Kokesh v. Curlee

Case: 20-30356 Document: 00516022065 Page: 1 Date Filed: 09/21/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

September 21, 2021

No. 20-30356

Lyle W. Cayce

Clerk

Adam Kokesh,

Plaintiff—Appellee,

versus

Kevin Curlee,

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:19-CV-1372

Before Elrod, Willett, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

This is another case involving a law enforcement officer’s defense of

qualified immunity. But unlike most cases involving qualified immunity, this

one raises no issue with regard to excessive force, or an unconstitutional

search of a premises. In fact, this story begins not even with a traffic stop.

Rather, this federal civil rights lawsuit has blossomed from the attempt by a

state trooper to render roadside assistance.

Case: 20-30356 Document: 00516022065 Page: 2 Date Filed: 09/21/2021

No. 20-30356

I.

On the night of January 2, 2019, Louisiana State Trooper Kevin

Curlee, patrolling in the New Orleans area, came upon a pickup truck

stopped on the shoulder of the Carrollton Overpass on Interstate 10. The

pickup truck had its emergency hazard lights blinking, its hood open, 1 and

also a visible current handicap license plate. Two people stood outside the

truck. Trooper Curlee pulled his marked Louisiana State Police (“LSP”)

unit, with its emergency lights flashing, behind the pickup truck. He then

started his bodycam, which stayed on for several hours thereafter and

throughout all material times relative to this matter. Both from the bodycam

footage, 2 as well as through judicial notice, 3 we note the following about this

location:

1

Kokesh submitted and cites to Curlee’s “arrest narrative,” which contains the

description of the truck’s hood being open. Kokesh does not deny and offers no explanation

as to why the hood of the truck was open, other than stating that it is not visible on Curlee’s

bodycam recording. At any rate, the Court’s ruling does not depend on whether the hood

was open or not.

2

Although all alleged facts are taken as if they are true, facts established by a video

record control when they clearly contradict the facts contained in a pleading. See Scott v.

Harris, 550 U.S. 372, 380–81 (2007); see also United States ex rel. Riley v. St. Luke’s Episcopal

Hosp., 355 F.3d 370, 377 (5th Cir. 2004). Here, Curlee has attached a video of the incident,

which is available at: http://www.ca5.uscourts.gov/opinions/pub/20/20-30356.mp4.

There are several points of material fact on which the video clearly contradicts Kokesh’s

alleged facts. On these facts, the video will control. It is curious that Kokesh did not provide

his video of this incident, but we assume it shows events no differently.

3

The dissent accuses us of “peeking outside the record to assess the history and

characteristics of the Carrollton Overpass and its purported dangers,” but this critique falls

flat. Post at 25. Indeed, each and every fact regarding the Overpass which we supply by

judicial notice not only provides texture, context, and assistance in the fact-intensive

inquiry we must perform, but is also “generally known within the trial court’s territorial

jurisdiction” and capable of being “accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b). As a result, no

such fact “is . . . subject to reasonable dispute” under the applicable rule of evidence, and

2

Case: 20-30356 Document: 00516022065 Page: 3 Date Filed: 09/21/2021

No. 20-30356

The Pontchartrain Expressway portion of Interstate 10 in New

Orleans runs from the Jefferson-Orleans Parish line to the foot of the

Crescent City Connection, which spans the Mississippi River. For the last

60-plus years, it has been the single major express thoroughfare between

downtown New Orleans, its Central Business District (or “CBD”), and the

French Quarter on its eastern side, and Metairie, Kenner, and Armstrong

International Airport to the west. It has six lanes (three in each direction), a

regularly-exceeded speed limit of 60 mph, and contains a lengthy section, the

“Carrollton Overpass”—also referred to by locals as “the Carrollton

Interchange” because of the several crisscrossing on-and-off ramps under it.

A significant and central artery of the City’s landscape leading to the

Louisiana Superdome, the Carrollton Overpass is elevated high above city

streets, each side having a barely wide enough shoulder for stalled vehicles

and/or distressed drivers, and a low concrete wall on the edge. In short,

vehicles parked on the shoulder and the passengers who exit these vehicles,

especially at night, are in danger of being struck by oncoming traffic travelling

at high interstate speeds, thus endangering lives and creating road hazards.

There are hardly any benign reasons why a car or truck, such as the one found

this night, would purposely be parked on the shoulder of this elevated

expressway after nightfall. 4

the court “may judicially notice” each such fact accordingly. Id. It makes no difference

whether such facts appear in the record, as “an appellate court may judicially notice certain

facts, even if the district court did not.” Brown v. Tarrant Cnty., 985 F.3d 489, 493 n.4 (5th

Cir. 2021).

4

Curlee’s arrest narrative states that he arrived on the scene of the overpass

incident “at approximately 1740 hours,” or 5:40 p.m. On the other hand, Curlee’s briefing

on appeal states that Curlee arrived “shortly before midnight,” citing the time index of

Curlee’s bodycam. Review of Curlee’s bodycam footage indicates that Curlee’s arrest

narrative provides the accurate time—the radio clock on Curlee’s LSP unit reads “17:40”

when Curlee arrives. In any event, the bodycam footage indicates that the entire incident

3

Case: 20-30356 Document: 00516022065 Page: 4 Date Filed: 09/21/2021

No. 20-30356

Viewing the encounter objectively, one would expect Curlee to stop

his LSP unit on the overpass behind the stopped pickup truck bearing a

handicap license plate, especially upon seeing people outside of the truck and

the truck’s emergency hazard lights blinking. Reasonably, Curlee’s initial

concern and inquiry at that time was not possible criminal activity, but rather

the safety of the truck’s occupants if it had stalled and the safety of other

motorists passing at high speeds.

As Curlee pulled behind the truck, he observed one person apparently

spraying the overpass wall while another watched or assisted, and discerned

that the purpose was to illegally spray paint or stencil a message onto the

wall. 5 Reasonably finding such conduct (defacing public property) to be

suspicious (not to mention dangerous), Curlee demanded that the man

overseeing the spraying get back in the front passenger seat of the truck. He

then questioned the man performing the spraying, who gave his name as

Elijah Gizzarelli. Gizzarelli denied he was spray painting, and explained that

occurred after sunset, and the time discrepancy has no bearing on the issues presented on

appeal.

5

LA. R.S. 14:56.4 provides, in pertinent part:

§56.4. Criminal damage to property by defacing with graffiti

A. It shall be unlawful for any person to intentionally deface with graffiti

immovable or movable property, whether publicly or privately owned,

without the consent of the owner.

B. As used in this Section, the following terms mean:

(1) “Deface” or “defacing” is the damaging of immovable or movable

property by means of painting, marking, scratching, drawing, or etching

with graffiti.

(2) “Graffiti” includes but is not limited to any sign, inscription, design,

drawing, diagram, etching, sketch, symbol, lettering, name, or marking

placed upon immovable or movable property in such a manner and in such

a location as to deface the property and be visible to the general public.

4

Case: 20-30356 Document: 00516022065 Page: 5 Date Filed: 09/21/2021

No. 20-30356

he was pressure washing the word “freedom” into the dirt on the wall to

promote a book “that’s being delivered to every household in New Orleans.”

Per his law enforcement training, Curlee then placed Gizzarelli in handcuffs,

inquired with Gizzarelli about whether there were weapons in the truck, and

learned that there were none of which Gizzarelli was aware.

Gizzarelli told Curlee that he and his companions had done extensive

legal research to make sure pressure washing the wall was lawful and that

they had already pressure washed two other locations. Without verifying

Gizzarelli’s assertion by examining the wall and the pressure washer, Curlee

then told Gizzarelli: “It looks like y’all are spray painting. So if it’s not spray

paint, that’ll be fine.” 6 Curlee explained to Gizzarelli how law enforcement

officers could reasonably perceive the group’s activities as spray painting

rather than pressure washing. Gizzarelli responded that he could understand

how such a misconception might occur. Curlee recommended that the group

avoid “going to do that anywhere else” to avoid getting stopped by law

enforcement again. Curlee then walked toward the truck and briefly shined

his flashlight into the bed of the truck and onto the site of the alleged pressure

washing on the overpass wall. The contents of the truck bed are not apparent

on the bodycam video. Further, although the word “freedom” is visible on

6

We note that Louisiana law requires operators of portable pressure washing

equipment to obtain a proper permit from the Department of Energy Quality. LA. R.S.

30:2075; https://deq.louisiana.gov/assets/docs/Permits/LAG750000.pdf. Failure to

obtain such a permit may result in a $25,000 fine and/or one year of imprisonment. LA.

R.S. 30:2076.2(A)(1), (3). Additionally, it is unlawful to discharge industrial wastewater

upon the rights-of-way of state highways without prior written consent from the

Department of Transportation and Development and the Louisiana Department of Health.

LA. R.S. 48:385. Despite Gizzarelli’s apparent lack of authorization to operate pressure

washing equipment on a public highway—Gizzarelli even admitted that he had “never used

a pressure washer before”—Curlee determined that no one would be arrested or ticketed

for unauthorized pressure washing.

5

Case: 20-30356 Document: 00516022065 Page: 6 Date Filed: 09/21/2021

No. 20-30356

the wall, based on the distance between Curlee and the wall, as well as the

darkness of the night, the bodycam video is unclear as to whether the stencil

was accomplished with white paint or a pressure washer.

Next, Curlee turned to the two other men seated in the truck—the

driver and the passenger, who was now videotaping the encounter with

Gizzarelli on a cell phone. Curlee called out to the driver of the truck and was

met with no response. Curlee then asked Gizzarelli who the driver was, and

Gizzarelli enigmatically replied: “I’m not one hundred percent sure of his

name to be honest, I think it’s, I don’t know, he’s a friend.” At this point,

under any objective measure, Curlee surely was required to go further, based

on his experience and the puzzling nature of this response. Henceforth,

seeking the identity of the three men in and around the truck seemed not only

prudent, but necessary, even in hindsight.

