Gregory Brooks v. City of West Point Mississippi

Case: 14-60357 Document: 00513376018 Page: 1 Date Filed: 02/11/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60357 United States Court of Appeals

Fifth Circuit

FILED

GREGORY BROOKS, February 11, 2016

Lyle W. Cayce

Plaintiff - Appellant Clerk

v.

CITY OF WEST POINT, MISSISSIPPI; JIMMY BIRCHFIELD; WILLIAM

SPRADLING,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:12-CV-190

Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Gregory Brooks filed this 42 U.S.C. § 1983 suit against West Point,

Mississippi police officers Jimmy Birchfield and William Spradling, alleging

that the officers violated his constitutional rights by unlawfully arresting him

without probable cause, by unlawfully arresting him in retaliation for his

exercise of freedom of speech, and by using excessive force upon him. The

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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district court granted summary judgment in favor of both defendants on the

ground of qualified immunity. We affirm in part and reverse in part.

I.

We summarize the evidence in the light most favorable to Brooks. The

dispute began when Brooks called 911 to complain of harassing phone calls

from his sister in Atlanta, and Birchfield responded to Brooks’s home. When

Birchfield told Brooks that he could not immediately press charges, Brooks

became angry and used curse words and other disrespectful language in telling

Birchfield to get off his property, but did not verbally or physically threaten

Birchfield or make any threatening, combative or other overt gesture toward

him. The exact words Brooks used are disputed. 1

Birchfield then told Brooks that he was “fixing to go to jail for disorderly

conduct” and called for backup; while he was waiting in his car for a second

officer, he told Brooks’s wife and daughter—who had come out to talk to him—

that Brooks would be arrested for disorderly conduct. When Spradling arrived,

the two officers knocked on Brooks’s front door and asked him to come outside,

planning to arrest him for disorderly conduct. Brooks ran out of the house

through a different door and moved quickly toward the officers, demanding to

know why the officers were banging on his door (again, using some level of

expletive that the parties dispute).

Here, accounts of the incident diverge. Brooks and two of his family

members testified that Spradling quickly grabbed Brooks’s arms and pulled

them behind his back, and that Brooks put his hands up only to block the

impact of Birchfield, who ran into Brooks and then yelled that he was going to

1Birchfield maintains that Brooks said, “I don’t like your punk ass no way,” and “just

get your mother fucking ass out of my yard.” Brooks does not recall saying those words and

denies that he would ever do so, but does admit telling Birchfield to “get the hell off [his]

property.”

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charge him with assaulting an officer or resisting arrest. On the other hand,

Spradling testified that he grabbed Brooks only after Brooks had first “shoved”

Birchfield. And Birchfield testified that almost as soon as Brooks exited his

home, he told Brooks that he was under arrest and to put his hands behind his

back; Spradling then grabbed Brooks, who pulled free and “came at” and

“pushed” Birchfield.

After that disputed stage of the second encounter, the officers took hold

of Brooks, pushed him against the garage door, and forced him to the ground,

resulting in abrasions on his hands and knees. Once Brooks was on the

ground, he was handcuffed and led to Spradling’s squad car. Brooks

complained of pain in his back and neck, so the officers had an ambulance take

him to a hospital, where he was treated for abrasions. Brooks also claims that

the incident exacerbated his Post-Traumatic Stress Disorder (PTSD)

symptoms.

II.

We review a district court’s summary judgment decision de novo. Poole

v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). We employ a two-

pronged inquiry to resolve questions of qualified immunity at summary

judgment. “The first asks whether the facts, ‘[t]aken in the light most

favorable to the party asserting the injury, . . . show the officer’s conduct

violated a [federal] right[.]’” Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per

curiam) (alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)). The second prong “asks whether the right in question was ‘clearly

established’ at the time of the violation.” Id. (quoting Hope v. Pelzer, 536 U.S.

730, 739 (2002)). “[U]nder either prong, courts may not resolve genuine

disputes of fact in favor of the party seeking summary judgment.” Id. at 1866.

Because the non-moving party’s disputed evidence must be credited on a

motion for summary judgment, the district court erred in dismissing on the

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basis of qualified immunity Brooks’s claim that he was arrested without

probable cause. “The right to be free from arrest without probable cause is a

clearly established constitutional right.” Mangieri v. Clifton, 29 F.3d 1012,

1016 (5th Cir. 1994). We look to the moment Brooks was arrested to determine

whether the officers could have reasonably believed that they had probable

cause—that “there was a fair probability that [Brooks] had committed or was

committing an offense.” Haggerty v. Tex. S. Univ., 391 F.3d 653, 656 (5th Cir.

2004); see United States v. Tinkle, 655 F.2d 617, 623 (5th Cir. Unit A 1981)

(“The critical time is the moment of arrest, not the moment the officer makes

the decision to arrest.”).

It is regrettable when police are summoned and respond, only to be

cursed. But viewing the facts at the time of arrest in the light most favorable

to Brooks, no reasonable officer could have believed that he could arrest Brooks

solely because of the words he used during his first encounter with Birchfield,

which constituted neither “fighting words” punishable under the First

Amendment nor disorderly conduct under Mississippi law. See City of Houston

v. Hill, 482 U.S. 451, 461–63 (1987); Gooding v. Wilson, 405 U.S. 518, 521–28

(1972); Jones v. State, 798 So. 2d 1241, 1247–48 (Miss. 2001) (en banc) (holding

that a defendant’s profane remarks to a police officer could not have given the

officer reason to believe that a breach of the peace had occurred); Brendle v.

