2024, Defendant is entitled to qualified immunity as to

Plaintiff’s First Amendment claim, and it will be dismissed.

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IV. Conclusion

Defendant’s Motion for Summary Judgment (ECF No. 32) with respect to the

application of qualified immunity will be DENIED IN PART, and GRANTED IN PART, as

follows:

* The Motion will be DENIED with respect to Plaintiffs Fourth Amendment

claim. Defendant does not enjoy qualified immunity, and the Fourth

Amendment claim survives and will proceed.

* The Motion will be GRANTED as to Plaintiff's First Amendment claim.

Defendant enjoys qualified immunity for this claim, Plaintiff's First

Amendment claim is DISMISSED with prejudice.

IT IS SO ORDERED this 18" day of June 2026.

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE

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