Jonathan Davidson v. City of Stafford, Texas, et a

Case: 16-20217 Document: 00513865376 Page: 1 Date Filed: 02/07/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-20217 FILED

February 7, 2017

Lyle W. Cayce

JONATHAN DAVIDSON, Clerk

Plaintiff - Appellant

v.

CITY OF STAFFORD, TEXAS; BONNY KRAHN, Chief of Police, City of

Stafford, Texas; HENRY GARCIA, Police Officer, City of Stafford, Texas;

STEVEN FLAGG, Police Officer, City of Stafford, Texas; DAN JONES, Police

Officer, City of Stafford, Texas,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before KING, OWEN, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Plaintiff Jonathan Davidson was arrested during a protest of a Planned

Parenthood in Stafford, Texas. Davidson subsequently brought suit under 42

U.S.C. § 1983 for violations of his rights under the First and Fourth

Amendments against Defendants Officer Steven Flagg, Officer Dan R. Jones

III, Chief of Police Bonny Krahn, and the city of Stafford. The district court

held that the individual officers were entitled to qualified immunity and that

Davidson failed to create a dispute of fact for municipal liability for the City of

Case: 16-20217 Document: 00513865376 Page: 2 Date Filed: 02/07/2017

No. 16-20217

Stafford. Davidson appeals. For the reasons discussed below, we AFFIRM IN

PART, REVERSE IN PART, and REMAND.

I. Factual and Procedural Background

On March 31, 2013, Davidson arrived at the Planned Parenthood clinic

(the “Clinic”) in Stafford, Texas to protest and express his pro-life views. The

Clinic is part of a commercial strip center located along the southbound feeder

of U.S. 59. During his protest, Davidson stood in a green space between the

parking lot of the commercial strip center and U.S. 59. The green space was

bounded by the parking lot, U.S. 59, and at least one entryway from U.S. 59 to

the parking lot. 1

Davidson’s protest consisted of standing in the green space, holding a

sign that said “Pray to End Abortion,” and waving at cars both on U.S. 59 and

in the parking lot. If a car stopped, Davidson would speak to the passengers

and offer them a card with a phone number to a service that offers free

pregnancy tests and ultrasounds. 2

During his protest, Davidson was approached by a Clinic employee,

Marilyn Chosed. Although the parties disagree on what exactly happened,

both agree that Chosed informed Davidson that he had to leave. This exchange

prompted Chosed to contact the Stafford Police Department (“Stafford PD”).

During her phone call to Stafford PD, Chosed stated that “we have a protester

out here and he keeps coming off of the area that he’s supposed to and flagging

down our patients before they come in the clinic.” Chosed also provided the

operator with a physical description of Davidson. The operator subsequently

1 Evidence in the record demonstrates that, while Davidson occasionally crossed the

entryway to stand on another green space, he remained on one green space during the

interaction that led to his arrest.

2 During his deposition, Davidson clarified that he protested with the intent to

persuade women not to go into the Clinic because he “[doesn’t] want abortions to happen.”

2

Case: 16-20217 Document: 00513865376 Page: 3 Date Filed: 02/07/2017

No. 16-20217

put out a dispatch stating that there was a “suspicious person call at Planned

Parenthood.” The operator then said “There’s a white male . . . who is flagging

down customers before they come in.”

Officer Steven Flagg of the Stafford PD was dispatched to the Clinic

following the dispatch call. Upon arrival, he observed Davidson standing in

the green space outside the parking lot. Officer Flagg proceeded to enter the

Clinic and speak with Chosed, who informed Officer Flagg that Davidson had

been walking in front of the Clinic and in the parking lot, approaching patients

on the sidewalk and in the parking lot, and delaying or inconveniencing

patients as they attempted to enter the Clinic. Chosed also informed Officer

Flagg that she had warned Davidson that he was both trespassing on Clinic

property and harassing Clinic patients, and that he needed to leave. Based on

his conversation with Chosed, Officer Flagg believed that Davidson was

walking in the parking lot and following patients to the entryway of the Clinic.

Officer Flagg clarified that Chosed did not inform him where exactly Davidson

had been walking. Officer Flagg also testified that Chosed did not state

anything about Davidson stopping vehicles, and that, based on Chosed’s

description, he did not believe Davidson was delaying vehicles.