City of Houston, 759 So. 2d 1274, 1283–84 (Miss. Ct. App. 2000) (en banc)

(holding that curse words addressed to a police officer were not fighting words

punishable under Mississippi profanity statute). And although Spradling and

Birchfield’s disputed versions of the events after they knocked on Brooks’s door

might support a finding that the officers had probable cause to believe that

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Brooks committed simple assault or resisted a lawful arrest, 2 the facts

established by the testimony of Brooks and his family—which we must credit

on a motion for summary judgment—do not. The district court therefore erred

in granting summary judgment on this claim.

The district court also erred in granting summary judgment to Birchfield

on the basis of qualified immunity with respect to Brooks’s claim for retaliation

in violation of the First Amendment. On that claim, Brooks must show that

(1) he “engaged in constitutionally protected activity”; (2) Birchfield’s actions

caused Brooks “to suffer an injury that would chill a person of ordinary

firmness from continuing to engage in that activity”; and (3) Birchfield’s

“adverse actions were substantially motivated against” Brooks’s exercise of

constitutionally protected speech. Keenan v. Tejeda, 290 F.3d 252, 258 (5th

Cir. 2002). Viewing the evidence in the light most favorable to Brooks, a jury

could conclude that Brooks’s speech was constitutionally protected, that his

arrest for cursing a police officer was an injury that would chill the speech of a

person of ordinary firmness, and that Birchfield’s decision to arrest Brooks was

motivated against his exercise of protected speech. See id. at 258–61. On this

view of the evidence, it also would have been clear to any reasonable officer

that Birchfield’s conduct was unlawful because (1) “government retaliation

against a private citizen for exercise of First Amendment rights cannot be

objectively reasonable,” and (2) as discussed, it is materially disputed whether

Birchfield had a legitimate ground to arrest Brooks that could “take primacy

over [Brooks’s] right to avoid retaliation.” See id. at 261–62. Thus, “qualified

immunity turns on fact issues that must be resolved by further proceedings in

the trial court.” Id. at 262.

2 “The offense of resisting arrest presupposes a lawful arrest. A person has a right to

use reasonable force to resist an unlawful arrest.” Taylor v. State, 396 So. 2d 39, 42 (Miss.

1981) (citation omitted).

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Nonetheless, the district court correctly dismissed Brooks’s claim that

the officers used excessive force in violation of the Fourth Amendment when

they arrested him—an issue we analyze “without regard to whether the arrest

itself was justified.” Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007). “To

state a claim for excessive use of force, the plaintiff’s asserted injury must be

more than de minimis.” Id. at 416. According to Brooks, he suffered abrasions

to his hands and knees, some pain in his back and neck, and unspecified

problems with his asthma. We have held injuries of this type to be de minimis.

See id. at 417 (“[M]inor, incidental injuries that occur in connection with the

use of handcuffs to effectuate an arrest do not give rise to a constitutional claim

for excessive force.”); Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)

(concluding that allegations of “suffer[ing] ‘acute contusions of the wrist,’ and

psychological injury from being handcuffed” stated only de minimis injuries).

Brooks’s additional allegation that he suffered an increase in his PTSD

symptoms, which he does not support with medical evidence, does not suffice

to survive summary judgment either. Although the record indicates that the

officers knew Brooks was a veteran, there is no evidence they knew or should

have known that he had PTSD. And “[t]he ‘reasonableness’ of a particular use

of force must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490

U.S. 386, 396 (1989). Brooks’s hidden susceptibility to psychological trauma,

therefore, provides little support for his claim of having suffered a cognizable

injury from the officers’ conduct. See Tarver, 410 F.3d at 752 (“Tarver does not

demonstrate that he suffered psychological injury from the handcuffing or that

the handcuffing was excessive or unreasonable.”); Richman v. Sheahan, 512

F.3d 876, 883 (7th Cir. 2008) (explaining that a claim of a “hidden vulnerability

. . . would undermine the plaintiff’s case that the defendants had used excessive

force”). Because Brooks has not proffered evidence that the officers caused him

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more than a de minimis injury, the district court did not err in granting

summary judgment on his excessive force claim.

III.

For these reasons, we AFFIRM the district court’s grant of summary

judgment in favor of the police officers on Brooks’s excessive force claim, but

REVERSE its grant of summary judgment with respect to Brooks’s unlawful

arrest and First Amendment retaliation claims, and REMAND the case for

further proceedings consistent with this opinion.

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JAMES L. DENNIS, Circuit Judge, specially concurring:

I respectfully concur in the conclusions and judgment of the majority

opinion for the reasons assigned in this special concurring opinion.

Judicial opinions serve three functions. First, written opinions

communicate a court’s conclusions and the reasons for them to the

parties and their lawyers. Second, when published, opinions

announce the law to other lawyers, judges, academics, and the

interested public. Finally, the preparation of a written opinion

imposes intellectual discipline on the author, requiring the judge

to clarify his or her reasoning and assess the sufficiency of

precedential support.

FEDERAL JUDICIAL CENTER, JUDICIAL WRITING MANUAL 1 (1991).