Curlee then ordered the driver to step out of the vehicle and requested

to see the driver’s ID. The driver exited the vehicle and represented his ID

to Curlee (showing the name of Robert Evans), thus complying with Curlee’s

instructions. The driver also asserted he was involved in the Jefferson Parish

Libertarian Party. Curlee again observed the third individual, Kokesh, in the

passenger seat of the truck, still recording Curlee’s every move with a cell

phone. Curlee requested to see Kokesh’s ID twice and was initially met with

no response. After Curlee’s third request, Kokesh took out and read from a

card to invoke his rights to remain silent and to an attorney, obviously in

reference to United States v. Miranda, 384 U.S. 436 (1966). But Kokesh was

not under arrest or in custody at the time and thus such rights did not legally

attach under Miranda. See id. at 467–68. Therefore, his failure to cooperate

with Curlee in producing requested identification does not fall within the

scope of his rights upon arrest. Kokesh further read from his card that he did

not consent to a search of any kind, though neither Curlee nor the later-

arriving state troopers requested, attempted, or performed a search of the

6

Case: 20-30356 Document: 00516022065 Page: 7 Date Filed: 09/21/2021

No. 20-30356

vehicle at any time during the encounter. Indeed, after Evans purportedly

identified Kokesh by name, Kokesh continued to refuse to allow Curlee to

see his ID and continued his recording of the encounter. Evans stated he

“didn’t think it was a good idea” to stop on the expressway, and later advised

Curlee that it was Kokesh who told him to stop so the wall could be stenciled

with the word “freedom” to promote the release of Kokesh’s book.

Further fueling Curlee’s need to inquire more deeply, Evans then

claimed that Kokesh was a candidate for President of the United States—

indeed it would be a rare occurrence for a national presidential candidate to

be found stopped high atop the Pontchartrain Expressway after nightfall in

New Orleans. From the responses given by both Gizzarelli and Evans, it is

clear that Kokesh was the instigator, leader, and overseer of the purposeful

stop on the shoulder of the Pontchartrain Expressway. Evans, as the driver,

and Gizzarelli, as the stenciler, followed Kokesh’s instructions. Given the

strange circumstances Kokesh created, Curlee then wisely summoned a

back-up trooper 7 to assist. At this time, Gizzarelli was still handcuffed, and

the lawful detention and investigation were still underway. Determining that

further investigation of this truly odd circumstance was warranted, Curlee

was thus acting within the scope of LA. R.S. 14:108, 8 which prohibits an

7

Two other LSP troopers arrived, though not together, and one sooner than the

other.

8

LA. R.S. 14:108 provides, in pertinent part:

SUBPART D. OFFENSES AFFECTING LAW ENFORCEMENT

§108. Resisting an officer

A. Resisting an officer is the intentional interference with, opposition or

resistance to, or obstruction of an individual acting in his official capacity

and authorized by law to make a lawful arrest, lawful detention, or seizure

of property or to serve any lawful process or court order when the offender

7

Case: 20-30356 Document: 00516022065 Page: 8 Date Filed: 09/21/2021

No. 20-30356

individual from resisting an officer by refusing to identify himself during a

lawful detention, which this indeed was at the time. And a violation of LA.

R.S. 14:108 might result in an arrest of the offender—which ultimately

occurred here.

Despite Kokesh’s continued intransigence, Curlee, this time

accompanied by the back-up trooper who had arrived, again approached

Kokesh, who remained seated in the truck’s passenger seat continuing his

video recording. Curlee again asked to view Kokesh’s ID, explaining that the

truck was “illegally stopped on the shoulder of the road,” and warning

Kokesh that he might be arrested if he failed to show his identification.

Consistent with the dictates of LA. R.S. 14:108, Curlee indicated that Kokesh

might be charged with “interfering with the investigation.” Because Kokesh

yet again refused to cooperate by showing an ID, he was handcuffed, advised

of his Miranda rights, and the back-up trooper placed him into the back seat

of Curlee’s LSP unit. Thus, the arrest had been completed.

knows or has reason to know that the person arresting, detaining, seizing

property, or serving process is acting in his official capacity.

B.(1) The phrase “obstruction of” as used herein shall, in addition to its

common meaning, signification, and connotation mean the following:

* * *

(c) Refusal by the arrested or detained party to give his name and make his

identity known to the arresting or detaining officer or providing false

information regarding the identity of such party to the officer.

* * *

C. Whoever commits the crime of resisting an officer shall be fined not

more than five hundred dollars or be imprisoned for not more than six

months, or both.

8

Case: 20-30356 Document: 00516022065 Page: 9 Date Filed: 09/21/2021

No. 20-30356

Curlee then removed Gizzarelli’s handcuffs. Curlee walked over to

the stenciling site and shined his flashlight on the “freedom” stencil for a

second time. Unlike Curlee’s cursory first look, his second view of the stencil

was much closer and more careful, and the video clearly shows an absence of

dirt rather than white paint. Curlee returned to his LSP unit to grab a camera

and walked back to take a photograph of the “freedom” stencil. Curlee then

shined his flashlight into the bed of the truck for the second time. Unlike his

first look, which was too quick to get a clear view of the contents of the truck

bed, Curlee saw the pressure washing equipment the second time and took a

photograph of that equipment as well.

Curlee inquired with Evans whether Kokesh had a wallet in the truck,

and asked to see it if so. Evans, who again vocalized his realization that he

should not have stopped the truck on the highway shoulder to accomplish the

pressure washing, located the wallet and handed it to Curlee. Curlee then

told Evans, “I see that it’s not paint, which I guess, there’s no law against

cleaning something.” This is Curlee’s first unequivocal statement

confirming Gizzarelli’s initial representation that the stencil was pressure

washed rather than graffitied with spray paint. Curlee then viewed Kokesh’s

wallet while seated in his LSP unit. 9 Completing his task, Curlee exited his

LSP vehicle, and wrote a ticket to Evans for illegally stopping the truck on

the elevated expressway shoulder under LA. R.S. 32:296(A). 10 Evans drove

9

While Kokesh was seated in Curlee’s vehicle, Curlee examined the three IDs he

now possessed. Kokesh’s ID indicated that he was a military veteran, and the computer in

the LSP unit disclosed an existing warrant from another jurisdiction. Curlee also searched

Kokesh’s person, discovered pepper spray and a tool containing a razor blade, and asked

Kokesh whether he wished for his friends to take this and other personal property like his

sunglasses, or whether Kokesh chose to maintain possession.

10

With a few exceptions not relevant this case, Louisiana law provides that “[n]o

person shall stop, park, or leave standing any unattended vehicle on any state highway

9

Case: 20-30356 Document: 00516022065 Page: 10 Date Filed: 09/21/2021

No. 20-30356

off with Gizzarelli, and Curlee took Kokesh to the LSP station, where he was

later taken to jail.

From these facts, to recap, it is clear that the defendant, LSP Trooper

Kevin Curlee: (1) observed a handicap-plated truck after nightfall stopped on

the shoulder of the road high atop the Carrollton Interchange on the

Pontchartrain Expressway, part of the interstate system in New Orleans,

Louisiana; (2) stopped to investigate the many possible circumstances as to

why the truck was stopped, including vehicle breakdown, criminal activity,

and motorist assistance; (3) as part of the investigation, and based upon the

odd answers given by the three men in the truck, sought the identification of

each; (4) noted that, although two men, including the truck’s driver,

complied, Kokesh remained intransigent, refused to comply, and videotaped

the encounter; (5) continued his investigation with one man still handcuffed,

although hampered because Kokesh continued his lack of cooperation,

attempted to assert his Miranda rights though he had not been arrested, and

refused to show identification to an officer lawfully investigating potential

defacement of public property and why the truck was stopped at such a

dangerous place on the elevated expressway at night; (6) arrested Kokesh

because of his failure to provide identification; (7) completed his

investigation by determining that the two other men in the truck were acting

on Kokesh’s instructions; and (8) decided Gizzarelli should be uncuffed and

released, photographed the product of the pressure spray stencil on the

overpass wall and pressure washing equipment, and wrote a ticket to Evans,

the truck’s driver, for illegally stopping on the interstate shoulder. According

to Curlee’s narrative, he arrested Kokesh for “Resisting an officer—not

providing identification” in violation of Louisiana law, which requires a

shoulder, unless such stopping, parking, or standing is made necessary by an

emergency . . . .” LA. R.S. 32:296(A).

10

Case: 20-30356 Document: 00516022065 Page: 11 Date Filed: 09/21/2021

No. 20-30356

lawfully detained person “to give his name and make his identity known to

the arresting or detaining officer.” LA. R. S. 14:108(B)(1)(c).

Kokesh sued Curlee, the Superintendent of the Louisiana State

Police, and the Orleans Parish District Attorney for (1) false arrest, (2) false

imprisonment, (3) kidnapping, (4) battery, (5) malicious prosecution, (6)

intentional infliction of emotional distress, (7) unreasonable seizure and

excessive force under the Fourth Amendment, and (8) retaliation under the

First Amendment. After a series of motions to dismiss, the district court

dismissed all claims for injunctive and declaratory relief, all official-capacity

claims, and all state law claims. The only remaining claims at that point were

the 42 U.S.C. § 1983 claims against Curlee in his individual capacity for

unreasonable seizure and excessive force under the Fourth Amendment, and

retaliation under the First Amendment. Curlee moved for summary

judgment on these claims, in part based on qualified immunity. The district

court granted the motion as to the excessive-force claim but denied it as to

the unreasonable-seizure claim and the claim for First Amendment

retaliation. Curlee timely brought this interlocutory appeal, challenging the

district court’s denial of qualified immunity.

II.

District court orders denying summary judgment on the basis of qualified

immunity are immediately appealable and reviewed de novo only if they are

predicated on conclusions of law and not genuine issues of material fact.

Naylor v. Louisiana, 123 F.3d 855, 857 (5th Cir. 1997). “This means that the

district court’s finding that a genuine factual dispute exists is a factual

determination that this court is prohibited from reviewing in this

interlocutory appeal.” Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010)

(emphasis in original). “Thus, a defendant challenging the denial of a motion

for summary judgment on the basis of qualified immunity must be prepared

11

Case: 20-30356 Document: 00516022065 Page: 12 Date Filed: 09/21/2021

No. 20-30356

to concede the best view of the facts to the plaintiff and discuss only the legal

issues raised by the appeal.” Id. (quoting Freeman v. Gore, 483 F.3d 404, 410

(5th Cir. 2007)). This Court is essentially reviewing the district court’s

decision that a “certain course of conduct would, as a matter of law, be

objectively unreasonable in light of clearly established law.” Kinney v.

Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). “To make this

determination, the court applies an objective standard based on the viewpoint

of a reasonable official in light of the information then available to the

defendant and the law that was clearly established at the time of the

defendant’s actions.” Freeman, 493 F.3d at 411.

Qualified immunity shields public officials “sued in their individual

capacities ‘from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Joseph v. Bartlett, 981 F.3d 319, 328

(5th Cir. 2020) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

When a defendant invokes qualified immunity, it affects our jurisdiction in

two ways—“we review earlier than we otherwise would, and we review less

than we otherwise would.” Id. at 330. As to the expedited timing of our

review, defendants who unsuccessfully assert the qualified-immunity

defense pretrial can bring an interlocutory appeal, even though denials of

summary judgment are not generally final, appealable orders under 28 U.S.C.

§ 1291. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985); see also Plumhoff

v. Rickard, 572 U.S. 765, 771–72 (2014).

As to the scope of our review, it is circumscribed. In a typical

summary-judgment case, we review the district court’s analysis de novo,

asking the same question that the district court did—whether the movant has

shown “that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). But

in reviewing the denial of qualified immunity, we accept the district court’s

12

Case: 20-30356 Document: 00516022065 Page: 13 Date Filed: 09/21/2021

No. 20-30356

determination that there are genuine fact disputes. See Melton v Phillips, 875

F.3d 256, 261 (5th Cir. 2017) (en banc) (“[W]e lack jurisdiction to review the

genuineness of a fact issue but have jurisdiction insofar as the interlocutory

appeal challenges the materiality of [the] factual issues.”) (quoting Allen v.

Cisneros, 815 F.3d 239, 244 (5th Cir. 2016)). And we ask only “whether the

factual disputes that the district court identified are material to the

application of qualified immunity.” Samples v. Vadzemnieks, 900 F.3d 655,

660 (5th Cir. 2018).

We apply that materiality analysis to both questions that arise when

an official invokes qualified immunity: (1) whether the defendant violated the

plaintiff’s constitutional or statutory rights; and (2) whether those rights

were clearly established at the time of the violation “such that the officer was

on notice of the unlawfulness of his or her conduct.” Cole v. Carson, 935 F.3d

444, 451 (5th Cir. 2019) (en banc), as revised (Aug. 21, 2019), cert. denied sub

nom. Hunter v. Cole, 141 S. Ct. 111 (2020).

“Whether an official’s conduct was objectively reasonable [in light of

the law that was clearly established at the time of the disputed action] is a

question of law for the court, not a matter of fact for the jury.” Brown v.

Callahan, 623 F.3d 249, 253 (5th Cir. 2010). But, “in certain circumstances

where ‘there remain disputed issues of material fact relative to immunity, the

jury, properly instructed, may decide the question.’” Mesa v. Prejean, 543

F.3d 264, 269 (5th Cir. 2008) (quoting Presley v. City of Benbrook, 4 F.3d 405,

410 (5th Cir. 1993)); see also McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir.

2000) (if the court has not decided the issue prior to trial, “the jury . . .

determine[s] the objective legal reasonableness of the officers’ conduct”).

“A qualified immunity defense alters the usual summary judgment

burden of proof.” Brown, 623 F.3d at 253. Although nominally an affirmative

defense, the plaintiff has the burden to negate the defense once it is properly

13

Case: 20-30356 Document: 00516022065 Page: 14 Date Filed: 09/21/2021

No. 20-30356

raised. Garza v. Briones, 943 F.3d 740, 744 (5th Cir. 2019). The plaintiff has

the burden to point out clearly established law. Clarkston v. White, 943 F.3d

988, 993 (5th Cir. 2019). The plaintiff also bears the burden of “raising a fact

issue as to its violation.” Delaughter v. Woodall, 909 F.3d 130, 139 (5th Cir.

2018)). Thus, once the defense is invoked, “[t]he plaintiff must rebut the

defense by establishing that the official’s allegedly wrongful conduct violated

clearly established law and that genuine issues of material fact exist regarding

the reasonableness of the official’s conduct” according to that law. Gates v.

Texas Dep’t of Protective & Regul. Servs., 537 F.3d 404, 419 (5th Cir. 2008).

At the summary judgment stage, however, all inferences are still

drawn in the plaintiff’s favor. Brown, 623 F.3d at 253. This is true “even when

. . . a court decides only the clearly-established prong of the [qualified

immunity] standard.” Tolan v. Cotton, 572 U.S. 650, 657 (2014). Likewise,

“under either [qualified immunity] prong, courts may not resolve genuine

disputes of fact in favor of the party seeking summary judgment.” Id. at 656.

“Accordingly, courts must take care not to define a case’s ‘context’ in a

manner that imports genuinely disputed factual propositions.” Id. at 657; see,

e.g., Tarver v. City of Edna, 410 F.3d 745, 754 (5th Cir. 2005) (dismissal at

summary judgment phase inappropriate because determining whether

officer’s conduct was objectively unreasonable in light of clearly established

law required factfinding and credibility assessments).

When evaluating a qualified immunity defense, courts “consider[]

only the facts that were knowable to the defendant officers.” White v. Pauly,

137 S. Ct. 548, 550 (2017) (per curiam); see also Cole, 935 F.3d at 456 (“[W]e

consider only what the officers knew at the time of their challenged

conduct.”). “Facts [that] an officer learns after the incident ends—whether

those facts would support granting immunity or denying it—are not

relevant.” Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam);

14

Case: 20-30356 Document: 00516022065 Page: 15 Date Filed: 09/21/2021

No. 20-30356

Brown, 623 F.3d at 253 (“An official’s actions must be judged in light of the

circumstances that confronted him, without the benefit of hindsight.”).

“Because the focus is on whether the officer had fair notice that [his]

conduct was unlawful, reasonableness is judged against the backdrop of the

law at the time of the conduct.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

“Clearly established law is determined by controlling authority—or a robust

consensus of persuasive authority—that defines the contours of the right in

question with a high degree of particularity.” Clarkston, 943 F.3d at 993

(quoting Delaughter, 909 F.3d at 139).

Thus, “[q]ualified immunity gives government officials breathing

room to make reasonable but mistaken judgments about open legal

questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). It likewise “shields

an officer from suit when [the officer] makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law governing the

circumstances [the officer] confronted.” Brosseau, 543 U.S. at 198; see also

Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity

inquiry is to acknowledge that reasonable mistakes can be made as to the legal

constraints on particular police conduct.”). In short, “[w]hen properly

applied, [qualified immunity] protects all but the plainly incompetent or

those who knowingly violate the law.” al-Kidd, 563 U.S. at 743 (internal

quotation marks and citation omitted).

Consequently, “[q]ualified immunity is justified unless no reasonable

officer could have acted as [the defendant officer] did here, or every

reasonable officer faced with the same facts would not have [acted as the

defendant officer did].” Mason v. Faul, 929 F.3d 762, 764 (5th Cir. 2019),

cert. denied, 141 S. Ct. 116 (2020) (emphases omitted); see also District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (“The precedent must be clear

enough that every reasonable official would interpret it to establish the

15

Case: 20-30356 Document: 00516022065 Page: 16 Date Filed: 09/21/2021

No. 20-30356

particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that

‘every reasonable official’ would know.”) (citations omitted).

III.

On appeal, the parties do not dispute the district court’s

determination that the initial traffic stop and detention were valid. 11 The

remaining issue is whether the continued detention and subsequent arrest of

Kokesh were objectively unreasonable in light of clearly established law at the

time of the arrest.

A. Fourth Amendment Claim

Relying on Johnson v. Thibodaux City, 887 F.3d 726 (5th Cir. 2018),

Kokesh argues that, as in Johnson, he was simply a passenger in a vehicle that

was lawfully stopped but who himself was not suspected of criminal

wrongdoing. Further, Kokesh contends that Curlee began to demand

identification only when he noticed Kokesh recording him, which is a

protected activity under the First Amendment. See Turner v. Lieutenant

Driver, 848 F.3d 678, 690 (5th Cir. 2017) (holding that the First Amendment

protects “the right to record the police”). Even viewing the facts in a light

most favorable to Kokesh, we disagree.

The centerpiece of Kokesh’s argument is the recent Johnson case. In

Johnson, Jackalene Johnson, Dawan Every, and Kelly Green were passengers

in a truck driven by Latisha Robertson. A Thibodaux Police Department

officer recognized Robertson as the subject of an outstanding warrant. He had

11 It is undisputed that the pickup truck stopped atop the Pontchartrain Expressway

voluntarily, apparently at the insistence of Kokesh. Curlee’s arrival at the scene did not

initially effectuate a Terry stop, but it is also undisputed that, when he exited his LSP unit

and commenced his investigation, it soon became a Terry stop. See Terry v. Ohio, 392 U.S.

1 (1968).

16

Case: 20-30356 Document: 00516022065 Page: 17 Date Filed: 09/21/2021

No. 20-30356

no other probable cause or reasonable suspicion to stop the truck except his

recognition of Robertson. The officer effected a Terry stop, asked Robertson

to exit the truck, and handcuffed her once she did. Thus, the purpose of the

Terry stop was accomplished, and the lawful detention of the other occupants

of the vehicle, none of whom were known to the officer, had concluded. Our

court reasoned:

The city maintains that Johnson was lawfully detained because

Amador [the officer] had a valid justification for the initial

traffic stop: to arrest Robertson on an outstanding warrant. We

disagree.

When the police stop a vehicle and detain the

occupants, they have effected a Fourth Amendment

“seizure.” United States v. Brigham, 382 F.3d 500, 506 (5th

Cir. 2004) (en banc). We treat those traffic stops as Terry stops.

Id. Our Terry analysis has two parts. First, we assess whether

the initial stop was justified. Id. As the city demonstrates, the

initial stop was justified to arrest Robertson, who had an

outstanding warrant.

Second, we determine whether “the officer’s

subsequent actions were reasonably related in scope to the

circumstances that justified the stop.” Id. The “touchstone”

here is “reasonableness,” which “eschews bright-line rules

[and] instead emphasiz[es] the fact-specific nature of the . . .

inquiry.” Id. at 507 (quoting Ohio v. Robinette, [519 U.S. 33, 39

(1996)]). Hence, we require that an officer’s actions after a

legitimate stop be “reasonably related to the circumstances

that justified the stop, or to dispel[] his reasonable suspicion

[that] developed during the stop. Id. A reasonable detention

“must be temporary and last no longer than is necessary to

effectuate the purpose of the stop, unless further reasonable

suspicion, supported by articulable facts, emerges.” Id.