A second officer, Dan R. Jones III, was dispatched as a backup unit to

Officer Flagg and arrived shortly after Officer Flagg arrived. Together, the

officers approached Davidson and asked him to come to them in the parking

lot. Davidson responded that he could not, but the officers again asked

Davidson to approach them. At this stage, the parties’ facts diverge. On the

one hand, Davidson claims that the officers began accusing him of harassing

Clinic customers, to which Davidson responded that he was there to pray, hold

his sign, and hand out cards. Davidson also claims to have informed the

officers that he had no way of knowing which people entering the parking lot

were Clinic customers. On the other hand, Officers Flagg and Jones each claim

3

Case: 16-20217 Document: 00513865376 Page: 4 Date Filed: 02/07/2017

No. 16-20217

that Officer Flagg asked Davidson whether he was approaching patients or

stopping vehicles, to which Davidson responded in the affirmative. 3 The

officers also claim that Officer Flagg asked Davidson where he was

approaching patients, but Davidson did not provide a direct response. Finally,

Davidson’s police report indicates that Officer Flagg asked Davidson whether

he was on business property, to which Davidson stated that he knew what he

was and was not allowed to do.

At this point, Davidson backed away from the officers and acted as if he

was going to continue protesting. Officer Flagg asked Davidson to come back

and continue speaking to both officers. Officer Flagg also asked Davidson for

identification. Davidson said he did not have any identification and that his

name was “Jonathan.” Officer Flagg repeatedly asked Davidson for

identification or his last name, to which Davidson responded with either

“Jonathan” or “Jon.” Based on these responses, Officers Flagg and Jones

arrested Davidson. As they arrested Davidson, the officers stated “you don’t

ID, you go to jail” and “you fail to ID, you got to jail.” Upon a request from

Davidson to know why he was being arrested, one of the officers stated “fail to

ID, when we’re conducting an investigation, did not identify yourself to the

police.” Davidson again informed the officers that his name was Jonathan and

that he was not operating a motor vehicle, but an officer stated “when we’re

conducting an investigation, fail to give your name to the police, you go to jail.”

Davidson was charged with failure to identify under Texas Penal Code

§ 38.02 and taken to Fort Bend County Jail. He was released later that night.

Approximately a year later, Davidson’s attorney sent a letter to the City of

3There appears to be some dispute over whether the officers thought Davidson was

stopping cars during his protest. Officer Jones’s affidavit also states his belief that Davidson

was approaching cars.

4

Case: 16-20217 Document: 00513865376 Page: 5 Date Filed: 02/07/2017

No. 16-20217

Stafford (“the City”) to confirm that Davidson would not be subject to any

present or future prosecution. The City responded that it would not prosecute

Davidson for his previous conduct but did not state whether it would prosecute

Davidson for similar conduct in the future. Davidson testified that he intends

to protest the Clinic in the future but had not returned because he does not

want to end up back in jail.

Davidson subsequently filed suit, alleging claims under 42 U.S.C. § 1983

for violations of his rights to both freedom of speech under the First

Amendment and freedom from unreasonable searches and seizures under the

Fourth Amendment. Davidson also asserted an as-applied challenge to Texas

Penal Code §§ 38.02 and 42.03. Davidson named Officers Flagg and Jones,

Chief of Police Bonny Krahn, and the City as defendants. Davidson’s

complaint sought damages, including punitive damages, as well as a

declaration that Defendants’ actions, policies, and practices violated the

Constitution.

Following an answer by the Defendants and discovery, Defendants filed

motions for summary judgment. The district court ultimately granted

summary judgment in favor of the Defendants on all claims. The district court

held that (1) Officer Flagg, Officer Jones, and Chief Krahn were entitled to

qualified immunity and (2) the City was entitled to summary judgment

because Davidson failed to demonstrate any policy that caused Davidson’s

alleged constitutional violation.

II. Jurisdiction and Standard of Review

The district court had subject matter jurisdiction over Davidson’s claim

under 28 U.S.C. § 1331, and this court has jurisdiction to review the final

judgment under 28 U.S.C. § 1291.

An appeal from a grant of summary judgment is reviewed de novo. Moss

v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). “The court shall grant

5

Case: 16-20217 Document: 00513865376 Page: 6 Date Filed: 02/07/2017

No. 16-20217

summary judgment if the movant shows that there is no genuine dispute as to

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

FED. R. CIV. P. 56(a). “When considering a motion for summary judgment, the

court views all facts and evidence in the light most favorable to the non-moving

party.” Howell, 827 F.3d at 522 (quoting Moss, 610 F.3d at 922).

III. Discussion

Davidson’s appeal both challenges the district court’s grant of summary

judgment on his § 1983 claims and argues that the district court failed to

address his claims that the City’s actions chilled his speech. We address each

of these arguments in turn.