The majority opinion is a summary and shortened version of the full-

fledged opinion that I proposed for deciding this case. Because I believe my

proposed full opinion more adequately performs the functions that judicial

opinions should serve, I set forth part of it below as my reasons for concurring

in the conclusions and judgment of the majority opinion.

I. Factual and Procedural Background

This litigation arises from two encounters between Brooks and Sergeant

Birchfield on Brooks’s front lawn on the same morning. The first encounter

was a one-on-one situation between only Brooks and Sgt. Birchfield. The

second encounter was between Brooks and Officers Birchfield and Spradling;

and it was witnessed by Brooks’s family. The defendant officers contend that

during the first encounter Brooks committed the state crime of disorderly

conduct; and that during the second encounter Brooks committed the

additional state offenses of resisting arrest and simple assault on an officer.

Brooks alleges that the officers violated his constitutional rights by unlawfully

arresting him because they did not have reasonable grounds to believe that he

had committed any of those crimes before they physically seized him.

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A. First Encounter

On the morning of January 2, 2012, plaintiff Gregory Brooks called 911

from his home in West Point, Mississippi complaining that he had received

harassing phone calls and messages from his sister in Atlanta, Georgia. In

response, defendant Sergeant Jimmy Birchfield of the West Point, Mississippi

police department was dispatched to Brooks’s home. Sgt. Birchfield parked in

the driveway and Brooks met him on the front lawn. Brooks explained that

his sister in Atlanta had been making harassing phone calls and leaving

abusive messages, and he proceeded to play several examples of the messages

for Sgt. Birchfield to hear. The undisputed record evidence indicates that

during the first encounter Brooks and Sgt. Birchfield were the only persons

present and were on Brooks’s private property; that Brooks became

disappointed and angry when Sgt. Birchfield told him that he could not

immediately press charges against his sister in Atlanta; and that Brooks used

curse words and other disrespectful language in telling Sgt. Birchfield to get

off his property; but that Brooks did not verbally or physically threaten Sgt.

Birchfield or make any threatening, combative or other overt gesture toward

him. 1 Nevertheless, Sgt. Birchfield told Brooks that he would arrest Brooks

1 On summary judgment we must consider the facts in the light most favorable to

Brooks. See Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). Sgt. Birchfield

contends he told Brooks that he would have to go to the police station to press charges against

his sister but that she could not be extradited from Georgia on a phone harassment charge.

According to Sgt. Birchfield, he suggested that Brooks just change his phone number, so

Brooks may have thought Birchfield was being sarcastic, and Brooks responded by saying, “I

don’t like your punk ass no way” and “just get your mother fucking ass out of my yard.”

Brooks, on the other hand, denied using any foul language other than “hell.” Sgt. Birchfield

stated that he responded by telling Brooks, “you can’t be cussing the police . . . now, at this

point what you’re doing is being disorderly . . . I’m trying to advise you on what we can do

and what we can’t do.” According to Sgt. Birchfield, when Brooks continued to curse at him,

he responded by saying either “Mr. Brooks, you’re fixing to go to jail for disorderly conduct”

or “Mr. Brooks, you’re going to be under arrest for disorderly conduct.”

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and charge him with disorderly conduct because Brooks had continued to use

curse words in addressing Sgt. Birchfield after the officer ordered him to stop.

Brooks next walked back into his house and Sgt. Birchfield pulled his squad

car out of Brooks’s driveway. During their first encounter, Sgt. Birchfield did

not arrest or even touch Brooks, and Brooks did not touch or threaten Sgt.

Birchfield.

Sgt. Birchfield then parked his squad car on the street in front of

Brooks’s house, called 911, and reported that Brooks “clearly, you know, he

called us out here for telephone harassment, but he’s clearly disorderly. He’s

very disorderly.” Sgt. Birchfield asked that another officer be dispatched to

Brooks’s home to assist in arresting Brooks. While Sgt. Birchfield was

awaiting the second officer, Brooks’s wife and teenage daughter came out of

the house and asked Sgt. Birchfield why Brooks could not press charges

against his sister. Sgt. Birchfield informed them that he was going to arrest

Brooks for disorderly conduct “due to the fact where he has been told not to

curse the police the way he did . . . that’s why he’s going to jail because he was

told.” Brooks’s wife asked Sgt. Birchfield if Brooks could just apologize, but

Sgt. Birchfield responded “that is just too far over for disrespecting a police

officer . . . I just can’t accept, you know, you cursing a police when they’re trying

to help you at the same time.” Brooks’s wife and daughter went back in the

house.

Soon afterwards, defendant Corporal William Spradling, also of the West

Point police department, arrived on the scene. Sgt. Birchfield instructed Cpl.

Spradling that they were going to arrest Brooks for disorderly conduct and they

walked up to Brooks’s house and knocked on the front door.

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B. Second Encounter

Unbeknown to the officers, the Brooks family kept the front door

permanently dead-bolted and used a side door for entrance and egress. Inside

the house, Brooks, his wife, his teenage daughter, and his younger son heard

a loud bang that frightened them. Mrs. Brooks testified that it “sounded like

our front door was coming down.” Brooks, who testified that he is an Iraq war

veteran and suffers from Post-Traumatic Stress Disorder (“PTSD”), stated that

he was “traumatized” by the banging on the door. He said that “it felt like the

feeling like [he] was in Iraq again, like a big explosion.”