Even in the light most favorable to the verdict, the

evidence shows that Johnson’s detention lasted longer than

17

Case: 20-30356 Document: 00516022065 Page: 18 Date Filed: 09/21/2021

No. 20-30356

necessary to effect the purpose of the stop. Amador testified

that he stopped the truck because he recognized Robertson,

knew that she had an outstanding warrant, and planned to

arrest her. And Amador quickly effected that purpose.

Johnson, 887 F.3d at 733–34. Unlike Kokesh, Johnson was merely a passenger

in the truck, said not a word to the officer, and took no action whatsoever

prior to the request for identification. In fact, but for the recognition of

Robertson as the subject of a warrant, the truck’s occupants in Johnson were

not violating any laws or traffic regulations and would not have been lawfully

stopped under those facts.

In order for Kokesh to fall within the scope of Johnson, he must

demonstrate that Curlee improperly continued and extended a traffic stop for

the sole purpose of obtaining his identification, without developing

“reasonable suspicion, supported by articulable facts” during the justified

portion of the stop or must have made the request because of “the

circumstances that justified the stop.” Id.at 734 (citation omitted). Putting

aside the undisputed fact that this was not a traffic stop at all, but rather was

initiated by the voluntary stop of the truck at the instruction of Kokesh, the

evidence does not suggest that Curlee continued or extended his interaction

with Kokesh and his supporters unnecessarily and unreasonably. Indeed, as

set forth above, articulable facts exist (and are depicted on the bodycam

video) to support reasonable suspicion that Kokesh participated in the

defacement of public property in violation of LA. R.S. 14:56.4. To that end,

Curlee questioned both Evans and Gizzarelli, who both indicated they acted

on Kokesh’s instructions as to stopping the truck on the elevated

Pontchartrain Expressway, exiting the vehicle, and stenciling “freedom” on

the overpass wall. Because both Gizzarelli and Evans cited Kokesh’s

authority, as a presidential candidate and book author, for their acts, further

18

Case: 20-30356 Document: 00516022065 Page: 19 Date Filed: 09/21/2021

No. 20-30356

inquiry was surely in order, and requesting a personal identification from

Kokesh was not unreasonable. 12

Moreover, the actions of Kokesh himself, under these circumstances,

also generated reasonable suspicion: without prompting, Kokesh pulled out

a card and began reading what would be his Miranda rights when Curlee

approached. Also, without any request whatsoever to search, Kokesh

announced forthrightly that he did not consent to a search of any kind. At

that time, Curlee understood that Kokesh was the leader and director of the

trio, that he refused to cooperate with the production of identification, and

seemed to be under the impression he was being arrested though Curlee

made not even an intimation of such intent. These are hardly the

circumstances which would warrant a law enforcement officer to return to

his LSP unit and drive off into the night. Kokesh’s claim therefore fails on

the first inquiry of qualified immunity: his constitutional and statutory rights

were not violated by Curlee’s request for identification or the arrest for

failure to comply under LA. R.S. 14:108(B)(1)(c). Accordingly, we need not

discuss the second prong, i.e., the clear establishment of such rights at the

time of the violation such that the officer was on notice of the unlawfulness

of his conduct. Cole, 935 F.3d at 451.

12

By contrast, the alternative course of action the dissent insists upon would be

unreasonable. Indeed, the unforgiving standard urged by the dissent would leave Curlee

with little choice but to wish the three gentlemen a nice evening, get in his LSP unit, and

drive away into the dark night. In so doing, Curlee still would not have ascertained the true

name of the uncooperative person in the passenger seat who was purportedly responsible

for such suspicious and unique circumstances. Worse yet, he would have left the scene not

yet certain whether he had deserted a kidnapping or illicit transaction in progress, but fully

aware that his leaving a parked truck on the shoulder of the dark and narrow Pontchartrain

Expressway created a peril not only to the three people at the scene (one a presidential

candidate), but to oncoming traffic as well. In such an alternative scenario, Curlee likely

would have been considered derelict in his duty and may have found himself on the

receiving end of several negligence lawsuits, rather than this single § 1983 action.

19

Case: 20-30356 Document: 00516022065 Page: 20 Date Filed: 09/21/2021

No. 20-30356

Kokesh’s argument also hinges on two statements made by Curlee on

the expressway: (1) during his questioning of Gizzarelli, Curlee stated: “It

looks like y’all are spray painting. So if it’s not spray paint, that’ll be fine.”;

and (2) “I see it’s not paint, which I guess, there’s no law against cleaning

something.” Kokesh argues that the Terry stop ended based on these

statements, and Curlee’s interaction with Kokesh and his supporters should

have ceased. In so arguing, Kokesh suggests that Curlee should have then

gotten back into his LSP unit and driven off, leaving the trio and the truck

atop the elevated expressway to complete their pressure washing stencil.

We disagree. First, Curlee’s “that’ll be fine” comment was phrased

in the conditional and preceded Curlee’s investigation into the alleged

pressure washing: if Curlee confirmed Gizzarelli’s representation that the

group was pressure washing rather than spray painting, then their actions

would not run afoul of any law. Curlee did not confirm Gizzarelli’s

representation until after Kokesh’s intransigence and arrest under LA. R.S.

14:108, when Curlee took his second, closer look at the “freedom” stencil

with his flashlight, saw the evidence of pressure washing, and observed

pressure washing equipment in the bed of the truck. Only then did Curlee

relay to Evans his conclusion that “it’s not paint” and that there was “no law

against cleaning something.”

Second, Curlee’s responsibility to continue to investigate and resolve

the situation of a pickup truck stopped on the Pontchartrain Expressway

continued until the traffic hazard had been abated. And as previously stated,

given the enigmatic answers he received, Curlee may even have been derelict

in his duty had he departed with so many open questions. Further, given that,

at a minimum, a potential traffic violation had occurred, Curlee continued

assessing the situation, and indeed soon thereafter determined that a traffic

citation would issue. And so, the detention properly continued. We believe

any reasonable officer, faced with these facts, could have continued as did

20

Case: 20-30356 Document: 00516022065 Page: 21 Date Filed: 09/21/2021

No. 20-30356

Curlee, and that the scope and length of the detention was thus not excessive,

even considering these facts in a light most favorable to Kokesh.

Kokesh maintains that, even if the continued stop was lawful, he as a

passenger was not obligated to produce identification, likening his actions to

those of Jackalene Johnson. This argument is faulty for several reasons, the

first of which is that Kokesh was initially seen outside the truck participating

in the pressure washing. Secondly, Kokesh’s immediate assertion of his

Miranda rights, and his pronouncement that he did not and would not

consent to any search whatsoever, without any communication with Curlee,

save the request for an ID, remains intriguing. A reasonable officer—indeed

a reasonable person—would wonder in that moment whether drugs or

alcohol had been involved; whether other foul play existed, given that

Gizzarelli did not know the name of the truck’s driver; whether any of the

three men were held against their will; whether Kokesh was wanted or the

subject of a warrant, given his steadfast refusal to produce an ID; or what the

immediate intentions of the three were, i.e., whether they wished to remain

undisturbed pressure washing atop the Pontchartrain Expressway, or

whether they would vacate such a precarious position. To leave these

concerns unresolved could even seem derelict on the part of a law

enforcement officer like Trooper Curlee. The key to the constitutionality of

a Terry stop is whether reasonable suspicion of criminal activity and whether

the officer’s investigative efforts were “likely to confirm or dispel [his]

suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686 (1985).

Curlee’s actions reasonably fall within the effort to confirm or dispel his

suspicions regarding the three men on the elevated expressway.

B. First Amendment Retaliation Claim

Kokesh claims that Curlee retaliated against him for exercising his

First Amendment right, which resulted in his arrest. When asserting a claim

21

Case: 20-30356 Document: 00516022065 Page: 22 Date Filed: 09/21/2021

No. 20-30356

for retaliatory arrest, a plaintiff must first establish the absence of probable

cause, and then demonstrate that the retaliation was a substantial or

motivating factor behind the arrest. Nieves v. Bartlett, 139 S. Ct. 1715, 1725

(2019). In making this claim, Kokesh alleges that his use of a cell phone to

record Curlee’s activities on the expressway was the cause of Curlee’s

actions in demanding to see Kokesh’s ID and ultimately his arrest.

Specifically, Kokesh cites Curlee’s comment upon noticing Kokesh’s

camera: “Is this what y’all do? Videotape the police?” 13

Kokesh’s allegations that Curlee’s actions were driven by seeing

Kokesh video recording the encounter are frivolous. Indeed, Curlee was well

aware that his conduct and verbiage was being recorded for posterity where

all could view, examine, and second guess each and every second because he

purposefully turned his bodycam on, and left it on for hours during the time

he was with Kokesh. It therefore makes no sense that Curlee was angered,

incensed, or motivated by resentment upon seeing Kokesh holding his

recording cell phone.

13 Kokesh also takes offense at Curlee’s later comments, while they were seated

together in Curlee’s LSP unit. Although he earlier asserted his “right” to remain silent and

refused to show his ID, Kokesh began questioning Curlee, who responded: “I don’t come

out here to play games, bro. Oh, serious games like the one you were playing? You don’t

know what I do, bro. I do this for a living. I can’t hear you. You don’t need to talk no more,

bro.” Curlee’s response, however, makes no specific reference to video recording. And the

“serious games” could likely include pressure washing stenciled words; stopping along a

busy elevated expressway; leaving messages on public property; asserting Miranda rights,

including off a prewritten card, when not arrested; and refusing to produce identification

when asked. This statement is of no help to Kokesh’s First Amendment claim for

retaliatory arrest, because it does not reference the video recording, and more importantly,

was made after the arrest had already occurred.

22

Case: 20-30356 Document: 00516022065 Page: 23 Date Filed: 09/21/2021

No. 20-30356

Moreover, Curlee not once instructed Kokesh to cease the video

recording, nor did he try to obstruct Kokesh’s camera lens. Curlee did not

voice any objection to the video recording (no doubt because his bodycam

was also recording), nor did he ask either Evans or Gizzarelli to prevail upon

Kokesh to stop recording. Once Kokesh was arrested, Curlee did not destroy

or delete the video recording, nor did he ask Kokesh’s companions to do so.