A. Section 1983

Davidson seeks to reverse the district court’s grant of summary

judgment as to all three groups of Defendants: Officers Flagg and Jones, the

City, and Chief Krahn. We agree with Davidson that reversal is appropriate

as to Officers Flagg and Jones, but hold that the district court correctly granted

summary judgment to the City and Chief Krahn.

1. Officers Flagg and Jones

The district court held that Officers Flagg and Jones were entitled to

qualified immunity on Davidson’s claims of violations of both his First

Amendment right to free speech and his Fourth Amendment right to be free

from unlawful searches and seizures. The district court initially found that

Officers Flagg and Jones did not have actual probable cause to arrest Davidson

for failure to identify. Nevertheless, the district court determined that the

officers were entitled to summary judgment because (1) Davidson had been

ordered to move under Texas Penal Code § 42.04 and (2) Flagg and Jones “at

least arguably had probable cause because [they] reasonably believed that

Davidson made passage through the parking lot and into [the Clinic]

unreasonably inconvenient by harassing [the Clinic’s] patients and stopping

6

Case: 16-20217 Document: 00513865376 Page: 7 Date Filed: 02/07/2017

No. 16-20217

vehicles as they entered and exited the parking lot.” This latter conduct,

according to the district court, constituted obstruction of a highway or other

passage under Texas Penal Code § 42.03.

“Qualified immunity shields federal and state officials from money

damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified

immunity ‘gives government officials breathing room to make reasonable but

mistaken judgments,’ and ‘protects all but the plainly incompetent or those

who knowingly violate the law.’” Messerschmidt v. Millender, 132 S. Ct. 1235,

1244 (2012) (quoting al-Kidd, 563 U.S. at 743).

A warrantless arrest without probable cause violates clearly established

law defining an individual’s rights under the Fourth Amendment. See Hogan

v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013). Individuals who protest are

also protected under the First Amendment from retaliatory actions by

government officials. Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016). But

if an officer has probable cause to seize that individual, “the objectives of law

enforcement take primacy over the citizen’s right to avoid retaliation.” Id. at

245 (quoting Keenan v. Tejeda, 290 F.3d 252, 261–62 (5th Cir. 2002)). Probable

cause “means facts and circumstances within the officer’s knowledge that are

sufficient to warrant a prudent person, or one of reasonable caution, in

believing, in the circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.” Hogan, 722 F.3d at 731 (quoting

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).

Officers are therefore entitled to qualified immunity unless there was no

actual probable cause for the arrest and the officers were objectively

unreasonable in believing there was probable cause for the arrest. See Crostley

7

Case: 16-20217 Document: 00513865376 Page: 8 Date Filed: 02/07/2017

No. 16-20217

v. Lamar Cty., 717 F.3d 410, 422–23 (5th Cir. 2013); see also Cooper v. City of

La Porte Police Dep’t, 608 F. App’x 195, 199 (5th Cir. 2015) (“[O]fficers are

entitled to qualified immunity unless there was not probable cause for the

arrest and a reasonable officer in their position could not have concluded that

there was probable cause for the arrest.” (citing Crostley, 717 F.3d at 422–23)).

This probable cause may be for any crime and is not limited to the crime that

the officers subjectively considered at the time they perform an arrest. Club

Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009).

The district court held that Officers Flagg and Jones had “arguable”

probable cause to arrest Davidson for obstructing a highway or other passage

in violation of Texas Penal Code § 42.03. In relevant part, § 42.03 states:

(a) a person commits an offense if, without legal

privilege or authority, 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 and whether the

obstruction arises from his acts alone or

from his acts and the acts of others;

....

(b) For purposes of this section, “obstruct” means to

render impassable or to render passage unreasonably

inconvenient or hazardous.

TEX. PENAL CODE § 42.03. 4

4If the conduct regulated under § 42.03(a) consists of “speech or other communication”

or “a gathering . . . to otherwise express . . . a position on social, . . . political, or religious

questions,” Texas Penal Code § 42.04 requires that “the actor must be ordered to move,

disperse, or otherwise remedy the violation [under § 42.03] prior to his arrest if he had not

8

Case: 16-20217 Document: 00513865376 Page: 9 Date Filed: 02/07/2017

No. 16-20217

We agree with the district court that there was no actual probable cause

for Davidson’s arrest. At the time Officers Flagg and Jones arrested Davidson,

the only crime charged to Davidson was failure to identify under § 38.02. This

is further confirmed in Davidson’s police report, which charged Davidson with

failure to identify under § 38.02(a). But § 38.02(a) applies only when an officer

“has lawfully arrested the person and requested the information.” TEX. PENAL

CODE § 38.02(a). At the time they performed the arrest for the alleged § 38.02

violation, Davidson was not under arrest for any other violation, thus, the

“failure to identify” statute clearly was not triggered. We therefore conclude

that the district court correctly determined that the officers had no actual or

“arguable” probable cause for arresting Davidson under § 38.02. We consider

whether they had probable cause under any other statute below.