The officers, knocking at the front door, called for Brooks to “come

outside.” Brooks exited the house by running or moving quickly from his den,

through his garage, and out the side door of the garage. Brooks then went

around the corner of the garage and headed toward the front door of the house.

Brooks’s wife, daughter, and son followed closely behind Brooks and witnessed

his encounter with the officers. As Brooks walked toward the officers near the

front door, he demanded to know why the “hell” they were banging on his door. 2

1. Dispute as to Material Facts

At this point, there is a sharp difference between the three Brookses’

version of events and that of the police officers. Brooks, his wife, and his

daughter testified as follows: After the officers knocked and called for Brooks

to come out, they did not issue any other command to Brooks. When Brooks

reached his front yard, he demanded to know why the officers were banging on

his house, and Cpl. Spradling, who was closer to Brooks, grabbed Brooks’s

2Sgt. Birchfield testified that Brooks said, “why your mother fucking ass knocking on

my door[?] Didn’t I tell you to get the fuck off my yard[?]” Cpl. Spradling’s testimony was

consistent with Sgt. Birchfield’s. Brooks’s wife, however, testified that the only expletive

Brooks may have used was “hell.”

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arms and pulled them behind his back. 3 Sgt. Birchfield then yelled at Brooks

that he was going to arrest him for disorderly conduct, “because he can’t call

the police out to his house and then get upset because they wouldn’t allow him

to press charges.” Then, Sgt. Birchfield started to run at Brooks at full speed.

Brooks pulled his arms away from Cpl. Spradling and put both hands up,

palms open, in order to block the impact. Sgt. Birchfield ran into Brooks’s open

hands. Sgt. Birchfield then yelled that he was going to charge Brooks with

assaulting an officer.

On the other hand, each officer’s account of the incident disputes that of

the Brooks family and, in part, that of the other officer. Cpl. Spradling testified

that: He grabbed Brooks only after Brooks had first “shoved” Sgt. Birchfield.

Sgt. Birchfield testified that: Almost as soon as Brooks exited his home, he told

Brooks that he was under arrest for disorderly conduct and to put his hands

behind his back. Cpl. Spradling then grabbed Brooks’s arm and began to place

it behind Brooks’s back. Brooks pulled free from Cpl. Spradling’s grasp, “came

at” Sgt. Birchfield, and “pushed” Sgt. Birchfield with his hands.

2. The Rest of the Material Facts Are Undisputed

The parties agree that, after that disputed stage of the second

encounter, the officers both grabbed hold of Brooks, pushed him against the

garage door, and vigorously forced him to the ground, resulting in abrasions

on his hands and knees. Once Brooks was on the ground, he was handcuffed

and led to Cpl. Spradling’s squad car. While they were en route to the jail,

Brooks began to complain of severe pain in his back and neck, so the officers

had an ambulance take him to a hospital, where he was treated for abrasions

3 There is some discrepancy in the record as to whether Cpl. Spradling pulled both of

Brooks’s arms behind his back, or just one.

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on his hand and foot. Brooks also alleges that the ordeal aggravated his PTSD

symptoms.

C. Procedural History

Brooks brought claims under 42 U.S.C. § 1983 and various state laws

against the City of West Point, Mississippi, as well as against Sgt. Birchfield

and Cpl. Spradling in both their personal and official capacities. Brooks v. City

of W. Point, 18 F. Supp. 3d 790, 794 (N.D. Miss. 2014). Brooks later abandoned

all claims against the city, all state-law claims, and all claims against the

officers in their official capacities, leaving only his claims against the officers

individually for Fourth Amendment unlawful arrest, First Amendment

retaliatory arrest, and for excessive force. Id. Sgt. Birchfield and Cpl.

Spradling (collectively, “Defendants”) moved for summary judgment on the

basis of qualified immunity and the district court granted their motions. Id.

Brooks appealed.

II. Elements of Summary Judgment and Qualified Immunity

We review a district court’s summary judgment decision de novo. Poole

v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). Summary judgment is

appropriate if “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). In

ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is

to be believed, and all justifiable inferences are to be drawn in his favor.” Tolan

v. Cotton, 134 S. Ct. 1861, 1863 (2014) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986)).

In this circuit, the defense of qualified immunity involves a shifting

burden of proof. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992).

“Although we sometimes short-handedly refer to only one party’s burden, the

law is that both bear a burden.” Id. The defendant official first has the burden

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to plead good faith and establish that he engaged in the relevant conduct while

acting within the scope of his discretionary authority. Id. (citing Saldana v.

Garza, 684 F.2d 1159, 1163 (5th Cir. 1982)). “Once the defendant has done so,

the burden shifts to the plaintiff to rebut this defense by establishing that the

official’s allegedly wrongful conduct violated clearly established law.” Id.

(citing Whatley v. Philo, 817 F.2d 19, 20 (5th Cir. 1987); United States v.

Burzynski Cancer Research Inst., 819 F.2d 1301, 1310 (5th Cir. 1987)).