He did not even seek to stop the recording himself by grabbing the phone. In

fact, Curlee offered Kokesh the option of either keeping his cell phone (which

contained the existing recording and was even then recording or capable of

continuing to record into the future), or putting it in possession of Evans

and/or Gizzarelli for safekeeping. In front of Curlee, Kokesh gave the phone

to Evans. These acts are hardly evidence of a state trooper angry over the

video recording of his actions. Rather, they suggest the opposite.

Kokesh also argues that Curlee’s unreasonable detention is evidenced

by the fact that Curlee never asked Kokesh what his name was, and that

Curlee already knew his name because Evans disclosed it. But it takes no

amount of law enforcement training to know that a person, particularly one

with something to hide, might logically give a false name or alias. And law

enforcement officers are not bound to accept a third person’s identification

of a companion, particularly in circumstances where a false identification

would benefit one seeking to evade the police anyway. Seeking and relying

upon an official means of identification, like an authorized current driver’s

license, is far superior to word-of-mouth unverified identification from a

third party, especially since it had already been established that one of the trio

(Gizzarelli) did not know the name of the other (Evans).

IV.

Citizens have long-cherished constitutional rights which deserve our

protection. Law enforcement officers have difficult but necessary jobs which

23

Case: 20-30356 Document: 00516022065 Page: 24 Date Filed: 09/21/2021

No. 20-30356

deserve our cooperation and respect. Under the facts presented here, this

appears to be a regular investigation of an extraordinary and hazardous

situation created voluntarily by the plaintiff himself, and this officer’s

conduct appears to be in accord with reasonable expectations as the

encounter unfolded. The Fourth Amendment and 42 U.S.C. § 1983 should

not be employed as a daily quiz tendered by videotaping hopefuls seeking to

metamorphosize law enforcement officers from investigators and protectors,

into mere spectators, and then further converting them into federal

defendants. Based upon the facts as alleged by Kokesh and represented on

Trooper Curlee’s bodycam, the denial of summary judgment on qualified

immunity is REVERSED and the case is REMANDED to the district

court for entry of summary judgment in favor of Trooper Curlee.

24

Case: 20-30356 Document: 00516022065 Page: 25 Date Filed: 09/21/2021

No. 20-30356

Don R. Willett, Circuit Judge, dissenting:

This is a strange case, even by New Orleans’ standards. 1 Maybe the

utter weirdness of it all—a midnight meeting between a police officer, a

pressure washer, and a presidential candidate—explains the majority’s grant

of qualified immunity: What was an officer to do? Even so, the key facts are

sharply disputed, even if their oddness is not. Accordingly, I believe the

district court got it right: A jury of Trooper Curlee’s peers should decide if

he acted constitutionally—not us.

Respectfully, the majority missteps in various ways: (1) peeking

outside the record to assess the history and characteristics of the Carrollton

Overpass and its purported dangers; (2) speculating about Trooper Curlee’s

concerns when he arrived on the scene 2 and venturing conclusions about

Curlee’s reasonableness 3 and Kokesh’s blameworthiness; 4 and (3) exceeding

our jurisdictional limits by collaterally attacking the district court’s

genuineness findings under the guise of materiality.

I respectfully dissent.

1

Anthony Bourdain, the globe-trotting chef, author, and travel documentarian put

it well: “There is no other place on earth even remotely like New Orleans. Don’t even try

to compare it with anywhere else.” Anthony Bourdain & Laurie Woolever,

World Travel: An Irreverent Guide (2021) (ebook).

2

Ante at 4.

3

E.g., ante at 4 (“Reasonably finding such conduct (defacing public property) to be

suspicious (not to mention dangerous), Curlee demanded that the man overseeing the

spraying get back in the front passenger seat of the truck.”); ante at 6 (“At this point, under

any objective measure, Curlee surely was required to go further, based on his experience

and the puzzling nature of [Gizzarelli’s] response.”).

4

Ante at 7 (“Given the strange circumstances Kokesh created, Curlee then wisely

summoned a back-up trooper to assist.”).

25

Case: 20-30356 Document: 00516022065 Page: 26 Date Filed: 09/21/2021

No. 20-30356

I

Just before midnight on January 2, 2019, Trooper Curlee saw a truck

stopped on the shoulder of the Carrollton Overpass on Interstate 10 in New

Orleans. Trooper Curlee pulled over behind the truck, as Louisiana law

prohibits leaving “unattended vehicle[s] on any state highway shoulder,

unless such stopping, parking, or standing is made necessary by an

emergency.” 5 Trooper Curlee, with his bodycam on, approached the vehicle

and observed Adam Kokesh standing by the truck and Elijah Gizzarelli

spraying the highway overpass wall. 6 Trooper Curlee told Kokesh to get back

in the truck and instructed Gizzarelli to come towards him. Trooper Curlee

immediately put Gizzarelli in handcuffs.

Trooper Curlee asked Gizzarelli whether he was spray painting the

wall. Gizzarelli said no and explained that he was pressure washing the word

“freedom” into the dirt on the wall to promote a book “that’s being

delivered to every household in New Orleans.” Trooper Curlee inquired

about weapons in the vehicle, and Gizzarelli said that he was unaware of any.

Trooper Curlee then saw Kokesh recording the encounter from the truck and

said, “Is this what y’all do? Trying to get attention?” Gizzarelli described

how the group had done research to make sure pressure washing the wall was

lawful and that they had already pressure washed two other locations.

Trooper Curlee then told Gizzarelli: “It looks like y’all are spray painting,

sir. If it’s not spray paint, that’ll be fine.” Trooper Curlee recommended that

they not pressure wash anywhere else because another law enforcement

officer might also mistakenly think that they were spray painting.

5

La. R.S. 32:296(A).

6

The remaining facts in this section all come from the bodycam video.

26

Case: 20-30356 Document: 00516022065 Page: 27 Date Filed: 09/21/2021

No. 20-30356

Trooper Curlee’s bodycam was active during his nearly three-minute

interview with Gizzarelli. It shows that they stood only about a car’s length

away from the highway wall that Gizzarelli had just pressure washed. It shows

that ambient light from headlights and streetlights continuously lit up the

wall. And it even shows details about what the wall looked like from that

vantage point. The bodycam shows a slightly darkened, circular patch of wall.

The darkened patch extended downward from the wall and on to the street.

On the street, the patch culminated in a semi-circle of darkened asphalt. In

other words, the bodycam captured what appears as a wall that had been

sprayed with water, with the excess water having flowed downward and

pooling at the wall’s base. Drilling down to the patch itself, the bodycam also

shows its internal details. It shows apparent lettering inside the darkened

patch. And that lettering appears slightly lighter in color than the apparently

dry wall itself.

Trooper Curlee then approached the truck. Once he was only a few

feet away, he shone a bright flashlight onto the highway wall and left it there

to linger for about two seconds. In the center of its light the word

“FREEDOM!” clearly appears in the bodycam, its lettering distinctly

lighter than the rest of the concrete but revealing no paint. And surrounding

the lettering, the bodycam shows, was wet concrete. Trooper Curlee then

moved to the driver’s side of the truck and commanded the driver to get out.

The driver didn’t respond. Trooper Curlee asked Gizzarelli who was driving

the car, and Gizzarelli replied: “I’m not 100% sure of his name to be

honest . . . . He’s a friend.” Trooper Curlee again asked the driver to exit the

vehicle; the driver complied. Trooper Curlee asked for the driver’s

identification papers, and the driver said it was still in the car. As the driver

walked toward the car, Trooper Curlee followed him and saw Kokesh in the

front passenger seat. Kokesh was still recording the events on his cellphone.

27

Case: 20-30356 Document: 00516022065 Page: 28 Date Filed: 09/21/2021

No. 20-30356

Trooper Curlee repeatedly asked Kokesh for his identification papers.

Kokesh refused each time.

Trooper Curlee called for backup. He relayed that a couple of people

were in the truck, it “looked like they were spray painting,” and one of the

passengers wasn’t cooperating. After asking the driver about Kokesh’s

identity, the driver provided Kokesh’s full name. The driver also explained

that Kokesh was a Libertarian candidate for President of the United States,

and the book promotion efforts were campaign activities. Trooper Curlee got

in his patrol car and ran Kokesh’s name on the computer. Trooper Curlee

turned off the mic on his bodycam and stayed in his car for several minutes

until a backup officer arrived.

The backup officer and Trooper Curlee approached Kokesh, who was

still sitting in the front passenger seat of the truck and recording the

encounter on his phone. After again asking for Kokesh’s identification

papers, and Kokesh again refusing to provide it, Trooper Curlee stated that

“the reason we are out here is because y’all are illegally stopped on the

shoulder of the road.” Trooper Curlee then warned Kokesh that Kokesh

could either provide identification papers or be put in handcuffs. Kokesh

asked what he would be charged with. And Trooper Curlee responded:

“Interfering with the investigation.” Kokesh asked how he was interfering,

and Trooper Curlee put him in handcuffs without answering the question.

One of Kokesh’s companions (it’s unclear from the video which one) stated

that Kokesh was being arrested for interfering with an investigation about the

truck being illegally stopped on the highway shoulder. Kokesh then asked

Trooper Curlee if that was an accurate description. Trooper Curlee replied:

“Something like that. I’ll let you know for sure in just a little bit.” The

backup officer placed Kokesh into the backseat of Trooper Curlee’s patrol

car. Trooper Curlee removed Gizzarrelli’s handcuffs, then walked over to

28

Case: 20-30356 Document: 00516022065 Page: 29 Date Filed: 09/21/2021

No. 20-30356

where the pressure washing had occurred, inspecting the word

“FREEDOM!” on the wall.

After taking pictures, Trooper Curlee spoke again with the truck’s

driver. He asked whether Kokesh had a wallet in the car. As the driver was

looking for Kokesh’s wallet, he mumbled that he shouldn’t have stopped the

car on the highway shoulder for the other men to do the pressure washing.

The driver handed Trooper Curlee the wallet. Trooper Curlee then told the

driver: “I see that it’s not paint, which I guess there’s no law against cleaning

something.”