Turning to objective or “arguable” probable cause, and taking the facts

in the light most favorable to Davidson, it is clear that the officers were

objectively unreasonable in believing that there was probable cause for

Davidson’s arrest under the only other section posited here, § 42.03. Based on

the information available to Officers Flagg and Jones, Davidson had not

“render[ed] impassable or . . . render[ed] passage unreasonably inconvenient

or hazardous” for Clinic patients. TEX. PENAL CODE § 42.03. At the time

Officer Flagg arrived at the Clinic, Davidson was standing in the grass

easement next to the parking lot. Officer Flagg proceeded to speak with

Chosed, who informed him that Davidson had been both (1) walking both in

front of and in the parking lot of the Clinic and (2) approaching, delaying,

and/or inconveniencing patients as they attempted to enter the Clinic. Officer

yet intentionally harmed the interest of others which those sections seek to protect.” TEX.

PENAL CODE § 42.04(a). Given our determination that the officers had no probable cause to

arrest Davidson under § 42.03, § 42.04 becomes inapplicable to Davidson’s conduct, as that

statute requires “conduct that would otherwise violate section . . . 42.03 (Obstructing

Passageway)” and Davidson’s conduct did not violate the statute. Id.

9

Case: 16-20217 Document: 00513865376 Page: 10 Date Filed: 02/07/2017

No. 16-20217

Flagg later testified in his deposition that he took Chosed’s description of

Davidson’s behavior to mean that Davidson was not impeding vehicle traffic.

Officers Flagg and Jones could infer from Chosed’s statements that Davidson

had slowed down people entering both the parking lot and the Clinic in order

to speak with them and offer them informational cards. But while these

actions could be considered inconvenient based on Chosed’s description, they

cannot be construed, by an objectively reasonable officer in Officers Flagg’s or

Jones’s position, as rendering entry to the Clinic impassable or unreasonably

inconvenient as required under § 42.03.

A review of Texas state court decisions applying § 42.03 further supports

our holding that no reasonable officer would conclude that probable cause

existed to arrest Davidson. The description of Davidson’s actions provided to

Officer Flagg included two key facts that the Texas Court of Criminal Appeals

has previously seized upon in determining whether conduct rises to the level

of obstruction under § 42.03. See Haye v. State, 634 S.W.2d 313, 314–15 (Tex.

Crim. App. [Panel Op.] 1982). First, Chosed stated that Davidson was walking,

approaching, harassing, and delaying Clinic patients, but not stopping or

preventing their entry into the Clinic. This distinction of movement by the

defendant, as opposed to the defendant standing in place or making a pathway

impassible, requires a finding of no obstruction. Compare Sherman v. State,

626 S.W.2d 520, 528 (Tex. Crim. App. 1981) (no obstruction where a defendant

caused a momentary stop by walking in front of a car), with Haye, 634 S.W.2d

at 314–15 (obstruction where a defendant stood on the sidewalk and forced an

individual to walk around him and through mud). Second, any delay caused

by Davidson was based on Davidson’s abortion protest. Reasonable officers in

Officers Flagg’s and Jones’s position must therefore consider the balance

between Davidson’s First Amendment rights and the right of the public to have

access to the Clinic. See Sherman, 626 S.W.2d at 528 (“By requiring [under

10

Case: 16-20217 Document: 00513865376 Page: 11 Date Filed: 02/07/2017

No. 16-20217

§ 42.03] that passage be severely restricted or completely blocked . . . we give

ample breathing room for the exercise of First Amendment rights. At the same

time, such a definition adequately protects the right of the public to have access

to the . . . premises.”). Given that the information available to Officers Flagg

and Jones at the time of Davidson’s arrest indicated that (1) Davidson had

delayed (by his words, not physically), but not prevented anyone from entering

the Clinic and (2) Davidson was exercising his First Amendment rights by

protesting, it was objectively unreasonable for these officers to conclude that

there was probable cause to arrest Davidson under § 42.03.