We employ a two-pronged inquiry to resolve questions of qualified

immunity at summary judgment. “The first asks whether the facts, ‘[t]aken in

the light most favorable to the party asserting the injury, . . . show the officer’s

conduct violated a [federal] right[.]’” Tolan, 134 S. Ct. at 1865 (quoting Saucier

v. Katz, 533 U.S. 194, 201 (2001)). “The second prong of the qualified-immunity

analysis asks whether the right in question was ‘clearly established’ at the time

of the violation.” Id. (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The

order in which to address these two prongs rests in the reviewing court’s

discretion. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “But under either

prong, courts may not resolve genuine disputes of fact in favor of the party

seeking summary judgment.” Tolan, 134 S. Ct. at 1866 (citing Brosseau v.

Haugen, 543 U.S. 194, 195 n.2 (2004) (per curiam)). “This is not a rule specific

to qualified immunity; it is simply an application of the more general rule that

a ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine

issue for trial.’” Id. (quoting Anderson, 477 U.S. at 249). “Summary judgment

is appropriate only if ‘the movant shows that there is no genuine issue as to

any material fact and the movant is entitled to judgment as a matter of law.’”

Id. (quoting FED. RULE CIV. PROC. 56(a)). “In making that determination, a

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court must view the evidence ‘in the light most favorable to the opposing

party.’” Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).

III. Discussion

A. Fourth Amendment Unlawful Arrest Claim

“The right to be free from arrest without probable cause is a clearly

established constitutional right.” Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th

Cir. 1994) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)); see Gerstein v. Pugh,

420 U.S. 103, 111 (1975). Probable cause to arrest turns on whether an officer,

at the time of arrest, “had knowledge that would warrant a prudent person’s

belief that the person arrested had already committed or was committing a

crime.” Mangieri, 29 F.3d at 1016 (quoting Duckett v. City of Cedar Park, 950

F.2d 272, 278 (5th Cir. 1992)). “Police officers who ‘reasonably but mistakenly

conclude that probable cause is present’ are entitled to qualified immunity.”

Id. at 1017 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). In Devenpeck

v. Alford, 543 U.S. 146, 153 (2004), the Supreme Court made clear that the

pertinent question in a claim of false arrest under the Fourth Amendment is

whether there was probable cause to arrest the plaintiff for a crime, regardless

of the individual officer’s subjective reason for making the arrest. Applying

the Devenpeck standard in the qualified immunity context, the inquiry is

whether, given the facts known to Defendants, they could have reasonably

believed they had probable cause to arrest Brooks for a crime he had committed

or was committing.

Defendants point to three Mississippi statutes under which they contend

they had probable cause to arrest Brooks: (1) disorderly conduct, Mississippi

Code § 97-35-7; (2) resisting arrest, § 97-9-73; and (3) simple assault, § 97-3-

7(1)(a). Applying the summary judgment and qualified immunity principles

to the materials in the record, however, it becomes clear that the movant

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officers are not entitled to summary judgment dismissing Brooks’s claims of

unlawful arrest and retaliation for his speech, because the materials in the

record show that (1) during his first encounter with Sgt. Birchfield, Brooks did

not commit the offense of disorderly conduct, and (2) there is a genuine dispute

as to whether, during the second encounter, Cpl. Spradling and Sgt. Birchfield

unlawfully arrested Brooks before Brooks lawfully attempted to defend himself

against their unconstitutional seizure of him. After discussing Defendants’

meritless arguments as to disorderly conduct, resisting arrest, and assault, I

will further address their claim of qualified immunity.

The Mississippi disorderly conduct statute provides, in pertinent part,

that:

(1) Whoever, with intent to provoke a breach of the peace, or under

such circumstances as may lead to a breach of the peace, or

which may cause or occasion a breach of the peace, fails or

refuses to promptly comply with or obey a request, command,

or order of a law enforcement officer, having the authority to

then and there arrest any person for a violation of the law, to:

[Subparts (a) through (h) list various types of commands,

orders or requests with which a person must comply, e.g.,

“(a) Move or absent himself and any vehicle or object subject

to his control from the immediate vicinity where the request,

command or order is given.”]

(i) Act or do or refrain from acting or doing as ordered,

requested or commanded by said officer to avoid any

breach of the peace at or near the place of issuance of such

order, request or command, shall be guilty of disorderly

conduct, which is made a misdemeanor and, upon

conviction thereof, such person or persons shall be

punished by a fine of not more than Five Hundred Dollars

($500.00) or imprisonment in the county jail for not more

than six (6) months, or by both such fine and

imprisonment.

MISS. CODE ANN. § 97-35-7(1) (2006).

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Thus, to convict a person of violating subsection (i) of Mississippi’s

disorderly conduct statute the state must prove that the accused failed to

comply with an officer’s command, order, or request to act, or not to act, as

instructed, while the officer’s command, order, or request had been issued to

avoid a breach of the peace, and the accused either intended to provoke a

breach of the peace, or knew that his non-compliance may cause or lead to a

breach of the peace. See id. However, under the free speech principles

recognized by both state and federal courts, the statute may not be applied to

punish a person, or to justify his arrest, because of his spoken words only,

unless his speech constitutes “fighting words” or falls within some other

category of speech not protected by the First Amendment.

The Supreme Court has held that “the First Amendment protects a

significant amount of verbal criticism and challenge directed at police officers.”

City of Houston v. Hill, 482 U.S. 451, 461 (1987). “Speech is often provocative

and challenging. . . . [But it] is nevertheless protected against censorship or

punishment, unless shown likely to produce a clear and present danger of a

serious substantive evil that rises far above public inconvenience, annoyance,

or unrest.” Id. (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). “The

constitutional guarantees of freedom of speech forbid the States to punish the

use of words or language not within narrowly limited classes of speech.”