Back in his car, Trooper Curlee pulled out Kokesh’s identification

papers from the wallet the driver had retrieved. Only Trooper Curlee’s voice

is audible on the video at this point. In response to something Kokesh asks

from the backseat, Trooper Curlee says: “Like I said, I don’t come out here

to play games, bro. Oh, serious games like the one you were playing? You

don’t know what I do, bro. I do this for a living. I can’t hear you. You don’t

need to talk no more, bro.”

Trooper Curlee then got out of his patrol car to chat with the backup

officers (a third officer had arrived at some point), Gizzarelli, and the driver.

Once Trooper Curlee got back in his patrol car, Kokesh started speaking with

him again. Trooper Curlee responded: “Because you told your buddy to pull

over on the side of the road, he’s going to get a ticket for that.” After writing

the ticket and giving it to the driver, Trooper Curlee drove Kokesh to the

police station.

In his arrest narrative, Trooper Curlee wrote that he initially pulled

over because he thought the truck “was broken down.” He then explained

that he saw two of the truck’s occupants “us[ing] a pressure washer to clean

the area that the stencil was not covering,” and that “[a]fter removing the

stencil, the word ‘FREEDOM’ remained on the wall.” Trooper Curlee

29

Case: 20-30356 Document: 00516022065 Page: 30 Date Filed: 09/21/2021

No. 20-30356

stated that he thought “they were painting on the wall,” so he “detained the

left rear passenger” who he thought was the driver. Trooper Curlee

recounted how he spoke with the driver and then saw Kokesh recording the

incident on his phone. According to Trooper Curlee’s narrative, he arrested

Kokesh for “Resisting Arrest—Not providing identification” in violation of

a Louisiana law, which requires a lawfully detained person “to give his name

and make his identity known to the arresting or detaining officer.” 7

II

I agree with the majority’s rendition of what happened next. Kokesh

sued, and a flurry of dismissal motions followed. Just two claims survived: an

unreasonable-seizure claim under the Fourth Amendment and a retaliatory-

arrest claim under the First. Trooper Curlee then moved for summary

judgment based on qualified immunity. The district court said no, and

Kokesh’s claims survived—until today. 8

According to the majority opinion, Kokesh should have known better

than to have sued in the first place. “The Fourth Amendment and

42 U.S.C. § 1983 should not be employed as a daily quiz tendered by

videotaping hopefuls seeking to metamorphosize law enforcement officers

from investigators and protectors, into mere spectators, and then further

converting them into federal defendants.” 9 With greatest respect, I don’t

know what any of that means. Maybe that is why I don’t understand how, on

these hotly contested facts, the district court got this case wrong.

7

La. R.S. 14:108(B)(1)(c).

8

Ante at 11, 24.

9

Ante at 24.

30

Case: 20-30356 Document: 00516022065 Page: 31 Date Filed: 09/21/2021

No. 20-30356

We are reviewing the district court’s denial of Trooper Curlee’s

immunity-based motion for summary judgment. In that context, the majority

opinion correctly states how we should review this case. Trooper Curlee’s

immunity defense turns on two questions: (1) did he violate Kokesh’s federal

rights; and (2) were those rights clearly established at the time? 10 If we can

answer “yes” to both questions, then the district court got it right and

Kokesh’s claims should go to a jury. But in answering these questions we are

“circumscribed” in our review. 11

Specifically, denial of summary judgment is an interlocutory order. 12

And under our prior decisions, we lack jurisdiction to review genuineness—

whether the district court correctly found a particular fact dispute genuine. 13

We are precedentially hemmed in. Our analysis centers on one thing:

whether the fact disputes identified by the district court are material. 14 And a

fact dispute is material anytime its resolution “might affect the outcome of

the lawsuit.” 15 That bears repeating: if it might affect the outcome. Moreover,

inferences must be drawn in Kokesh’s favor, not Trooper Curlee’s. 16 The

only facts that matter are those that Trooper Curlee knew at or before the

10

See ante at 13 (citing Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (en banc), as

revised (Aug. 21, 2019), cert. denied sub nom. Hunter v. Cole, 141 S. Ct. 111 (2020)).

11

Ante at 13.

12

In re Corrugated Container Antitrust Litig., 694 F.2d 1041, 1042 (5th Cir. 1983)

(per curiam).

13

Ante at 12–13 (citing Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en

banc)).

14

Ante at 13 (citing Samples v. Vadzemnieks, 900 F.3d 655, 660 (5th Cir. 2018)).

15

Prim v. Stein, No. 20-20387, slip op. at 2 (5th Cir. July 27, 2021) (quoting

Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986))).

16

Ante at 14 (citing Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)).

31

Case: 20-30356 Document: 00516022065 Page: 32 Date Filed: 09/21/2021

No. 20-30356

time that he arrested Kokesh. Those he learned later are immaterial. 17 And

we must be careful with facts in another regard. We cannot define this case’s

factual “context” by construing genuinely disputed facts in Trooper

Curlee’s favor. 18 Again, we must view the evidence in the light most

favorable to Kokesh. 19

Respectfully, the majority opinion rightly states these principles but

wrongly applies them. The district court properly found genuine disputes of

material fact as to whether Trooper Curlee violated Kokesh’s First and

Fourth Amendment rights. And because applicable law was clearly

established at the time of Kokesh’s arrest, the district court properly denied

summary judgment.

III

The Fourth Amendment guarantees “the people” freedom from

“unreasonable searches and seizures” of both their “persons” and their

“papers.” 20 We have noted before that, generally, Fourth Amendment

seizures are unreasonable without supporting probable cause. 21 The majority

says that Trooper Curlee had probable cause to arrest Kokesh. Invoking

Louisiana’s stop-and-identify law, the majority holds that Trooper Curlee

had probable cause to arrest Kokesh for “resisting an officer by refusing to

17

Ante at 14 (citing Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam);

White v. Pauly, 137 S. Ct. 548, 550 (2017); Cole, 935 F.2d at 456)

18

Ante at 14 (quoting Tolan v. Cotton, 572 U.S. 650, 657 (2014)).

19

Tolan, 572 U.S. at 657.

20

U.S. Const. amend. IV (emphasis added).

21

E.g. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993) (“The Supreme

Court has determined that warrantless searches and seizures are per se unreasonable unless

they fall within a few narrowly defined exceptions.” (citation omitted)).

32

Case: 20-30356 Document: 00516022065 Page: 33 Date Filed: 09/21/2021

No. 20-30356

identify himself during a lawful detention.” 22 Indeed, the police charged

Kokesh with only this offense. By contrast, the district court found that fact

issues abounded on this issue, making summary judgment inappropriate. I

agree.

A

Arresting someone under a stop-and-identify law is constitutionally

dubious. That’s because the Supreme Court held in Hiibel v. Sixth Judicial

District Court of Nevada that it offends the Constitution to arrest someone

under these laws merely for failing to identify himself. 23 Two things must be

true before an officer may constitutionally make an arrest under a stop-and-

identify law: (1) the initial stop must have been lawful (that is, with at least

reasonable suspicion); and (2) the “request for identification” must be

“reasonably related to the circumstances justifying” it. 24 The district court

found a genuine fact dispute under each prong.

(1)

As for Hiibel’s first prong, the district court found a fact issue

regarding “whether Curlee had reasonable suspicion supported by

articulable facts that Kokesh had engaged in criminal activity or was about to

do so.” The entire case boils down to this issue. Trooper Curlee must have

lawfully seized Kokesh before he could constitutionally demand identification

papers. 25 As the majority admits, a Terry stop’s constitutionality turns on the

22

Ante at 7–8 (footnote omitted); see also La. R.S. 14:108(B)(1)(c) (criminalizing

as resisting an officer the “[r]efusal by the arrested or detained party to give his name and

make his identity known to the arresting or detaining officer.”).

23

542 U.S. 177, 188 (2004).

24

Id. at 188 (emphasis added).

25

Hiibel, 542 U.S. at 188.

33

Case: 20-30356 Document: 00516022065 Page: 34 Date Filed: 09/21/2021

No. 20-30356

officer having “reasonable suspicion of criminal activity.” 26 That means, in

the Supreme Court’s words, that Trooper Curlee had to “point to specific

and articulable facts” that, “taken together” with their “rational

inferences,” would warrant a reasonably cautious person to believe that

Kokesh was involved in “criminal activity.” 27 If Trooper Curlee can do so,

then he could have constitutionally demanded Kokesh’s identification

papers. If he cannot, then he may have violated Kokesh’s clearly established

rights. This is the very fact dispute that the district court found. And because

it might affect the outcome of Kokesh’s Fourth Amendment claim, it is

material.

But the majority opinion improperly rejects that finding. It holds that

the bodycam demonstrates that Trooper Curlee had “reasonable suspicion

that Kokesh participated in the defacement of public property.” 28 I’ll admit

that the bodycam shows Kokesh out of the truck and standing next to

Gizzarrelli when Trooper Curlee first arrived. But reasonable suspicion does

not persist forever. It lasts only for the “time needed” to dispel it. 29 And

when Trooper Curlee dispelled it is the central question in this case. Did he

dispel it before he demanded Kokesh’s identification papers, or after? The

majority opinion says that Trooper Curlee did not “confirm” that Kokesh

and the gang were not using spray paint until his “second, closer look at the

26

Ante at 21 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)).

27

Terry v. Ohio, 392 U.S. 1, 21–22, 30 (1968) (citation omitted).

28

Ante at 18.

29

United States v. Pack, 612 F.3d 341, 350 (2010); see also Sharpe, 470 U.S. at 686

(considering “whether the police diligently pursued a means of investigation that was likely

to confirm or dispel their suspicions quickly, during which time it was necessary to detain

the defendant.”).

34

Case: 20-30356 Document: 00516022065 Page: 35 Date Filed: 09/21/2021

No. 20-30356

‘freedom’ stencil.” 30 In other words, after Trooper Curlee arrested Kokesh.