In addition to cases establishing the lack of probable cause, there was

fulsome case law clearly establishing that an arrest without probable cause

violates both First and Fourth Amendment rights at the time of Davidson’s

arrest in 2013. Specifically, Officers Flagg’s and Jones’s conduct violated

Davidson’s clearly established rights as demonstrated in federal case law. See

Club Retro, 568 F.3d at 206 (“The Fourth Amendment right to be free from

false arrest—arrest without probable cause—was clearly established at the

time of [the] arrests [in 2006].”); Keenan, 290 F.3d at 262 (“If no reasonable

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

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

retaliation violated clearly established law of this circuit.” (citing Rolf v. City

of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996)). Their actions also violated

Davidson’s rights as recognized by the highest state courts in Texas. See Faust

v. State, 491 S.W.3d 733, 745 (Tex. Crim. App. 2016) (“There is no dispute that

[the protestors] had a First Amendment right to express their views in a public

forum.”), cert. denied, 85 U.S.L.W. 3324 (U.S. Jan. 9, 2017); Iranian Muslim

Org. v. City of San Antonio, 615 S.W.2d 202, 205 (Tex. 1981) (“The rights to

picket and demonstrate in public places, particularly streets, sidewalks, and

parks, are extended [F]irst [A]mendment protection.” (citations omitted)); see

11

Case: 16-20217 Document: 00513865376 Page: 12 Date Filed: 02/07/2017

No. 16-20217

also Operation Rescue-Nat’l v. Planned Parenthood of Hous. & Se. Tex., Inc.,

975 S.W.2d 546, 567–68 (Tex. 1998) (limiting injunction against protestors who

threatened to block clinic entrances to only that necessary to allow ingress and

egress while protecting the right of the protestors to be heard). These federal

and state decisions make clear that Davidson’s arrest without probable cause

was a violation of his First and Fourth Amendment rights.

On the second prong of the qualified immunity defense, recent Supreme

Court decisions addressing claims for excessive force have “reiterate[d] the

longstanding principle that ‘clearly established law’ should not be defined ‘at a

high level of generality.’” White v. Pauly, No. 16–67, Slip Op. at 6 (U.S. Jan. 9,

2017) (per curiam) (quoting al-Kidd, 563 U.S. at 742)); see also Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015). Our cases outside the excessive force area

involving warrantless arrests and limits on speech have not specifically

mentioned this aspect of Supreme Court cases. See, e.g., Deville v. Marcantel,

567 F.3d 156, 166 (5th Cir. 2009); Evett v. DETNTFF, 330 F.3d 681, 687 (5th

Cir. 2003). Assuming arguendo that the specific White/Mullenix admonition

applies to all qualified immunity cases regardless of the constitutional

violation charged, the officers here still come up short. The cases cited above

clearly demonstrate what does and does not violate § 42.03 and also clearly

establish the unconstitutionality of warrantless arrests without probable

cause.

Even if he had not been exercising core First Amendment rights,

Davidson was not (even arguably) in violation of § 42.03 when he stood outside

of the Clinic. Additionally, his right to protest prohibited the officers’

application of § 42.03 in the manner employed here. Resolving all factual

disputes in favor of Davidson, the objective unreasonableness displayed by

Officers Flagg and Jones in the face of law clearly establishing Davidson’s

rights leads us to the conclusion that qualified immunity cannot shield their

12

Case: 16-20217 Document: 00513865376 Page: 13 Date Filed: 02/07/2017

No. 16-20217

actions against Davidson. We conclude that in Davidson’s case, “every

reasonable official would have understood that what he is doing violates”

Davidson’s rights. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quoting

al-Kidd, 563 U.S. at 741). The district court improperly granted summary

judgment in favor of Officers Flagg and Jones.

2. The City of Stafford

Davidson next argues that there are three bases from which we may find

that the City had an official policy of improperly applying § 38.02: (1) Chief

Krahn’s testimony concerning his interpretation of § 38.02, (2) evidence that

Chief Krahn ratified the conduct of Officers Flagg and Jones, and (3) evidence

concerning an alleged pattern of misapplication of § 38.02 by the Stafford PD.

We find none of Davidson’s arguments persuasive, and therefore affirm the

district court’s grant of summary judgment in favor of the City.

Municipalities are persons susceptible to suit under § 1983, but they

cannot be found liable on a theory of vicarious liability or respondeat superior.

Monell v. Dep’t of Social Servs., 436 U.S. 658, 690–91 (1978). At the summary

judgment stage, a plaintiff making a direct claim of municipal liability must

demonstrate a dispute of fact as to three elements: that (1) an official policy

(2) promulgated by the municipal policymaker (3) was the moving force behind

the violation of a constitutional right. Culbertson v. Lykos, 790 F.3d 608, 628

(5th Cir. 2015).