Gooding v. Wilson, 405 U.S. 518, 521-22 (1972) (quotation marks omitted).

“These include . . . ‘fighting’ words—those which by their very utterance inflict

injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New

Hampshire, 315 U.S. 568, 571-72 (1942). “‘The test is what men of common

intelligence would understand would be words likely to cause an average

addressee to fight.’” Id. at 573 (citation omitted). “Even as to such a class,

however, because the line between speech unconditionally guaranteed and

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speech which may legitimately be regulated, suppressed, or punished is finely

drawn, in every case the power to regulate must be so exercised as not, in

attaining a permissible end, unduly to infringe the protected freedom.”

Gooding, 405 U.S. at 522 (quotation marks, citations, and alterations omitted).

“In other words, the statute must be carefully drawn or be authoritatively

construed to punish only unprotected speech and not be susceptible of

application to protected expression.” Id.

For example, in Lewis v. City of New Orleans, 415 U.S. 130 (1974), a state

court found that the appellant had yelled obscenities and threats at an officer

after the officer had asked the appellant’s husband for his driver’s license. Id.

at 131 n.1. The appellant was convicted under a municipal ordinance making

it unlawful “for any person wantonly to curse or revile or to use obscene or

opprobrious language toward or with reference to any member of the city police

while in the actual performance of his duty.” Id. at 132 (citation omitted). The

Court vacated the conviction and invalidated the ordinance as facially

overbroad. Id. at 134. “Critical to [the Court’s] decision was the fact that the

ordinance ‘punishe[d] only spoken words’ and was not limited in scope to

fighting words that ‘by their very utterance inflict injury or tend to incite an

immediate breach of the peace.’” Hill, 482 U.S. 461-62 (quoting Lewis, 415 U.S.

at 133); see also Gooding, 405 U.S. at 525 (invalidating Georgia breach-of-the-

peace statute not limited to fighting words). Since the ordinance was

“susceptible of application to protected speech,” it was “constitutionally

overbroad and therefore . . . facially invalid.” Lewis, 415 U.S. at 134.

Moreover, in his concurrence in Lewis, Justice Powell went so far as to question

whether the “fighting words” exception applies in full force to speech directed

at police officers, as “a properly trained officer may reasonably be expected to

exercise a higher degree of restraint than the average citizen, and thus be less

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likely to respond belligerently to ‘fighting words.’” Id. at 135 (citation and

quotation marks omitted). Later, in Hill, a majority of the Court cited

favorably this language from Justice Powell. 482 U.S. at 462.

Mississippi courts have recognized and applied the Chaplinsky “fighting

words” doctrine in considering whether spoken words alone, without

threatening or combative conduct or gestures, may be punished under state

statutes. See Brendle v. City of Houston, 759 So. 2d 1274, 1283-84 (Miss. Ct.

App. 2000) (en banc) (Brendle’s use of spoken words only, “I’m tired of this God

d— police sticking their nose in s— that doesn’t even involve them” and “f—,”

in addressing a police officer and another person, inside Brendle’s place of

business, were not “fighting words” so as to make him punishable under

Mississippi public profanity or drunkenness statute) (Per Lee, J., with three

judges concurring and two judges concurring specially); Odem v. State, 881 So.

2d 940 (Miss. Ct. App. 2004) (en banc) (holding that defendant Odem used

fighting words because, in addition to directing curse words at a sheriff’s

deputy inside his office from which the deputy could not walk away, defendant

engaged in combative conduct); 4 Sendelweck v. State, 101 So. 3d 734 (Miss. Ct.

App. 2012) (finding probable cause to arrest Sendelweck for disorderly conduct

because he walked across a public street to where a deputy was standing beside

his parked vehicle and irately pointed his finger in the officer’s face while

4 Odem did not stop with simply expressing his displeasure. See Odem v. State, 881

So. 2d 940, 946 (Miss. Ct. App. 2004). He was combative and he created a stalemate that

rose to the level of “fighting words” that were likely to inflict injury or incite an immediate

breach of the peace. Id. at 948-49. Indeed, Odem indicated no intent to back down until the

officer gave him his vehicle without following the proper procedure. Id. at 949.

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yelling and cursing and refusing to step back when directed, which the officer

believed to be threatening and combative gestures).

Although the Mississippi Supreme Court has not explicitly applied the

Chaplinsky “fighting words” doctrine in construing the disorderly conduct

statute, it reached a result consistent with the doctrine in Jones v. State, 798

So. 2d 1241 (Miss. 2001) (en banc). Defendant Jones was arrested after he

publicly berated a sheriff’s deputy outside a pit-stop grocery, calling him “a

child killing motherfucker,” yelling other profanity, accusing him of having had

a hand in Jones’s son’s death, and refusing to leave the premises as the officer

instructed. Id. at 1246. A majority held under state-law precedent that, based

on Jones’s spoken words only without any threatening conduct or gestures at

that point, the deputy did not have sufficient evidence to believe that a breach

of the peace was being threatened or a crime was about to be committed. Id.

at 1248 (Per Diaz, J., with two judges concurring and two judges concurring in

the result.) The four dissenting justices fully considered and discussed the

Chaplinsky “fighting words” doctrine but found that Jones’s actions and words

were not protected speech. Id. at 1256-57 (Easley, J., dissenting). Needless to

say, although most, if not all, judges in Mississippi, as elsewhere, recognize the

constraints of the First Amendment “fighting words” doctrine, that does not

mean they will always agree upon its specific application and result in every

particular factual situation.