Tucked away in the majority opinion’s fact section is its reasoning why

Trooper Curlee’s first look at the stenciling—the one he took before ever

demanding Kokesh’s identification papers—did not dispel his reasonable

suspicion. Trooper Curlee, in the majority opinion’s words, only “briefly

shined his flashlight . . . onto the site of the alleged pressure washing.” 31

Further, the “distance” between Trooper Curlee’s vantage point and the

“darkness of the night” made it “unclear” if Gizzarelli had been using

“white paint or a pressure washer.” 32

What was clear or unclear from Trooper Curlee’s vantage point given

the context of this case sure sounds like an inference to me. The majority

opinion admits that Trooper Curlee used his flashlight during his first

inspection of the stenciling. But then it infers against Kokesh that the

inspection was too brief, from too far away, and in too-dimly-lit conditions to

confirm that no spray paint was being used. I disagree. As noted above, the

bodycam shows that the highway wall was illuminated by headlights and

streetlights to such a degree that the stenciling was visible even without the

aid of a flashlight. Also, Trooper Curlee used his flashlight to inspect the

stenciling for about two full seconds. In that time the bodycam plainly shows

not a spray-painted wall but a spray-washed wall. That is enough for us to draw

an inference in Kokesh’s favor that Trooper Curlee dispelled his reasonable

suspicion during his first inspection. This is why a jury should decide this

issue. 33

30

Ante at 20.

31

Ante at 5.

32

Ante at 6.

33

Failing to draw inferences correctly has resulted in our reversal before. In Tolan

v. Cotton the district court granted an officer’s immunity-based motion for summary

35

Case: 20-30356 Document: 00516022065 Page: 36 Date Filed: 09/21/2021

No. 20-30356

The majority opinion next introduces a grab-bag of reasons why

Trooper Curlee had reasonable suspicion or some other justification to

demand Kokesh’s identification papers. It claims that Trooper Curlee had

reasonable suspicion that maybe “drugs or alcohol had been involved,” “foul

play existed,” some “of the three men were held against their will,” or

“Kokesh was wanted or the subject of a warrant, given his steadfast refusal

to produce an ID.” 34 Boiled down, the trio’s “immediate intentions” were

unknown to Trooper Curlee. 35 But if any record evidence supports that

Trooper Curlee suspected any of these supposed crimes, the majority

opinion has failed to identify it. In fact, these are just more of the same ex post

rationalizations that the majority opinion uses throughout. And as I explain

more thoroughly below, by rationalizing Trooper Curlee’s actions the

majority opinion draws inferences the wrong way and exceeds our

jurisdiction to boot. And the rationalizations are rather feeble at that. Even

assuming that some or all of them amount to crimes, 36 reasonable suspicion

requires articulable facts. A hunch that a suspicious-looking character surely

must be violating some law in some criminal code somewhere is not good

enough. 37

judgment after he shot a prostrate teenager lying on his parent’s front porch. 572 U.S. 650,

652–53, 655 (2014). A panel of this court affirmed because it credited the officer’s version

of events (that the teenager was shrouded in darkness) over the teenager’s and his father’s

version (that the teenager was not). Id. at 657–58. The Supreme Court reversed, holding

that we had “failed to view the evidence at summary judgment in the light most favorable

to the” non-movant teenager. Id. at 657. Admittedly, Tolan did not involve video evidence.

But it does drive home how we must view the evidence we do have in these cases: in the

light most favorable to the non-movant.

34

Ante at 21.

35

Ante at 21.

36

If they do, the majority opinion fails to provide citations for them.

37

Terry, 392 U.S. at 22.

36

Case: 20-30356 Document: 00516022065 Page: 37 Date Filed: 09/21/2021

No. 20-30356

The majority also seems to conflate Fourth Amendment doctrines. It

says that Trooper Curlee had a “responsibility to continue to investigate and

resolve the situation of a pickup truck stopped on the Pontchartrain

Expressway . . . until the traffic hazard had been abated.” 38 While the

majority opinion does not label it as much, what it is implying is that Trooper

Curlee’s power under the police’s community-caretaking function could

constitutionally trigger Louisiana’s stop-and-identify law. Not so. I’ll

concede what the Supreme Court has made plain: “The authority of police

to seize and remove from the streets vehicles impeding traffic or threatening

public safety and convenience is beyond challenge.” 39 But leaving aside that

Kokesh was neither the truck’s driver nor its owner, the Supreme Court has

also said that stop-and-identify laws are predicated on an officer having at

least reasonable suspicion of criminal activity—in other words, the police’s

criminal-investigation function. 40 Those two functions—community

caretaking and criminal investigation—are “total[ly] divorced” in the

Supreme Court’s eyes. 41 And the majority opinion cites no caselaw

suggesting they’ve since remarried. So Trooper Curlee may have had

authority to order Kokesh and crew to leave the highway shoulder under the

community-caretaking function. But that authority did not extend so far as to

38

Ante at 20.

39

South Dakota v. Opperman, 428 U.S. 364, 369 (1976).

40

See Hiibel, 542 U.S. at 188 (“[A] Terry stop must be justified at its inception and

‘reasonably related in scope to the circumstances which justified’ the initial stop. Under

these principles, an officer may not arrest a suspect for failure to identify himself if the

request for identification is not reasonably related to the circumstances justifying the

stop.”).

41

Cady v. Dombrowski, 413 U.S. 433, 441 (1973).

37

Case: 20-30356 Document: 00516022065 Page: 38 Date Filed: 09/21/2021

No. 20-30356

provide a lawful justification to demand Kokesh’s identification papers as

part of a criminal investigation. 42

Finally, the majority emphasizes how Kokesh “began reading what

would be his Miranda rights when Curlee approached” and “without any

request whatsoever to search . . . announced forthrightly that he did not

consent to a search of any kind.” 43 The majority holds that these “actions”

by Kokesh, “under these circumstances, also generated reasonable

suspicion.” 44 Respectfully, this is a dagger to the heart of the Fourth

Amendment.

Simply put, holding that an officer can form a reasonable suspicion

because a person anticipatorily invoked his constitutional rights 45 creates a

“Catch-22” 46 of constitutional proportions. Police are free to approach

42

That the community-caretaker function cannot trigger Louisiana’s stop-and-

identify law is also why the majority opinion errs in judicially noticing facts about the

Carrollton Overpass. It holds that Federal Rule of Evidence 201(b)—the rule about judicial

notice—gives it authority to do so. See ante at 2, n.3. Not so. As I just explained, it uses

these facts to implicitly and erroneously hold that Trooper Curlee’s role as a community

caretaker could trigger Louisiana’s stop-and-identify law. Without any other purpose these

judicially noticed facts are not “of consequence in determining the action.” Fed. R.

Evid. 401. In other words, they aren’t “relevant” under Rule 401, making them

inadmissible. See Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”); see also

Swindol v. Aurora Flight Scis. Corp., 805 F.3d 516, 519 (5th Cir. 2015) (discussing the district

court noticing “relevant facts”). Therefore, judicial notice is improper.

43

Ante at 19.

44

Ante at 19; see also ante at 21 (“A reasonable officer—indeed a reasonable

person—would wonder in that moment whether drugs or alcohol had been involved; [or]

whether other foul play existed . . . .”).

45

I agree with the majority, see ante at 19, that Kokesh’s anticipatory invocation of

Miranda was ineffective. See McNeil v. Wisconsin, 501 U.S. 171, 182 (1991) (“We have in

fact never held that a person can invoke his Miranda rights anticipatorily, in a context other

than ‘custodial interrogation’ . . . .”).

46

See Joseph Heller, Catch-22 46 (Paperback ed., Simon & Schuster 2004)

(1955) (“[C]oncern for one’s own safety . . . was the process of a rational mind. Orr was

38

Case: 20-30356 Document: 00516022065 Page: 39 Date Filed: 09/21/2021

No. 20-30356

individuals and ask questions, ask for identification, or even ask to conduct a

search. They may do it with no suspicion at all. 47 What keeps these pre-

reasonable-suspicion requests constitutional? Police cannot require

compliance. 48 Individuals are free to “decline the officers’ requests or

otherwise terminate the encounter.” 49 But under the majority’s view, there’s

a catch. As of today, if a vehicle passenger invokes his right not to comply

with an officer’s pre-reasonable-suspicion requests, then that gives the

officer what he lacks: reasonable suspicion. Add in a stop-and-identify statute

like Louisiana’s, and an officer now has a constitutional basis to demand

identification on pain of arrest. The passenger can avoid arrest only by

complying with the officer’s request for identification, which, of course, is

the very kind of forced compliance that the Fourth Amendment guards

against. That cannot be reasonable under the Constitution. 50 And that may

explain why the majority cites no supporting caselaw.

(2)

As for Hiibel’s second prong, the district court found a fact issue

regarding “whether Curlee’s demand that Kokesh provide documentary

identification was reasonably related in scope to the reason for the traffic

stop.” If Trooper Curlee’s request for Kokesh to identify himself related

reasonably to the stop, then Kokesh’s claim might fail. But if it did not, then

crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no

longer be crazy and would have to fly more missions.”).

47

Florida v. Bostick, 501 U.S. 429, 434–35 (1991) (citations omitted).

48

Id. at 435.

49

Id. at 436.

50

U.S. Const. amend. IV (“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated . . . .”).

39

Case: 20-30356 Document: 00516022065 Page: 40 Date Filed: 09/21/2021

No. 20-30356

Kokesh’s claim might succeed. In short, reasonable relatedness might affect

the outcome of Kokesh’s claim. That makes it material. And that makes

summary judgment improper.

The majority opinion, rather than focusing on materiality, implies that

Trooper Curlee had probable cause as to some other crime. Like Louisiana’s

anti-graffiti statute. 51 Or, Louisiana laws relating to operating “portable

pressure washing equipment” and unlawfully “discharg[ing] industrial

wastewater [on] state highways.” 52 Or, using Trooper Curlee’s words,

“illegally stopp[ing] on the shoulder of the road.” 53 But Trooper Curlee does

not make these arguments in his brief. And he did not charge Kokesh with

them after the fact. Rather, the majority has searched the Louisiana criminal

code and inferred that Kokesh might have been guilty of these crimes.

That is a twofold error. First, as a general matter, Article III judges

are not in the business of rummaging through state criminal codes for ex post

justifications supporting officers’ actions. When we do in this context, we are

necessarily making inferences against the nonmovant. This is precisely what

we are forbidden from doing. Second, the majority opinion’s reasoning

collaterally attacks genuineness. Its implicit logical chain is straightforward:

probable cause may have existed for some other crime; it takes probable cause

for only one crime to lawfully arrest; thus, a genuine dispute over whether

Trooper Curlee lawfully arrested Kokesh cannot exist. Maybe. 54 But if we lack

51

Ante at 4 n.5 (quoting La. R.S. 14:56.4).