Each of Davidson’s arguments before us goes to the first element, an

official policy on the part of the City. Davidson’s first argument relies on Chief

Krahn’s deposition testimony that an officer performs a legal arrest under

§ 38.02 if an officer has probable cause to believe that the person has

committed some other crime at the time they fail to identify. In “rare

circumstances,” a single unconstitutional action may be sufficient to impose

municipal liability “if undertaken by the municipal official or entity possessing

13

Case: 16-20217 Document: 00513865376 Page: 14 Date Filed: 02/07/2017

No. 16-20217

‘final policymaking authority’ for the action in question.” Howell, 827 F.3d at

527 (citation omitted). An unconstitutional policy may be found when a

policymaker performs the specific act that forms the basis of the § 1983 claim.

See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 482, 484–85 (1986);

Howell, 827 F.3d at 528; Anderson v. City of McComb, 539 F. App’x 385, 388

n.2 (5th Cir. 2013). But even if we assume arguendo that Chief Krahn was a

policymaker for the City, his testimony alone is insufficient to demonstrate an

official policy for the City because testimony is not a specific act by a

policymaker that results in a constitutional violation susceptible to a § 1983

claim. Unlike the situations in Pembaur, Howell, and Anderson, Davidson has

presented no evidence that Chief Krahn performed the arrest that forms the

basis of Davidson’s § 1983 claim. Without this evidence, Davidson fails to

demonstrate that Chief Krahn’s testimony constitutes the type of “rare

circumstance” in which this court may find that the City had a policy of

unconstitutionally interpreting § 38.02.

Davidson’s second argument also relies on deposition testimony from

Chief Krahn. Davidson argues that Chief Krahn ratified the conduct of

Officers Flagg and Jones when he reviewed Davidson’s arrest and determined

that there was no violation from which he could discipline the officers. “If the

authorized policymakers approve a subordinate’s decision and the basis for it,

their ratification would be chargeable to the municipality because their

decision is final.” Peterson v. City of Fort Worth, 588 F.3d 838, 854 (5th Cir.

2009) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)).

Ratification, however, is limited to “extreme factual situations.” World Wide

Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th Cir.

2009) (quoting Peterson, 588 F.3d at 848). “[A] policymaker who defends

conduct that is later shown to be unlawful does not necessarily incur liability

on behalf of the municipality.” Peterson, 588 F.3d at 848 (citation omitted).

14

Case: 16-20217 Document: 00513865376 Page: 15 Date Filed: 02/07/2017

No. 16-20217

Further, good faith statements made while defending complaints of

constitutional violations by municipal employees do not demonstrate

ratification. Zarnow v. City of Wichita Falls, 614 F.3d 161, 169 (5th Cir. 2010).

Here, the underlying conduct by Officers Flagg and Jones, while

unconstitutional, was not sufficiently extreme to qualify for a finding of

ratification. See Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985). 5

Chief Krahn’s conduct is more analogous to the conduct in Zarnow, where we

did not find ratification when a municipality defended the constitutionality

and propriety of its officers’ actions, despite our later determination that the

officers’ actions violated the Fourth Amendment. Zarnow, 614 F.3d at 169;

see also Medina v. Ortiz, 623 F. App’x 695, 701 (5th Cir. 2015) (no ratification

where the sheriff accepted an officer’s use of force report, refused to turn over

evidence until a lawsuit was filed, and defended the deputies’ actions in the

case). Chief Krahn’s actions in investigating Officers Flagg’s and Jones’s

conduct thus cannot support an allegation of ratification resulting in an official

policy on the part of the City.

5 The facts of Grandstaff were described in a subsequent opinion as follows:

[I]n response to a minor traffic violation, three patrol cars

engaged in a high speed chase during which they fired wildly at

the suspected misdemeanant; the object of this chase took refuge

on an innocent person’s ranch, where the entire night shift of the

city police force converged and proceeded to direct hails of

gunfire at anything that moved; although nobody except the

police was ever shown to have fired a shot, the innocent rancher

was killed when the police shot him in the back as he was

emerging from his own vehicle; after this “incompetent and

catastrophic performance,” which involved a whole series of

abusive acts, the officers’ supervisors “denied their failures and

concerned themselves only with unworthy, if not despicable,

means to avoid legal liability.”

Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986) (citations omitted).