Applying the foregoing principles to the present case leads to the

conclusion that, during the first encounter, under the undisputed facts,

Brooks’s spoken words only, which did not threaten harm to Sgt. Birchfield or

anyone else, and which Brooks addressed only to Sgt. Birchfield within the

confines of Brooks’s own property, without any overt hostile act, conduct or

gesture, although angry, distasteful and uncivil, simply could not reasonably

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be thought to rise to the level of “‘fighting’ words—those which by their very

utterance inflict injury or tend to incite an immediate breach of the peace.”

Chaplinsky, 315 U.S. at 571. Nor were Brooks’s spoken words “likely to

produce a clear and present danger of a serious substantive evil that rises far

above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337

U.S. 1, 4 (1949). Consequently, the disorderly conduct statute could not be

construed to punish Brooks’s spoken words only under those circumstances,

and the previous decisions of the Mississippi Supreme Court and Courts of

Appeals are consistent with this conclusion.

Sgt. Birchfield points to nothing in the record that suggests that, during

the first encounter, Brooks’s words alone, under the circumstances then

present, had any tendency to cause a fight or public disturbance or to interfere

with the police in the performance of their duties. Rather, the record shows

that during the first encounter, it is far more likely that Sgt. Birchfield took

offense at Brooks’s spoken words and decided to arrest him and charge him

with disorderly conduct because of his speech alone. For example, Sgt.

Birchfield testified that when Brooks told him “I don’t like your mother fucking

ass no way. Get the fuck on out of my yard,” 5 Sgt. Birchfield immediately said,

“okay, Mr. Brooks, you’re fixing to go to jail for disorderly conduct.” And Sgt.

Birchfield testified that Brooks was “arrested for cursing, saying, ‘get your

mother fucking ass off my yard. I told your punk ass.’” 6 Although Sgt.

Birchfield’s subjective reason for arresting Brooks is not controlling, his failure

to give any reason for the arrest other than Brooks’s speech alone highlights

5 Brooks testified that he told Sgt. Birchfield “to get the hell out of [his] yard” and he

denied using any other expletive.

6 Brooks denied using this vulgar language. He stated that “hell” was the only

expletive he used.

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the lack of probative evidence that Brooks said or did anything to threaten

Birchfield, other persons, or the peace of the public. Thus, for the purpose of

deciding the summary judgment motion, we must conclude that Brooks was

arrested for his spoken words only and that his speech did not constitute

“fighting words,” those which by their very utterance inflict injury or tend to

incite an immediate breach of the peace. See Gooding, 405 U.S. at 522.

With respect to the second encounter, there is a genuine issue of material

fact as to whether Defendants, Sgt. Birchfield and Cpl. Spradling, had probable

cause to arrest Brooks for a criminal offense prior to the moment that Cpl.

Spradling arrested Brooks by seizing him and placing his arms behind his

back. Although Sgt. Birchfield and Cpl. Spradling testified that Brooks lunged

at and assaulted Sgt. Birchfield before Cpl. Spradling arrested Brooks, the

three Brooks family members testified to the contrary. Brooks, his wife, and

teenage daughter testified consistently that Cpl. Spradling grabbed Brooks

and pinned his arms behind his back as soon as Brooks reached the front yard,

and that it was only after Cpl. Spradling had seized Brooks that Sgt. Birchfield

sprinted towards Brooks and Brooks put his open hands out to protect his body

from the impact. Because in ruling on a summary judgment motion the

evidence of the nonmovant is to be believed, and all justifiable inferences are

to be drawn in his favor, we must credit the testimony of Brooks, his wife and

his daughter and infer that at the moment Brooks was arrested he had not

given the officers any reason to believe that he had committed or was

committing a criminal offense.

Defendants’ arguments that they had probable cause to arrest Brooks for

resisting arrest and assault on a police officer are also meritless. Under

Brooks’s version of the facts, which we must credit for summary judgment

purposes, he had not committed a criminal offense prior to the time he was

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arrested by Cpl. Spradling. Therefore, Cpl. Spradling and Sgt. Birchfield may

not interpose their disputed version of the facts as a basis for deciding the

motion for summary judgment.

Viewing the evidence in the light most favorable to Brooks, there are

unresolved disputes of material fact as to whether Defendants violated

Brooks’s Fourth Amendment right to be free from arrest without probable

cause. See Tolan, 134 S. Ct. at 1865. The next step in the qualified immunity

analysis is to determine whether the right Defendants allegedly violated was

“clearly established” at the time of the violation. See id. at 1866. Since

qualified immunity protects those officers who “reasonably but mistakenly”

violate an individual’s constitutional rights, Defendants are entitled to

qualified immunity if “reasonable officers in [Defendants’] position could have

believed probable cause existed to arrest” Brooks. Freeman v. Gore, 483 F.3d

404, 415 (5th Cir. 2007). The record evidence, viewed most favorably to Brooks,

indicates that no reasonable officer could have believed probable cause existed.