52

Ante at 5 n.6 (citing LA. R.S. 30:2075, 30:2076.2, 48:385).

53

Ante at 8; see also ante at 9 n.10 (quoting La. R.S. 32:296(A)).

54

Note that Louisiana courts have already clearly established that the stopping-on-

the-highway statute applies only to completely “unattended” vehicles. Minor v. Bertrand,

693 So. 2d 292, 294 (La. Ct. App. 1997) (“Under its clear and unambiguous language,

La.R.S. 32:296(A) is not applicable. As stated in the statute, its applicability is triggered if

the vehicle is unattended.”); see also Hebert v. Maxwell, 214 F. App’x 451, 455 (5th Cir.

40

Case: 20-30356 Document: 00516022065 Page: 41 Date Filed: 09/21/2021

No. 20-30356

jurisdiction to directly review genuineness then we certainly cannot do it

collaterally. Our lone analytical focus is materiality, and we must decide it

solely on what Trooper Curlee “knew at the time.” 55 And what Trooper

Curlee knew when he arrested Kokesh is clear from the video: no paint was

being used; “there’s no law against cleaning something”; Kokesh was not

the driver; and he arrested Kokesh for not turning over identification papers

on demand.

B

Putting everything together, only one question remains: Was

Kokesh’s right to refuse to identify himself clearly established when Trooper

Curlee arrested him? It was.

As we have previously noted, a right is clearly established when its

contours are sufficiently clear to the point that a reasonable official would

understand that his conduct violates it. 56 And as we explained less than a year

ago, that means Kokesh need only “identify a case . . . in which an officer

acting under similar circumstances was held to have violated the

Constitution.” 57

2007) (noting that the statue only applies to unattended vehicles). Leaving aside that

Kokesh neither owned the truck nor drove it, the video plainly shows the truck was never

unattended.

55

Ante at 14 (quoting Cole, 935 F.3d at 456).

56

Turner v. Driver, 848 F.3d 678, 685 (5th Cir. 2017) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

57

Joseph on behalf of Estate of Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020)

(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)) (emphasis added)

(cleaned up).

41

Case: 20-30356 Document: 00516022065 Page: 42 Date Filed: 09/21/2021

No. 20-30356

That case is Johnson v. Thibodaux City. 58 Its facts are straightforward.

An officer spotted a truck driving down the road and recognized its driver.

The officer knew the driver had an outstanding warrant. So, the officer pulled

over the truck, arrested the driver, and then asked the passengers for

identification. Two of them, including Johnson herself, refused. The officer

arrested them both for failing to identify themselves. He justified the arrest

using the very Louisiana stop-and-identify statute at issue in this case. 59 We

held that the officer violated Johnson’s rights under the Fourth Amendment

because the arrest did not meet Hiibel’s test. 60 The officer’s request for

Johnson’s identification “had nothing to do” with his justification for

stopping the truck. 61 Kokesh’s case is similar. He was a passenger in the truck

that Trooper Curlee stopped behind. And, as I’ve already discussed, the

district court found genuine fact disputes on both of Hiibel’s reasonable-

suspicion and reasonable-relatedness prongs. Further, we decided Johnson in

2018. Trooper Curlee arrested Kokesh in 2019. Therefore, Kokesh’s rights

were clearly established when Trooper Curlee arrested him.

The majority opinion erroneously discounts Johnson’s applicability. 62

First, it attempts to distinguish the case by again attacking genuineness. The

majority says that Johnson is inapt since, “[u]nlike Kokesh, Johnson was

merely a passenger in the truck, said not a word to the officer, and took no

action whatsoever prior to the request for identification.” 63 Further, “the

58

887 F.3d 726 (5th Cir. 2018).

59

Id. at 729–30; see also id. at 733 (citing La. R.S. § 14:108).

60

Id. at 733, 735.

61

Id. at 734.

62

See ante at 18–19.

63

Ante at 18.

42

Case: 20-30356 Document: 00516022065 Page: 43 Date Filed: 09/21/2021

No. 20-30356

truck’s occupants in Johnson were not violating any laws or traffic

regulations” prior to the stop. 64 These are all immaterial distinctions. The

touchstone is similar. Not identical. 65 Johnson did not turn on how the officer

wound up behind a stopped truck. It turned entirely on the officer lacking

reasonable suspicion for the passenger—precisely the fact that the district

court here found to be genuinely disputed.

That brings me to the second way the majority tries to distinguish

Johnson. As I’ve already pointed out, the majority collaterally attacks

genuineness by holding that Trooper Curlee had independent reasonable

suspicion to request Kokesh’s identification papers. And since the officer in

Johnson did not, voilà—a distinction. But the majority’s distinction does not

work here. It can find it only after collaterally attacking genuineness and

drawing inferences against Kokesh. Because we have neither jurisdiction to

make our own appellate fact-findings in this context, nor authority under the

Federal Rules to draw inferences against Kokesh, I need not address it

further.

IV

When it comes to Kokesh’s retaliatory arrest claim, Kokesh needed to

first establish the absence of probable cause. 66 If he did, then he still had to

“show that the retaliation was a substantial or motivating factor behind the

arrest, and, if that showing is made, the defendant can prevail only by

showing that the arrest would have been initiated without respect to

64

Ante at 18.

65

Juarez v. Aguilar, 666 F.3d 325, 336 (5th Cir. 2011) (“That this court has not

previously considered an identical fact pattern does not mean that a litigant’s rights were

not clearly established.”).

66

Nieves v. Bartlett, 139 S. Ct. 1715, 1725 (2019).

43

Case: 20-30356 Document: 00516022065 Page: 44 Date Filed: 09/21/2021

No. 20-30356

retaliation.” 67 Kokesh claims that “Curlee arrested and seized Kokesh in

retaliation for Kokesh’s use of a camera to record Curlee’s public activities.”

The district court, for its part, found that fact issues swirled around whether

Trooper Curlee had probable cause to arrest Kokesh. And those material

disputes precluded summary judgment on Kokesh’s First Amendment

retaliation claim. I agree.

A

In Turner v. Driver, we held that the “First Amendment right to

record the police does exist, subject only to reasonable time, place, and

manner restrictions.” 68 Suppose that Trooper Curlee had probable cause to

arrest Kokesh for a lawful reason. That “should generally defeat” Kokesh’s

retaliatory arrest claim since it would discount a retaliatory motive. 69 A

defense that generally defeats a claim certainly might affect its outcome.

Therefore, whether Trooper Curlee had probable cause is material to

determining if he violated Kokesh’s right to record the police.

The majority acknowledges that probable cause goes right to the heart

of a First Amendment retaliation claim. 70 But it wires around materiality by

doing precisely what it lacks jurisdiction to do: rejecting that this dispute is

genuine—in fact, branding it “frivolous.” 71 It spends pages building up an

inference that Trooper Curlee could not possibly have had a retaliatory

67

Id. (cleaned up).

68

848 F.3d at 688.

69

Nieves, 139 S. Ct. at 1727.

70

Ante at 22.

71

Ante at 22. Frivolous is not a word to be used lightly since it implies sanctionable

conduct. See Conner v. Travis Cnty., 209 F.3d 794, 801 (5th Cir. 2000) (per curiam) (“[W]e

can sanction an appellant for a frivolous appeal sua sponte . . . .”). As far as I can tell,

Kokesh’s arguments are anything but.

44

Case: 20-30356 Document: 00516022065 Page: 45 Date Filed: 09/21/2021

No. 20-30356

motive. He had already switched on his bodycam. 72 He did not attempt to

stop Kokesh from recording him. 73 Plus, Trooper Curlee’s insistence on

seeing an “official means of identification” from Kokesh was reasonable

since only people “with something to hide” would refuse to identify

themselves. 74 Perhaps a jury would agree. Perhaps not. And that’s the point.

Again, we must draw inferences in Kokesh’s favor, not Trooper

Curlee’s. And here, a jury could infer that “retaliation was a substantial or

motivating factor behind the arrest.” 75 That’s because the first time Curlee

saw Kokesh recording a video, he asked Gizzarelli if the men were trying to

get attention. Then, as Curlee was demanding to see Kokesh’s identification

papers, Curlee stated: “Is this what y’all do? Videotape the police?” And

Curlee later told Kokesh: “I don’t come out here to play games, bro. Oh,

serious games like the one you were playing? You don’t know what I do, bro.

I do this for a living. I can’t hear you. You don’t need to talk no more, bro.”

A jury could find a retaliatory motive on these facts.

B

Turning to qualified immunity’s second inquiry—whether a

constitutional right was clearly established—we did more in Turner than

simply declare that the right to record police exists. We also cemented that it

was clearly established from then on. 76 As Turner was decided in 2017 and

Kokesh was arrested in 2019, 77 that made Kokesh’s rights clearly established

72

Ante at 23.

73

Ante at 23.

74

Ante at 23.

75

Nieves, 139 S. Ct. at 1725 (cleaned up).

76

Turner, 848 F.3d at 687–88.

77

Ante at 2.

45

Case: 20-30356 Document: 00516022065 Page: 46 Date Filed: 09/21/2021

No. 20-30356

at the time Trooper Curlee arrested him. Since that’s the case, and because

there are genuine disputes of material fact as to whether Trooper Curlee

violated this right, the conclusion is apparent: Trooper Curlee is not entitled

to summary judgment on this claim.

V

The Big Easy does not hide crazy, the saying goes; it parades it down

the street. This is a peculiar case, no question. But just because facts are

passing strange does not mean government’s response to those facts passes

muster. Trooper Curlee was not limited to “wish[ing] the three gentlemen a

nice evening . . . and driv[ing] away into the dark night.” 78 He had a safer,

simpler option: ordering Kokesh and crew to beat it. 79 Instead, Trooper

Curlee conducted a criminal investigation that arguably violated Kokesh’s

constitutional rights.

The district court got this case right. Genuine disputes of material fact

surround Kokesh’s Fourth and First Amendment claims. As odd as this case

is, I cannot conclude that Trooper Curlee acted constitutionally. Nor can I

conclude the opposite. All I can conclude is that a jury should decide.

78

Ante at 19 n.12.

79

See Opperman, 428 U.S. at 369 (“The authority of police to seize and remove

from the streets vehicles impeding traffic or threatening public safety and convenience is

beyond challenge.”).

46