15

Case: 16-20217 Document: 00513865376 Page: 16 Date Filed: 02/07/2017

No. 16-20217

Davidson’s final argument attempts to impute a policy of

unconstitutionally enforcing § 38.02 to the City by relying on seven incidents

between January 2010 and June 2013 in which Stafford PD arrested

individuals due to, among other things, a violation of § 38.02. In order to find

a municipality liable for a policy based on a pattern, that pattern “must have

occurred for so long or so frequently that the course of conduct warrants the

attribution to the governing body of knowledge that the objectionable conduct

is the expected, accepted practice of city employees.” Peterson, 588 F.3d at 850

(quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en

banc)). A pattern requires similarity, specificity, and sufficiently numerous

prior incidents. Id. at 851. But Davidson’s evidence of an alleged pattern lacks

the detail necessary to find a policy on the part of the City. As an initial matter,

Davidson provides no evidence that any of the previous arrests resulted in

subsequent litigation alleging a constitutional violation. Looking to these prior

arrests, most appear to involve facts demonstrating that the arrestees had

committed or were in the act of committing another crime, in addition to their

failure to identify. Under this court’s precedent, these arrests likely did not

involve a constitutional violation, as the officers likely had probable cause to

arrest these defendants for the other crime. Club Retro, 568 F.3d at 204. 6 If

we remove these cases from our consideration, Davidson’s pattern relies on

three cases (two from the records obtained by Davidson and Davidson’s case)

over three-and-a-half years to form the basis of the alleged pattern of

constitutional violations. Without further context of the size of Stafford PD or

6 That we would have to consider whether each prior incident constitutes an

unconstitutional arrest further cuts against a finding of a pattern. See Pineda v. City of

Houston, 291 F.3d 325, 329 (5th Cir. 2002) (“The weakness in the approach is apparent in its

practical effects. It requires the City to defend ‘cases within cases’ from historical records to

justify searches conducted without a warrant.”).

16

Case: 16-20217 Document: 00513865376 Page: 17 Date Filed: 02/07/2017

No. 16-20217

the amount of arrests made over the corresponding period, these incidents are

insufficient to establish a pattern of constitutional violations by the Stafford

PD. See, e.g., Carnaby v. City of Houston, 636 F.3d 183, 189–90 (5th Cir. 2011)

(no pattern: two reports of violations of a policy in four years in Houston);

Peterson, 588 F.3d at 851 & n.4 (no pattern: twenty-seven complaints of

excessive force over four years in Fort Worth); Pineda v. City of Houston, 291

F.3d 325, 329 (5th Cir. 2002) (no pattern: eleven incidents of warrantless

searches in Houston). Because Davidson’s arguments on an official policy on

the part of the City and ratification based on Chief Krahn’s conduct also fail,

we affirm the district court’s grant of summary judgment in favor of the City

on Davidson’s § 1983 municipality liability claim.

3. Chief Krahn

Davidson’s final argument concerns the liability of Chief Krahn in his

individual capacity. According to Davidson, Chief Krahn’s endorsement of an

unconstitutional interpretation of § 38.02 caused a pattern of constitutional

violations, and Davidson’s arrest was the obvious consequence of Krahn’s

misinterpretation of the statute. In order to survive summary judgment

against a § 1983 claim for supervisory liability, a plaintiff is required to create

a dispute of fact that (1) the supervisor either failed to supervise or train the

subordinate officer; (2) a causal link exists between the failure to train or

supervise and the violation of the plaintiff’s rights, and (3) the failure to train

or supervise amounts to deliberate indifference. Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 452–53 (5th Cir. 1994) (en banc) (citing Hinshaw v. Doffer,

785 F.2d 1260, 1263 (5th Cir. 1986), abrogated in part by Johnson v. Morel, 876

F.3d 477, 480 (5th Cir. 1989)).

Davidson’s allegations and evidence fail to demonstrate a material

dispute of fact as to deliberate indifference. “Deliberate indifference is a

stringent standard of fault, requiring proof that a municipal actor disregarded

17

Case: 16-20217 Document: 00513865376 Page: 18 Date Filed: 02/07/2017

No. 16-20217

a known or obvious consequence of his action.” Estate of Davis ex rel. McCully

v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (quoting Bd. of

Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997) (alteration

omitted)). “Actions and decisions by officials that are merely inept, erroneous,

ineffective, or negligent do not amount to deliberate indifference and do not

divest officials of qualified immunity.” Id. (quoting Alton v. Tex. A&M Univ.,

168 F.3d 196, 201 (5th Cir. 1999)). Deliberate indifference can be

demonstrated in two ways. Kitchen v. Dallas Cty., 759 F.3d 468, 484 (5th Cir.

2014), abrogated in part by Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–76

(2015). First, a plaintiff may demonstrate “that a municipality had notice of a

pattern of similar violations.” Id. (alteration omitted) (quoting Sanders-Burns

v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010)). Second, a plaintiff may

demonstrate liability based on a single incident if the constitutional violation

was “‘the highly predictable’ consequence of a particular failure to train.” Id.

(citing City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989) and Connick v.