Brooks has submitted competent evidence that his relevant conduct prior to

arrest was limited to spoken words only. As discussed above, Brooks’s

speech—however disrespectful, abusive, or inappropriate—fell far short of

“fighting words” or any other category of speech that can be punished by the

state. See Gooding, 405 U.S. at 522. No reasonable officer in Defendants’

position could have believed that the First Amendment or Mississippi law

permitted Brooks to be arrested for his words alone. See Jones, 798 So. 2d at

1248. Accordingly, Defendants are not entitled to summary judgment based

upon qualified immunity on Brooks’s Fourth Amendment unlawful arrest

claim.

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B. First Amendment Retaliation for Speech Claim

Brooks further claims that Sgt. Birchfield violated his First Amendment

free speech rights by causing Brooks to be arrested in retaliation for Brooks’s

spoken words to Sgt. Birchfield in their first encounter. 7 To establish that he

was subjected to retaliation in violation of his First Amendment rights, Brooks

must show that (1) he “engaged in constitutionally protected activity”; (2) Sgt.

Birchfield’s actions caused Brooks “to suffer an injury that would chill a person

of ordinary firmness from continuing to engage in that activity”; and (3) Sgt.

Birchfield’s “adverse actions were substantially motivated against” Brooks’s

exercise of constitutionally protected speech. Keenan v. Tejeda, 290 F.3d 252,

258 (5th Cir. 2002). Sgt. Birchfield has asserted qualified immunity on this

claim, which requires an analysis of “whether the facts alleged, taken in the

light most favorable to the party asserting the injury, show that the officer’s

conduct violated a constitutional right” and “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he

confronted.” Keenan, 290 F.3d at 261 (quotation marks and citations omitted).

In Keenan, two former deputy constables, Keenan and Przybylski, brought a

§ 1983 suit asserting that their First Amendment rights were violated when

they suffered retaliation for their protected speech. Id. at 256. Not long after

they publicly exposed possible wrongdoing by the county constable, Keenan

and Przybylski were subjected to a traffic stop by several officers with guns

drawn that led to the issuance of a minor traffic ticket, later dismissed, and

Keenan was subsequently charged with misdemeanor “deadly conduct” under

suspicious circumstances. Id. at 256-59. The district court granted summary

judgment based on qualified immunity in favor of the defendant officers, but

7 Brooks does not include Cpl. Spradling as a defendant in his First Amendment claim.

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we reversed on appeal. First, we concluded that Keenan and Przybylski were

engaged in protected activity, suffered an injury that would chill a person of

ordinary firmness, and had offered sufficient evidence that the officers’ conduct

was substantially motivated by the plaintiffs’ protected speech. Id. at 261.

Moving to qualified immunity’s second prong, we stated that “[i]f no reasonable

police officer could have believed that probable cause existed for the law

enforcement actions of [the defendant officers] against the plaintiffs, then their

retaliation violated clearly established law in this circuit.” Id. at 262. This

was because “government retaliation against a private citizen for exercise of

First Amendment rights cannot be objectively reasonable” in light of clearly

established law, but “the objectives of law enforcement take primacy over the

citizen’s right to avoid retaliation” where there is a legitimate ground to charge

the plaintiff with a crime. Id. at 261-62 (citing Rolf v. City of San Antonio, 77

F.3d 823, 828 (5th Cir. 1996) and Mozzochi v. Borden, 959 F.2d 1174, 1179 (2d

Cir. 1992)). Since a genuine dispute of fact made it impossible for us to

determine whether probable cause existed, “qualified immunity turn[ed] on

fact issues that [had to] be resolved by further proceedings in the trial court”

and we reversed the district court’s summary judgment in favor of the

defendants. Id. at 262.

Here, Brooks has proffered sufficient evidence that Sgt. Birchfield

violated his First Amendment rights because, under Brooks’s version of events,

his speech was constitutionally protected activity, his arrest was an injury that

would chill the speech of a person of ordinary firmness, and he has offered

ample evidence that Sgt. Birchfield’s decision to arrest Brooks was

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substantially motivated against Brooks’s exercise of protected speech. 8 See id.

at 261. Next, we must consider “whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Id.

(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). As we have stated,

“government retaliation against a private citizen for exercise of First

Amendment rights cannot be objectively reasonable.” Id. Furthermore, as

discussed in Part III.A., supra, Sgt. Birchfield’s summary judgment arguments

that he had probable cause to arrest Brooks are without merit. In light of

clearly established federal law, no reasonable officer in Sgt. Birchfield’s

position could have believed he could arrest Brooks in retaliation for Brooks’s

spoken words only that under the circumstances clearly did not amount to

“fighting words.” See id. at 262. Thus, Sgt. Birchfield was not entitled to

qualified immunity on Brooks’s First Amendment retaliatory arrest claim.

C. Fourth Amendment Excessive Force Claim

I concur fully in the majority opinion’s disposition of Brooks’s excessive

force claim because it is essentially identical to that which I proposed in my

full-length opinion.

IV. Conclusion

For these reasons, I concur in the conclusions and judgment of the

majority opinion.

8 For example, Sgt. Birchfield charged that Brooks “willfully and unlawfully, said to

officer Birchfield to get his punk ass off his property” and refused to comply with a request

to calm down. Sgt. Birchfield also told Brooks’s wife that he would arrest Brooks because “he

has been told not to curse the police the way he did . . . that’s why he’s going to jail.”

26