Thompson, 563 U.S. 61, 63–68 (2011)). If we find that Davidson cannot

establish a dispute of fact as to deliberate indifference, we need not address

the other two prongs of supervisory liability. Goodman v. Harris Cty., 571 F.3d

388, 395 (5th Cir. 2009).

As a threshold matter, the proper inquiry for supervisory liability here

would be Chief Krahn’s alleged failure to train or supervise, not his

interpretation of § 38.02. But even if Chief Krahn’s interpretation of § 38.02

was the equivalent of a failure to train or supervise, Davidson has failed to

demonstrate a material dispute of fact concerning the deliberate indifference

of Chief Krahn. Davidson’s evidence is insufficient to demonstrate either a

pattern, as discussed in section III.A.2, supra, or that his injury was a highly

predictable consequence of Chief Krahn’s understanding of § 38.02. That is,

Chief Krahn’s understanding of § 38.02 does not lead to the highly predictable

18

Case: 16-20217 Document: 00513865376 Page: 19 Date Filed: 02/07/2017

No. 16-20217

consequence of officers arresting individuals (including Davidson) without

probable cause. On this point, our prior decision in Brown v. Bryan County,

219 F.3d 450 (5th Cir. 2000) is instructive. There, we found deliberate

indifference where the municipality in question had not trained or supervised

the officer who committed the allegedly unconstitutional conduct. Id. at 462.

We further emphasized the fact that the policymaker, a sheriff, had recently

investigated the officer and was aware of the officer’s “youth, inexperience,

personal background, and ongoing [improper] arrest activities.” Id. at 458,

462. None of the facts in Davidson’s case provide the same cause for concern

we recognized in Bryan County. Defendants provided evidence demonstrating

the extensive training completed by Officers Flagg and Jones, and Davidson

points to no evidence concerning the officers’ backgrounds or activities with the

Stafford PD that demonstrate the high probability of Davidson’s arrest.

Davidson’s evidence therefore fails to create a material dispute of fact as to

deliberate indifference, and the district court correctly granted summary

judgment on his claim for the liability of Chief Krahn in his individual capacity.

In conclusion, we agree with the district court that Davidson’s claims

against the City and Chief Krahn cannot survive summary judgment. But we

hold that Officers Flagg and Jones are not entitled to qualified immunity, as

they had no actual probable cause and were objectively unreasonable to believe

they had probable cause to arrest Davidson.

B. First Amendment As-Applied Claim

Davidson also argues that the district court failed to address his claims

that Defendants’ understanding of sections 38.02 and 42.03 and Davidson’s

arrest resulted in an as-applied violation of Davidson’s First Amendment

rights. We agree. The district court appears to have addressed only Davidson’s

First Amendment claim in the context of § 1983 retaliation, where the district

court granted Defendants summary judgment due to its determination that

19

Case: 16-20217 Document: 00513865376 Page: 20 Date Filed: 02/07/2017

No. 16-20217

Officers Flagg and Jones had “arguable” probable cause. But Davidson

provided undisputed evidence and argued in his filings before the district court

that he intends to continue protesting the Clinic and that Defendants intend

to continue enforcing sections 38.02 and 42.03 in an unconstitutional manner. 7

This evidence is sufficient to demonstrate standing for a First Amendment

challenge. Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014). Regardless

of the outcome of Davidson’s other § 1983 claims, Davidson has stated a valid

claim that sections 38.02 and 42.03, as applied to his conduct, violate his First

Amendment rights. On remand, the district court shall consider this claim

and, if necessary, fashion a remedy in the form of a declaration specific to

Davidson and his protesting at the Clinic. Cf. McCullen v. Coakley, 134 S. Ct.

2518, 2541 (2014) (invalidating overly broad Massachusetts buffer zone statute

regarding healthcare facilities where abortions are performed). This

declaration must clearly define what is and is not allowed by both Davidson,

the City, and its officers under sections 38.02 and 42.03 in light of this opinion.

IV. Conclusion

Except as provided in Section III.B. above, we AFFIRM the district

court’s grant of summary judgment to the City and Chief Krahn on Davidson’s

§ 1983 claims. We REVERSE the district court’s grant of summary judgment

to Officers Flagg and Jones, and REMAND these § 1983 claims to the district

court. On remand, the district court shall also consider Davidson’s First

Amendment claim and, fashion a declaration, in accordance with this opinion,

delineating both Davidson’s right to protest the Clinic and the scope of

Defendants’ authorization under sections 38.02 and 42.03.

Defendants’ intent to unconstitutionally enforce sections 38.02 and 42.03 was further

7

demonstrated during oral argument through defense counsel’s erroneous interpretation of

the statutes.

20